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The Industrial Disputes Act, 1947
Section 33C(2) in The Industrial Disputes Act, 1947
Article 227 in The Constitution Of India 1949
Article 226 in The Constitution Of India 1949

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Orissa High Court
Khurda Central Co-Operative vs Unknown on 3 March, 2012

ORISSA HIGH COURT, CUTTACK

O.J.C. No.2130 of 2001,

O.J.C. No.3441 of 2000

&

W.P.(C) No.6606 of 2003

________________________________

In the matter of an applications under Article 226 and 227 of the Constitution of India.

--------------

In O.J.C. No.3441 of 2000

Khurda Central Co-operative

Bank Ltd. ...... Petitioner -Versus-

Presiding Officer, Labour Court

Bhubaneswar and another ...... Opp. Parties For Petitioner : M/s. K.N.Jena, D.K.Mohapatra & M.Ganguly.

For Opp. Parties 1 and 2:Addl. Government Advocate For Opp. Party No.3 : M/s. S.K.Sahoo, M.Mohapatra, B.B.Biswal & A.K.Pattanaik

In O.J.C. No.2130 of 2001

Sri Banabihari Tripathy (Workman)

and after his death his mother

Dinamani Bewa ...... Petitioner

-Versus-

The Management of Khurda

Central Co-operative Bank Ltd.

and another ...... Opp. Parties For Petitioner : M/s. S.K.Sahoo, M.Mohapatra, B.B.Biswal & A.K.Pattanaik

For Opp. Parties : M/s. Addl. Government Advocate 2

W.P.(C) No.6606 of 2003

Khurda Central Co-operative

Bank Ltd. ...... Petitioner -Versus-

P.O. Labour Court, Bhubaneswar

& others ...... Opp. Parties For Petitioner : M/s. K.N.Jena, D.K.Mohapatra & M.Ganguly.

For Opp. Parties 1 and 2:Addl. Government Advocate For Opp. Party No.3 : M/s. S.K.Sahoo, M.Mohapatra, B.B.Biswal & A.K.Pattanaik

---------------

PRESENT:

THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY

------------------------------------------------------------------------------------- Date of Judgment : 03.03.2012

------------------------------------------------------------------------------------- I. Mahanty, J. These three cases having been filed between the same parties arising out of a common award, on the consent of the learned counsel for the respective parties, the matters were heard together and are being disposed of by this common judgment.

2. In O.J.C. No.3441 of 2000, the petitioner-Khurda Central Co-operative Bank Ltd. has sought for setting aside/quashing of the Award dated 22nd November, 1999 passed by the Labour Court, 3

Bhubaneswar in I.D. Case No.194 of 1991. In this award, directions have been given to the following effect:

"That the action of the management of

Khurda Central Co-operative Bank, Khurda in terminating the services of Sri Banabihari Tripathy, Ex-Accountant with effect from 11.9.80 in their order No.2860 dated 10.9.1980 is neither legal nor justified. The workman Sri Tripathy is deemed to be in service till the date of his retirement and entitled to get all service and financial benefits including the back wages till the date of his retirement on superannuation subject to the final decisions of any pending dispute as well as realization of any mis-appropriation amount if any from the workman. The management is directed to implement this Award within three months from the date of publication in the official Gazette, failing in which the amount shall carry interest at the rate of 6 percent per annum till its realization."

The essence of the challenge in this case was to the effect that opposite party no.3-Banabihari Tripathy (deceased), in whose favour an award was passed, was not a workman and hence, both the references as well as the award of the Labour Court is erroneous and ought to be quashed.

3. In O.J.C. No.2130 of 2001, the deceased workman, Banabihari Tripathy has sought to challenge the self-same award impugned in an earlier writ petition to the limited extent of seeking deletion of the condition imposed in the said order making the award in favour of the workman.

4. In W.P.(C) No.6606 of 2003, the petitioner-Khurda Central Co-operative Bank Ltd. has sought to challenge the award dated 4

26.2.2002 passed by the Labour Court, Bhubaneswar in favour of the opposite party-workman in I.D. Misc. Case No.70 of 2000 as well as the order dated 24.5.2003 passed in Restoration Misc. Case No.28 of 2002.

