IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE Mr. JUSTICE RAGHVENDRA S. CHAUHAN WRIT PETITION NO.40476/2017 (L, RES) BETWEEN:
BEML LIMITED (FORMERLY BHARAT EARTH MOVERS LIMITED), BEML NAGAR, KOLAR GOLD FIELDS-563 115. R/BY D. GENERAL MANAGER(HR) ABENEZER SAMIR KHESS AGED ABOUT 47 YEARS, J.C.ROAD, BANGALORE-560 002.
... PETITIONER (BY SRI NATARAJA BALLAL A, ADV.) AND:
BEML EMPLOYEES ASSOCIATION BHARAT EARTH MOVERS LIMITED, KGF COMPLEX, KOLAR GOLD FIELD- 563115. REP. BY ITS PRESIDENT SYED AFSAR C/O M/S BEML LIMITED, REGIONAL OFFICE, RANCHI- 834 009.
(BY SRI VINOD KUMAR C., ADV.) ... RESPONDENT THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED AWARD DATED 20.2.2017 PASSED BY THE CENTRAL GOVERNMENT INDUSTRIAL LABOUR COURT CUM LABOUR COURT, BENGALURU IN REF NO. 38/2009.
THIS WP COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Aggrieved by the award dated 20.02.2017 passed by the Central Government Industrial Labour Court - cum - Labour Court, Bengaluru ("the learned Labour Court", for short), whereby the learned Labour Court has allowed the reference filed by the BEML Employees Association, has set aside the punishment order passed against Mr. Syed Afsar, and has directed the petitioner to pay the monetary benefits, including promotion, to which, Mr. Afsar is entitled to, the Bharat Earth Movers Limited, the petitioner, has approached this Court.
2. The brief facts of the case are that the petitioner is a Central Public Sector Undertaking under the administrative control of Ministry of Defence, Government of India. It is engaged in the manufacturing of equipment and components required for Rail and Metro, Mining and Construction, Defence and Aerospace, and Dredging etc. The petitioner has four manufacturing units, located in Bengaluru, and in other places. The respondent - BEML Employees Association, which is the Trade Union of the petitioner, had raised an industrial dispute with regard to Mr. Afsar who is the petitioner's workmen.
3. Mr. Afsar is a Mechanist from ITI. From 05.10.1979 to 04.10.1980, he had undergone apprenticeship at the Kolar Gold Fields. Subsequently, he was appointed as a Miller, in Wage Group – B. On 18.07.1982, Mr. Afsar joined the petitioner’s Company at Equipment Manufacturing Division, KGF complex; by order dated 18.01.1983, he was confirmed in the regular rolls. Under the petitioner's Career Development Plan, Mr. Afsar was promoted as Senior Technician (Miller), in Wage Group-C, with effect from 07.07.1989; he was further promoted as Technical Assistant, in Wage Group-D, with effect from 01.04.2004; further, he was promoted as Master Skilled Technician (Miller), in Wage Group- E, with effect from 01.04.2010.
4. During the course of his service, on 16.01.1996, Mr. Afsar was served with a charge- sheet. It was alleged that he had fabricated certain documents relating to a vehicle, TVS XL moped, bearing registration No.CKP 6263, and also its Insurance Policy with the M/S Oriental Insurance Company, and had given the said forged documents to another co-worker, namely Mr. S. I. Kumar in order to enable Mr. Kumar to avail the vehicle advance of Rs.6,000/- from the petitioner. For the purpose of creating the forged documents, allegedly Mr. Afsar has demanded an illegal gratification of Rs.700/- from Mr. Kumar.
5. Instead of submitting his reply to the charge- sheet, Mr. Afsar sought extension of time, and also requested for supply of certain documents which were in the possession of the Central Bureau of Investigation ('the CBI', for short). However, after completion of the enquiry proceedings, the Enquiry Committee found Mr. Afsar guilty of the charges. Subsequently, after issuance of the second show cause notice to Mr. Afsar, and after considering his reply, by Order dated 01.10.2000, the Disciplinary Authority imposed the punishment of reduction of one increment for two years with effect from 01.10.2000.
Meanwhile, the CBI had registered a FIR against Mr. Afsar and against eight other co-workers. After a thorough investigation, the CBI submitted the charge- sheet against the Mr. Afsar and others. But subsequently, the learned trial court acquitted all the accused persons, including Mr. Afsar.
