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2020 DIGILAW 908 (JHR)

Badal Chandra Pathak v. Union of India

2020-09-21

S.N.PATHAK

body2020
ORDER : S.N. Pathak, J. Through Video Conferencing 1. In view of outbreak of COVID-19 pandemic, case has been taken up through Video Conferencing. Concerned lawyers have no objection with regard to the proceeding, which has been held through Video Conferencing today at 10:30 A.M. onwards. They have no complaint in respect to the audio and video clarity and quality. 2. Present writ petition has been filed on behalf of the petitioner with a prayer for quashing the order dated 06.10.2016, passed by Assistant Labour Commissioner (Central), Dhanbad-III, whereby claim of petitioner for registration of case as an industrial dispute has been declined. 3. At the outset it has been submitted by Mr. Bhanu Kumar, learned counsel appearing for the petitioner that earlier the petitioner has approached this Court by filing W.P.(L). No. 2001 of 2015, for a direction upon the respondent No. 1 to initiate conciliation proceeding related to Reference Case No. 1/Misc./2015-E-5 dated 30.01.2015, filed by one Ram Ratan Ram, Joint General Secretary, Bahujan Mazdoor Union on behalf of 97 workmen. In the said writ petition, the petitioner claimed for payment of wages of certain specified periods. The Hon'ble Court, however did not enter into the merits of the case and disposed of the same observing therein that writ petition cannot be entertained at this stage as the statutory authority i.e. the Assistant Labour Commissioner (Central), Dhanbad-III is supposed to entertain such representation where both the parties may be called upon for conciliation in terms of provisions of the Act to put forth their stand on the subject and the liberty was given to the petitioner to pursue the matter before the Assistant Labour Commissioner (Central), Dhanbad-III, who in turn may look into the matter in accordance with law. 4. Mr. Bhanu Kumar, learned counsel appearing for the petitioner, assailing the order of the Assistant Labour Commissioner (Central), Dhanbad-III dated 06.10.2010, very emphatically argues that the learned Assistant Labour Commissioner without taking into consideration the observation made by this Court, has passed the order mechanically. It has been further argued that impugned order is cryptic, non-speaking and has been passed without assigning any reason. Learned counsel further argues that it was incumbent upon the Assistant Labour Commissioner to issue notice and hear the petitioner before making any observation and rejecting the case of the petitioner. It has been further argued that impugned order is cryptic, non-speaking and has been passed without assigning any reason. Learned counsel further argues that it was incumbent upon the Assistant Labour Commissioner to issue notice and hear the petitioner before making any observation and rejecting the case of the petitioner. Learned counsel lastly argues that in the interest of justice, the matter may be remitted back to the concerned authority i.e. the Assistant Labour Commissioner (Central), Dhanbad-III for reconsideration of the same in accordance with law. 5. Mr. Amit Kumar Das, learned counsel appearing for the respondent-BCCL justifying the impugned order submits that there is no illegality in the order and the same requires no interference as not a chit of paper was ever submitted by the petitioner or his Union for consideration of his case and as such, rightly the claim was not registered. 6. Be that as it may, having heard the rival submission of the parties and upon perusal of the documents brought on record, this Court is of the considered view that admittedly, the order passed by the Assistant Labour Commissioner (Central), Dhanbad-III, is not tenable in the eyes of law. It is settled principle of law that reasons are to be reflected and should be scientific but in the instant case no reasons have been assigned for rejecting the claim of the petitioner. The Hon'ble Apex Court in case of Bhagwan Shukla vs. Union of India & Ors., reported in (1994) 6 SCC 154 : 1995 (1) PLJR (SC) 6 has held as under: "The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show-cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Therefore, the impugned order by which the pay of the appellant fixed on his promotion as Guard-C from the post of Trains Clerk was sought to be reduced is not sustainable." Further in case of Satwati Deswal vs. State of Haryana & Ors., reported in (2010) 1 SCC 126 , the Hon'ble Apex Court has held as under: "8. Apart from that, on a cursory look of the statutory provision of the Constitution of the Parishad Working Committees, it would be clear that before imposing any major penalty against an employee, namely, an order of termination of service, an inquiry must be held in the manner specified in the statutory rules by which the disciplinary authority shall frame definite charges on the basis of allegations on which an inquiry shall be proposed and opportunity must be given to the employee to submit a written statement stating therein whether he/she desires to be heard in person and no order of termination also can be passed without the approval of the Managing Committee. On this count alone, therefore, the High Court was, in our view, in grave error in dismissing the writ petition of the writ petitioner. 9. Accordingly, the impugned judgment of the High Court is set aside and the order of termination passed against the appellant is quashed and the writ petition stands allowed. However, it would be open to the authorities, if so desire, to initiate disciplinary proceedings against the appellant for her termination from service and if such disciplinary proceedings are initiated, the authorities shall give proper opportunity of hearing and permit the parties to adduce evidence in support of their respective stands and after giving such opportunity, the disciplinary authorities thereafter shall give hearing to the appellant and then pass a final order on the question of termination of service of the appellant in compliance with the concerned statutory rules applicable to the appellant." 7. The respondents in most cryptic and capricious manner has passed the order. The respondents in most cryptic and capricious manner has passed the order. Nothing has been mentioned in the order as to whether notices were duly served and the necessary documents were examined and evidences were led. Even the order passed by this Court has wrongly been interpreted by the respondent-authority. 8. As a sequitur to the aforesaid observations, rule, guidelines, legal propositions and judicial pronouncements, the impugned order dated 06.10.2016, is hereby quashed and set aside and the matter is remitted back to the respondent-authority i.e. the Assistant Labour Commissioner (Central), Dhanbad-III for reconsidering and rehearing the matter afresh, taking into consideration the direction and observation of the Hon'ble Court dated 19.09.2016, passed in W.P.(L) No. 2001 of 2015. The Assistant Labour Commissioner (Central), Dhanbad-III is directed to issue notice to the parties, within a period of four weeks from the date of receipt/production of a copy of this order, for reconsideration of their cases as per the order passed by this Court. Parties are directed to appear before the concerned authority and file their respective documents for consideration of their cases. Let a fresh decision be taken by Respondent No. 1 within a further period of six weeks, taking into consideration the observations made hereinabove and communicate a copy of such decision/order to the petitioner. 9. The writ petition stands disposed of with the aforesaid observations and directions.