- (1.) This appeal by special leave is directed against the judgment and order dated September 18, 1970 of the High Court of Assam and Nagaland passed in Civil Rule No. 236 of 1967 filed by the present appellant.
(2.) The facts giving rise to this appeal are : Shri Naresh Kumar Ganguli, respondent No. 2 (hereinafter referred to as 'the respondent') was employed in the Borpukhurie Tea Estate belonging to Bishnauth Tea Company Ltd., (which is engaged in the cultivation and manufacture of tea and employs a large number of workmen of various categories to carry on its business) as a 2nd Clerk and was recognised as a (Protected Workman) within the meaning of S. 33 (3) of the Industrial Disputes Act, 1947, (hereinafter referred to as 'the Act'). On September 11, 1969, the Company's cheque No. 53 which allegedly bore the forged signatures of the Manager of the Borpukhurie Tea Estate was encashed from a local banker. On enquiry Mansid Munda, the factory chowkidar stated that the cheque was cashed under instructions of the respondent and proceeds thereof amounting to Rs. 680/- were handed over to the latter at the garden office. As the act of the respondent prima facie constituted a grave misconduct under Clause 10 (a) (2) of the Standing Orders of the Establishment, a charge sheet was served on him on September 19, 1966 accusing him of obtaining money through Mansid Munda from the local banker by forging the Manager's signatures on the aforesaid cheque and calling upon him to submit his explanation in regard thereto which he did on September 22, 1966. As the explanation tendered by the respondent (which was one of denial) was found to be unsatisfactory, an enquiry into the charge was held by Mr. R. R. L. Pennell, Superintendent of the Company. The respondent who was present throughout the enquiry was afforded opportunity to cross-examine the witnesses produced on behalf of the company and to produce evidence in his defence. At the conclusion of the enquiry, the Enquiry Officer submitted his report stating therein that the material adduced in the course of the enquiry proved that the respondent was guilty of grave misconduct as envisaged by the aforesaid clause of the Standing Order. The Management, therefore, decided to dismiss the respondent. As the respondent was a workman and an industrial dispute, being reference No. 35 of 1964 was pending before the Industrial Tribunal, Assam at Gauhati, the Management could not straightaway dismiss the respondent. Accordingly, by its letter dated November 10, 1966, the Management informed the respondent that he had been found guilty of the charge contained in the charge-sheet served on him on September 19, 1966, and that he would be dismissed from service of the Company but that the punishment would not be put into effect pending orders of the competent authority under S. 33 of the Act, and in the meantime, he would remain under suspension. The communication dated November 10, 1966 written on behalf of the appellant to the respondent ran as under :- "Shri N. K. Ganguli, 2nd Clerk, Borpukhurie T. E. P. O. Charali. Dear Sir, You are hereby informed that you have been found guilty after due hearing of your case as prescribed by the Standing Orders, of the charge served on you in my letter of the 19th September, 1966. You are accordingly informed that you will be dismissed from the service of the company. This punishment will not be put into effect pending orders of the competent authority under S. 33 of the Industrial Disputes Act, 1947 and in the meantime you will remain under suspension. As my enquiry into the charge against you has concluded, you will not receive any subsistence allowance during this period of suspension. Yours faithfully, Sd/- W. P. Swer Assistant-incharge."
(3.) On the same date, an application was made by the Management before the Presiding Officer, Industrial Tribunal, Gauhati under S. 33 (2) of the Act. On November 17, 1966, the respondent addressed the following communication to the Manager of the Borpukhurie Tea Estate :- "The Manager, Borpukhurie Tea Estate, Charali P. O. Sir, It appears to me from your letter dated 10-11-1966, that I am not yet dismissed, only I have to be on suspension without pay till you receive any decision from the authority. So, as I am not yet dismissed, you will allow me to avail the privilege in connection, with any service with the Company as below and other if there are (1) Ration "Rice and Atta" (as per staff ration rate); (2) Tea "Free of cost" (Still I am due to get a month ration); (3) Fire-wood "Free of cost" (already to get for the further months of the year). 3. I will be happy of your early action in this matter, Soliciting an early confirmation. Yours faithfully, Sd/- N. K. Ganguli 2nd Clerk.";