1. This petition was heard and after completion of submissions it was posted for order today. Today, learned counsel Shri Varun K.Patel for the petitioner has filed sick note. The matter was argued by Senior Counsel Shri K.M.Patel with Shri Varun K. Patel. Shri Raval, learned counsel for the respondent has submitted that as the matter was argued by Shri K.M. Patel, he inquired of Shri Patel as to whether he may request the Court to pass appropriate order based upon the submissions canvassed. Shri K.M.Patel through Shri Raval submitted that as the arguments are over there is no objection if the order is made today.
2. The petitioner, first party employer in reference being Reference (LCB) No.368/85 renumbered as Reference (LCB) No. 50/90, has approached this Court under Articles 226 and 227 of the Constitution of India inter alia challenging the order and award dated 08.01.1999, whereunder the Court during the pendency of the reference decided that the inquiry that is disciplinary inquiry held against the workman was illegal and contrary to the provision of law and as it was without compliance with the principle of natural justice, the same was held to be illegal and an opportunity was afforded to the employer for leading evidence as well as the order and award dated 24.05.2002 whereunder ultimately the Labour Court partly allowed the reference and passed an order declaring that as the dismissal of the employee was illegal, but instead of ordering reinstatement in view of the fact that the establishment had offered benefit of voluntary retirement to all other employees on 22.11.1998, ordered that the present employee respondent also be accrued the same benefits and 50% of back wages for the period from the date of dismissal i.e. from 09.01.1985 to 22.11.1998 and Rs. 1,000/- towards cost.
3. Facts in brief leading to filing this petition, as could be culled out from the memo of petition, deserve to be set out as under.
4. The respondent workman was working as a Helper in the petitioner establishment. On account of
received charge-sheet on 09.11.1984 containing allegations that on 08.11.1984, he did not comply with the orders issued by superiors and summoned his fellow workmen, union leader to support his cause which resulted into altercation and minor scuffle between the workmen and the superiors for which the workmen was placed under suspension and inquiry was ordered to be held as a result whereof charge- sheet was issued. The workman was called upon to submit his reply. The inquiry ultimately culminated into the order of dismissal dated 09.01.1985, which was subject matter of dispute and the competent authority referred the same
Reference (LCB) No. 50/90. The Labour Court, on submission of both the sides decided the issue qua legality and proprietary and appropriateness of the disciplinary proceedings held against the workman and came to the conclusion vide order dated 08.01.1999, exhibit-30, that the inquiry was not conducted in compliance with the principle of natural justice and, therefore, it was illegal and hence after observing and holding the same to be illegal, an opportunity of leading evidence was granted to the employer first party and the matter was posted for further hearing. Thereafter, the workman led evidence. The management participated in the proceeding, but could not lead any further evidences. The management participated and the Labour Court came to the conclusion that the management failed in establishing charges and hence the dismissal order dated 09.01.1985 could not be justified in any manner. However, as it is stated hereinabove, it was noticed that in the interregnum period the management had offered V.R.S. Scheme to other employees with effect from 22.11.1998, the Court instead of ordering reinstatement, granted similar benefits to the workman, but granted only 50% back wages and cost of Rs.1,000/- vide ultimate order and award dated 24.05.2002, which is impugned in this petition along with the order dated 08.01.1999 whereunder the inquiry was held to be illegal and contrary to the principle of natural justice.
5. Learned counsel appearing for the petitioner contended that this petition contains challenge to two orders namely the order dated 08.01.1999 as well as the final order dated 24.05.2002 and therefore, he advanced elaborate submission assailing the findings and reasoning of the Court in respect of the order dated 08.01.1999 and submitted that if the Court is accepting the submission and is inclined to hold that the order was not sustainable, then no further submissions were required to be canvassed in respect of the subsequent ultimate order, as in that inquiry proceedings the management could not lead evidences on account of non availability of the witnesses on account of passage of time. But he submitted that the order dated 24.05.2002, otherwise also is not sustainable in eye of law.
