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CASE NO.:

Appeal (civil) 2194 of 2001

PETITIONER:

Management of Krishnakali Tea Estate

RESPONDENT:

Akhil Bharatiya Chah Mazdoor Sangh & Anr.

DATE OF JUDGMENT: 10/09/2004

BENCH:

N. Santosh Hegde,S.B. Sinha & A.K. Mathur

JUDGMENT:

JUDGMENT

Santosh Hegde, J.

This appeal by leave of this Court is preferred against

judgment and order dated 8th of February 2000 made by the

Gauhati High Court in Writ Appeal No. 519 of 1997 confirming

an order of the learned Single Judge of the same court in Civil

Rule No.1485 of 1992 dated 19th July 1997. The original writ

petition was filed by the first respondent herein against an

award made by the Labour Court dated 21st of August 1991

which award upheld the decision of the appellant-management

to dismiss the concerned workmen on the ground of proved

misconduct.

Facts necessary for the disposal of this appeal are as

follows:

Concerned workmen who are represented by the first

respondent herein were in the employment of the appellant-

management which was managing a Tea Estate. It is the case

of the management that in pursuance to a demand for bonus of

20% made by the workmen which was not acceded to by the

management, certain workers came in a mob on the night of

12th-13th of October 1980 to the bungalow of Manager of the

Tea Estate, armed with lethal weapons such as lathis, bows and

arrows and axes and they gheraoed the Manager and others and

by threat demanded bonus at the rate of 20% as against 8.33%

offered by the management. The gherao according to the

management continued till 3.00 AM on 13.10.1980. It is also

alleged that on being informed, the police, Bilasipara arrived at

the Estate but the mob consisting the workmen became violent

and damaged the bungalow and other property of the Estate. It

is also alleged that during the wrongful confinement of the

Manager, he was compelled to sign a document, agreeing to

pay 20% bonus. It is based on the above allegations, a

domestic enquiry was instituted against the concerned workmen

and after the enquiry, on the report of the Enquiry Officer, the

workmen concerned were dismissed from service. Pursuant to

the said decision, an application under Section 33 (2)(b) of the

Industrial Disputes Act (for short, `the Act') seeking approval

of the Labour Court of the action of the management in

dismissing the concerned workmen was filed. The Labour

Court at Gauhati approved the action of the management in

dismissing the concerned workmen on 30th July 1983.

Nearly 7 years after the order of dismissal i.e. on

4.3.1987 a reference under Section 10 of the Act was made by

the concerned Government referring a dispute to adjudication to

the Industrial Tribunal, Assam (Labour Court). The said

dispute pertained to the justification of the order of the

management in dismissing the concerned workmen as also to

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the question of entitlement of the workmen for re-instatement

with full back wages in the event of the Labour Court coming

to the conclusion that the dismissal was not justified.

On receipt of the Govt. notification the Labour Court

issued notices to the parties calling upon them to file written

statement and documents on which they intended to rely.

Accordingly, the parties filed their written statement and

documents.

The case of the management before the Labour Court

also, as stated above, is that on the night of 12th and 13th

October 1980 the workmen concerned along with others came

to the Estate, armed with deadly weapons and confined the

Manager and others from 8.30 PM to 3.00 AM next morning

and it is only after the manager gave it in writing under threat

as assurance that 20% bonus would be paid, the gherao was

lifted. Management also stated that these workman caused

damage to the property of the estate.

