Research › Search › Judgment

Punjab High Court · body

2009 DIGILAW 64 (PNJ)

Talbros Automotive Components Ltd. v. Presiding Officer, Industrial Tribunal-cum-labour Court-i, Faridabad

2009-01-12

AUGUSTINE GEORGE MASIH

body2009
Judgment Augustine George Masih, J. 1. Through the present writ petftion, the petitioner is challenging the order dated 12.07.2000 (Annexure P-13) passed by the Presiding Officer, Industrial Tribunai-cum-Labour Court-!, Faridabad, vide which issue No. 2 i.e. whether a fair and proper enquiry was held or not, has been deeided against the petitioner and the award dated 29.09.2000 {Annexure P-14) passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court-I, Faridabad, vide which the reference has been answered in favour of respondent No. 2-workman and he has been held entitled to reinstatement with continuity of service and full back wages. 2. The brief facts of the case are that respondent No. 2-workman, who was employed as a Clerk Typist on 22.10.1989 with the petitioner. On 15.06.1994, he approached his Departmental Head Sh. Jatinder Sachdev and asked for sanetion of half day leave on 15.06.1994 as also for the period for which he has absented i.e. 13th and 141h June, 1994. The Departmental Head had refused to sanetion the leave for 13th and 14th June, 1994, on 10/11 June. On being refused leave, it is alleged that respondent No. 2-workman abused the Departmental Head in front of the other workers and threatened him. The leave was not granted for 15.06.1994, however respondent No. 2-workman absented himself on 15.06.1994 as well. A charge-sheet dated 16.06.1994 W4s served upon respondent No. 2-workman (Annexure P-1). To this chargesheet, the workman submitted his reply and denied the said charges. Not being satisfied with the reply submitted by the workman, the petitioner Management proceeded to enquire the matter. Consequently, Sh. O.P. Ahuja was appointed as Enquiry Officer vide letter dated 23.06.1994. Respondent No. 2-workman made a request that Sh. K.L. Sharma, who was the Vice President of the INTUC union, be allowed to represent him. The said request was not granted by the Enquiry Officer and thereafter, the workman did not participate in the enquiry. The Enquiry Officer proceeded to hold his enquiry as per Clause 30 of the Certified Standing Order s of the petitioner and submitted his enquiry report on 21.10.1994 (Annexure P-4). The Enquiry Officer held respondent No. 2-workman guilty of the alleged charges. The competent authority accepted the enquiry report and passed an orderdated 24.10.1994 dismissing respondent No. 2-workman from service, copy of the said order is appended as Annexure P-5 with the writ petition. 3. The Enquiry Officer held respondent No. 2-workman guilty of the alleged charges. The competent authority accepted the enquiry report and passed an orderdated 24.10.1994 dismissing respondent No. 2-workman from service, copy of the said order is appended as Annexure P-5 with the writ petition. 3. Respondent No. 2-workman submitted a demand notice dated 08.05.1995 (Annexure P-6) claiming therein reinstatement with full back wages. The petitioner filed a reply to the said notice, which is appended as Annexure P- 7. As the conciliation proceedings failed, the matter was referred to the Industrial Tribunal-cum-Labour Court, Faridabad. The Labour Court, on the basis of the pleadings, proceeded to frame the following issues: " 1. Whether termination of the Service of Shambu Dyal is justified and in order? If not, to what relief he is entitled to ? 2. Whether the enquiry was fair and proper ? 3. Relief." 4. The learned Industrial Tribunal-cum-Labour Court, was pleased to treat issue No. 2 i.e. whether the enquiry was fair and proper as a preliminary issue and proceeded to decide the same on the basis of the evidence produced by the parties and vide order dated 12.07.2000 was pleased to hold that no proper opportunity of being heard was given to the workman and no representative has been given to the workman fn the course of the enquiry by the Enquiry Officer and enquiry report Ex.M-4, so submitted by the Enquiry Officer is, thus, held not fair and proper and the same is set aside and the enquiry held to be vitiated. Thus, this issue is decided in favour of the workman and against the Management. An opportunity was granted to the Management to produce evidence to prove the charges, as brought out in the charge-sheet, against respondent No. 2-workman. The Management could not produce any evidence to prove the charges despite opportunity granted and its evidence was closed by the court. On the basis of the findings recorded on issue No. 2, wherein the enquiry was held to have not been conducted in a fair and proper manner, the court proceeded to decide issue No. 1 against the Management and accordingly, on issue No. 3, which was the relief clause, held the workman entitled to reinstatement with continuity of service and full back wages. 5. 