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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.