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2015 DIGILAW 1288 (HP)

General Secretary DAV College v. Bindu Lal

2015-09-15

SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The respondent No.1 herein was engaged as an accountant at MRA DAV Sr. Sec. Public School, Bye-Pass, Solan, H.P. Under Annexure Ext.RA he on 26.3.2001 stood transferred by the Managing Committee of DAV College Managing Committee, Chitra Gupta Road, New Delhi from MRA DAV Sr. Sec. Public School, Bye-Pass, Solan, H.P to DAV Public School, Patliputra Colony, Patna, Bihar. Ext.RB is the order whereby the petitioner No.2 herein, to enable the respondent No.1 herein to join his duties at DAV Public School, Patliputra Colony, Patna, Bihar, relieved the latter. In sequel to the serving upon the respondent No.1 herein of Ext.RB, he under a communication comprised in Ext.RC addressed to the Principal, MRA DAV Public School, Solan, urged the latter for facilitating him to comply with the transfer order comprised in Ext.RA make arrangements to defray to him salary for the month of March, 2001. Besides, the respondent No.1 under Annexure RD urged the petitioner No.2 to release in his favour transfer grant, as the one month salary claimed by him under Ext.RC was insufficient to tide over the financial crises besetting him. Un-controvertedly, the respondent No.1 herein did not proceed to join duties at DAV Public School, Patliputra Colony, Patna, Bihar. Obviously, he did not mete out compliance with the transfer orders comprised in Ext.RA served upon him by petitioner No.1 herein. The respondent No.1 herein on 25.4.2001 served a demand notice upon both the petitioners herein claiming therein that since his services stood terminated at their instance hence he be re-instated with all consequential benefits. Respondent No.2 herein having hence raised an industrial dispute arising from his purported illegal retrenchment/oral termination by the petitioners herein, sequelled the Labour Officer-cum-Conciliation Officer, Solan to concert to conciliate the dispute inter se the respondent No.1 and the petitioners herein. However, when efforts initiated by the Labour Officer-cum-Conciliation Officer, Solan to conciliate the dispute did not yield the desired results hence on failure of conciliation, the Labour Officer-cum-Conciliation Officer, Solan was constrained to refer the matter to the Labour Commissioner, Himachal Pradesh. However, when efforts initiated by the Labour Officer-cum-Conciliation Officer, Solan to conciliate the dispute did not yield the desired results hence on failure of conciliation, the Labour Officer-cum-Conciliation Officer, Solan was constrained to refer the matter to the Labour Commissioner, Himachal Pradesh. The Labour Commissioner, Himachal Pradesh on receiving from the Labour Officer–cum- Conciliation Officer, Solan a requisition conveying therein his efforts to conciliate the dispute inter se the respondent No.1 herein and the petitioners herein having suffered frustration, the Labour Commissioner, Himachal Pradesh, constituted a reference couched in the hereinafter extracted phraseology, for its adjudication by the Industrial Tribunal-cum-Labour Court, Shimla; ?Whether the retrenchment of Shri Bindu Lal, Ex. Sub. Major Village and P.O. Subathu, Tehsil and District Solan, H.P. w.e.f. 30.3.2001 as alleged by the principal, Matthu Ram Aggarwal, DAV Senior Secondary Public School by pass road Solan, District Solan, H.P. is legal and justified? If not, to what relief Shri Bindu Lal is entitled to?? 2. The Industrial Tribunal-cum-Labour Court, Shimla on a consideration of the entire material as placed before it was constrained to accord in favour of the workman the relief as canvassed by him in his claim petition. The employers of the respondent No.1 herein being aggrieved by the rendition of the Industrial Tribunal-cum-Labour Court, Shimla, instituted a writ petition before this Court seeking therein the relief of quashing the findings returned therein in favour of the workman respondent No.1 herein. An emphatic and focused address has been made before this Court by the learned counsel for the petitioners herein that given the factum as comprised in Ext.RA of the petitioner having come to be transferred by the Managing Committee of DAV College Managing Committee, Chitra Gupta Road, New Delhi from MRA DAV Sr. Sec. Public School, Bye-Pass, Solan, H.P to DAV Public School, Patliputra Colony, Patna, Bihar in quick succession whereof under Ext.RB he stood relieved to join his duties at DAV Public School, Patliputra Colony, Patna, Bihar. Sec. Public School, Bye-Pass, Solan, H.P to DAV Public School, Patliputra Colony, Patna, Bihar in quick succession whereof under Ext.RB he stood relieved to join his duties at DAV Public School, Patliputra Colony, Patna, Bihar. Besides with the manifestation in Ext.RC of the petitioner urging the Principal, MRA DAV Public School, Solan to release him salary for the month of March, 2001 to enable him to join his duties at the DAV Public School, Patliputra Colony, Patna, Bihar, as also his under Ext.RD addressed to the petitioner No.2 herein entreating the latter to apart from disbursing in his favour the salary for the month of March, 2001, also release in his favour the transfer grant to facilitate his joining his duties at DAV Public School, Patliputra Colony, Patna, Bihar, constitutes acquiescence on the part of the petitioners, of Ext.RA having come