Page No.# 1/18 GAHC010028712017 2025:GAU-AS:9866 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3872/2017 M/S. PERTABGHUR TEA ESTATE and ANR. OWNED BY MCLEOD RUSSEL INDIA LTD., REGD OFFICE AT FOUR MANGOE LANE, SURENDRA MOHAN GHOSH SARANI KOLKATA VERSUS HIREN BHUMIJ and ANR. PERTABGHUR TEA ESTATE, P.O- BISWANATH CHARIALI, SONITPUR, ASSAM REP. BY THE SECRETARY, AKHIL BHARATIYA CHAH MAZDOOR SANGHA, BISWANATH CHARIALI, SONIRTPUR, ASSAM 2:PRESIDING OFFICER LABOUR COURT GUWAHATI KAMRUP For the Petitioner(s) : Mr. R. Sarmah, Advocate For the Respondent(s) : Mr. A. Dasgupta, Sr. Advocate Mr. F. Z. Mazumder, Advocate Date of Hearing : 31.07.2025 Date of Judgment : 31.07.2025 Page No.# 2/18 BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH JUDGMENT AND ORDER (ORAL) Heard Mr. R. Sarmah, the learned counsel appearing on behalf of the petitioners. Mr. A. Dasgupta, the learned Senior Counsel assisted by Mr. F.Z. Mazumdar, the learned counsel appears on behalf of the respondent No. 1. 2. The petitioners by way of the present proceedings have questioned the legality and validity of the Award on preliminary issue dated 30.03.2015 as well as the Final Award dated 31.12.2016 passed in Reference Case No. 01/2010. It is pertinent herein to observe that as per the Final Award dated 31.12.2016, the learned Labour Court answered the reference in favour of the respondent No. 1 i.e. the workman holding inter alia that the Management of the Petitioner No. 1 Tea Estate (for convenience referred to as, “Petitioner Tea Estate”) was not justified in dismissing the service of the respondent No. 1 and further ordered that the respondent No. 1 is entitled to reinstatement in service with 50% back wages. 3. The legality of the impugned Award on preliminary issue dated 30.03.2015 and the Final Award dated 31.12.2016 in Reference Case No. 01/2010 can be discerned on the basis of the facts which led to Page No.# 3/18 the filing of the instant proceedings. Accordingly, the facts leading to the present proceedings are briefly mentioned hereinafter. 4. The respondent No. 1 was a workman engaged in the Petitioner Tea Estate. On 31.05.2003, a show cause notice was issued to him by the Management of the Petitioner Tea Estate charging him with committing misconduct on the ground that the respondent No. 1 had prevented workers of the Petitioner Tea Estate from discharging their duties, for which, verbal and written complaints were lodged by a group of workers before the Management. The respondent no. 1 further was placed under suspension. 5. The materials on record further show that the explanation so submitted by the respondent No.1 was found unsatisfactory by the Management of the Petitioner Tea Estate and accordingly, the Management of the Petitioner Tea Estate decided to hold a domestic enquiry against the Respondent No. 1, on the charges mentioned in the said show cause notice. 6. It is also relevant to take note of that another show cause notice dated 10.09.2003 was also issued upon the respondent No.1 on the charge that he tried to incite the workers against the Management for deduction of union subscription from the wages of the workmen. Written explanation so furnished by the Respondent No. 1 was also found to be not satisfactory and it was also decided to hold enquiry Page No.# 4/18 against the Respondent No. 1. 7. The Enquiry Officer so appointed, enquired and submitted a report holding that the Respondent No. 1 was guilty for committing the offence of misconduct on 21.05.2003 as alleged in the Charge Sheet dated 31.05.2003 and also guilty of committing gross misconduct on 28.08.2003 as alleged in the Charge Sheet dated 10.09.2003. 8. On the basis of the said enquiry report, the respondent No. 1 was show caused, as to why, he should not be dismissed from service with immediate effect. The respondent No. 1 did not submit any representation and this resulted in passing of an order on 04.05.2004 whereby the respondent No. 1 was dismissed from service with immediate effect. 9. The record further reveals that on 01.04.2010, the Government of Assam had issued a Notification making a Reference to the learned Labour Court, Guwahati and the terms of the reference are as herein under: “GOVERNMENT OF ASSAM LABOUR & EMPLOYMENT DEPARTMENT ORDERS BY THE GOVERNOR NOTIFICATION Dated Dispur, the 1st April, 2010 Page No.# 5/18 No. GLR.88/2006/114…………. whereas an industrial disputes has arisen in the matter specified in the Schedule below between:- The management of M/S. Pertabghur Tea Estate and their member workman Shri Hiren Bhumij represented by A.B.C.M.S., Biswanath Branch. An whereas it is considered expedient by the Government of Assam to refer the dispute for adjudication to Labour Court, Guwahati constituted under Section 7 of the Industrial Disputes Act, 1947 (Act XIV of 1947) Now, therefore, in exercise of the powers conferred by Clause (c) Sub- Section (1) of Section 10 of the Industrial Disputes Act, 1947 (Act-XIV of 1947) as amended the Governor of Assam is pleased to refer the said dispute to the Presiding Officer, Labour Court, Guwahati appointed under the provisions of the said act. -SCHEDULE- (1) Whether the Management of Pertabghur Tea Estate is justified in dismissing the services of Sri Hiren Bhumij with effect from 04.05.2004? (2) If not, whether the workman Sri Hiren Bhumij is entitled for re- statement with back wages or any other benefits in lieu there of? Sd/-R.K.Deka Deputy Secy. To the Govt. of Assam Labout & Employment Department Memo No. GLR.88/2006/114-A, Dtd. Dispur, the 1st April 2010” 10. Pursuant to the Reference being made to the learned Labour Court, a Reference Case was registered as Reference Case No. 01/2010. Both the Respondent No. 1 as well as the Management of Page No.