1. Heard Mr. A. Dasgupta, the learned senior counsel appearing for the petitioner i.e. Akhil Bharatiya Chah Mazdoor Sangha (hereinafter referred to as 'the Mazdoor Sangha') which is espousing the cause of the delinquent workman Mithu Mikhi of the Namrup T.E. The management is represented by the learned counsel Mr. A. Sarma.
2. This case arises out of the award dated 22.05.2006 (Annexure-A) in the Reference Case No.2/04, whereby the learned Labour Court at Dibrugarh answered the reference against the workman who was terminated from service w.e.f. 6.11.2001 and consequently it was held that the workman is dis-entitled to any relief.
3. The workman Mithu Mikhi was a daily rated worker in the Namrup T.E. and she was deployed to serve as the crhche attendant for about 10 years. She was an office bearer of the Mazdoor Sangha and as a trade union activist, she participated in a "Bharat Bandh" on 11.5.2000 on a call given by the Mazdoor Sangha. However as the management did not recognise the Mazdoor Sangha, her absence on 11.5.2000 was considered as misconduct and the workman was suspended on the next day and her duty roster was changed and she was deployed to pluck tea leaves. However since the workman was not familiar with plucking activities, she applied for continuance in her old job as crhche attendant but this was not acceptable to the management. Hence it led to a stalemate and because of this, the workman remained absent from duty from 11.5.2000 to 4.8.2001. Eventually the management issued notice on 12.6.2001 for resumption of duties but since the workman insisted on being reinstated as the crhche attendant and refused to pluck tea leaves, the show cause notice was issued to her on 4.8.2001 and an enquiry was held on the charge. Following the adverse finding of the enquiry officer, the workman's service was terminated on 6.11.2001.
4. Then conciliation was attempted but when it failed, the resultant industrial dispute was referred for adjudication on 27.1.2004 and the learned Labour Court was requested by the Government to adjudicate on the following:-
"(1) Whether the management of Namrup T.E. is justified in terminating the services of Smti Mithu Mukhi with effect from 6.11.2001?
(2) If not, whether she is entitled to re-instatement with full back wages or any other relief in lieu thereof?"
5. Since in a parallel proceeding, the change of duty from crhche attendant to tea plucking was projected to be a case of victimisation, the learned Labour Court considered the issue in the Reference Case No.24/01, but the Labour Court opined that re-deployment is not a case of victimisation, as the workman was never appointed as a crhche attendant but was appointed as a daily rated worker of the T.E.
6. The learned Labour Court examined the impugned process of the disciplinary inquiry and opined that the same was conducted through due process. Thus the reference was answered in management's favour and it was held that the workman is dis-entitled to any relief.
7. The legality of the award is being questioned by the learned senior counsel Mr. A. Dasgupta on a limited ground i.e. on the purported failure of the learned Labour Court to examine the proportionality of the punishment, as is mandated by Section 11A of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the ID Act'). The petitioner contends that while a finding on the fairness of the domestic inquiry was given by the learned Labour Court, it failed to examine whether the discharge order is warranted for the misconduct committed by the workman. The petitioner relies on Raghubir Singh v. General Manager, Haryana Roadways, Hissar reported in (2014) 10 SCC 301to contend that Section 11A was inserted in the ID Act with the avowed object to examine the proportionality of the punishment imposed when the misconduct is found to have been proved through due process. Mr. Dasgupta also submits that the daily rated workers in a T.E. are lowly paid employees and the punishment of dismissal results in loss of livelihood which shouldn't be inflicted for charge of absence from duty, when the workman's duty roster is changed to plucking only because, she participated in the one day "Bharat Bandh", as a trade union activist.
8.1. On the other hand Mr. A. Sarma, the learned counsel for the Management argues that the workman defied the management by refusing to work as tea leave plucker and since she failed to prove her original appointment as a crhche attendant, the workman can't challenge the right of the management to deploy their work force in the best interest of the T.E.
8.2. Referring to the long absence of the workman and her failure to resume duty despite issuance of notice to her, Mr. Sarma submits that punishment of dismissal can't be said to be disproportionate, in the backdrop of the proven misconduct.
9. The impugned award reflects that opinion is confined to the legality of departmental inquiry. But the learned Labour Court failed to specifically consider whether the discharge of the workman was justified for the misconduct proved against her. Since proportionality of punishment is required to be examined by the Labour Court, as is mandated by Section 11A of the ID Act, the justification for the punishment should have been examined in the context of the misconduct but the required exercise was not done by the learned Labour Court. Only in passing, the Court observed that the workman was rightly dismissed by the management. But if one examines the preceding sentences and in the context in which this observation was made, it is apparent that the Presiding Judge had not given any specific opinion on the proportionality of the punishment for the misconduct of the workman.
10. When the Labour Court fails to discharge its obligation under Section 11A of the ID Act, the High Court can step in and order for appropriate punishment, as was held in Workmen of Bharat Fritz Werner (P) Ltd. v. Bharat Fritz Werner (P) Ltd. reported in AIR 1990 SC 1054.When it is seen that this litigation between the workman and the management is continuing since last 15 years, I am of the view that remanding for reconsideration will further delay the process and this will seriously prejudice the workman. For this reason the proportionality of the punishment vis-a-vis the gravity of the misconduct, is being examined by this Court itself.
11. It must be borne in mind that the charge is of absentism and the workman herself admits the non-joining of duty on the ground of being assigned plucking duties instead of being deployed as a crhche attendant. But when the workman was engaged as a daily rated worker in the T.E., the management was free to assign appropriate duty for the workman and hence she can't defy the management for change of her duty roster. Moreover in the Reference Case No.24/01, the re-deploy
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ment of the workman was not considered to be case of victimization, by the very same Labour Court. 12. Taking the above circumstances into account, I hold that for absentism, any lesser punishment in lieu of discharge would have served the cause of justice and accordingly this Court declares that disproportionate punishment was inflicted on the workman. Thus the award and the punishment is set aside and the management is directed to reinstate the workman in service. But since the misconduct is found to have been proved, it is declared that back wages upon reinstatement needn't be paid. It is ordered accordingly. 13. With the above order, this case stands allowed to the extent indicated. No cost. Writ Petition allowed to an extent.