5. It has been contended by the counsel for the petitioner that the award of the Labour Court is not sustainable in the light of the fact that the Enquiry Officer Sh. O.P. Ahuja, has held the enquiry in accordance with Clause 30 of the Certified Standing Orders of the petitioner. He submits that the said Standing Orders do not provide for supplying the list of witnesses to the delinquent employee. He submits that the list of witnesses was not supplied to the employee as there was apprehension that respondent No. 2-workman would threaten and intimidate the witnesses. He submits that one Sh. Munna Khan s/o Sh. Jamal Ahmad was manhandled, because of which, he was badly hurt and was threatened to cause further injury to him. He reiies on Annexure P-3, which is an alleged complaint to the Post Ineharge, Sector 28, Police Post, Faridabad given by Sh. Munna Khan, wherein he has further stated that he had danger from Shimbhu Dayal. On this basis, the counsel for the petitioner, submits that respondent No. 2-workman was a dangerous type of person and there was, thus, an apprehension that he would intimidate and threaten the witnesses, who were to depose against him and, therefore, workman was not supplied with the list of witnesses, who were to depose against him. Counsel for the petitioner next submits that Mr. K.L.Sharma was an outsider and not the employee of the petitioner and, therefore, could not be, in the light of Clause 30 of this Certified Standing Orders, be permitted to assist the workman. He submits that only an office-bearer of a trade union of the factory of which the workman is a member, could be directed to represent the workman. Since Sh. K.L. Sharma was not aco-worker, therefore, the permission was rightly declined by the Enquiry Officer declining the assistance of Sh. K.L. Sharma, who has been shown as Vice President of the INTUC Union. He again put forth his Submission that no second show cause notice was envisaged under the Certified Standing Order s nor was a requirement of the same to supply copy of the enquiry report to the delinquent employee before the passing of the order of punishment by the competent authority. 6. He again put forth his Submission that no second show cause notice was envisaged under the Certified Standing Order s nor was a requirement of the same to supply copy of the enquiry report to the delinquent employee before the passing of the order of punishment by the competent authority. 6. He, at the end, submits that unless respondent No. 2-workman shows the prejudice caused to the workman, mere non-supply of the list of witnesses, enquiry report, second show cause notice, does not vitiate the enquiry. He submits that since the employee has himself absented from the enquiry and has rather refused to participate in the enquiry on rejection of his application for permitting him to the assistance of Sh. K.L. Sharma, no benefit can be claimed by the workman for an act of inaction on his pari Once he has decided to abstain from the enquiry, it cannot be said that any prejudice has been caused to him while holding the enquiry as he has not participated in the said process. He, on that basis, submits that as the requirements, as provided under the Certified Standing Order s, having been complied with, no fault with the enquiry could have been found by the Labour Court and, therefore, the award deserves to be set aside. 7. Counsel for the petitioner has stated that the impugned order dated 12.07.2000 (Annexure P-13) after being passed, the case was fixed for nearing before the learned court on 15.09.2000 for production of entire evidence of the Management to prove the charges in the court as per Section 11 of the Industrial Disputes Act. Ön 15.09.2000, one opportunity was granted to the Management to produce their evidence. Thereafter, the date fixed was 29:09.2000, which was granted on the request of the Management for produce of evidence. The court, vide order dated 15.09.2000, ordered that it would be the last opportunity and further imposed cost of Rs 500/- on the Management. On 29.09.2000, the court proceeded to dose the evidence of the Management as the Management failed to produce any evidence before the Labour Court although the cost of Rs. 500/- stood paid to the workman, the court further proceeded to pass the award on 29.09.2000 itself. On this basis, he submits that no opportunity was given to the petitioner-Management to even argue the matter by the Labour Court. 500/- stood paid to the workman, the court further proceeded to pass the award on 29.09.2000 itself. On this basis, he submits that no opportunity was given to the petitioner-Management to even argue the matter by the Labour Court. He submits that since no opportunity to argue the case was given, the award Stands vitiated. 