6. Since Mr. Afsar was aggrieved by the punishment order dated 01.10.2000, he filed a writ petition before this Court, namely W.P.No.18053/2006. While dismissing the writ petition, by order dated 29.01.2008, this Court granted liberty to Mr. Afsar to raise his grievance before an appropriate forum in accordance with law.
Consequently, the Trade Union, the respondent, raised an industrial dispute before the Labour Authorities. Since the conciliation proceedings failed, the Government referred the industrial dispute to the learned Labour Court. In order to prove its case, the respondent examined Mr. Afsar as a witness, and submitted three documents. On the other hand, the petitioner neither examined any witness, nor submitted any documents. After going through the evidence produced by the Trade Union, the learned Labour Court allowed the reference as mentioned above. Hence, this petition before this Court.
7. Mr. A. Nataraja Ballal, the learned counsel for the petitioner, has raised the following contentions before this Court:-
Firstly, once the learned Labour Court had concluded that the departmental enquiry was just, reasonable and fair, it could have not reassessed the evidence to see if the Management had succeeded in establishing its case before the Enquiry Officer or not? Moreover, the Learned Labour Court could not have examined if the punishment meted out to Mr.
Afsar was proportionate or not?. In order to support this plea the learned counsel has relied upon the case of Management of Bharat Heavy Electricals Limited Vs. M.Mani (Civil Appeal No.10766/2013 decided by the Hon’ble Supreme Court on 09.11.2017). Therefore, according to the learned counsel, the learned Labour Court has travelled beyond its jurisdiction while considering the two issues mentioned above.
Secondly, the learned Labour Court was unjustified in concluding that the Management has failed to establish its case. In fact, the Management had examined Mr. K. Pradeep Kumar, the Investigating Officer of the CBI, who had carried out the investigation against Mr. Afsar and the other co- accused persons. In his deposition before the Enquiry Committee, Mr. Pradeep Kumar had clearly stated that the forged documents were confiscated from Mr.
S. I. Kumar. During interrogation, Mr. S. I. Kumar had confessed that the documents were forged by Mr. Afsar. For creating these documents, Mr. Afsar had taken a bribe of Rs. 700/- from him. According to the learned counsel, the testimony of Mr. Pradeep Kumar was sufficient to prove the Management's case against Mr. Afsar. Therefore, the conclusion drawn by the learned Labour Court that the Management has failed to establish its case before the Enquiry Committee is unsustainable.
Thirdly, Mr. Afsar was the mastermind who had fabricated these documents. The other co-workers, had played a minor role. Therefore, the Management was justified in punishing Mr. Afsar, while not punishing the other co-workers. Hence, the learned Labour Court was unjustified in concluding that the petitioner has discriminated against Mr. Afsar in a hostile manner.
Lastly, the learned Labour Court was unjustified in claiming that Mr. Afsar was victimized. In fact, there is no evidence to show that he was victimized. Therefore, the final conclusion drawn by the learned Labour Court that the punishment was shockingly disproportionate and is, thus, unsustainable, is clearly unsustainable. Hence, this Court should interfere with the impugned award.
8. On the other hand, Mr. C. Vinod Kumar, the learned counsel for the respondent, has raised the following counter-contentions before this Court:-
Firstly, the learned Labour Court is not a post office, but is a quasi-judicial body, which is required to adjudicate the issues raised by the parties. Thus, merely because the learned Labour Court had opined that the Departmental Enquiry was a fair one, it does not preclude the learned Labour Court from examining whether the Enquiry Committee or Enquiry Officer has legally and validly assessed the evidence produced by the parties or not? Whether the punishment imposed is proportionate to the alleged misconduct or not? And to examine the minor issue whether any discrimination is exercised by the Management while imposing the punishment on each delinquent officer or not?
Secondly, according to the learned counsel, it is only after minutely examining these issues that the learned Labour Court will be in a position to adjudicate upon the issue whether the punishment imposed on Mr. Afsar was shockingly disproportionate or not? In order to address this plea, the learned counsel has relied upon Mavjia C Lakum Vs. Central Bank of India [2008 AIR SCW 3460].
Thirdly, the Management has examined only Mr. K. Pradeep Kumar in order to establish its case against Mr. Afsar. However, the conclusion drawn by the Investigating Officer is based merely on the "confession" made by Mr. S. I. Kumar while he was in the police custody. Yet, despite the fact that he is the star witness to establish the case against Mr. Afsar. Mr. S. I. Kumar has not been examined by the Management. Since the Management has withheld its star witness, an adverse inference should have been drawn by the Enquiry Committee against the Management. But, the Enquiry Committee has ignored this fact.
