LUDHIOW JUTE CO LTD Vs. NANDA KUMAR SINGH

JUDGEMENT

(1.) THIS Rule is directed against the award passed by the Seventh Industrial Tribunal- West Bengal, in Case No. VIII 44/75. The award is Annexure "G" to the writ petition. It appears that the respondent No. 1 Sri Nanda Kumar Singh was a durwan of M/s. Ludhlow Jute Co. Ltd. and he was charge sheeted under sub-clauses (viii) and (ix) of c 14 (c) of the Standing Orders of the company. The said durwan submitted his written explanation, but the management not being satisfied with the explanation held a domestic enquiry. The said Sri Singh, however, did not examine any witness and/or cross-examine any of the witnesses examined by the company. The enquiring officer found the said Sri Singh guilty of the charges and submitted a report. The said report was accepted by the management of the company and Sri Singh was dismissed from service. An industrial dispute was thereafter raised by the union and a reference was made by the Government of West Bengal to the Seventh Industrial Tribunal, West Bengal, for deciding the issue to the following effect:

(2.) MR. Dutta, the learned counsel appearing for the petitioner, company, contends that after the amendment of the Industrial Disputes Act by incorporation of S. 11 A, the Tribunal has the authority to re-assess the evidence adduced before the domestic Tribunal and/or before the Industria Tribunal and on such re-assessment, the Tribunal can decide as to whether or not an order of dismissal was justified. The Tribunal has also power to give an award imposing lesser punishment if the Tribunal is satisfied from the facts and circumstances of the case that the punishment was harsh and disproportionate to the guilt committed by the concerned employee, MR. Dutta, however, contends that although the Tribunal has such power to minimise the punishment in certain circumstances, it has a duty to consider the evidences and materials on record objectively and to give cogent reasons as to why the Tribunal is inclined to give lesser punishment to the concerned employee. MR. Dutta contends that in the instant case, the Tribunal on consideration of the materials on record and evidences adduced in the domestic enquiry; came to the finding that there was no victimisation of the concerned employee and the domestic enquiry was conducted properly and all reasonable opportunities of being heard were given to the said employee. MR. Datta submits that having held that the domestic enquiry was quite fair and reasonable, the Tribunal should not have passed the award by changing the punishment of dismissal without giving proper reasons. He contends that the Tribunal mechanically came to the finding that punishment was oppressive and harsh and as such lesser punishment should be awarded to the employee. In this connection. MR. Dutta refers to a decision made in the case of Hind usthan Steel Ltd. v. A. K. Roy, [1970-1 L L. J. 228]. It has been held in the said decision that if the Tribunal mechanically exercises its discretion with- out weighing the circumstances, then there was no exercise of discretion. If a statutory Tribunal exercises its discretion on the basis of incorrect consideration and without regard to relevant consideration, a writ of certiorari may be issued properly to quash the order. MR. Dutta contends that the concerned employee being a durwan was required to discharge his duties and functions properly and the dereliction of duty since , found by the domestic Tribunal warranted a punishment of dismissal because a person who had been entrusted with the responsibility of keeping watch on the company's property could not be permitted to misuse the trust and the responsibility imposed upon him. MR. Dutta contends that the nature of dereliction of duty in the instant case reasonably permitted the company to dismiss the employee and it was not proper on the part of the Tribunal to allow reinstatement of the petitioner by imposing a lesser punishment. He contends that the discretionary power under S. 11A of the Industrial Disputes Act was exercised by the Tribunal without weighing the circumstances and such mechanical exercise of discretion amounted to a gross failure of justice. In this connection MR. Dutta refers to a decision of the Supreme Court made in the case of M/s. Francis Kleid and Co. (P) Ltd. v. Their Workmen, [1971-11 L. L. J. 613]. In the said case, the durwan of the company was dismissed on the allegation that he failed to give assistances when called upon to do so when somebody was stealing the company's property. The Supreme Court has held that where an employer has lost confidence in his employee particularly in respect of a person who was discharging an office of trust and . confidence, there could be no justification for directing his reinstatement. The importance of the post of durwan was noted by the Supreme Court in the said decision and it was held that the post of a durwan in the . industrial concern where valuable property, both manufactured goods and assets, required to be guarded, was a post where trust and confidence of the company were to be maintained and if a durwan had failed to give assistance in apprehending a the if, the refusal by the durwan was certainly an act which had justified the employer in losing confidence in him. MR. Dutta submits that the Tribunal in the instant case erred in proceeding on the footing that the loss suffered by the company for the dereliction of duty of the concerned employee was only to the tune of Rs. 100- He contends that the quantum of loss had no bearing. He submits that the Tribunal having upheld the findings of the domestic enquiry that the durwan had failed to discharge his duties and functions for which the company had lost two barrels the Tribunal should , not have directed for reinstatement of the durwan, thereby compelling the comany to take back a durwan who admittedly failed to perform his duties and functions and on whom the company had lost confidence. MR. Dutta also in this connection refers to another decision of the Supreme Court made in the case of the Workmen of M/s. Firestone Tyre and Rubber Co. of India (P) Ltd. v The Management, [1973-1 L. L. J. 278]. In para- graph50 of the said decision, it was observed by the Supreme Court that the Supreme Court was not laying down in the said decision any proposition that there would be no obligation whatsoever on the part of an employer to hold an enquiry before passing ano.der of discharge or dismissal. It was pointed out that the Supreme Court had consistently held that an employer was expected to hold 0 a proper enquiry according to the Standing Orders and principle of natural justice and such enquiry should not also be an empty formality. The Supreme Court held in the said decision that if a proper enquiry was conducted and a correct finding was arrived at regarding the misconduct, the Tribunal, even though it had power to differ from the conclusions arrived at by the management under the provisions of S. 11A of the Industrial Disputes Act, was required to give every cogent reason for not accepting the view of the employer. If the employer had held a proper enquiry the employer would also escape the charge of having acted arbitrarily or mala fide. Further, it would also enable the employer to persuade the Tribunal to accept the enquiry as proper and the finding also as correct. Referring to the said decision, "MR. Dutta contends that having held proper domestic enquiry, the employer on the basis of the findings made in the domestic enquiry, found the concerned durwan guilty of dereliction of his duties resulting in the loss of property of the company. The company thereafter considered the magnitude of the offence committed by a personnel of watch and ward staff and passed the order of dismissal. MR. Dutta contends that the Tribunal had also held that the domestic enquiry was held fairly and properly and there was no spirit of victimisation on the part of the employer. MR. Dutta also contends that the loss of confidence in the durwan is implicit in the facts of the case and the order of punishment of dismissal. In the aforesaid circumstances, it was not proper on the part of the Tribunal to pass an order of rein- statement without considering the special feature of the case, namely, as to whether or not it would be proper to reinstate a durwan who was guilty of dereliction of duty resulting in loss of the property of the company. MR. Dutta contends that by the said order of reinstatement the company was compelled to take beck and reinstate the durwan although the company lost confidence in such a durwan in the proved facts and circumstances of the case.

(3.) BY way of abundant caution, it is made clear that after considering the facts and circumstances of the case the Tribunal will be quite free to decide as to whether or not the punishment inflicted on the durwan was reasonable or whether or not a lesser punishment is required to be given to the concerned durwan and and it is also made clear that this Court has not expressed any opinion on the question of punishment of the concerned employee. The Rule is accordingly disposed of. There will be no order as to costs.