8. On the other hand, counsel for respondent.No. 2-workman has submitted that on going through the pleadings and records, which have been produced by the parties before the Labour Court, the Labour Court has given a categoric finding that the enquiry held against the workman was not in accordance with law and is in total violation of the principles of natural justice, therefore, has been rightly held to be vitiated and the enquiry report set aside. As the petitioner-Management failed to produce any evidence whatsoever after setting aside of the enquiry report vide order dated 12.07.2000 (Annexure P-3), the Labour Court has rightly proceeded to decide the matter by holding that the order of dismissal is bad in law and has rightly directed the reinstatement with continuity of service and full back wages in favour of the workman. 9. I have heard the counsel for the parties and with their able assistance have gone through the records of the case. The submissions, as put forth by the counsel for the petitioner, appear to be attractive when it is submitted that the Enquiry Officer has conducted the enquiry in accordance with Clause 30 of the Certified standing Orders of the petitioner. Nevertheless what needs to be observed here is that the said Standing Order does not anywhere provide that the principles of natural justice will not be complied with or no opportunity would be givenjo the workman/employee for a fair trial. The basic principle of law is that no person should be held guilty without being heard. If a person is not aware of the evidence and the witnesses, who are coming present to depose against the person concerned nor, is he aware of the number of witnesses, who are likely to depose against him, he would be put to an disadvantageous position. If a person is not aware of the evidence and the witnesses, who are coming present to depose against the person concerned nor, is he aware of the number of witnesses, who are likely to depose against him, he would be put to an disadvantageous position. It is a settled preposition, as far as the holding of the enquiry is concerned, that the list of witnesses are supplied to the concerned delinquent employee as also he is supplied With the documents, which are to, be produced against him in evidence. If an employee is not supplied with a copy of the enquiry report, he is deprived of his right to represent to clarify his position with regard to the said enquiry report. He has a right to know the charges, which have been proved against him so that he can put forth his explanation to the employer. This procedure would fall within the ambit of principles of natural justice, which calls for giving reasonable opportunity .to a delinquent employee to defend himself in a fair and proper manner. The Management as is pushing through the enquiry, appears to be biased against the employee, in case it tries to withhold information from the employee, which is essential for him to effectively defend himself before the Enquiry Officer. 10. Now Coming to the contention raised by the counsel for the petitioner that list of witnesses was not supplied to the workman on the ground that it was apprehended that the workman would threat and intimidate the witnesses, who are likely to depose against him and in favour of the Management. He has put reliance on the complaint to the police by Sh. Munna Khan (Annexure P-3), wherein it has been stated that he had been beaten up by the workman, who has caused him injury and has threatened him. A perusal of this complaint would show that it does not bear any date. In the said report, it is not stated that he was beaten by Shimbu Dayal-workman because he was going to depose against him. No evidence has been led nor has it been pleaded that any police action was taken on the said report. It has not been mentioned as to whether any medical report was obtained by Sh. Munna Khan. In the said report, it is not stated that he was beaten by Shimbu Dayal-workman because he was going to depose against him. No evidence has been led nor has it been pleaded that any police action was taken on the said report. It has not been mentioned as to whether any medical report was obtained by Sh. Munna Khan. The most relevant question which arises is that it does not bear the date, which would, as a matter of fact, show as to when the incidence has taken place. In the absence of the date of the complaint, it cannot be ascertained as to whether the incidence has taken place before the charge-sheet was issued to the workman or thereafter. In view of this, no reliance can be made on this report (Annexure P-3) and the same deserves to be brushed aside. Counsel for the petitioner has relied on a judgment of the Honble Supreme Court in the case of Delhi Cloth and General Mills Co. vs. Ganesh Dutt and others, 1972 (4) Supreme Court Cases 834, to contend that the enquiry proceedings are not vitiated due to non- furnishing to the concerned workman the list of witnesses to be examined on the side of the Company, if at the time of giving the copies to the workman it was abundantly clear to the workman, who was working in the same department, who must have known very well the persons, who made the said reports and who were to give evidence before the Enquiry Officer. This judgment of the Honble Supreme Court holds totally a different field. It is not the stand of the petitioners before the Labour Court that the workman was well aware of the employees, who were to depose against him rather the stand of the petitioners was that there was threat and fear of intimidation, which had forced them not to supply him the list of witnesses, therefore, this judgment is not applicable to the present case in hand. As has already been held, due to non- supply of the list of witnesses, the workman has been deprived of his right to defend himself as he could not prepare his defence properly, thus causing prejudice to his right of fair trial before the Enquiry Officer. 