Workmen in their written statement contended that on the

night of 12.10.1980 the Manager of the Estate by name Shri

D.K. Ghosh and one Shri Ratan Babu met some of the workers

including one Benja Lohar being armed with guns. It is stated

that the Manager on seeing the workmen got furious and hit

Benja with the butt of his gun on the left side of his head and

Ratan Babu hit the other workmen by name Suko on her right

hand, Benja fell unconscious and on hearing the scream of

Suko other workmen came to the aid of the injured workmen

and they took them to the garden seeking first aid to the said

injured persons. It is further contended that police personnel

guarding the Manager's bungalow allowed the workmen to

enter because of the injuries suffered by Benja and all the

workmen only wanted treatment of the said Benja and the other

injured co-worker. They contended that they were not armed

with any lethal weapons nor did they create any untoward

incident. It is due to ulterior motive with a view to get rid of

the workmen who were not to the liking of the manager, the

management had initiated the domestic enquiry. They also

contended that no opportunity was given to the workmen to

produce evidence or to defend themselves in the domestic

enquiry. They denied that they ever damaged the property of

the Estate or illegally confined the Manager and others inside

the Manager's bungalow. They contend that the enquiries by

the domestic tribunal was vindictive, capricious.

The Labour Court while considering the preliminary

issue "whether the domestic enquiry was fair and proper" held

that the same was not fair and proper, therefore parties were

given opportunities to produce evidence on merits. Labour

Court also noted the fact that the charge framed against the

workmen in the enquiry was that:-

"on 12th and 13.10.1980 you entered

inside the Manager's bungalow from 8.30

PM to 3.00 AM with lethal weapons in

hand along with others in the riotous

manner and damaged company's

property and illegally confined the

Manager and others inside the Manager's

bungalow".

It is relevant to mention at this stage that in regard to the

incident which was the subject-matter of the domestic enquiry,

the police had initiated criminal proceedings and in the said

proceedings the accused persons were acquitted for lack of

evidence.

The Labour Court after considering the material

produced by the parties came to the conclusion that the

allegations of wrongful confinement and extortion of

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documents stood proved and the defence of the workmen that

the Manager had assaulted the workers Benja and Suko

consequent to which a group of workmen entered the Estate to

provide treatment to them was not accepted. The Labour Court

also noticed the fact that out of the 29 dismissed workmen,

some had settled the dispute with the management and have

accepted the compensation offered by the management and

had left the services of the management while others who did

not accept the settlement were alone proceeded against. The

Court also took note of the fact that the criminal case filed as

against some of the workmen in the criminal court, ended in

acquittal but held that the order of the criminal court had no

bearing on the case before it, hence based on the material

produced it upheld the dismissal of the workmen and rejected

the prayer of the workmen for reinstatement with full back

wages.

Being aggrieved by the said award of the Labour court,

the workmen-Union, the first respondent herein preferred a

writ petition before a learned Single Judge of the Gauhati High

Court who after hearing the parties came to the conclusion that

the finding of the Labour Court that there was extortion of

documents by the workmen concerned was contrary to the

chargesheet which did not contain such an allegation. It came

to the conclusion that allegation of extortion was an

afterthought. It also accepted the defence of the workmen that

they entered the Estate only to obtain treatment of the injured

workmen who was assaulted by the Manager of the Estate. It

also held that the Labour Court did not apply its mind to the

vital facts and circumstances of the case as alleged by the

learned counsel for the workmen who appeared in the said writ

petition. On that basis the learned Single Judge came to the

conclusion that the Labour court did not appreciate the material

on record properly and passed the order justifying the

dismissal which is disproportionate to the offence alleged. It

also held that the workmen who were tried before the criminal

court were honorably acquitted by the criminal court and the

departmental enquiry held by the management was faulty. On

the said basis it set aside the award and directed the

management to (i) reinstate the surviving workmen who have

not attained the age of superannuation with compensation of

Rs.15,000/- to each of them in lieu of back wages; (ii) to pay

compensation of Rs.30,000/- to each of the workers who have

superannuated during the pendency of the proceedings upto

that Court and (iii) to fix lump sum compensation in

consultation with the petitioner -Union which shall be paid to

the actual heir (wife) of the workmen who expired without

getting any benefit. It directed the management to pay the said

compensation within six weeks from the receipt of its

judgment.

