FARID HOSSAIN Vs. NATIONAL INDUSTRIAL TRIBUNAL

JUDGEMENT

(1.) The writ petitioner was a workman of Indian Airlines (hereinafter the authorities). That on 8.4.96 the petitioner went to Bangkok. After reaching Bangkok the petitioner was arrested by the local police on the charges of smuggling, sued in a Criminal Court, convicted, as he could not prefer appeal due to paucity of funds served the sentence and came back to Calcutta. While in Bangkok he was not conversant with the local language, he could not conduct his case properly. Being in difficulty he sought the assistance of the authorities which was refused. After returning the petitioner was allowed to join his duty. Thereafter, on 19.6.97 the petitioner was served with a show cause notice intimating as to why proposed punishment of dismissal should not be imposed on the petitioner since according to the authorities the petitioner committed a serious misconduct and was convicted in a Court of Law for a criminal offence amounting to moral turpitude. In reply to the said show cause the petitioner submitted it would not be just and proper to place the petitioner under dismissal in terms of Clause 28(32) of Standing Orders for factory workers of the authorities as the petitioner was never convicted for any alleged criminal offence involving moral turpitude. Clause 28(32) of the Standing Orders is reproduced hereunder: "32. Conviction in any Court of Law for any criminal offence involving moral turpitude."

(2.) The jurisdiction of the authority to dismiss the petitioner without holding any formal domestic enquiry was also questioned. Ultimately, the authorities dismissed the petitioner from service. The petitioner by letter dated 31.7.97 was intimated of such dismissal. It was also intimated that as certain proceedings were pending before the respondent No. 1 under the Industrial Disputes Act, 1947 (hereinafter the Act) an application was simultaneously made under section 33(2)(b) of the Act for approval of the said dismissal of the petitioner. In compliance with the provisions of section 33(2)(b) of the Act a cheque equivalent to wages for one month was enclosed along with the letter. Thereafter, the petitioner received the notice along with an application under section 33(2)(b) of the Act filed by the authorities. The petitioner submitted his written statement and prayed before the respondent No. 1 not to accord approval of the action as sought for by the authority since (a) the procedure as laid down in the Standing Orders was not adhered to while dismissing the petitioner by way of punishment and (b) the misconduct levelled for which the petitioner was dismissed from service without holding any domestic enquiry does not come within the scope of clause 28(32) of the Standing Orders. Further conviction of the petitioner in a foreign Court was not for criminal offence involving moral turpitude. Submission was made that no one can be punished for a misconduct not enumerated in the Standing Orders. The respondent No. 1 by order dated 24.9.99 allowed the application and granted approval. Being aggrieved by such order the petitioner has filed the instant writ petition. Pursuant to directions, affidavit-in-opposition and the affidavit-in-reply have been filed. Written notes of arguments have been filed on behalf of the respondent Nos. 2, 3 and 4.

(3.) Mrs. Chameli Majumdar, learned advocate, appearing on behalf of the petitioner along with Mr. Ananta Kumar Lala submitted that during the proceedings in Bangkok the petitioner was a victim of circumstances as he was ignorant of the local language and made to sign some papers. Submission was made that no domestic enquiry was held after the petitioner replied to the said show cause notice. There was no application of mind, materials on record were not considered and the order of dismissal was bad in law. It was submitted that the approving authority i.e. the respondent No. 1 while passing the order ignored the Standing Orders of the authorities which provides for conducting domestic enquiry and as such the order passed by the respondent No. 1 was bad in law Reliance was placed on the judgments of Bata Shoe Co. Put. Ltd. vs. Third Industrial Tribunal & Ors., reported in 174 Lab IC 42, Borosil Glass Works Ltd. vs. M. G. Chitale & Richard M. D'Souza, repoted in 1974 LLJ 184, Indian Express & Chronical Press vs. M. C. Kapoor, reported in 1974 LLJ 240, Shripad Shivaram Kulkarni vs. State of Maharashtra, reported in AIR 1981 SC 34 and Uptron India Ltd. vs. Shammi Bhan & Anr., reported in AIR 1998 SC 1681 in support of his contentions. Mrs. Majumdar submitted that since no domestic enquiry was conducted the respondent No. 1 ought not to have approved the dismissal of the petitioner from service and the writ petition challenging the order passed by the respondent No. 1 should be allowed.