11. As regards the Submission of the counsel for the petitioner that Sh. As has already been held, due to non- supply of the list of witnesses, the workman has been deprived of his right to defend himself as he could not prepare his defence properly, thus causing prejudice to his right of fair trial before the Enquiry Officer. 11. As regards the Submission of the counsel for the petitioner that Sh. K.L. Sharma was an Outsider and not a co-worker, therefore, was not entitled to be permitted to assist the delinquent workman in the enquiry, cannot be sustained for the reason that a tripartite compromise under Section 12 (3) of the Industriai Disputes Act, Ex. W-l/34, was effected between the workman, the Haryana INTUC Union and the Management on 13.03.1987. It was a tripartite agreement between the parties and the memorandum of settlement is Ex. W-l/35, in which Sh. K.L. Sharma has been shown as Vice President of the Haryana INTUC Union. He has represented the workmen of the petitioner concerned under the Standing Order and, therefore, was entitled to be appointed to assist the delinquent workman. On the light of this position, the workman was.deprived of his opportunity for assistance in the enquiry proceedings. 12. The Submission of the counsel for the petitioner that the petitioner was deprived of an opportunity to adduce evidence before the Labour Court to substantiate the allegations against the workman, is also not sustainable for the reason that ample opportunities were given to the petitioner to dduce evidence. On 12.07.2000* the petitioner was granted a date for 15.09.2000 to produce the entire evidence of the Management to prove the charges in the court against the workman. On 15.09.2000, one more opportunity was given to the Management to produce their entire evidence, which the court said would be the last opportunity subject to payment of Rs. 500/- as costs. Despite of the last opportunity having been granted subject to payment of costs, although the Management paid the costs but failed to avail of the last opportunity and no evidence of the Management to prove the charges was presented on the date fixed i.e. 29.09.2000. That being the position, the Labour Court had no Option but to close the evidence of the Management and held that the Management had failed to prove the charges. That being the position, the court thereafter, proceeded to decide the reference. That being the position, the Labour Court had no Option but to close the evidence of the Management and held that the Management had failed to prove the charges. That being the position, the court thereafter, proceeded to decide the reference. A perusal of the order dated 29.09.2000 does not show that request was made on behalf of the Management for arguing the matter nor has it been alleged that a request to that effect was made to the Labour Court. For the negligence and fault of the petitioner, it cannot be allowed to find fault with the court nor can the blame be put on the court for that. That being so, I do not find any illegality in the order passed by the Labour Court. 13. The Submission of the counset for the petitioner that the prejudice, if any, caused to the workman should have been put forth by him to allege that the enquiry proceedings are vitiated. He relies upon the judgment of the Honble Supreme Court in the caseof State Bank of Patiala and anothervs. S.K. Sharma, 1996(3) Supreme Court Cases 364, para 33, he submits that the violation of the proeedural provisions would automatically not vitiate the enquiry but the prejudice, which has been caused, has to be shown and proved before it can be held that enquiry Stands vitiated. The findings recorded by the Labour Court on the basis of the evidence produced on record vide its order dated 12.07.2000 clearly depicts the prejudice, which has been caused to the employee, wherein he has been deprived of his opportunity and the enquiry has been held to be vitiated as the same is in violation of the principles of natural justice. The judgment, therefore, in the facts and circumstances of the case, is not applicable. 