An appeal filed against the said judgment and order of

the learned Single Judge before the Division Bench of the same

Court came to be dismissed. The Appeal Bench held that the

Labour Court could not have gone beyond the charge originally

framed by the management in the domestic enquiry. Therefore,

its finding in regard to the charge of extortion was

unsustainable in law. It also came to the conclusion that there

was a duty on the part of the Labour Court to have taken into

consideration the findings and the facts recorded in the criminal

court which not having been done, the award could not be

sustained. It upheld the learned Single Judge's conclusion that

the punishment of the dismissal of the workmen was

disproportionate to the offence actually alleged against the

workmen. It is on that basis the appeal came to be dismissed.

As stated above, it is against the said judgment of the

High Court the appellant management is before us in this

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appeal.

Shri K. R. Choudhary, learned senior counsel addressing

arguments on behalf of the appellant contended that the Labour

Court having permitted the parties to adduce evidence in

justification or otherwise of the finding of the domestic tribunal

and having recorded evidence in this regard justly came to the

conclusion that the management has established its case of

misconduct against the workmen. He also contended that the

finding in regard to the extortion of the documents was not

actually a new charge but was in fact a part of the charge which

referred to the wrongful confinement of the Manager and there

being sufficient material before the Labour Court, both in

regard to the long and wrongful confinement of the Manager

and other officials of the Estate as also in regard to the forceful

extortion of a document agreeing to pay 20% bonus, the Labour

Court was justified in coming to the conclusion that the

workmen were also guilty of the said charge of extortion. He

also contended, assuming for the argument sake that the Labour

Court could not have gone into the question of extortion of the

document, the original charge as framed by the domestic

enquiry having clearly stated about the wrongful confinement

of the Manager and others and the damage caused to the

property of the Estate by a riotous mob of workmen, carrying

deadly weapons, itself was sufficient to justify the punishment

of dismissal. He submitted that the finding and evidence

recorded by the criminal court not binding on the labour court,

there was no obligation on the part of the labour court to have

considered the evidence led in the said trial. At any rate, he

submitted that the Labour Court had taken cognizance of the

fact that there was a criminal case which came to be ended in an

acquittal. He pointed out that the observations of the learned

Single Judge that the acquittal of the workmen by the criminal

court was "honorable acquittal", is wholly erroneous. He also

submitted that on facts and circumstances of the case it is

established that the workmen have indulged in a serious

unlawful act which justified the punishment of dismissal. In

support of his arguments, learned counsel has relied on a

judgment of this Court in State of Rajasthan versus B.K.

Meena and others [1996 (6) S.C.C. 417].

Shri D.K. Aggarwal, learned senior counsel appearing for

the respondent-Union contended that the finding of the Labour

Court having gone beyond the charge framed by the

management against the workmen in regard to the allegations of

extortion, the same was justly reversed by the High Court. He

placed reliance in support of this contention on the judgment of

this Court in the case of The Workmen of M/s. Firestone

Tyre & Rubber Co. of India (Pvt.) Ltd. etc. etc. versus

The Management & Ors. 1973 (1) LLJ 278. He next

contended that the Labour Court ought not to have brushed

aside the finding of the criminal court and it was duty bound to

have considered the same while appreciating the evidence

adduced in the proceedings before it. In support of this

contention, the learned counsel relied upon a judgment of this

Court in the case of Capt. M. Paul Anthony versus Bharat

Gold Mines Ltd. and another AIR 1999 SC 1416. He then

contended that assuming for argument sake that the workmen

did indulge in some sort of gherao, since there is no evidence as

to specific overt act assigned to the dismissed workmen, the

punishment of dismissal was totally disproportionate to the

misconduct alleged. He relied on a judgment of this court in

the case of M/s. Burn & Co. Limited versus Their workmen

and others AIR 1959 SC 529.

Bearing in mind the arguments addressed before us and

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findings of the High Court, we will now consider the various

arguments addressed before us in this appeal. In that process

we will first take up the contention of the respondent that the

finding of the Labour Court is vitiated by the fact that it took

into consideration a misconduct which was not part of the

charge memo issued to the workmen, and the Labour Court

went beyond the charges framed therefore the conclusion of the

Labour court as to justification of the punishment is vitiated

by irrelevant consideration, and the High Court was justified in

interfering with the said finding.