6. Learned advocate for the petitioner invited this Court's attention to the order dated 08.01.1999 and indicated that the respondent workman who happened to be helper could not have declined a legitimate order of his superior in on going production process. The entire episode which said to have occurred on 08.11.1984, would go to show that the workman displayed utter disregard to the discipline and his attitude coupled with that of his colleague and the misbehavior thereafter indicated that there existed sufficient material for holding disciplinary proceedings for serious misconduct and hence this misconduct and the attendant circumstances needs to be constantly borne in mind while examining the proceedings and challenge to the order dated 08.01.1999 passed by the Labour Court holding that the proceedings were not in consonance with the principles of natural justice.
7. Learned counsel for the petitioner contended that enough opportunities were given to the workmen, but the workmen did not avail the same and when the workmen refuse to participate in the inquiry and when the inquiry officer recorded this in writing and obtained signatures of the workmen, then the Labour Court was not justified in holding that the inquiry was held without complying with the due procedure of law and principle of natural justice.
8. Learned counsel for the petitioner submitted that the requirement of expeditious conducting of inquiry which compelled the Inquiry Officer for conducting it ex parte, on account of non cooperation from the delinquents, could not have been viewed as hasty action or preconceived action of the management as appears to be held by the Court in the impugned order dated 08.01.1999. The record of the inquiry proceedings which was subject matter of scrutiny before the Labour Court sufficiently revealed that the delinquents declined to participate in the proceedings and, therefore, the inquiry authority was left with no choice but to proceed ex parte and such ex parte proceedings cannot be said to be denial of opportunity and/or in any manner violation of principle of natural justice.
9. Learned counsel for the petitioner further contended that the workmen did not indicate as to why the proceedings were required to be adjourned. The request for adjournment was not justified on the part of the delinquent in any manner. The so called lack of congenial atmosphere, has not been proved by the workmen and, therefore, in absence of any cogent reason for adjournment, the inquiry authority was justified in proceeding with the inquiry ex parte and the same could not have been viewed as non compliance with the principle of natural justice. Therefore, the Labour Court's order and reasoning in order dated 08.01.1999 are required to be quashed and set aside.
10. Learned counsel for the petitioner thereafter contended that the management did not straightway issue punitive orders against the delinquents and in fact the delinquents were called upon to present their version and case by making appropriate request in writing as could be seen from the communication placed on record.
The management issued a letter dated 13th December, 1984, which is produced in the petition at page no.46. The perusal whereof would show that in what circumstances the ex parte inquiry was conducted and as a special case and with a view to give one more opportunity to produce the witnesses of the delinquents and an opportunity to cross examine the witness of the Company, the workmen were called upon to put up their written request. The management was ready in case if the workman put up written request in this regard within 48 hours of the receipt of this letter, failing which it would be presumed that he did not wish to avail the opportunity offered and the matter would be proceeded further. The workman responded vide letter dated 15.12.1984, whereunder it was submitted that full fledged opportunity may be granted to them which letter was replied by the Company vide letter dated 19th December, 1984 indicating that one more opportunity to produce the witnesses and cross examination is granted on the basis of the evidence recorded during the inquiry and, therefore, they were advised to remain present on 28.12.1984 at 12.00 A.M in the office of the factory before the Inquiry Officer where the inquiry would be reopened and on failure to do so the presumption was to be drawn that the workmen chose not to avail the opportunity. The workmen did not remain present and hence on 28.12.1984, the Inquiry Officer concluded that the workman did not choose to lead any evidence and reopening of the inquiry was treated to have been closed. The second show cause notice without the report of the Inquiry Officer was issued. The delinquent replied to the second show cause notice which was issued by letter dated 07.01.1985. Ultimately, the order of dismissal came to be passed with effect from 09.01.1985. These developments of the events were submitted to be sufficient to indicate that the Labour Court's finding recorded in its order dated 08.01.1999 qua non compliance with the principle of natural justice was unwarranted and, therefore, the order of the Labour Court holding that there was non compliance with the principle of natural justice is required to be quashed and set aside.
11. Learned counsel appearing for the petitioner submitted that during the inquiry proceedings the management witnesses were examined and the Inquiry Officer submitted his report holding the charges to be proved. This finding which was based upon the evidence recorded during the inquiry, though ex parte inquiry, could not have been brushed aside on account of the finding that there was non compliance with the principle of natural justice. The opportunity offered of participating in the inquiry was not availed by the workman and, therefore, these factors ought to have weighed with the Court appropriately in appreciating the aspect that the workman on account of their conduct disqualified themselves from arguing that there was lack of opportunity so as to vitiate the inquiry proceeding.