Fourthly, the beneficiary of the alleged forged documents was Mr. S. I. Kumar, as he would have been entitled to an advance of Rs.6,000/-. Therefore, a grave possibility does exist that Mr. S. I. Kumar may have himself forged the documents. But in order to save his own skin he may have named Mr. Afsar as the creator of the forged documents. But this fact was clearly ignored by the Enquiry Committee.
Fifthly, none of the documents produced by the Investigating Officer have any co-relation with Mr. Afsar. The Investigating agency has not collected any evidence establishing the fact that the documents are forged. In fact, neither the investigating agency, nor the Management has produced a report of the Forensic Laboratory in order to establish the forged nature of the documents. The Enquiry Committee has also ignored this aspect of the case.
Sixthly, the Enquiry Committee was aware of the fact that Mr. Afsar and other co-delinquent officers had been acquitted by the learned Criminal Court. Yet it has ignored the presumption of law that once a person is acquitted of criminal charges, the presumption of innocence is only strengthened and not weakened.
Seventhly, considering the lapses committed by the Management, the learned Labour Court was justified in concluding that the Management has failed to establish its case against Mr. Afsar.
Eighthly, the learned Labour Court is certainly justified in noticing that while other co-delinquent officers have been given promotion and the benefit of VRS scheme, and even Mr. S. I. Kumar has not been punished, yet only Mr. Afsar who has been singled out and has been punished. Thus, the concept of equality has been given a go-by by the Management. Therefore, the learned Labour Court was justified in concluding that it is not only a case of victimization, but is also a case where a shockingly disproportionate punishment has been imposed by the Management. Hence, the learned counsel has supported the impugned award.
9. Heard the learned counsel for the parties, examined the record, and perused the impugned award.
10. In the case of Mavjia C Lakum (supra) the Hon’ble Supreme Court has dealt with the scope and ambit of the power of the learned Labour Court/ Labour Court while dealing with departmental enquiry and the punishment order. The Hon’ble Supreme Court has observed as under:
(a) After all the Labour Court has to judge on the basis of the proved misbehaviour. In this case we have already recorded that the Labour Court was firstly correct in holding that the misbehaviour was not wholly proved and whatever misconduct was proved, did not deserve the extreme punishment of discharge.
(b) The learned Judge seems to be of the opinion that if the inquiry is held to be fair and proper, then the Industrial Labour Court cannot go into the question of evidence or the quantum of punishment. We are afraid that is not the correct law. Even if the inquiry is found to be fair, that would be only a finding certifying that all possible opportunities were given to the delinquent and the principles of natural justice and fair play were observed. That does not mean that the findings arrived at were essentially the correct findings. If the Industrial Labour Court comes to the conclusion that the findings could not be supported on the basis of the evidence given or further comes to the conclusion that the punishment given is shockingly disproportionate, the Industrial Labour Court would still be justified in re- appreciating the evidence and/or interfering with the quantum of punishment. There can be no dispute that power under Section 11-A has to be exercised judiciously and the interference is possible only when the Labour Court is not satisfied with the findings and further concludes that punishment imposed by the Management is highly disproportionate to the degree of guilt of the workman concerned.
(c) The Labour Court was justified in appreciating the fact that the charges were not only trivial and were not so serious as to entail the extreme punishment of discharge. Here was the typical example where the evidence was of a most general nature and the charges were also not such as would have invited the extreme punishment. It was not as if the appellant had abused or had done any physical altercation with his superiors or colleagues. What was complained was of his absence on some days and his argumentative nature. Though the learned Judge had discussed all the principles regarding the exercise of powers under Section 11-A of the Industrial Disputes Act as also the do ctrine of proportionality and the Wednesbury's principles, we are afraid the learned Judge has not applied all these principles properly to the present case.
11. Undisputedly, the learned Labour Court is a quasi-judicial body, which is required to minutely examine the departmental enquiry proceedings and the punishment order. Even, if the learned Labour Court concludes that the Departmental Enquiry is fair and reasonable one, it merely emphasizes that the principle of natural justice and fair procedure have been followed by the Enquiry Officer / Enquiry Committee. But merely because of the fair procedure has been followed, does not lead to the logical conclusion that the evidence has been assessed legally and properly. The learned Labour Court would still need to examine the appreciation of evidence done by the Enquiry Officer/ Committee and the proportionality of the punishment. Thus, the contention of the learned counsel for the petitioner that these issues cannot be examined by the the learned Labour Court is clearally unacceptable.
