National Buildings Construction Limited, NBCC Bhawan, Lodhi Road, New v. The Presiding Officer, Industrial Tribunal-cum-Labour Court, Faridabad & Anr.

CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. Bharat Bhushan Sharma, Advocate, for the petitioner. Mr. Mohak Bhandara, Advocate, for respondent No. 2. AUGUSTINE GEORGE MASIH, J. (ORAL). The prayer in the present writ petition is for setting aside of the Award dated 06.04.2009 (Annexure-P-10), passed by the Industrial Tribunal- cum-Labour Court, Circle-I, Faridabad, vide which the reference had been answered in favour of the respondent/Workman, holding him entitled to reinstatement in service with full back wages. Counsel for the petitioner/Management contends that a detailed inquiry was held against the respondent/Workman after issuing him a chargesheet, which he replied and the same was found to be not satisfactory. Respondent/Workman participated in the said inquiry proceedings and the Enquiry Officer held him guilty of one of the charges, i.e., charge of submission of wrong information regarding his date of birth, but exonerated the respondent/Workman of the charge of having submitted the forged documents with regard to his earlier period of work with the petitioner/Management, as the same was not proved against him. He C.W.P. No. 13965 of 2009. -2- contends that the Labour Court should have taken into consideration the fact that, when the punishing authority did not agree with the report of the Enquiry Officer and held the respondent/Workman guilty on both the charges, a show cause notice was issued to him, to which the Workman had filed detailed reply and on consideration of the same, the services of the Workman were terminated by the petitioner/Management. He further contends that, in any case, respondent/Workman had not in his demand notice or in his statement before the Labour Court nor even in the written statement, which had been filed in this Court, stated that he had remained un-employed after his termination of his services and, therefore, grant of full back wages by the Labour Court, is not sustainable. He on this basis contends that the findings recorded by the Labour Court cannot be sustained and, therefore, the writ petition deserves to be allowed and the impugned Award be set aside. On the other hand, counsel for respondent/Workman submits that the petitioner/Management had failed to produce any document in support of assertion with regard to issuance of chargesheet, inquiry report and show cause notice after holding of inquiry. In the absence of any documentary evidence or even oral evidence to that effect, except the sole witness, who was produced before the Labour Court on behalf of the petitioner/Management, i.e., Shri S.K. Bhasin, MW-1, who had in his cross examination admitted that he does not know the complete facts of the case and, therefore, could not prove the inquiry report. In the absence of any documentary evidence in support of the stand of the petitioner/Management, the finding which had been recorded by the Labour Court, is fully justified, which does not call for any interference by this Court. However, counsel for respondent/Workman is unable to rebut the contention of counsel for the petitioner/Management that respondent/Workman had not asserted before the Labour Court in his claim C.W.P. No. 13965 of 2009. -3- statement or in his statement before the Labour Court and this Court that he had remained un-employed after his termination from service. I have heard counsel for the parties and have gone through the records of the case. A perusal of the impugned Award clearly shows that the stand, which had been taken by the Management with regard to the issuance of chargesheet, holding of inquiry thereafter, show cause notice to the Workman and order of termination having been passed by the Enquiry Officer, had not been proved before the Labour Court. No documentary evidence was produced by the petitioner/Management before the Labour Court. The Labour Court had specifically held that no inquiry report was produced nor any chargesheet was produced. The document Ex.MW-1/3, which was alleged to be the chargesheet, does not bear the signatures of any of the official of the petitioner/Management and, therefore, the Labour Court had discarded the said evidence. Apart from that, photocopy of the document, which was alleged to be the application submitted by the Workman for seeking his re- employment by giving forged particulars, were also not proved, and as the same was photocopy which bore the signatures thereon were in English, whereas respondent/Workman signs in Hindi. The Labour Court on comparison of the signatures, had given a finding that the signatures on the photocopy, which had been produced in the Court, which is alleged to be that of respondent/Workman, does not the signatures of respondent/Workman. The sole witness MW-1/Shri S.K. Bhasin, had in his cross examination stated that he is not aware of the facts of the case nor he is aware about the inquiry proceedings. The finding, which had been recorded by the Labour Court with regard to non proving of contention as raised by the petitioner/Management, cannot be said to be without any basis. That apart, C.W.P. No. 13965 of 2009. -4- respondent/Workman had produced on record ample documentary evidence to support his claim that he was rightly re-employed by the petitioner/Management. The finding, thus, recorded by the Labour Court in this regard is fully justified and based on the evidence, which cannot be faulted with. As regards the contention of counsel for the petitioner that the Workman had not asserted in his demand notice or in statement before the Labour Court as also before this Court that he had remained un-employed after termination of his services, could not be controverted by counsel for respondent/Workman. The onus with regard to respondent/Workman being unemployed, which was on the Workman, remained undischarged. The grant of full back wages in the case in hand to respondent/Workman by the Labour Court, vide its Award dated 06.04.2009 (Annexure-P-10) cannot be sustained and accordingly, the grant of full back wages by the Labour Court through impugned Award, is hereby set aside. In view of the above, the present writ petition is partly allowed. The Award dated 06.04.2009 (Annexure-P-10), passed by the Industrial Tribunal-cum-Labour Court, Circle-I, Faridabad, (Annexure-P-10) is modified to the extent that the respondent/Workman shall be entitled to reinstatement in service but without back wages. (AUGUSTINE GEORGE MASIH) JUDGE May 21, 2010. sjks.