Secretary, Kshetriya Punjab Khadi v. The Presiding Officer Labour Court, Patiala & Anr.

Present:- Ms.Puneeta Sethi, Advocate for the petitioner. *** AUGUSTINE GEORGE MASIH, J. The petitioner herein which is a Society registered under the Societies Registration Act, is posing challenge to the order dated

24.12.2009 (Annexure P-1) passed by the Presiding Officer, Industrial Tribunal, Patiala, vide which the departmental enquiry held against respondent No.2-workman has been set aside being violative of the principles of natural justice; order dated 22.2.2010 (Annexure P-2) whereby the evidence of the petitioner has been closed by order of the Court, as also to the award dated 22.2.2010 (Annexure P-3) vide which the respondent No.2-workman has been ordered to be reinstated in service with continuity thereof and 10 per cent back wages with a further direction to the workman to join duty within a period of 30 days from the date of publication of the Award. Learned counsel for the petitioner contends that order dated C.W.P.No.10443 of 2010 -2-

24.12.2009(Annexure P-1) passed by the Tribunal cannot be sustained as the Tribunal had failed to take into consideration the fact that respondent No.2-workman was fully associated with the enquiry. He participated in the enquiry but failed to avail of the opportunity to adduce his evidence or to cross-examine the witness(es) produced by the management before the Inquiry Officer. She contends that the enquiry report was not required to be sent to the workman nor was he entitled to any show cause notice before the passing of the order of punishment against him as he had not co- operated with the enquiry after having refused to sign the enquiry proceedings nor had he produced any evidence in his defence before the Inquiry Officer. Accordingly, she prays for setting aside of the said order. In support of her contention, she has relied upon a judgment of the Hon’ble Supreme Court in the case of Indra Bhanu Gaur v. Committee, Management of M.M.Degree College and others, 2004(1) RSJ 21. This contention of the counsel for the petitioner cannot be accepted in the light of the findings recorded by the learned Tribunal in the impugned order which reads as under:- “I have considered the submissions made by ARs of both the parties. In this case, the inquiry file is produced in the Court. From the perusal of the same, it is clear that the list of witnesses was not supplied to the workman along with charge-sheet or by the inquiry officer. MW-2 admitted that the list of witnesses was not supplied to the workman along with the charge-sheet. In this case Ashok Kabuli, Advocate was appointed as inquiry officer. MW1 does not remember whether any C.W.P.No.10443 of 2010 -3- presenting officer was appointed to conduct the inquiry proceedings. In the enquiry file, no document is available to establish that some person was appointed as presenting officer to conduct the inquiry on behalf of management. MW1 admitted in his testimony that preliminary statement of the workman was not recorded before the start of the inquiry. As per inquiry proceedings dated 29.1.1996 Malkit Singh was present during the said proceedings, but he refused to cross- examine the witnesses of management. However, from the perusal of the statement of Ram Murti which was recorded during the inquiry on 29.1.1996, it appears that no opportunity was given to the workman to cross- examine the said witness. The inquiry officer submitted his report to the punishing authority on 3.2.1996. There is nothing on the record to prove that any show cause notice was served to the workman by the punishing authority. Also, management has failed to prove that the copy of inquiry report was ever delivered to the workman. MW2 Ram Nath admitted in his testimony that neither copy of inquiry report was given to the workman nor any opportunity of hearing was given to the workman before passing the order of his termination. So, it is proved on the record that the copy of inquiry report was not supplied to the workman and even, opportunity of personal hearing was not given to the workman before C.W.P.No.10443 of 2010 -4- passing the order of termination dated 8.2.1996. In these circumstances, this Court is of the view that the principles of natural justice were violated while conducting the departmental inquiry against the workman. So, it is proved on the record that fair and proper inquiry was not conducted against the workman before terminating his services. Thus, it is held that the departmental inquiry which was conducted against the workman was defective and accordingly the same is not binding on the workman. Accordingly, this issue is decided against the respondent and in favour of the workman.” The findings as recorded by the Tribunal which have been reproduced hereinabove, could not be controverted by the counsel for the petitioner, in view of the evidence and the pleadings led by the parties before the Tribunal. The judgment in Indra Bhanu Gaur’s case (supra), relied upon by the counsel for the petitioner, is distinguishable both on facts and law and therefore, cannot be pressed into service in favour of the petitioner as in that case, the question was with regard to the payment of subsistence allowance during the period of suspension and for claiming the same, certain formalities were to be fulfilled which the appellant failed to comply with. Thus, challenge to the order dated 24.12.2009 (Annexure P-1) fails. The next contention of the counsel for the petitioner is that order dated 22.2.2010 (Annexure P-2) vide which the evidence of the C.W.P.No.10443 of 2010 -5- petitioner was closed by order, despite the written request submitted by the authorized representative of the petitioner-management for an adjournment, is not justified. I have gone through the said impugned order. A perusal of the same would show that after the passing of order dated 24.12.2009 (Annexure P-1) vide which the enquiry proceedings held by the petitioner- management against the respondent-workman were declared as illegal being violative of the principles of natural justice, the case was adjourned to

22.1.2010 for the evidence of the petitioner-management in regard to the proof of misconduct which right was reserved by the management with it by filing reply to the claim submitted by the respondent-workman. On

22.1.2010, no management witness was produced and a date was requested and the case was accordingly adjourned to 4.2.2010. On 4.2.2010, again no management witness was present and a prayer for an adjournment was made which was accepted by the Tribunal and the case was posted for 22.2.2010 for the evidence of the management but as a last opportunity for the said purpose. On 22.2.2010, again a written request for an adjournment was made; however, the Tribunal while observing that the matter was 10 years old and the case was being delayed and even two opportunities had been granted and on the date fixed, it was a third opportunity to the management to lead evidence in support of its case, declined to grant any further opportunity to the management to conclude its evidence. The said order passed by the Tribunal is fully justified and calls for no interference by this Court. No serious challenge has been posed to the impugned award dated 22.2.2010 (Annexure P-3) passed by the Tribunal, in the light of the C.W.P.No.10443 of 2010 -6- findings recorded by the Tribunal vide order dated 24.12.2009 whereby the departmental enquiry so conducted against the workman was held to be in violation of the principles of natural justice and therefore, not in accordance with law. There being no other evidence having been led by the petitioner- management to prove misconduct against the respondent-workman, the award dated 22.2.2010 (Annexure P-3) passed by the Tribunal is fully justified and calls for no interference. In any case, the learned Tribunal has directed the respondent-workman to be reinstated in service along with continuity thereof, with only 10 per cent back-wages. Accordingly, the present writ petition fails and is hereby dismissed. May 28, 2010 poonam ( AUGUSTINE GEORGE MASIH ) JUDGE Whether referred to Reporters- Yes/No.