At, High Court of Judicature at Calcutta
By, THE HONOURABLE DR. JUSTICE SAMBUDDHA CHAKRABARTI
For the Petitioner: Soumya Majumder, Victor Chatterjee, Advocates. For the Respondent: N.C. Bhattacharjee, S. Ghosh, Achinta Banerjee, Advocates.
Sambuddha Chakrabarti, J.
Let the affidavit of service filed in Court today be kept with the record.
2. Heard Mr. Majumder, the learned advocate for the petitioner. The learned advocates for the State respondents and the respondent No. 3 have not been called on to make any submission.
3. The petitioner has challenged an Award passed by the First Labour Court, West Bengal holding the dismissal of the respondent No. 3 to be bad and directing the writ petitioner herein to re-instate the workman in the service in the post from which he was terminated, if he has not been attained the age of superannuation, with benefits as mentioned in the Award impugned.
4. The workman, i.e. the respondent No. 3 herein, has challenged the termination of his service under Section 10(1B)(d) of the Industrial Disputes Act alleging various things against the report of the holding enquiry.
5. It may be mentioned that the Labour Court by an order dated November 10, 2014 had also held that the enquiry conducted by the enquiry officer was not proper and was violative of the rules of natural justice. That order was never challenged by the writ petitioner in any proceeding. Therefore, so far as the Labour Court was concerned that was the issue decided. The said interim order is certainly liable to be challenged in the present challenge to the Award itself. But after going through the said order, I do not find any wrong with the order nor consider the reasons and the principles of law applied by the learned Judge of the Tribunal to be vitiated either by the non-appreciation of facts and non-application of the law warranting any judicial interference.
6. Mr. Majumder submitted that after that when the parties had adduced evidence, it was the duty of the Labour Court to have examined the whole of it and not to be 'obsessed' by the order passed in the year 2014. It is true that there have been several references to the said order in the final Award which was quite natural as the issue, so far as the Labour Court is concerned, had already been decided. I, however, do not discover any obsession on the part of the learned Judge of the Tribunal merely because he had referred to that order.
7. I have considered the Award impugned and I do not find any impropriety in it. Mr. Majumder sought to make it a big issue of the observation made by the learned Judge of the Tribunal that the O.P.W. 1 and O.P.W.2 may be treated as corroborative evidence as the Managing Director had not been produced as a witness. I do not find anything particularly wrong in the observation that if the person who brought the case or defence to the Court is not produced for examination, the evidentiary value of the corroborative evidence is significantly and proportionately reduced. The written statement having been filed and signed by the Managing Director of the company, the Labour Court might rightly expect that he would depose on behalf of the company. The Managing Director's absence as a witness ought to have been cogently explained by the company otherwise the learned Judge of the Labour Court must be held to be correct if he had held against the writ petitioner herein on the strength of analogy drawn from Section 114(g) of the Evidence Act.
8. The Award impugned calls for no interference. The learned Judge of the Labour Court has applied the law and assessed the evidence from the proper angle and it cannot be said to have been vitiated ever by any wrong placement of onus.
9. Mr. Majumder wanted to make out a case about the fixing of onus as made by the learned Judge of the Labour Court.
10. Even in respect of that I do not find any mistake on the part of the learned Judge as within the broad and unchangeable framework of bur
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den of proof, there has been subtle shifting of onus with regard to the conduct of the disciplinary proceeding which lay entirely upon the company. 11. Thus, I find nothing to interfere with the writ petition and the same is hereby dismissed. There shall be no order as to costs. 12. Urgent Photostat certified copy of the order, if applied for, be supplied to the parties at an early date.