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Madhya Pradesh High Court · body

2015 DIGILAW 636 (MP)

Gwalior Development Authority v. Tilli Khan

2015-06-22

SUJOY PAUL

body2015
JUDGMENT : Sujoy Paul, J. 1. This order will govern the disposal of all the aforesaid writ petitions. 2. These matters were analogously heard on the joint request of learned counsel for the parties. 3. Shri Raghavendra Dixit, learned counsel for the petitioner and Shri Prashant Sharma, learned counsel for the Workmen contended that similar questions are involved in these matters and, therefore, the matters may be decided by a common order. 4. Facts are taken from W.P. No. 7118/2014. 5. It is contended that the respondent-workman was engaged as a daily wager w.e.f. 7.11.1989. He was required to work as Chowkidar in Engineering section. He raised an industrial dispute under the provisions of Industrial Disputes Act, 1947 (I.D. Act) assailing his removal from service w.e.f. 17.2.2012. The appropriate Government referred the matter to the Labour Court to examine the validity of said termination order. 6. Parties filed their respective statement of claim before the Labour Court. The Labour Court after framing the issues and recording evidence passed the impugned award on 16.6.2014. The Labour Court answered the reference in favour of the Workman and directed his reinstatement with 25% back wages. 7. The employer has assailed the entire order whereby reinstatement and 25% back wages were granted, whereas workman challenged the award to the extent full back wages were declined. 8. Shri Raghavendra Dixit, learned counsel for the employer fairly submits that before terminating the services of the workman, no charge sheet was issued to him, nor any departmental enquiry was conducted. However, in the written statement filed before the Labour Court, it was made clear that the reason for termination of workman is his misconduct. Putting it differently, it is urged that the termination is founded upon on the misconduct of workman. Hence, Section 25-F of Industrial Disputes Act has no application. To elaborate, it is submitted that the workmen were responsible to ensure that the land of the Development Authority is safe and not encroached by anybody. The workmen miserably failed to ensure the same. In cross-examination, the workmen himself admitted that certain persons had encroached certain pieces of the land of the authority. The workmen made a bald statement during cross-examination that information regarding said cross-examination was given to the employer. However, the workmen did not produce any such written information/documents before the Labour Court to substantiate his statement. In cross-examination, the workmen himself admitted that certain persons had encroached certain pieces of the land of the authority. The workmen made a bald statement during cross-examination that information regarding said cross-examination was given to the employer. However, the workmen did not produce any such written information/documents before the Labour Court to substantiate his statement. Shri Dixit contends that the burden was on the workman to prove his defence to the hilt. Having failed to discharge the said burden, the workman must be held to be guilty for the allegations made against him. He submits that the labour Court has erred in interfering with the termination order. 9. Per contra, Shri Prashant Sharma supported the order to the extent of reinstatement. He submits that in view of material on record, Labour Court has not erred in passing the said order. However, he submits that once order of termination was found to be unjustifiable, Labour Court should have granted 100% back wages. The award of Labour Court to the extent back wages were declined is liable to be interfered with. 10. No other point is pressed by learned counsel for the parties. 11. I have heard the learned counsel for the parties and perused the record. 12. Admittedly, the employer did not conduct any departmental enquiry before terminating the services of the workman. However, the stand of the employer is that before the Labour Court it was made clear that the reason for termination is mis conduct of the workman. Before dealing with this aspect, it is apt to quote the relevant portion of the pleadings from the written statement of the employer, which reads as under: 13. Shri Raghvendra Dixit heavily relied on deposition of workman. The relevant portion of the same reads as under:-- 14. The bone of contention of Shri Raghvendra Dixit is that in view of deposition of workman himself, it is clear that the allegations of misconduct are proved. This point needs serious consideration. 