12. The enquiry report submitted by the Enquiry Committee is available in the records. A perusal of the enquiry report clearly reveals that the Management had examined Mr. K. Pradeep Kumar - Investigating Officer of the CBI. In his deposition, he has clearly stated that he came to the conclusion that the documents submitted by Mr. S .I. Kumar were bogus ones, as Mr. S. I. Kumar had confessed the fact that these documents were prepared by Mr. Afsar after taking illegal monetary gratification of Rs.700/-.
Mr. K. Pradeep Kumar had also submitted thirteen documents. In his cross-examination, he has further stated that these documents were confiscated from Mr. S. I. Kumar.
13. However, surprisingly the Management has failed to examine Mr. S. I. Kumar, who is the star witness of the case. Since, the Management has withheld its most important witness, obviously, the Enquiry Committee should have drawn an adverse inference against the Management. If the Management had produced Mr. S. I. Kumar, the likelihood is that he would have gone against the interest of the Management. It is for this reason, the Management had withheld Mr. S. I. Kumar from the Enquiry Committee. Yet the Enquiry Committee had failed to draw the adverse inference.
14. Surprisingly the Enquiry Committee has relied upon the opinion of the Investigating Officer-- an opinion based on alleged confession of co-accused persons. The Enquiry Committee has failed to notice the fact that Mr. S. I. Kumar is the beneficiary of the alleged forged documents. Thus, a grave possibility does not exist that in order to safe his own skin, Mr.
S. I. Kumar may have falsely implicated Mr. Afsar as the author of the forged documents.
15. Moreover, all the documents were confiscated from the possession of Mr. S. I. Kumar. There is no evidence to relate the document to Mr. Afsar. In fact, no Forensic Science Laboratory report has been submitted by Mr. K. Pradeep Kumar - Investigating Officer of the CBI before the Enquiry Committee. In the absence of the FSL report, there is no evidence to prove the allegation that Mr. Afsar had, indeed, forged these documents. Hence, the learned Labour Court was justified in concluding that the Management has failed to establish its case against Mr. Afsar.
16. The Enquiry Committee was well aware of the fact that the learned trial court had acquitted Mr. Afsar and other accused persons. Yet, the Enquiry Committee has overlooked the settled position of law that an acquittal strengthens the presumption of innocence, rather than weakening it. It has, instead, relied upon the opinion of the Investigating Officer in order to hold Mr. Afsar guilty of the alleged misconduct. But the opinion of the Investigating Officer is merely an opinion and not a substantive piece of evidence. Further, the said opinion is not based on any cogent evidence. Furthermore, the said opinion has already been negated by the learned trial Court. Thus, legally, the opinion could not form the basis for finding Mr. Afsar guilty of the alleged charges. Hence, again the learned Labour Court was justified in concluding that the Enquiry Committee has failed to assess the evidence in proper and legal perspective.
17. Insofar as the proportionality of the punishment is concerned, the learned Labour Court has noticed that Mr. Afsar was not the lone accused. According to the Management, there were others who were clearly involved in the alleged misconduct of preparing the forged documents. After a thorough investigation, the CBI had submitted the charge sheet against Mr. Afsar and against eight other officers. While other co-delinquent officers have been given promotion, and the benefit of the VRS scheme, and even Mr. S. I. Kumar has not been punished, Mr. Afsar is the only one who has been punished for the alleged misconduct. Thus, the Management has violated the concept of equality.
18. In a catena of cases, the Hon’ble Supreme Court has opined that if all the delinquent officers are identically placed, then the same punishment has to be meted out to all of them. The employer cannot pick and choose the delinquent officers and to punish them differently. The imposition of different punishments on similarly placed delinquent officers/ employees would violate the concept of equality enshrined in Art. 14 of the Constitution of India. Therefore, the learned Labour Court was justified in concluding that while the Management has let-off all other co-delinquent officers, it has punished only Mr. Afsar. Hence, the punishment order is legally unsustainable.
19. In case an individual workman is singled out for punishment, obviously the said workman is victimized by the Management. The learned Labour Court has also noticed the fact that Mr. Afsar was harassed by the Management, only after he sought certain legitimate demands for his own family. Therefore, the learned Labour Court was justified in concluding that the Management has unnecessarily punished Mr. Afsar.
20. For the reasons stated above, this Court does not find any illegality or perversity in the award dated 20.02.2017. Hence, this petition is devoid of any merit. It is, hereby, dismissed. No order as to cost.
Sd/- JUDGE PB