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2010 DIGILAW 783 (JHR)

S. D. M. Karan v. Telco Company Ltd

2010-08-05

PRADEEP KUMAR

body2010
Order Heard learned counsel for the petitioner and learned counsel for the respondents. 2. It is submitted by the learned counsel for the petitioner that the learned Tribunal has wrongly discussed the evidences and came to a wrong finding that the petitioner is not a workman• and as such, the reference was bad and accordingly, the same was declared to be not maintainable. 3. He has further submitted that the inquiry conducted by the management was bad since S.M. Khurana has no authority to conduct the inquiry or dismiss him. In that view of the matter, the award is bad and fit to be set aside. 4. On the other hand learned counsel for the company has submitted that it will appear from the reference itself which reads as under :- "Whether S.D.M. Karan, Assistant Foreman, Ticket No. 3300/01513/1 is a workman under the Industrial Disputes Act, 1947. If so, whether dismissal of Sri Karan is proper? If not, whether he should be reinstated on work or/and should get compensation?" 5. It is submitted that since the court has given conclusive finding in deciding point No. 1 that the petitioner is not a workman, in that view of the matter he has rightly stated that the reference was not maintainable under the Industrial Disputes Act can be raised by the workman and no other employees who are working as supervisory staffs. 6. It is further submitted that it will appear that in spite of the finding with regard to point No. 3 that the disciplinary inquiry held by Mr. S.M. Khurana was not just and proper, but evidences were led before the Tribunal and after discussing the evidences in Para No. 18, the Tribunal has come to a conclusive finding that the workman Mr. S.D.M. Karan was caught red-handed by the Security Staff alongwith objectionable material and came to a clear finding that Mr. S.D.M. Karan is guilty of misconduct. 7. In that view of the matter in spite of the domestic employment, the same cannot be raised. S.D.M. Karan was caught red-handed by the Security Staff alongwith objectionable material and came to a clear finding that Mr. S.D.M. Karan is guilty of misconduct. 7. In that view of the matter in spite of the domestic employment, the same cannot be raised. Learned counsel for the respondents has cited a judgment reported in AIR 1974 page 696, in the case of East India Hotels vs. Their Workmen, Paragraph-5 which reads as under:- "If the inquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra. Once misconduct is proved, either in the enquiry conducted by the employer or by the evidence placed before the Tribunal for the first time, the punishment imposed cannot be interefered with by the Tribunal" 8. It is submitted that even if the Tribunal has found the inquiry to be defective, it has taken evidence on the same and came to a clear finding in Para No. 18 that misconduct was committed by the employee and also came to a finding in Para No. 19 that the punishment however, is not disproportionate to the misconduct. 9. It is submitted that the award is well and does not require any interference since the same is based upon evidence. 10. After hearing both the parties and going through the Award, it appears that the petitioner is not a workman or the court has relied upon the evidence of the workman who has been examined before the Tribunal as WW1 where he admitted that he has been initially appointed in the year, 1968 as a Fitter in the company, but subsequently he was promoted as Assistant Foreman and the Court has also relied in the letter Ext.-M/5 in which the workman has said that he is working as a Supervisor and the other workmen were jealous because he has decisive power in the matter of workmen working under him. 11. On the basis of the evidence of workman himself, the finding has been given that he is not the workman. 11. On the basis of the evidence of workman himself, the finding has been given that he is not the workman. In that view of the matter, I find that this finding of fact is based upon evidence, which cannot be disturbed under writ jurisdiction unless the same is perverse. I find no perversity in the finding. 12. Accordingly, I find no merit in this writ application, the same is hereby, dismissed.