The Odisha

G a z e t t e

EXTRAORDINARY

PUBLISHED BY AUTHORITY

No. 1482 CUTTACK, TUESDAY, AUGUST 6, 2024/SRAVANA 15, 1946

LABOUR & E.S.I. DEPARTMENT

NOTIFICATION

The 31st July 2024

S.R.O. No. 390/2024—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14

of 1947) the Award dated the 29 June 2024 passed in the I.D. Case No. 2 of 2023 [u/s 2-A(2)] by the

Presiding officer, Labour Court, Bhubaneswar on the industrial dispute between the Managing

Director, M/s Bharata Financial Inclusion, At Mancheswar, Industrial Estate, Block-B, Sector-A,

Bhubaneswar, Dist. Khurda. 2. Managing Director, M/s Bharata Financial Inclusion, 3rd Floor, My

Home Tyoon, Block-A, Kundabagh Begumpct, Hyderabad, PIN-500016 and Shri Dusasan Kandi,

Age-31 yrs., S/o Jogendra Kandi, At Gangopur, P.O. Udayapur, P.S. Austranga, Dist. Puri, Odisha

is hereby published as in the Schedule below :

SCHEDULE

IN THE LABOUR COURT, BHUBANESWAR

INDUSTRIAL DISPUTE CASE NO. 2 of 2023 [u/s 2-A(2)]

Dated the 29th June 2024

Present :

Smt. Aparna Mohapatra,

Presiding Officer,

Labour Court, Bhubaneswar,

[JO CODE-OD-0408]

Between :

1. Managing Director,

. .

First Party-Management

M/s Bharata Financial Inclusion,

At Mancheswar, Industrial Estate,

Block-B, Sector-A, Bhubaneswar,

Dist. Khurda.

2. Managing Director,

M/s Bharata Financial Inclusion,

3rd Floor, My Home Tyoon,

Block-A, Kundabagh Begumpct,

Hyderabad, PIN-500016.

And

Shri Dusasan Kandi, aged about 31 yers.,

. .

Second Party-Workman

S/o Jogendra Kandi,

At Gangopur, P.O. Udayapur,

P.S. Austranga, Dist. Puri,

Odisha.

Appearance :

Shri B. M. Pattanaik & Associate,

. .

For the Management

Advocates.

Shri N. M. Mekap,

. .

For the 2nd Party

Authorised Representative

AWARD

Challenging his termination from service with effect from the 5th February 2022 as illegal,

the second party named above has preferred the present application resorting to the provisions of

Section 2-A(2) of the Industrial Disputes Act,1947 (for short ‘the Act’) thereby claiming for his

reinstatement in service with full back wages and all other consequential service benifits.

The case of the second party involved in the present proceeding, in short, is that-on being

selected through a test, the second party joined under the managements as Loan Officer-Member

Service-Retail Business Loans and he was subsequntly promoted to the post of Branch Credit

Manager. In this way, he has worked under the managements for the period from 21st September

2020 to 4th February 2022. He was getting Rs. 17,000 towards his monthly wages. Although he

was designated as above, but in fact, the work done by him during his service tenure was of a

Class-III employee. According to the second party, he has not committed any misconduct while

working under the managements. It is the claim of the second party that he has been terminated

from service with effect from the 5th February 2022 on the ground of his absence in duty from 18th

November 2021 to 1st December 2021 owing to his illness. In this connection, it is stated by the

second party that there was no rule of the managements to submit leave application. However, the

managements were fully aware about his treatment in different medicals. According to the second

party he has completed more than 240 days continuous employment in twelve calendar months

under the management, but the managements have neither complied the provisions enumerated

in the I.D. Act nor followed the principle of natural justice while putting his service under it to an end.

The second party thereafter raised an industrial dispute in respect of his termination from service

before the concerned labour machinery vide his complaint petition dated the 11th November 2022

for his intervention. But, as the dispute could not be resolved by the labour machinery within the

stipulated period of forty five days, he filed the present application under Section 2-A(2) of the 10

Act before this Court directly for adjudication.