12. Learned counsel for the petitioner relied upon the decision of the Apex Court in case of Pepsu Road Transport Corporation Vs. Rawel Singh, reported in (2008) 4 SCC 42 submitted that the observation made in paragraph no.14 of the said judgment indicate that in a peculiar facts where the workman was granted opportunity to lead evidence, inquiry was fixed on the day when the workman did not remain present, the Court held that the inquiry officer was justified in proceedings ex parte inquiry. It cannot be said that the Inquiry Officer committed an error on the fact or law so as to warrant quashing of the inquiry proceedings. In the instant case also, the developments of the events mentioned hereinabove, would indicate that the workmen were given sufficient opportunity but workmen chose not to avail the same which compelled the Inquiry Officer to conclude proceedings and record his finding and when the punishment order is based upon such findings recorded the same did not call for any interference. The proceedings, therefore, ought not to have been held to be illegal on account of so called non compliance with the principle of natural justice. The Inquiry Officer was left with no choice, but to proceed ex parte, as there was no justification for seeking adjournment on the part of the workman nor the workman was in a position to explain as to why and in what circumstances the workman requested for adjournment in such a situation.
13. Learned counsel for the petitioner relied upon the decision of the Apex Court in case of Bank of India Vs. Apurba Kumar Saha, reported in (1994) 2 SCC 615, contended that when delinquents avoided the proceeding deliberately and refused to participate without any valid reason in the inquiry proceedings and when the proceedings are conducted ex parte, then the same cannot be said to be vitiated on account of non compliance of principle of natural justice. The delinquents' non participation and non availing of the opportunity to participate in the inquiry would disentitle them to subsequently raise plea of non compliance of the principle of natural justice on that behalf. Relying upon this decision, it was submitted on behalf of the petitioner that narration in respect of inquiry proceedings would aptly demonstrate as to how and to what extent the opportunity granted to the workman was deliberately not availed by the workman, and therefore, workman forfeited his right to submit that the inquiry was conducted without following due procedure and principle of natural justice.
14. Without prejudice to the aforesaid submission Shri Patel, learned counsel for the employer further submitted that the workmen examining themselves under the order of Labour Court permitting the employer to lead evidences in itself would not be sufficient to allow the reference in their favour, as the Court should have appreciated the fact that the inquiry and the date of incident were that of year 1995 or there about and the order of affording opportunity after holding inquiry to be vitiated was in the year 1999. The time lag of the development in between whereunder the management was constrained to discharge majority of workmen by way of affording them VRS Scheme. They worked as a major handicap in the employer in bringing and adducing his own evidence for justifying the order of dismissal.
15. Learned advocate for the employer submitted that the misconduct and the inquiry if held to be proved and legal, then the employer will not have to make any elaborate submission qua the subsequent order that is final order. Otherwise he submitted that the management could not adduce any evidence except merely asking the Court to look into the documents and evidences produced during the domestic inquiry which was held to be vitiated by the Labour Court vide its order dated 08.01.1999.
16. Learned advocate for the petitioner employer contended that non supply of copy of the Inquiry Officer's report cannot be treated as fatal infirmity to the disciplinary proceeding as the law in this behalf got crystallized only after the pronouncement of the judgment in case of Union of India and Others, Vs. Mohd. Ramzan Khan, reported in AIR 1991 Supreme Court 471. The Apex Court has held in terms that the law laid down by the Apex Court in respect of requirement of furnishing copy of Inquiry Officer's report to the delinquents before imposing the penalty is prospective and hence if one looks at the subsequent judgment namely in case of Managing Director, ECIL, Hyderabad etc. Vs. B. Karunakar, etc., reported in AIR 1994 Supreme Court 1074, the categorical observation of the Supreme Court would go to show that the said proposition of law would not have effect of undoing the orders of punishment already passed.