# 6/18 the Petitioner Tea Estate submitted their written statement. In the written statement, so submitted by the Management of the Petitioner Tea Estate, the fairness of the domestic enquiry was raised as a preliminary issue. On the basis of the said, a preliminary issue was framed by the learned Labour Court. 11. On behalf of the Management, 2 (two) witnesses were adduced to prove that the domestic enquiry so held was fair. The record reveals that the learned Labour Court passed a Preliminary Award dated 30.03.2015 holding inter alia that the domestic inquiry so held was unfair. The defects which were found by the learned Labour Court to the domestic enquiry were: (i)No presenting officer was appointed by the Management. (ii)The enquiry officer did not explain to the workman that he is entitled to take defence assistance. (iii)Notice of enquiry was issued by the Management which ought to have been issued by the enquiry officer. (iv)Within one day the enquiry was started and completed on the same day. 12. The learned Labour Court further observed that on the basis of the materials and the infirmities, it appeared that the Enquiry Officer Page No.# 7/18 was biased and the principles of natural justice were not adhered to. Paragraph 11 of the Preliminary Award dated 30.03.2015 being relevant is reproduced hereinafter: “11. The above infirmities would show that the enquiry officer was biased. The principle of natural justice is also not applied in the enquiry. Duty casts on the employer to hold proper enquiry according to Standing Orders and principles of natural justice. Thus, it is evident that the enquiry conducted by the enquiry officer is not valid rather the enquiry is an empty formality. Therefore, the preliminary issue is decided against the management and in favour of the workman. Record reveals that the management has already filed a petition bearing No. 153/13 whereby the management stated that, in case, a the preliminary issue is decided against the management, then it may be given opportunity to adduce fresh evidence to justify its action of dismissal of the workman in question. Since, the management has raised their plea at the earliest possible opportunity, therefore, the management is at liberty to adduce evidence to justify its action of dismissal of the workman.” 13. From the above quoted portion of the Preliminary Award, it is apparent that the learned Labour Court after deciding the preliminary issue against the Management, granted the liberty to the Management to adduce evidence to justify its action of dismissal of the workman. 14. The record further reveals that the Management of the Petitioner Tea Estate challenged the Preliminary Award dated 30.03.2015 by filing a writ petition before this Court which was registered and Page No.# 8/18 numbered as WP(C) No. 4897/2015. The said writ petition was dismissed vide the judgment and order dated 21.08.2015. This Court, finds it very pertinent to take note of the operative part of the said judgment rendered by the learned Coordinate Bench of this Court as same has relevance to the present adjudication. The operative part is reproduced herein under: “At this stage, the decision in Cooper Engineering Ltd. (supra) may once again be adverted to. In the said decision, the Apex Court made it abundantly clear that there would be no justification for any part to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. The Apex Court further clarified that it would also be legitimate for the High Court to refuse to intervene at this stage. There are weighty reasons behind the aforesaid clarification of the Apex Court. Provisions of the Industrial Disputes Act, 1947 are intended for resolution of industrial disputes in a fair, peaceful and judicious manner so that industrial peace is maintained and industrial production is not hampered. Therefore, there should not be any undue delay in adjudication of industrial disputes. Interference with the decision of the Labour Court on the preliminary issue of validity of the domestic enquiry when the management had exercised its right of leading fresh evidence (at the first available opportunity) in the event of the preliminary issue being decided against it may not be justified. In the circumstances of the case, no fault can be found with the view taken by the Labour Court giving liberty to the management to adduce evidence to justify its action of dismissal of the workman after deciding the preliminary issue regarding validity of the domestic inquiry Page No.