3. Pursuant to the notices of this Court, the managements entered their appearance and

filed a joint written statement as well as thereby admitting the employment of the second party

under them as a Loan Officer-Member Service Retail Busines Loans with effect from the 21st

September 2020. But, while disputing the averments made in Para. 6 of the claim statement, it is

emphatically averred in the WS that the second party was remained absent unauthorisedly for the

period from 18th November 2021 to 1st December 2021, but he was under treatment only for three

days at Capital Hospital, Bhubaneswar as an outdoor patient. The second party thereafter not only

reported in his duty on 2nd December 2021 but also submitted a leave application’ for sanction/

regularisation of his service period. But surprisingly, he himself sanctioned/regularised his service

by using the ID and password of the Branch Manager on theft when he was not authorised to do

so. The first party by considering such act of the second party as gross misconduct issued charge

sheet against him and pursuant thereto, he also filed his explanation. Consequent upon which the

first party conducted, an enquiry against him by appointing an Enquiry Officer, namely Debadatta

Swain for the purpose and ultimately a termination letter was issued against him on 5th February

2022 as he was found guilty as per the Enquiry Report submitted by the E.O. on 16th January

2022. With the above assertions, it has been prayed for the rejection of the claim of the second

party.

4. The second party in his rejoinder to the WS while reiterating the assertions made earlier

in his claim statement categorically submitted that he has never stolen the password and I.D. of

any Branch Manager as alleged, rather as per the instruction of the Head of the managements he

regularised his attendance. He however admitted to have received the show cause issued against

him by the management. But, the 1st party without framing any charges against him had conducted

an enquiry against him on 16th January 2022.

5. In view of the pleadings of the parties the following issues are framed :-

ISSUES

(i) Whether the action of the managements in dismissing the second party

from his service with effect from the 5th February 2022/ 22nd March 2023 is

legal and/or justified ?

(ii) Whether any due enquiry was conducted against the second party resulting

his dismissal from service?

(iii) If not, what relief the second party is entitled to ?”

6. The second party in order to substantiate his case has examined himself as WW No.1

and exhibited certain documents under Exts.1 to 4.

The managements, on the other hand, have examined two numbers of witnesses as

MW Nos.1 & 2 and also placed reliance on six numbers of documents which are marked as

Exts. A to F.

7. Although from the pleadings and evidence of the parties it is revealed that the present

case is a case of dismissal of service of the second party preceded by a domestic inquiry, but

neither the second party nor the managements pleaded to decide the fairness of such inquiry as a

preliminary issue nor prayed to prove the charges on merit by adducing independent evidence in

the event the inquiry is held to be unfair. Therefore, this Court took up all the issues together for

adjudication.

FINDINGS

8. Issue Nos. (i) and (ii)—The crux of the dispute since thoroughly rests on the above

issues the same are taken up together for a common discussion.

At the threshold, it is worthwhile to refer the admitted facts of the parties in this case. There

is no serious dispute to the fact that the second party was appointed as ‘Loan Officer-Member

Services-Retail’ by the authority concerned of the managements with effect from the 21st September

2020 vide Ext. 1; the second party has worked under the management effect from the 21st

September 2020 and he has worked under the managements for 240 days in each calendar year.

The managements have also not disputed the assertion of the second party that he is a workman

and the establishment of the managements is an ‘industry’ as per provisions of the I.D. Act. However,

the second party invited the attention of the Court to the cross-examination of MW No.1, who

during his cross-examination testified that the nature of the second party was coming under the

Class-III Employee.