14. The other Submission of the counsel for the petitioner is that since the workman has not participated in the enquiry, therefore, he cannot allege that principle of natural justice has been violated. He relies on the judgment of the Honble Supreme Court in the case of Bank of lndia vs. Apurba Kumar Saha, 1994(2) SCC 615. for this. He submits that since respondent No. 2-workman has refused to participate in the enquiry, he cannot allege that the principle of natural justice has not been complied with. He relies on the judgment of the Honble Supreme Court in the case of Bank of lndia vs. Apurba Kumar Saha, 1994(2) SCC 615. for this. He submits that since respondent No. 2-workman has refused to participate in the enquiry, he cannot allege that the principle of natural justice has not been complied with. The evidence, which has been produced on record and as held above, the workman was not supplied with the list of witnesses nor was he given the assistance of Sh. K..L. Sharma, who was a trade union leader, as required in the enquiry proceedings and his refusal to participate in the enquiry, is not without any reason but is quite justified and, therefore, this judgment also does not hold the petitioners case. 15. The contention, which has been raised by the counsel for the petitioner that the court should have, under Section 11-Awhile deciding the issue, proceeded to look into the documents, which have been produced by the parties in evidence specially the enquiry report, which was submitted by the petitioner-Management and the documents attached thereto. He submits that the court primarily has proceeded to decide the matter on the basis of the fact that no evidence, was led by the Management after the court had, on issue No. 2, held that the enquiry was vitiated and has simply proceeded on the assumption that there was no evidence to bring forth the guilt of the workman. He should have rather proceeded to decide on the basis of the enquiry report produced by the Management and the evidence led therein. He relies upon the judgment of the Honble Supreme Court in the case of The Workmen of M/s Firestone Tyre and Rubber Co. oflndia (Pvt.) Ltd. vs. The Management and others, 1973(1) Supreme Court Cases 813, to contend that the court should have taken into consideration the evidence taken by the Management that the enquiry and persons of the enquiry or apart from the said evidence any additional further evidence led before the Labour Court and also the evidence, which has been first produced in support of the action taken by the employer against the workman. I am afraid this judgment also is of no help to the petitioner, as has been held above that the enquiry proceedings stood vitiated and, therefore, the court could not go into the same and could not give a contradictory finding to the earlier finding given on issue No. 2. Having held that the enquiry was vitiated and was not held in a fair and proper manner, the Labour Court could not have gone into the Statements and the documents produced in the enquiry. It is for this reason only that an opportunity was granted to the petitioner Management to produce evidence to bring home the charges, which are alleged to have been committed by the workman. The Management having failed to produce any evidence, the court had no Option but to decide on the basis of the evidence on record which as far as the enquiry proceedings were concerned had already been discussed and finding given thereon. 16. Another aspect, which needs to be highlighted herein, is that Sh. O.P. Ahuja, who was the Enquiry Officer, it has been alleged that he had been representing the Management before the Labour Court, it has, therefore, been alleged that since he has a vested interest, the enquiry held, by him Stands vitiated. In the cross-examination, when he appeared as a Management witness MW-1, he has stated that he did not remember as to whether he has appeared before the Labour-cum-Conciliation Officer as a representative of the Management. He could not give the answer in an affirmative or the negative way. Nevertheless it has been pointed out by the counsel for respondent No. 2 that Sh. Ahuja had been representing the petitioner-Management before the Labour Court, where the present proceedings were going on. Further it has come on record that Sh. Ahuja has stated that he does not remember if he had represented himself in the claim application under Section 33(C) (2) before the Labour Court, wherein the workman had claimed the Suspension allowance, which was not granted to him during the period of Suspension. He has, in his statement, admitted that the workman was not supplied with any list of witnesses as there was apprehension that the witnesses may be beaten. He further admits that the copies of the complaints, which were basis of the chargesheets, were not given to the workman. He has, in his statement, admitted that the workman was not supplied with any list of witnesses as there was apprehension that the witnesses may be beaten. He further admits that the copies of the complaints, which were basis of the chargesheets, were not given to the workman. On these basis, the counsel for respondent No 2-workman has submitted that the Enquiry Officer, as a matter offact, was an interested party and had proceeded to decide the enquiry not as an independent person but as a person, who was acting on the basis of the instructions issued from the Management. In the light of the above, I do not find any merit in the present writ petition and dismiss the same without costs.