# 9/18 leading to dismissal of the workman against the management. In the light of the above, particularly the clarification of the Apex Court in Cooper Engineering Ltd. (supra), this Court is not inclined to invoke its writ jurisdiction under Article 226 of the Constitution of India at this stage with regard to the decision of the learned Labour Court on the preliminary issue when the reference is yet to be finally adjudicated. Accordingly and in the light of the above, this Court finds no merit in the writ petition, which is dismissed. No costs.” 15. The record of the learned Labour Court reveals that pursuant to the judgment and order passed by the learned Coordinate Bench of this Court, the learned Labour Court on 21.04.2015 passed an order fixing 12.05.2015 for filing evidence by the Management side on merit. It is further seen from the records that on 27.05.2015, 16.06.2015, 13.07.2015, 31.07.2015, 17.08.2015, 07.09.2015, 22.09.2015, 12.10.2015, 26.11.2015, 04.01.2016, 27.01.2016 and 16.02.2016, the Management of the Petitioner Tea Estate sought for time for filing their evidence. However, the Management even after galore of opportunities provided, did not submit any evidence to justify their actions of termination of the respondent No. 1 on merits. Rather, on 08.03.2016, the learned Labour Court observed that as there was no request seeking for any further time, it could be presumed that the Management side did not wish to adduce any evidence on merits and the evidence of the Management side was closed. Page No.# 10/18 16. The record further reveals that on 19.04.2016, the learned Labour Court gave opportunity to the workman to adduce evidence and in pursuance thereto, the workman adduced evidence of 2 (two) witnesses. It is further pertinent to take note of another order dated 17.05.2016 whereby at the request of the Management of the Petitioner Tea Estate, the learned Labour Court allowed the Management to rely on the evidence already adduced during the time of preliminary issue, particularly of MW.1, and an opportunity was given to the workman to cross-examine the said MW.1. 17. Thereupon on 27.05.2016, the Management Witness No. 1 was cross-examined and the evidence of the Management side was closed. The record further reveals that pursuant to the evidence taken, the learned Labour Court passed the Final Award on 31.12.2016 thereby deciding the reference in favour of the respondent No.1/workman and it is under such circumstances, the present writ petition has been filed. 18. It is very pertinent to take note of that vide an order dated 23.06.2017 the learned Coordinate Bench of this Court had admitted the instant writ proceedings and stayed both the Preliminary Award dated 30.03.2015 as well as the Final Award dated 31.12.2016. It is further apparent from the records that the respondent No. 1 had filed an application under Section 17B of the Industrial Disputes Act, 1947 Page No.# 11/18 (for short, “the Act of 1947”) which was registered and numbered as I.A.(Civil) No. 1474/2023. The learned Coordinate Bench of this Court vide an order dated 05.06.2023 was of the opinion that instead of deciding the said application under Section 17B of the Act of 1947 in a piece meal manner, an attempt shall be made to dispose of the instant writ petition at the admission stage and accordingly, fixed the matter on 08.08.2023. The record further reveals that the instant writ petition could not be disposed of on the said date so fixed and the matter was listed before this Court on 22.07.2025 when the instant writ petition was heard in part, thereby fixing the matter today for further arguments. 19. Mr. R. Sarmah, the learned counsel appearing on behalf of the petitioners submitted that the Preliminary Award so passed on 30.03.2015 is not in accordance with law inasmuch as the learned Labour Court did not consider that due opportunity was provided to the respondent No. 1 to defend the charges against him. The learned counsel submitted that the reasons so assigned by the learned Labour Court in the Preliminary Award dated 30.03.2015 is perverse, inasmuch as the infirmities mentioned therein did not exist. 20. The learned counsel for the petitioners further submitted that though the petitioners had assailed the said Preliminary Award dated 30.03.2015 in WP(C) No. 4897/2015, the learned Coordinate Bench of Page No.