In the case in hand, since beginning it has been contended on behalf of the second party

that he was terminated from service with effect from the 5th February 2022 by virtue of Ext. 2, but

the contents of Ext. 2 speak otherwise and make it clear that he was dismissed from his service

with effect from the 22nd March 2023 preceded by an enquiry conducted against him. It is

forthcoming from the materials available on the case record that the second party was dismissed

from his service vide Ext. 2/Ext. F as he himself regularised/approved his three days absence/

leave period by using the password and ID of the Branch Manager in the web portal when he was

not authorised to do so. Admittedly, for such act of the second party he was issued with show

cause notice 16th December 2021, vide Ext. B to which he submitted his reply vide Ext. D and ‘the

same has been marked with objection. But, the second party during his cross-examination at

Para. 17 lucidly admitted that he was called for explanation by the BM for using the password for

regularisation of his attendance and that he has also given his reply on 15th January 2022. It is also

forthcoming from the materials available on the’ case record that the managements not only

conducted an enquiry against him for his above act but also dismissed him from service w.ef.

22nd April 2023 after he found him guilty as per the enquiry report submitted by the E.O. On this

aspect, the second party put forth a claim that the said enquiry conducted against him us illegal.

In the above premises, a pertinent question that arises for consideration as to whether the

enquiry was conducted against the second’ party in a fair manner so also in consonance with the

principles of natural justice. Admittedly, there is nothing on record evidencing that the managements

have conducted the above enquiry against the second party as per the principles laid down by the

Hon’ble Apex Court in the Case of Sur Enamel and Stamping Work v. Workmen, AIR 1963 (SC)

1914. However, it is pertinent to mention here that not a single scrap of paper has been filed on

behalf of the managements to show that at any point time before the commencement of enquiry

the second party was charge sheeted; he was supplied with the relevant documents towards

charges levelled, if any against him; he was issued with the documents regarding appointment of

E.O., so also the representative of the managmenents ; the E.O. has maintained the enquiry

proceeding file which it could have been found that the second party was intimated.about the

procedure of conducting the enquiry, the second party was issued with the enquiry report coupled

with the supportive documents .etc. The MW No. 2, who is none other than the E.O., admittedly

has not recorded the statement of the disputant during enquiry. He also admitted that the copy of

enquiry report was not supplied to the delinquent. On the above grounds, the enquiry conducted

against the second party is held as neither legal nor justified. However, while taking into consideration’

the document marked vide Ext. D (the Xerox copy of reply dated the 15th January 2022 of the

second party to the show cause notice) wherein the second party unambiguously admitted that he

has regularised his attendance without informing the Branch Manager, therefore holding of a regular

inquiry against the second party would be an empty formality. In this context, it may be useful to

refer a judgment of the Hon’ble Apex Court in the case of Central Bank of India Ltd. Vrs. Karunamoy

Banerjee [AIR 1968 SC 266] wherein the Hon’ble Court has been pleaded to held that “If the

allegations are denied by the workman, the burden of proving the truth of those allegations will be

on the management; and the witnesses called by the management must be allowed to be cross-

examined by the workman and the latter must also be given an opportunity to examine himself and

adduce any other evidence that he might choose, in support of his plea. But if the workman admits

his guilt, to insist upon the management to let in evidence about the allegations will be an empty

formality.”

In the present case the second party in his. written explanations had admitted the

charges and therefore there was no molation of natural justice. Further, on being asked

the second party during his cross-examination stated to have given such reply as per the direction

of the BM. But in the next breath, he contended that he has neither mentioned in his claim statement

nor in his reply dated the 15th January 2022 that he had regularised his attendance in the biometric

system as per the direction of the BM. So, the above plea of the second party that he has given his

reply as per the direction of the BM is an afterthought plea and cannot be taken into consideration.

However, it is apposite to mention here that the managements have committed a gross irregularity

before dismissing the second party from his service. as a measure of punishment by not issuing

the second party a second show cause notice proposing the action to be taken against him to

have his say/reply on it. The expression “reasonable opportunity to show cause” means an

opportunity at a stage to represent to the authority against the tentative findings both with regard to

the guilt and the proposed punishment. Therefore, the employee should have an effective opportunity

to show cause against the finding of guilt and the punishment proposed and he should be furnished

with a copy of the findings of the inquiring authority which is obligatory. Admittedly, dismissal of any

employee is a major punishment. But, the managements have not filed any rule/order basing upon

which they have taken such major punishment against the second party for his above such act.