It is true in the charge memo issued to the concerned

workmen extortion was not shown as one of the acts of

misconduct. The original charge memo contained the following

charge:

" (1) On 12.10.80/13.10.80 you

entered inside the Manager's

bungalow from 8.30 PM to 3.00 AM

with lethal weapons in hand along with

others in a riotous manner and

damaged company's property and

illegally confined Manager and others

inside the Manager's bungalow. You

also used abusive language.

(2) This if proved is an offence

under standing orders 10(a)(7),

10(a)(8) and 10(a) 11 in force on

this Estate"

The Labour Court in its award on a preliminary point

held that the enquiry conducted by the management was not a

proper enquiry hence based on the requests made in the

statement filed before it, permitted the management to adduce

evidence in support of its charge in the proceedings before it

and also permitted the workmen to adduce evidence in defence.

In the course of the evidence adduced by the parties a specific

allegation that the workmen demanded a promise in writing

from the Manager of the Estate to give 20% bonus was in fact

made and that on police officer having informed that it will not

be possible to control the situation unless such a promise was

given by the Manager in writing a document to the effect was

given by the Manager under threat and that only after receipt of

the said document workers dispersed, at about 3.00 AM on 13th

October 1980, was made. The Labour Court having considered

the evidence led by the Management in this regard as also the

counter evidence led by the workmen came to the conclusion

that such an extortion of letter under threat was actually

obtained.

Learned counsel appearing for the respondent-workmen,

relied upon the judgment of this Court in Laxmi Devi Sugar

Mills Ltd. versus Nand Kishore Singh [1956 Vol.II LLJ 439]

wherein it was held:

"But in view of the fact that the concerned

workman was chargesheeted only for

instigating his fellow-workmen to demand

for removal of the general manager and not

for any other act of insubordination, the

management could not be permitted to

dismiss him\005..The prayer of the

management for permission to dismiss such

workmen could not be allowed to be

justified on any grounds or charges other

than those mentioned in the chargesheet.

The concerned workman not having been

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charged with the act of insubordination

which could have really justified the

management in dismissing him, the

employer could not take advantage of the

same even though those acts could be

brought home to him in proper

proceedings."

Based on the above decision of this Court in the said

case, an argument is addressed on behalf of the respondent-

workmen that the Labour Court could not have justified the

dismissal of the workmen on the basis of an allegation of

extortion which was not a part of the charges framed.

It is to be noted herein that in the instant case in the

statements filed by the management before the Labour Court,

act of extortion was mentioned as one of the facts leading to

misconduct which was supported by the evidence led by the

management before the Labour Court. Though no specific

charge/issue was framed in this regard against the concerned

workmen but the workmen in their statement had denied the

same. Therefore, the parties were well aware that the extortion

of a letter promising 20% bonus from the Manager was one of

the facts in the chain of events involved in the incident of 12th

and 13th of October 1980. The Labour Court found, among

other facts, this fact of extortion as also having been proved.

The question then is: can a finding of justification of a

punishment awarded by the management based on an additional

fact though proved by evidence but not mentioned in the charge

can be maintained. It is well-settled that Rules of Procedure

found in the Code of Criminal Procedure are not strictly

applicable to the proceedings before the Labour Court but the

Labour Court can always rely on legal principles found in the

provisions of the Code to modulate its procedure. Section 215

of the Code of Criminal Procedure reads thus :

"215. Effect of errors.\027No error in stating

either the offence or the particulars required

to be stated in the charge, and no omission

to state the offence or those particulars, shall

be regarded at any stage of the case as

material, unless the accused was in fact

misled by such error or omission, and it has

occasioned a failure of justice."