5. In these cases as noted hereinabove, it becomes necessary to take note of the facts that Late Banabihari Tripathy (workman) had been appointed as "Ledger Clerk" under the management of Khurda Central Co-operative Bank Ltd. on 12.12.1958. It appears thereafter that, he was promoted to the post of Assistant Accountant and was reverted on 4.11.1966 without initiating any disciplinary proceeding. It appears that the workman also placed under suspension w.e.f. 5.11.1966 and no subsistence allowance was paid till the services of the workman terminated w.e.f. 11.9.1980. It is the order of termination which is the subject matter of preference to the Labour Court by the Government of Orissa in the Labour and Employment Department who by order dated 31.8.1991 in exercise of the powers conferred by Sub-Section (5) of Section 12 read with Clause-(d) of Sub- Section (1) of Section 10 of the Industrial Disputes Act issued directions to the Labour Court referring to the following issues for determination:

"Whether the action of the management of Khurda Central Co-operative Bank, Khurda in terminating the services of Sri Banabihari Tripathy, Ex-Accountant with effect from 11.9.1980 in their order No.2860 dt.10.9.80 5

is legal and or justified ? If not to what relief is the workman entitled ?"

This reference was registered as Industrial Dispute Case No.194 of 1991 which ultimately came to be disposed of and passed award on 22nd November, 1999 with the directions as noted hereinabove. On perusal of the impugned award passed in Industrial Dispute Case No.194 of 1991, it appears therefrom that two issues were framed, which are noted hereinbelow:

(i) Whether domestic enquiry conducted by the management against the workman was fair and proper?

(ii) Is the punishment of termination of services with effect from 11.9.80 proportionate ? If not, to what relief ? Both the above noted issues were answered in favour of the workman leading to the order being passed which is quoted hereinabove. It is most important to note herein that the Tribunal reached its final on the issues framed for the following reasons: "7. In the instant case it has been categorically stated by the workman that after receipt of the charges, he moved the management to supply the copies of the relevant documents enabling himself to submit his explanation under Ext.3. The management expressed their inability to provide the copies of the documents under Ext.4 on the ground that the relevant records and files were seized by the Sub-Inspector, Vigilance for investigation of the mis-appropriation case and the workman was asked to approach the vigilance authority. Accordingly the workman had approached the Vigilance Inspector on 30.4.68, but the Vigilance Inspector did not supply the documents as he was not authorized to do so. The workman has intimated this fact to the management 6

on 2.5.68 under Ext.5. The workman has testified that due to non-supply of documents he could not go through the relevant papers. The management has not led any evidence to the effect that utmost care was taken by it to supply the relevant documents relating to the charges to the workman. It appears that except intimating the informant regarding seizure of relevant documents by the vigilance authorities, practically the management did not take any tangible steps to procure and supply the documents even after disposal of the criminal cases. Non-supply of the documents would certainly tentamounts violation of principles of natural justice. Besides this it is also evident from the testimony of the workman that after he was asked to participate in the personal hearing, the names of the witnesses as well as the name of the Enquiry officer were not intimated to him and none of the witnesses from the side of the management was examined in his presence and he was not allowed to give defence evidence. The management has not adduced any rebuttal evidence on the above score. Thus it is clear that the manner under which the enquiry was conducted is a blatent violation of principle of natural justice as enunciated in the aforesaid decisions. Besides this, the management did not serve the findings and suggestion of the Enquiry Officer on the workman. The workman, on the other hand, has categorically stated that no enquiry Officer was appointed and no enquiry was conducted against him. Although the management has examined three witnesses but no material on the above score were produced by the management. Thus the actions of the management in the above proceeding becomes vulnerable due to non- compliance of the aforesaid minimum principles of natural justice. It is also evident that the management did not pay any subsistence allowance to the workman during the suspension period which also amounts to violation of principles of natural justice. In this regard reliance has been placed on a decision reported in A.I.R. 1989 S.C. Page 985 P.L.Saha Vrs. Union of India and another."

6. The aforesaid fact itself is adequate to justify to award in favour of the workman since it appears therefrom that all the principles of natural justice have been elaborately explained in order to give the 7

workman his subsistence allowance. The Hon'ble Supreme Court in various judgments has categorically stipulated that in order to deal with the subsistence allowance, the workman should be paid some amount to be effectively incapacitated to maintain himself and the members of his family and also to meet the expenses of the litigation but in the present case, the management appeared to justify all violations of natural justice including non-payment of subsistence allowance which is totally unacceptable for this Court. In course of the departmental proceeding, the workman had called upon by the management to provide all the documents on the basis of which the departmental proceeding has been purportedly initiated. Admittedly, these documents were never provided to the workman, inter alia, on the plea that the said documents were in possession of the Vigilance Department. As noted by the Tribunal, it appears that the workman went from door to door seeking such documents and even approached the Vigilance authorities but to no avail even after conclusion of the criminal trial.

7. The management of the Khurda Central Co-operative Bank Ltd. sought to justify their inaction in this regard by claiming that the workman would have obviously got the necessary documents from the police in the form of police papers in course of criminal trial. This contention should be rejected since it is obligatory on the part of the management to provide the delinquent with the documents of which they 8

intent to proceed against the said delinquent and cannot be permitted to evade or avoid such responsibility claiming that the delinquent-workman could have obtain such documents from some other sources. This stand of management is totally unknown to law.