17. Learned advocate for the petitioner lastly contended that the inquiry proceedings would not be said to be vitiated merely on account of infirmity like non supply of the copy of Inquiry Officer's report to the delinquents without there being any further pleading and proving the factum of prejudice caused on account thereof. Thus, for making out the ground of vitiating the inquiry on account of non supply of the copy, it would be required to be proved the prejudice was caused and in case, if there is no prejudice caused or pleaded, then the said ground on its own strength would not be available for establishing that inquiry was vitiated. Thus, in light of this and in light of of conducting of the inquiry in the charges, it can be said that the inquiry so conducted did not prejudice the workmen in its defense in any manner, as the workmen did choose to participate and, therefore, the inquiry being said to be vitiated on this ground is of no avail to the workmen.
18. Learned counsel for the respondent workman submitted that the developments from the issuance of charge sheet till the imposition of punishment would clearly indicate that the inquiry was projected to be conducted in accordance with law, but there was in substance breach of principle of natural justice at every stage.
19. Learned counsel for the respondent workman contended that the fact remains to be noted that the workman in S.C.A. No. 10995 of 2002 was helper and as such he could not have been expected to examine electrical motor as he was not an electrician. Therefore, he could not have been expected to undertake any work which could be of a technical nature and though in the charge sheet it is indicated that it was mere request in climbing the tank and do something qua the fan or motor. But when the workman who was merely a helper and not technical hand would naturally not dare do such technical duty and when he expressed his inability the same could not have been viewed as an offece by the superior. The allegation was in fact a part of devise, as could be seen from the narration wherein the workman has clearly brought on record that the entire atmosphere was uncongenial on account of suspension of as many as 7 to 8 workmen. Thus, the management and the Inquiry Officer conveniently forgotten or ignored the factors like suspension of as many as nine workmen. The presence of police at the gate and in the office when all such factors were existing and when the workmen were called upon to file the reply which they filed and when they were asked to participate and when the workmen were needing sometime the Inquiry Officer without recording justification for refusing the time could not have refused granting of time.
20. Learned counsel for the respondent workman further contended that in fact the workmen expressed apprehension against Inquiry Officer and the management's attitude in conducting inquiry and when the management that is disciplinary authority was not the Inquiry Officer, then the Inquiry Officer was at least under obligation to bring these facts to the notice of the disciplinary authority who had ordered the inquiry, otherwise it would amount to outright rejecting the workmen's apprehension by the person against whom such an apprehension was voiced. The apprehension cannot be brushed aside by saying that it was merely an attempt to delay the proceedings as the subsequent development of events would rather indicate that there was substance in the apprehension expressed by the workmen against the Inquiry Officer.
21. Learned counsel for the workman thereafter contended that assuming for the sake of argument without conceding that the workmen could not convince the Inquiry Officer qua requirement of granting of time on account of non congenial atmosphere, but the workmen were legitimately entitled to seek time in the inquiry at the first day and at the first instance required Inquiry Officer to grant some time to the workmen for enabling them to indicate their friends as defense assistance. This requirement is admittedly not complied with as nowhere on the record it has been brought that workmen were ever afforded this opportunity by the Inquiry Officer nor the Inquiry Officer himself recorded anywhere that workmen were given time to ascertain from fellow workmen as to who could be their defense assistance. In light of this, it can well be said that the principle of natural justice was blatantly violated and, therefore, the findings recorded by the Court under exhibit-30 cannot be said to be in any manner calling for any interference.
22. Learned counsel for the workman further contended that the workmen when informed that the time is not being granted and when the workmen left the premises, as per the say of the Inquiry Officer after appending their signatures to the so called proceedings, he could not have straightway proceeded with examining the witnesses from the management and he was under obligation to bring these facts to the notice of the disciplinary authority.
23. Learned counsel for the respondent workman further contended that the Inquiry Officer was under obligation to maintain the records of the proceedings in accordance with law which would warrant the elaborate and detailed recording of the presence of the workmen and opportunity given to them. The question to the workmen whether they pleaded guilty or whether workmen would like to take help of any defence advocate or they would defend themselves or whether workmen need sometime, as the defence counsel was to be engaged from the fellow workmen and when delinquency of such nature is allegedly attribute, it would have been indeed difficult task to procure a defense assistance from the fellow workmen. All these factors needed to be borne in mind by the Inquiry Officer before outrightly rejecting the request of the workmen for adjournment of the proceedings. Thus, on this count also, it can be said that there was blatant violation of principle of natural justice.