# 12/18 this Court did not interfere at that stage and from a perusal of the judgment and order dated 21.08.2015 in WP(C) No. 4897/2015, it would be apparent that the challenge to the Preliminary Award can be maintained after the Final Award is passed. The learned counsel further assailing the Final Award submitted that the Exhibit 13 wherein the respondent No. 1 duly admitted his guilt was not properly taken into consideration by the learned Labour Court and it is on that basis, the impugned Final Award dated 31.12.2016 is required to be interfered with. 21. Per contra, Mr. A. Dasgupta, the learned Senior Counsel submitted that when a preliminary enquiry is decided to be unfair, the question of interference in the proceedings under Article 226 of the Constitution of India is not conceived. The learned Senior Counsel submitted that if the domestic enquiry is interfered with, the learned Labour Court/the Industrial Tribunal provides an adequate opportunity to the Management to justify the action by evidence if permission sought for at the earliest opportunity and it is therefore incumbent upon the Management to prove that their actions as in the present case, the termination of the respondent No. 1 was justified and, that too, by following the settled principles of law. In support of his submission, the learned Senior Counsel further submitted that the question of challenging the Preliminary Award dated 30.03.2015 do not arise at all and, more so, in view of the judgment passed by the Page No.# 13/18 learned Coordinate Bench of this Court dated 21.08.2015 in WP(C) No. 4897/2015 whereby the learned Coordinate Bench of this Court refused to interfere with the Preliminary Award dated 30.03.2015. The learned Senior Counsel further drew the attention of this Court to the judgment of the Supreme Court in the case of Neeta Kaplish Vs. Presiding Officer, Labour Court & Another reported in (1999) 1 SCC 517 and place reliance on paragraph No. 27 of the said judgment. 22. Mr. A. Dasgupta, the learned Senior Counsel further submitted that the materials on record would show that enough opportunity was provided to the Management to adduce evidence and the Management did not adduce evidence. He therefore submitted that without any evidence being adduced by the Management justifying the termination, and on the contrary, the workman had adduced evidence justifying the illegality, the learned Labour Court was justified in passing the Award dated 31.12.2016, thereby directing reinstatement of the workman with 50% back wages. 23. This Court has duly heard the learned counsels appearing on behalf of the parties and has perused the materials on record as well as the records of the Reference Case No. 01/2010. 24. The first question which arises is, as to whether, the Petitioner Tea Estate is in a position to assail the Preliminary Award dated 30.03.2015 whereby the learned Labour Court held that the domestic Page No.# 14/18 enquiry so held was unfair and contained various infirmities. The judgment of the Supreme Court in the case of Neeta Kaplish (supra) is an authority on the said aspect wherein the Supreme Court categorically observed that when a domestic enquiry is held to be in violation to the principles of natural justice, the said domestic enquiry report ceases to be materials on record within the meaning of Section 11A of the Act of 1947 and the only course available then upon the Management is to justify their actions by adducing evidence. This Court finds it very pertinent to refer to Paragraph Nos. 24 to 27 of the said judgment which are reproduced herein under: “24. In view of the above, the legal position as emerges out is that in all cases where enquiry has not been held or the enquiry has been found to be defective, the Tribunal can call upon the management or the employer to justify the action taken against the workman and to show by fresh evidence that the termination or dismissal order was proper. If the management does not lead any evidence by availing of this opportunity, it cannot raise any grouse at any subsequent stage that it should have been given that opportunity, as the Tribunal, in those circumstances, would be justified in passing an award in favour of the workman. If, however, the opportunity is availed of and the evidence is adduced by the management, the validity of the action taken by it has to be scrutinised and adjudicated upon on the basis of such fresh evidence. 25. In the instant case, the appellant had questioned the domestic enquiry on a number of grounds including that her own answers, in reply to the questions of the Presiding Officer, were not correctly and completely recorded and that the Enquiry Officer was not impartial and was biased in favour of the respondent. It was further contended that her own witnesses were not called and she was not Page No.# 15/18 given the opportunity to lead evidence. The Labour Court has discussed a few of these grounds but has not given any finding on the bias of the Enquiry Officer or the ground relating to incorrectly recording the statement of the appellant. The Labour Court, however, found that the enquiry was not fairly and properly held. It was after recording this finding that the Labour Court called upon the Management to lead evidence on merits which it did not do. 26. Learned counsel for the appellant (sic respondent) contended that in spite of the direction by the Labour Court to the respondent-Management to lead evidence, it was open to the Management to rely upon the domestic enquiry proceedings already held by the Enquiry Officer, including the evidence recorded by him, and it was under no obligation to lead further evidence, particularly as the Management was of the view that the charges, on the basis of the evidence already led before the Enquiry Officer, stood proved. It was also contended that under Section 11-A, the Labour Court had to rely on the “materials on record” and since the enquiry proceedings constituted “material on record”, the same could not be ignored. The argument is fallacious. 