MANAGER ISSABHEEL TEA ESTATE Vs. STATE OF ASSAM

JUDGEMENT

(1.) The appropriate Government i.e. the Government of Assam made a reference under Section 10 of the Industrial Dispute Act, 1947 to the learned Industrial Tribunal Assam at Silchar by issuing notification dated 13.2.95 referring the dispute whether the Management of Issabheel Tea Estate (petitioner) was justified in dismissing the Md. Hanif Khan tractor driver (respondent No. 3) from his service with effect from 5.7.89 and if not, to what relief the workman is entitled, on the basis of which reference Case No. 3 of 1995 was registered before the learned Tribunal. By the award dated 25.5.99 learned Tribunal answered the reference in the affirmative i.e. in favour of the workmen and directing the Management of Issabheel Tea Estate to reinstate him in service with effect from 5.7.89 i.e. the date of termination from service with full back wages as per the scale pay of the driver. The Management writ petitioner by the present writ petition has challenged the said award passed by the learned tribunal.

(2.) The case of the workmen before the learned Tribunal was that he was engaged as a tractor driver having driving licence for driving a tractor for many years and instead of paying him scale pay prescribed for the driver, the Management used to pay him extra 50 paisa daily in addition to daily wage of a daily rated unskilled labour and when he asked the Management for payment of salary in the pay scale of the driver, he was ordered to work as a tractor helper to which workman protected and though he attended for duty regularly he was not allowed to work, ultimately struck off his name from the roll of the garden with effect from 5.7.89. The further case of the workman was that though a conciliation proceeding was held on 15.5.92 but because of the adamant attitude of the Management the conciliation failed. The Management while did not refute that the workman concerned (respondent No. 3) was a worker under it, has stated in the written statement filed before the learned Tribunal that he was not a tractor driver and had no driving license for that purpose and abandoned his service without any intimation to the Management by absenting himself for a continuous period of 558 days from 5.8.87 to 5.7.89. It has further been stated by the Management in the written statement that the respondent No. 3 joined his service under the Management on 7.7.69 as a daily rated ordinary worker and was doing various miscellaneous work in plantation and thereafter was taken as helper to the tractor driver and was paid Rs. 10 and 84 paise as daily wages apart from other service benefits available to the ordinary worker working in the Tea Estate. The further case of the Management was that as the workman was unauthorizedly absent from duty warning letters dated 8.8.87,12.8.87 and 4.9.87, as required under the standing order in force, were issued and finally the charge sheet dated 7.9.87 was issued to him asking him to explain his conduct and though the same was received by the wrokman no explanation was filed. Thereafter waiting for a pretty long time till 4.7.89 removed his name from the garden roll having no other alternative left open to them. The Management in support of their case examined the Manager of the Tea Estate and exhibited nine documents being Exhibit A to Exhibit I. The workman also examined himself and exhibited six documents being Exhibit-1 to Exhibit-6 before the learned Tribunal. The learned Tribunal upon appreciation of the evidences on record, both oral and documentary, adduced by the respective parties, has held that though the charge sheet was issued no domestic inquiry was held, no notice regarding termination of service was served on the workmen as required under the provision of standing order, the workman concerned was engaged in driving the tractor though he had no license for driving a tractor, without issuing any order of appointment letter and had to remain away from the work: as he was not given the work by the Management on the ground that tractor in which he worked became out of order. The learned Tribunal has also drawn adverse presumption in not producing the records by the Management relating to the performance of the workman as tractor driver, in spite of the order passed on the application filed the workman in that regard. The learned Tribunal considering the nature of evidence on record has held that the Management was not justified in dismissing the workmen (respondent No.. 3) from service with effect from 5.7.89 and was also not justified in not paying the salary as per scale of a driver and directed the Management to re-instate him in service with effect from 5.7.89 and to pay back wages as per the scale pay of the driver with effect from that date.

(3.) I have heard Mr. A. K. Thakur, learned counsel for the petitioner and also Mr. A. Dasgupta, who was requested to assist the Court as Amicus Curiae as the workman in spite of notice did not appear before this court, to which Mr. Dasgupta readily agreed.