From the above, it is seen that even in a criminal trial if

there are omissions to state a particular offence in the charge,

that by itself does not occasion a failure of justice unless the

accused satisfies the court that by such omission he was in fact

misled and the same has occasioned a failure of justice. In the

instant case, as noted above, in the statements filed by the

Management before the Labour Court, this act of extortion is

specifically alleged and in the reply statement of the workmen,

the same is specifically denied and parties have led evidence in

regard to their respective cases on the question of extortion,

therefore, it cannot be said that the workmen were misled by the

omission to mention the charge of extortion. Having joined

issue on this question of fact, they cannot also plead that they

have been in any manner prejudiced by the said omission or

misled by such omission nor can they contend that the said

omission has occasioned a failure of justice.

Be that as it may, since this Court in the case of Laxmi

Devi Sugar Mills Ltd. (supra), has stated that the Management

cannot be permitted to justify the punishment on grounds of

charges other than those mentioned in the chargesheet, we

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would leave this issue at that.

But what is stated by us hereinabove would not in any

manner, vitiate the ultimate justification of the dismissal order

as held by the Labour Court. It is to be noticed that the charge

memo issued to the workmen has in specific terms stated that

the workmen concerned on 12th \026 13th October, 1980 entered

the Manager's bungalow, armed with deadly weapons, caused

damage to the property of the estate and illegally confined the

Manager and others between 8.30 p.m. on 12th October till 3

a.m. on 13th October, 1980. This allegation as found in the

charge memo has also been found to be proved by the Labour

Court. Therefore, the question for our consideration is: whether

this finding as alleged in the chargesheet by itself is sufficient

to justify the order of dismissal without the support of the

allegation of extortion. On this aspect of the case the decision

of this Court in Laxmi Devi Sugar Mills Ltd. (supra) will not

assist the respondents' case. In that case, the only charge

against the workman was that he instigated the other workmen

to demand the removal of the General Manager which charge

was not proved in the enquiry, then the management tried to

justify the removal by adducing evidence on other allegations in

regard to which there was no charge, in those factual situation

this Court held such justification based uncharged allegation

was impermissible.

In the case in hand, the facts are different, the charge

contained the allegation of riotous behaviour, causing damage

to the property and wrongful confinement, these charges were

held to be proved the additional fact of extortion though

factually proved was outside the charge, hence, we will have to

consider whether charges proved, other than that of extortion

is sufficient to confirm the approval of dismissal of the

workmen. From the facts noticed hereinabove, it is seen that on

the night between 12th and 13th of October, 1980, the concerned

workmen entered the Estate armed with deadly weapon caused

damage to the property of the Estate and wrongfully confined

the Manager and others between 8.30 PM on 12th to 3.00 AM

on 13th of next day. These facts which are mentioned in the

Charge-Memo and held proved establishes misconducts

alleged against the concerned workmen in the Charge-Memo,

in this back ground even proceeding on the basis that the

allegation of extortion has not been legally established and

ought not to be considered as a misconduct, in our opinion, the

other misconducts of causing damage to the property Gherao

and wrongfully confining the Manager and others for a long

period are by themselves sufficient to come to the conclusion

that the concerned workmen have indulged in misconduct

punishable under the standing orders applicable to them. The

allegation of extortion though being a part of the continuing

act of misconducts is severable from the other allegations, on

the basis of the finding of the Labour Court the allegations

alleged the concerned workmen can be accepted without

reference to its finding on the allegation of extortion.