On the face of above, this Court is of the consistent opinion that the action of the managements in

dismissing the secondparty from service is illegal. At this stage, it is apt to mention here that the

Hon’ble Apex Court in the case of Workmen of Firestone Tyre and Rubber Co. V. Management,

[1973] 1 SCC 813 : 1973 ILLJ 278 have been pleased to observe that after the introduction of

Section 11-A of the Industrial Disputes Act with effect from the 15th December 1971, the Labour

Court has the power of an Appellate Court and it can also re-appreciate the evidence and come to

a different conclusion if the situation so warrants. It has been also oserved as follows :—

, “The Act is a beneficial piece of legislation enacted in the interest of employees. it is well

settled that in construing the provisions of a welfare legislation, courts should adopt, what is

described as a beneficent rule of construction. If two constructions are reasonably possible to be

placed on the section, it follows that the construction which furthers the policy and object of the Act

and is more, beneficial to the employees has to be preferred. The interpretation must be liberal

enough to achieve the legislative purpose. It must still be in accordance with the plain words, of the

statute or the section and must not do violence to the language used.by the legislature. it will

further have to be found from the words of the section whether it has altered the entire law as laid

down in the existing decisions and, if so, whether there is a clear expression of that intention in the

language of the section.

Both in respect of cases where a domestic enquiry has been held as also in cases when

the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction

under Section 11 A, about the guilt or otherwise of the workmen concerned is that of the Tribunal.

It has to consider the evidence and come to a conclusion one way or other. Even in cases where

an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can

now differ from that finding in a proper case and hold that no misconduct is proved”.

So, in view of the above observation of the Hon’ble Apex Court, this Court in exercise of its

power under Section-11 A of the ID Act while setting aside the punishment of dismissal of service

of the second party thinks it proper to modify the punishment to “termination of service of second

party without casting any stigma to his future service career” treating it as a case of Termination

Simplicitor.

9. Issue No. (iii)—In view of the above findings, the next question that arises for determination

as to what relief the workman is entitled to. At this stage, it is felt proper to rely upon the decision of

Hon’ble Apex Court in the case of Jagbir Singh Vrs. Haryana State Agriculture Marketing

Board and another, in Civil Appeal No.4334 of 2009 (Arising out of SLP No.987/

2009), reported in 2009 (4) LLJ 336 SC1 wherein the Hon’ble Court have been pleased to

held that “if the termination of an employee is found to be illegal, the relief of reinstatement with full

back wages would ordinarily follow. But, compensation instead of reinstatement has been held to

meet the ends of justice in appropriate cases”

As discussed above the second party was under employment for the period from 20st

September 2020 to 22nd March 2023. The second party in his statement of claim stated that his

last wage was fixed @ Rs.17,000 per month and such contention of the second party remained

un-assailed during his cross-examination. However, WM No. 2 during his cross-examination

submitted that the second party was getting wages approximately in between Rs. 25,000 to

Rs. 30,000 per month depending his performance. So, keeping in view the principle laid down in

the above case by the Hon’ble Apex Court, this Court taking into consideration the admission of the

second party as discussed above and as the managements have lost its confidence on the second

party as evident from Ext. F directs the managements to pay the second party workman a

compensation of Rs. 50,000 (Rupees Fifty Thousand) in lieu of his reinstatement and back wages

within a period of two months. of the date of publication of this ‘Award’ in the official gazette, failing

which the amount of compensation would carry a simple interest @ 6% per annum till its realisation.

The application is disposed of accordingly.

Dictated and corrected by me.

APARNA MOHAPATRA

29-06-2024

Presiding Officer

Labour Court, Bhubaneswar

[No. 5743—LESI-IR-ID-0061/2024-LESI]

By order of the Governor

NITIRANJAN SEN

Additional Secretary to Government

Printed and Published by the Director, Directorate of Printing, Stationery and Publication, Odisha, Cuttack-10

Ex. Gaz. 722–173+9