15. This is settled in law that Labour Court can examine the legality and validity of departmental enquiry conducted by the employer. In cases where no enquiry has been held and case of the employer is that the reason for termination is based on any misconduct, the employer can prove the misconduct before the Labour Court for the first time. 15. This is settled in law that Labour Court can examine the legality and validity of departmental enquiry conducted by the employer. In cases where no enquiry has been held and case of the employer is that the reason for termination is based on any misconduct, the employer can prove the misconduct before the Labour Court for the first time. (See, The Workmen of M/s. Firestone Tyre and Rubber Company of India P. Ltd. v. The Management and others, reported in : AIR 1973 SC 1227 ). In my view, this cannot be doubted that employer has a legal right to establish the misconduct before the Labour Court for the first time. However, in my view, the employer can establish the misconduct only when the factual foundation and allegation of alleged misconduct is clearly reflected in the written statement. In other words, if employer has mentioned the specific allegations of misconduct against the workman in the written statement and then led reliable evidence to establish the same, misconduct can be held to be proved. It may be remembered that Shri Dixit contended that in the cross-examination itself, the workman has admitted that certain encroachment has taken place over the land of employer. The reproduced portion of written statement makes it clear that the employer has not chosen to specify the nature of misconduct committed by the workman. The employer has made bald, unspecified and ambiguous allegations against the workman. In : (2010) 11 SCC 278 (Indu Bhushan Dwivedi v. State of Jharkhand and another), the Apex Court after taking stock of various judgments of Supreme Court opined that "when it comes to taking of disciplinary action against a delinquent employee, the employer is not only required to make the employee aware of the specific imputations of misconduct but also to disclose the material sought to be used against him and give him a reasonable opportunity of explaining his position or defending himself. If the employer uses some material adverse to the employee about which the latter is not given notice, the final decision gets vitiated on the ground of the violation of the rule of audi alteram partem. Even if there are no statutory rules which regulate holding of disciplinary enquiry against a delinquent employee, the employer is duty-bound to act in consonance with the rules of natural justice-U.P. Warehousing Corpn. v. Vijay Narayan Vajpayee". Even if there are no statutory rules which regulate holding of disciplinary enquiry against a delinquent employee, the employer is duty-bound to act in consonance with the rules of natural justice-U.P. Warehousing Corpn. v. Vijay Narayan Vajpayee". The Apex Court, way back in : (1970) 3 SCC 548 (Surath Chandra Chakrabarty v. State of W.B.), held that it is not permissible to hold an enquiry on vague charges, as the same do not give a clear picture to the delinquent to make out an effective defence as he will be unaware of the exact nature of allegation against him and what kind of defence he should put up for rebuttal thereto. In : 2011 AIR SCW 5327 (Anil Gilurker v. Bilaspur-Raipur Kshetria Gramin Bank & another), the Apex Court interfered with in a case of domestic enquiry because the allegations were vague and unspecified. 16. A plain reading of written statement shows that employer has made vague allegations. Vacuum arising of said vagueness cannot be filled up by relying on the cross-examination of the workman. The employer was required to specify the allegations with accuracy and precession in the written statement. After specifying the charges/allegations in the written statement, the same could have been established by leading evidence. In the present case, the written statement is vague and ambiguous so far the allegations of misconduct are concerned. It is settled in law that in absence of pleadings, no amount of evidence can fill up the lacunae. (See, : 1999 (2) MPLJ 247 (Jagdish Prasad Shivhare v. Municipal Corporation, Gwalior and others) and : (2000) 8 SCC 191 (Ravinder Singh v. Janmeja Singh and others). At the cost of repetition, in my view, the employer has failed to place factual foundation of the allegation in the written statement. This deficiency cannot be cured by reading cross-examination part of the deposition of workman. The petitioner/employer was required to prove its case by necessary pleading and proof. 17. The employer has miserably failed to plead and prove the misconduct against the workman. The Labour Court has not committed any error of law in deciding issue No. 1 in favour of the workman. 18. The scope of interference under Article 227 of the Constitution is limited. The interference can be made If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety or perversity. The Labour Court has not committed any error of law in deciding issue No. 1 in favour of the workman. 18. The scope of interference under Article 227 of the Constitution is limited. The interference can be made If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety or perversity. Even an erroneous order is not required to be corrected in these proceedings under Article 227 of the Constitution. The basic purpose of exercising the said jurisdiction is to keep the courts below within the bounds of their authority. 19. So far the petitions filed by the workmen for grant of remaining back wages are concerned, in my view, the Labour Court has exercised its discretionary power and rightly granted 25% back wages. The said order cannot be said to be either illegal or unjustifiable. Resultantly, no interference is warranted in the petitions filed by the workmen also. 20. Resultantly, all the petitions fail and are hereby dismissed. No costs.