The next contention addressed on behalf of the

respondents is that the Labour Court ought not to have brushed

aside the finding of the criminal court which according to the

learned Single Judge 'honorably' acquitted the workmen-

accused of the offence before it. We have been taken through

the said judgment of the criminal court and we must record that

there was such 'honorable' acquittal by the criminal court. The

acquittal by the criminal court was based on the fact that the

prosecution did not produce sufficient material to establish its

charge which is clear from the following observations found in

the judgment of the criminal court:

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"Absolutely in the evidence on record of the

prosecution witnesses I have found nothing

against the accused persons. The

prosecution totally fails to prove the charges

under Sections 147, 353, 329 IPC"

Learned counsel for the respondents in regard to the

above contention relied on a judgment of this Court in the case

of Capt. M. Paul Anthony (supra). In our opinion, even that

case would not support the respondents herein because in the

said case the evidence led in the criminal case, as well as in the

domestic enquiry was one and the same and the criminal case

having acquitted the workmen on the very same evidence, this

Court came to the conclusion that the finding to the contrary

on the very same evidence by the domestic enquiry would be

unjust, unfair and rather oppressive. It is to be noted in that

case the finding by the tribunal was arrived in an ex parte

departmental proceeding. In the case in hand, we have noticed

before the Labour Court the evidence led by the management

was different from that led by the prosecution in the criminal

case and the materials before the criminal court and the Labour

Court were entirely different. Therefore, it was open to the

Labour Court to have come to an independent conclusion de

hors the finding of the criminal court. But at this stage it

should be noted that it is not as if the Labour Court in the

instant case was totally oblivious of the proceedings before the

criminal court. The Labour Court has in fact perused the order

of the Judicial Magistrate and the exhibits produced therein

and came to an independent conclusion that the order of the

criminal case has no bearing on the proceedings before it

which finding of the Labour Court, in our opinion, is justified.

It may be some use to us to refer at this stage to a judgment of

this Court in the case of State of Rajasthan (supra) wherein it

is held thus :

"There is yet another reason. The approach

and the objective in the criminal proceedings

and the disciplinary proceedings is

altogether distinct and different. In the

disciplinary proceedings, the question is

whether the respondent is guilty of such

conduct as would merit his removal from

service or a lesser punishment, as the case

may be, whereas in the criminal proceedings

the question is whether the offences

registered against him under the Prevention

of Corruption Act (and the Indian Penal

Code, if any) are established and, if

established, what sentence should be

imposed upon him. The standard of proof,

the mode of enquiry and the rules governing

the enquiry and trial in both the cases are

entirely distinct and different\005\005."

From the above, it is seen that the approach and the

objectives of the criminal proceedings and the disciplinary

proceedings are altogether distinct and different. The

observations therein indicate that the Labour Court is not bound

by the findings of the criminal court.

Even the reliance placed in the case of M/s. Burn & Co.

(supra), in our opinion, does not assist the workmen in this

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appeal. That was a case where this Court came to the conclusion

that there was no dependable evidence against the individual

workman who has incited the workers to participate in the strike.

In such circumstances, the Court came to the conclusion that in

the absence of any evidence individually implicating the

workmen concerned an omnibus allegation against all workmen

cannot be used to punish only some workmen. Such is not the

situation in the facts of this case wherein we have noticed that

the tribunal has come to the conclusion that the concerned

workmen had participated in the gherao armed with deadly

weapons and caused damage to the property of the Estate and

wrongfully confined the Manager and others for nearly 8 hrs.

Therefore, it found all those workmen who took part in the said

incident guilty of the misconduct.

This leaves us to consider whether the punishment of

dismissal awarded to the concerned workmen de hors the

allegation of extortion is disproportionate to the misconduct

proved against them. From the evidence proved, we find the

concerned workmen entered the estate armed with deadly

weapons with a view to gherao the Manager and others in that

process they caused damage to the property of the estate and

wrongfully confined the Manager and others from 8.30 p.m. on

12th of October to 3 a.m. on the next day. These charges, in our

opinion, are grave enough to attract the punishment of dismissal

even without the aid of the allegation of extortion. The fact that

the Management entered into settlement with some of the

workmen who were also found guilty of the charge would not, in

any manner, reduce the gravity of the misconduct in regard to

the workmen concerned in this appeal because these workmen

did not agree with the settlement which others are agreed instead

chose to question the punishment.

For the reasons stated above, this appeal succeeds. The

orders of the High Court are set aside that of the lower court is

restored. The appeal is allowed.