Heard learned counsel for the parties.
This writ petition is directed against the award dated 30.08.1996 given by Presiding Officer, Central Government Industrial Tribunal-Cum-Labour Court, Kanpur in Industrial Dispute No.99 of 1991. The matter which was referred to the labour Court was as to whether action of petitioner-employer terminating of the services its workman-respondent no.1- D.S. Punia w.e.f. 04.07.1989 was justified?
The respondent no.1 was working as a Junior Inspector. On 15.02.1988 he was served with charge sheet containing the main charge that he had not deposited the premiums collected by three vehicle owners for insurance of their vehicles. Charge of wilful in-subordination and disobedience of the orders given to him by his superior was also included therein.
Domestic enquiry was held in which both the parties led evidence including oral evidence of defence witnesses. Enquiry Officer in its report dated 20.12.1988 held that all the charges were proved. On the basis of the report, the workman was removed from service on 04.07.1989.
Before the Industrial Tribunal, the main contention of the workman was that he had not been provided full opportunity of hearing. The precise allegation was that workman was not afforded opportunity to cross-examine the witnesses of the management and he was not allowed to adduce evidence.
Through interim order dated 28.09.1995, the Tribunal below had held that the domestic inquiry was vitiated on the ground that concerned workman was not afforded full opportunity to adduce evidence in defence. The management was permitted to prove the misconduct on merits before the Tribunal. In para-5 of the award the Tribunal held that before it the management examined only Tilak Raj Wasan, who simply stated that whatever was written in the charge-sheet was correct and he proved the show cause notice, but other facts were not proved. It was further held that "to be precise the three cover notes which are subject matter of charge-sheet have neither been filed nor proved". He has further held that the statement of concerned workman denying the charges was enough. Ultimately reinstatement with full back wages was directed.
The order dated 28.09.1995 has been filed along with supplementary affidavit of the workman-respondent no.1 on 24.04.2011 on the direction of this Court. In the said order, it was very categorically held that the three witnesses produced on behalf of the management were duly cross-examined by the representative of the concerned workman and he had not filed any application before the Enquiry Officer that he should be afforded further opportunity to cross-examine the witnesses and the plea of the workman that he was not provided opportunity to cross-examine was an afterthought. The Presiding Officer of the Industrial Tribunal in the last paragraph of the order dated 28.09.1995 observed and held that as follows:-
"Lastly it will be seen if the concerned workman was afforded opportunity to adduce evidence in defence. As I have shown earlier the concerned workman has examined Veer Bahadur Singh. He had given list of two more witness and for production of whom two dates were given. Ultimately 25.11.88 was fixed for hearing. According to the Enquiry Officer, the concerned workman did not put in appearance on that date when the case was called. However, from the order sheet dated 25.11.88, it appears that the Enquiry officer had closed the case even before lunch time as there is an endorsement in these proceedings that the concerned workman had come at 1.45 p.m. and by that time the case had already been closed. In my opinion, if the case was closed, heaven would not have fallen had the concerned workman been given opportunity to adduce further evidence by reopening the case. In my opinion, this inaction on the part of Enquiry Officer amounts to denial of full opportunity to adduce evidence in defence which vitiates the enquiry. Hence, it is held that the enquiry was not held fairly and properly".
The above findings of the Labour Court regarding denial of opportunity cannot be approved. The concept of opportunity of hearing cannot be stretched so far. In the above paragraph it is noted that the Enquiry Officer had noted that the workman had come at 1.45 p.m. There is no mention that the workman had come with his witnesses. Even before the Industrial Tribunal workman did not state that his witnesses or one of them had come on 25.11.1988. What is more important is that workman did not file any application for reopening the case. In respect of fairness of inquiry, reference may be made to Biecco Lawrie Limited Vs. State of West Bengal A.I.R. 2010 Supreme Court 142, wherein it has been held that on trivial grounds it can not be held that complete opportunity of hearing was not provided.
Accordingly, in my opinion, the order dated 28.09.1995 was utterly illegal. Full opportunity had been provided to the workman and embezzlement had been found proved by the Enquiry Officer. Accordingly, on this ground alone the impugned award is liable to be set aside.
However, learned counsel for both the parties vehemently argued regarding the status of the workman-respondent no.1 also i.e. as to whether he was workman or not? Learned counsel for the petitioner-employer cited two authorities of the Supreme Court one reported in H.R. Adyanthaya and others Vs. Sandoz (India) Ltd. and others 1994(5) SCC 737 (Constitution Bench) holding that the earlier contrary authority of S.K. Verma Vs. Mahesh Chandra 1983(3) SCR 799 : A.I.R. 1984 S.C. 1462 was per in-curium. The other authority citied by learned counsel for the petitioner is M.K. Tripathi Vs. Sr. D.M. L.I.C. A.I.R. 2004 S.C. 4179. However, learned counsel for the workman-respondent no.1 has cited the authority of L.I.C. of India Vs. R. Suresh A.I.R. 2008 S.C. (supplementary) 1887. In para 17 of the last authority it has been held that a Development Officer has been held to be a workman in S.K. Verma. However, in the same para reference is made to three judges Bench authority of M.K. Tripathi Vs. Senior Divisional Manager of L.I.C. A.I.R. 2004 S.C. 4179. Unfortunately the Constitution Bench authority of 1994 (Adyanthaya) has not been discussed in the last authority of 2008 (L.I.C.).
However, as I have held that inquiry was quite fair and the contrary view of the Industrial Tribunal is not correct hence, I need not decide the question as to whether respondent no.1 was workman or not?
Accordingly, writ petition is allowed. Impugned award is set aside.
However, whatever amount has been paid to the respondent-workman under interim order passed in this writ petition shall not be refundable.
Order Date :- 05.9.2011 vks