27. The record pertaining to the domestic enquiry would not constitute “fresh evidence” as those proceedings have already been found by the Labour Court to be defective. Such record would also not constitute “material on record”, as contended by the counsel for the respondent, within the meaning of Section 11- A as the enquiry proceedings on being found to be bad, have to be ignored altogether. The proceedings of the domestic enquiry could be, and were in fact, relied upon by the Management for the limited purpose of showing at the preliminary stage that the action taken against the appellant was just and proper and that a full opportunity of hearing was given to her in consonance with the principles of natural justice. This contention has not been accepted by the Labour Court and the enquiry has been held to be bad. In view of the nature of objections raised by the appellant, the record of enquiry held by the Management ceased to be “material on record” within the meaning of Section Page No.# 16/18 11-A of the Act and the only course open to the Management was to justify its action by leading fresh evidence as required by the Labour Court. If such evidence has not been led, the Management has to suffer the consequences.” 25. In view of the principles so laid down by the Supreme Court in the above quoted paragraphs of the judgment in the case of Neeta Kaplish (supra), the question of assailing the Preliminary Award dated 30.03.2015 in the present proceedings do not arise. This Court further takes note of the judgment passed by the learned Coordinate Bench of this Court dated 21.08.2015 in WP(C) No. 4897/2015 and, more particularly, to the relevant operative portion which has been quoted herein above. 26. From a perusal of the above operative portion of the judgment dated 21.08.2015 in WP(C) No. 4897/2015 passed by the learned Coordinate Bench of this Court, the learned Coordinate Bench of this Court categorically observed that the question of interfering with the Preliminary Award did not arise inasmuch as the Management had been duly given an opportunity to adduce evidence. Consequently, in the opinion of this Court, the challenge made to the Preliminary Award passed by the learned Labour Court dated 30.03.2015 is totally misconceived. 27. Now let this Court take into account the submission so made by the learned counsel appearing on behalf of the petitioners on merits. Page No.# 17/18 28. The learned counsel appearing on behalf of the petitioners referred to Exhibit 13. It is seen from the records that the respondent No. 1 during his cross-examination had categorically denied Exhibit 13. The Management had not adduced any evidence on that aspect. In fact, to justify the termination of the respondent No. 1, there is no evidence adduced by the Management. This Court further has perused the impugned Final Award dated 31.12.2016 passed by the learned Labour Court and the reasons so assigned, more particularly as regards Exhibit 13 wherein the learned Labour Court observed that the contents of Exhibit 13 are not specific to fulfill the ingredients of a misconduct. 29. This Court further finds it also pertinent to observe that this Court is not exercising an Appellate Jurisdiction over the Award passed by the learned Labour Court and the exercise of the jurisdiction is only on the decision making process. From the observations and findings on the basis of which the learned Labour Court had passed the impugned Final Award dated 31.12.2016, this Court neither finds any error in exercise of its jurisdiction nor the Final Award palpably erroneous. 30. Accordingly, the instant writ petition stands disposed of with the following observations and directions: (i) The challenge made to the Preliminary Award dated Page No.# 18/18 30.03.2015 is misconceived and as such rejected. (ii) The challenge made to the Final Award dated 31.12.2016 is meritless and no question of interference with the Final Award dated 31.12.2016 arises. (iii) The petitioners herein are directed to reinstate the Respondent No. 1 within 30 days from the date of the instant judgment. (iv) The respondent No. 1 herein would be entitled to 50% of the back wages with effect from the date of his termination till he is reinstated i.e. within 30 days from the date of this judgment. Upon reinstatement, the respondent No. 1 be entitled to all the benefits of the posts to which he is reinstated. (v) This Court imposes a cost of Rs. 11,000/- upon the petitioners which shall be paid to the respondent No. 1 alongwith his back wages at the time of his reinstatement within the time directed above. (vi) The records of the learned Labour Court be returned. JUDGE Comparing Assistant