8. Apart from the said fact, the management admits that no subsistence allowance was paid to the workman from the date of suspension i.e. 5.11.1966 and ultimate termination with effect from 11.9.1980. Effectively for a period of more than 14 years the workman was not provided with the documents. This is clearly a very sorry state of affairs which cannot be accepted in law. Apart from the above, to make the matter even worse, as the Tribunal has come to a finding that the management witnesses were examined in course of the departmental proceeding but were not examined neither in the presence of the delinquent nor to his notice. This is a further ground of which the Tribunal reached its finding that the domestic enquiry conducted by the workman was totally unfair, improper and violation of the principles of natural justice. In totality of the circumstances, it is clear therefrom and the findings of the Tribunal which is fully justified in reaching conclusions that there is no justifiable reasons in interfering with the writ of certiorari.

9. Insofar as the issue as to whether Late Banabihari Tripathy was a workman or not cannot be permitted once again since in an earlier 9

writ application, i.e. in O.J.C. No.5709 of 1993, the management has sought to raise such question before this Court and the same was dismissed by order dated 24.12.1993 with an observation that "if the management (bank) makes an application before the Labour Court to decide preliminarily as to whether Late Banabihari Tripathy is a workman or not, it shall be open for the Labour Court to decide his case as per the provisions under the I.D.Act and if decides that he is a workman, then the Labour Court should proceed with the matter". It is an admitted case between the parties that both the parties had addressed to the Labour Court on this issue and the Labour Court vide order dated 9.5.1995 came to hold that Banabihari Tripathy was a workman and that the Labour Court shall competent forum for deciding his case. This is important to note herein that all the contentions of the management as well as workman have been taken into consideration by the Labour Court vide order dated 9.5.1995 holding opposite party-Banabihari Tripathy as a "workman". It is relevant to note herein that the said order has never challenged by the management and hence, the said order remains binding and the management cannot be permitted another opportunity once again to raise such a new issue before the High Court in the writ of certiorari. In the facts of the present case, admittedly, the workman was working as an Accountant and no contention on the part of the management ever rose before the Tribunal 10

that the opposite party-deceased Banabihari Tripathy was not a workman as defined under the I.D. Act. It is well settled that in a certiorari proceeding, no party can be allowed to raise new grounds on the finding arrived at by the Tribunal.

10. Hence, in my considered view the same is wholly justified and accordingly, O.J.C. No.3441 of 2000 stands dismissed and the award dated 22nd November, 1999 under Annexure-1 passed by the Labour Court in I.D. Case No.194 of 1991 stands affirmed.

11. Insofar as OJC No.2130 of 2001 is concerned, the workman- Banabihari Tripathy had sought to challenge the self-same award to the limited extent of seeking deletion of the condition imposed in the order based on the award dated 22.11.1999 passed in I.D. Case No.194 of 1991.

In view of the finding arrived at hereinabove and further, considering the fact that the workman had himself initiated a proceeding under Section 33-C(2) of the I.D.Act before the Labour Court, Bhubaneswar which was registered as Industrial Dispute Misc. Case No.70 of 2000, the writ petition (OJC No.2130 of 2001) merits no further consideration and accordingly, the same is dispose of as infructuous.

12. Insofar as W.P.(C) No.6606 of 2003 is concerned, wherein the petitioner-Khurda Central Co-operative Bank Ltd. has sought to challenge the ex-parte order dated 26.02.2002 passed by the Labour 11

Court in Industrial Dispute Misc. Case No.70 of 2000 as well as the order dated 24.5.2003 passed in Restoration Misc. Case No.28 of 2002, since the clarification of the dues of the workman has been made ex-parte and although this Court is not fully satisfied for the reasons given by the management for their absence yet, for the ends of justice this Court is of the considered view that the order dated 24.5.2003 passed in Restoration Misc. Case No.28 of 2002 under Annexure-1 to the writ petition as well as the ex-parte order dated 26.2.2002 passed by the Labour Court, Bhubaneswar in Industrial Dispute Misc. Case No.70 of 2000 is quashed. Only to afford an opportunity to the management to proceed with the matter, I direct the Labour Court to issue notice to the concerned parties to appear before it within a period of one month from the date of receipt of certified copy of the judgment and conclude the petition filed under Section 33-C(2) of the I.D. Act positively within a period of three months thereof. It is further directed that such compliance report be send to the Registry of this court.

.........................

I.Mahanty, J.

ORISSA HIGH COURT : CUTTACK

3rd March, 2012/RKS