D.P.Kundu, J. - (1.) The petitioner, a workman, in this writ proceeding has challenged the award passed by the 1st Labour Court, West Bengal on October 4, 1989 in case No. VIII-C-9/86. By an order dated July 22, 1999. I requested Mr. Dipak Kumar Ghosh, advocate to act as Amicus Curiae without any remuneration and Mr. Ghosh very kindly agreed to act as Amicus Curiae. At the time of final hearing of the matter the learned advocate for the workman did not appear but Mr. Ghosh, advocate assisted the Court by arguing the case. None appeared to argue the case on behalf of the respondents.
(2.) The petitioner while working as a workman in National Jute Manufactures Corporation (A Government of India Undertaking) (hereinafter referred to as the Corporation) in Winding Department, by a charge-sheet dated April 17, 1998 the following charges were levelled against the petitioner: "You are hereby charged with disobedience and disorderly behaviour during working hours at the establishment in that on April 15, 1982 at 6 A.M. Shri P.K. Bakshi (Sn. Asst.) your superior officer instructed you to operate the Cop Winding M/c. No. 10 but inspite of his instructions you did not deliberately comply and refused to obey the said order. Moreover when Shri P.K. Bakshi wanted to know the reasons for which you did not operate the M/c No. 10, you gave arrogant and insolent reply in a very rough manner in presence of some other workmen and you said that "I will not operate the M/c as per your order. I will operate the M/c according to my own choice and if you do not allow me to operate the M/c as per my choice, I will assault you in the department". Again at 2 P.M. when you resumed your duty, you were instructed to operate the said M/c No. 10 by your superior Shri Tapan Das (Assistant) but you repeated your same conduct of- denying to comply with the reasonable instructions. Further, when under instruction of Shri P.K. Bakshi and Tapan Das Shri Kurban MK/2785 counselled you to comply with the said instructions, you abused the said Shri Kurban and also assaulted him inside the department in presence of other workers. You are charged with the above offence. which is to be treated as misconduct under Rule 14 (c) (i) and (viii) of the Standing Orders. You are hereby required to explain the said circumstances alleged against you within 48 hours." It appeals that the charge-sheet was issued by the Senior Assistant of the Corporation. It further appears that on April 20, 1982 the workman in his reply to the charge-sheet stated as follows: "Most respectfully and humbly I beg to draw your kind attention to the following facts for your kind and favourable consideration: On August 15, 1981 I was admitted in the N.R.S. Medical College\Hospital (Emergency Room), Calcutta due to stab injuries and remained there fifteen days for treatment. Again I was admitted to S.S.K.M. Hospital for further proper treatment. I possess all the documents in connection with my treatment. Since the date of injury and still now I am feeling too much weak for which I am really unable to operate the heavy machines. On April 15, 1982 when Shri P.K. Bakshi advised me to operate the machine No. 10, I very politely requested him that due to my weakness I am unable to operate the same. I am always bound to carry out the order of my superior officer, and I cannot refuse to perform my duty. I explained politely before the officer to consider my present physical condition. I hope you will kindly realise my position as stated above. Further I hope and pray that your honour would be pleased to withdraw suspension and for this act of your kindness I shall remain ever grateful to you."
(3.) By a letter dated July 6, 1983 the workman was dismissed from service. The relevant portion of the order of dismissal reads as follows: "Further to the charge-sheet and letter of suspension issued to you on April 17, 1982, an enquiry has been instituted about the charges levelled against you on April 25, 1983 and April 27, 1983. I have carefully gone through the proceedings of the enquiry, all connected papers and findings of the enquiry officer and find that you fully participated in the enquiry by cross-examining Management, witnesses and examining your witnesses in defence. I being the disciplinary authority, now concur with the findings of the enquiry officer that the charges levelled against you for misconduct under Section 14 (c) (i) and (viii) of the Standing Orders of the company have been adequately proved. The charges levelled against you and proved against you at the enquiry, being grave and serious and in consideration of your past record of misconduct, the punishment warranted in terms of the Standing Orders of the company is that of dismissal from the Company's service. You are therefore dismissed from the services of the company with effect from August 1, 1983. You are advised to collect all your dues, if any from the Mill Security Office on any working day with prior intimation to the Management." The said order of dismissal was issued by the Manager of the Corporation. From paragraph 8 of the affidavit-in-opposition filed on behalf of the respondents No, 2 and 3 it appears that Shri P.K. Bakshi, Senior Assistant of the Corporation was present at the enquiry all along, first as a witness and thereafter as company's representative. The respondents No. 2 and 3 in their affidavit-in-opposition in paragraph 8, inter alia, stated: "Shri P.K. Bakshi, Senior Assistant of the Company was also present at the enquiry all along, first as a witness and thereafter as Company's representative." It appears from the charge-sheet that Shri P.K. Bakshi, Senior Assistant issued the charge-sheet against the workman.;