to be served upon him besides also portrays his acquiescence, to proceed to join his duties at DAV Public School, Patliputra Colony, Patna, Bihar. Given the manifestation of acquiescence of the respondent No.1 herein to Ext.RA having come to be served upon him, the learned counsel for the respondent No.1 submits that when the respondent No.1 as reflected in Ext.PB stood relieved from MRA DAV Sr. Sec. Public School, Bye-Pass, Solan, H.P, his having not meted out compliance with Ext.RA whereby he stood transferred from MRA DAV Sr. Sec. Public School, Bye-Pass, Solan, H.P to DAV Public School, Patliputra Colony, Patna, Bihar, rendered him incapacitated to continue to serve under the petitioners herein. He canvasses with force before this Court that the petitioners herein had never dispensed with nor orally terminated the services of respondent No.1 rather the respondent No.1 herein having derelicted in meting out compliance with his transfer order despite his having been relieved under Ext.RB, entailed upon him the obvious and natural sequelling effect of his being disabled to perform duties under the petitioners. He proceeds to argue that the indolence on the part of the petitioners herein to join his duties at DAV Public School, Patliputra Colony, Patna, Bihar, has engineered his ouster from service in which ouster the petitioners have no overt or covert role rather the role if any in the ouster of the respondent No.1 from his employment under the petitioners herein is naturally self engineered besides self managed. The above arguments as addressed before this Court are glossy on their façade. The above arguments as addressed before this Court are glossy on their façade. However, they lose much of their sheen when this Court proceeds to advert to the testimony constituted in the cross-examination of RW-1 the principal of petitioner No.2 herein. An incisive reading of deposition of RW-1 constituted in her crossexamination unravels the fact that she had proceeded to order the holding of an inquiry against the respondent No.1 by a duly constituted inquiry committee. She has also unraveled therein the factum that no notice of holding of an inquiry against the respondent No.1 at the instance of RW-1 was ever served upon the respondent No.1 herein. The admission aforesaid existing in the cross-examination of RW-1 unravels the factum that the aforesaid had initiated/held an inquiry against the respondent No.1 by a duly constituted committee. As a corollary then the respondent No.2 is to be construed to be prodded to do so only in the event of their being an attribution of a misdemeanor against the respondent No.1 herein. Before proceeding to determine the tenacity of the conclusions arrived at by the inquiry committee which proceeded to hold an ex-parte inquiry against the respondent No.1 herein the impact of RW-1 herein having been goaded to hold an inquiry against the respondent No.1 upsurges an apt inference that the factum of non joining of duties by the respondent No.1 herein at DAV Public School, Patliputra Colony, Patna, Bihar, despite his being served with Ext.RA and despite his having stood relieved was merely a colourable disguise besides a well contrived stratagem on the part of the petitioners herein to in the garb of the aforesaid facts as canvassed by the learned counsel for the petitioners herein, render his ouster from employment under the petitioners herein to be purportedly entirely self engineered besides self managed, whereas the genuine reason which held good with the petitioners herein to oust the respondent No.1 from employment was constituted in the fact of an ex-parte inquiry having been conducted against the respondent No.1 herein. The holding of as emanable from an incisive reading of the testimony of the cross-examination of RW-1 an ex-parte inquiry as against respondent No.1 is in infraction of the principles of audi alteram partem consequently rendering it to be vitiated. In sequel, any findings recorded therein against the respondent No.1 herein are bereft of any legal tenacity. The holding of as emanable from an incisive reading of the testimony of the cross-examination of RW-1 an ex-parte inquiry as against respondent No.1 is in infraction of the principles of audi alteram partem consequently rendering it to be vitiated. In sequel, any findings recorded therein against the respondent No.1 herein are bereft of any legal tenacity. As a corollary, also the espousal by the workman respondent No.1 herein in his claim petition that he stood orally terminated from service by the petitioners herein appears not to be ill founded rather it is grooved upon weighty and cogent evidentiary material as portrayed in the crossexamination of RW-1. In sequel, with the Industrial Tribunal-cum-Labour Court, Shimla having in its impugned award concluded that the retrenchment or oral termination from service of the respondent No.1 under the petitioners was preceded by an ex-parte inquiry was anchored upon adequate material as existed before it. The reasons as prevailed upon the Industrial Tribunal-cum-Labour Court, Shimla in pronouncing that the respondent No.1 stood orally retrenched/terminated from service by the petitioners herein do not merit any interference. In aftermath the answer of the reference by the Industrial Tribunal-cum- Labour Court, Shimla in favour of respondent No.1 cannot be faulted on any count. There is no merit in the petition. No costs.