24. Learned counsel for the respondent workman further submitted that the Inquiry Officer examined three witnesses from the management side. The nature of questions put to them by presenting officer with permission of Inquiry Officer would indicate that the Inquiry Officer was acting as per the dictates of the management to bring about a result of proving guilty to the workmen.
25. Learned counsel for the respondent workman thereafter contended that the so called opportunity said to have been afforded to the workmen, was in fact not opportunity in stricto senso as the communication which has been heavily relied upon by the counsel for the employer inviting workmen to put up their request in writing for availing an opportunity of presenting their witnesses and cross examine the witness of the management, is in fact no opportunity in eye of law, as the management did not supply copy of the proceeding and copy of the testimony of the management witness which was required to be studied and based thereupon the cross examination could have been prepared by the workmen. The lack of opportunity is writ large in the entire proceedings and, therefore, without under going the fine nuances of the proceeding if one looks at the report of the Inquiry Officer and the attending circumstances, one would safely come to the conclusion that the proceedings were conducted in utter disregard to the principle of natural justice and, therefore, the findings recorded by the Court under exhibit-30 vide order dated 08.01.1999 cannot be said to be so perverse or illegal or call for any interference under Articles 226 and 227 of the Constitution of India.
26. Learned counsel for the workman contended that even if as per the Model Standing Orders, Section 25, when the time limit of three months was available, then there was no justification for hastily completing the inquiry, that in itself is sufficient to indicate lack of bona fide exercise of the power.
27. Learned counsel for the respondent workman contended that it was not open to the employer to fall back upon the material and evidences of the domestic inquiry to justify their order of punishment when the Court on 08.01.1999 passed a detailed order holding the domestic inquiry to be illegal in eye of law. The opportunity was specifically afforded to the employer which the employer did not chose to avail on its own accord nor the employer has pleaded anywhere that it was not in a position to procure the witnesses or evidences. Had there been any attempt of this kind before the Labour Court, then the counsel for the petitioner would have some justification to make plea before this Court with regard to the management's handicap in not adducing evidences. In fact, the proceedings before the Court after 08.01.1999 clearly indicate that the management and employer did not plead any such handicap and if it is construed as their handicap to produce these very witnesses who were produced before the Inquiry Officer in domestic inquiry, then that misunderstanding of law is to be not to work as impediment in the way of the Labour Court in passing appropriate order. The workmen discharged their duties and they pleaded their case and proved it also workmen's subjected themselves for examination, as they examined themselves and when it was the management's turn, nothing prevented management from adducing evidences in justification of the order impugned. The non adducing of the evidences in any nature cannot be said to be permitted to be defended on account of challenge to the order dated 08.01.1999. Therefore, on this ground also the order impugned does not required to be interfered in any manner.
28. Learned counsel for the respondent workman invited this Court's attention to the decision which was cited and which was weighed with the Labour Court, which is reported in 1998-CLR- Vol.-I-219, that once the inquiry is declared to be vitiated by the competent Court, then the material forming part of the inquiry cannot be taken into consideration or be of any avail to either party and hence the Court had rightly rejected the request to rely upon that material by the management.
29. Learned counsel for the respondent workman invited this Court's attention to the judgment of this Court in case of Blue Star Limited Vs. Sarigat Hasim S., in S.C.A. No.4982 of 2004 (Coram: Jayant Patel, J.) decided on 23.04.2004. The non availability of the witnesses cannot be pleaded as ground, as could be seen from the observation of the Court made in paragraph nos.4 and 5. Learned counsel for the respondent workman relied upon the following authorities namely;
(i) in case of Mohd. Yunus Vs. Mohd. Mustaqum and Others, reported in AIR 1984 Supreme Court 38.
(ii) in case of Ouseph Mathai And Others Vs.
M.Abdul Khadir, reported in (2002) 1 Supreme Court Cases 319.
(iii) in case of Khalil Ahmed Basir Ahmed Vs. Tufelhussein Samasbhai Sarangpurwala, reported in AIR Supreme Court 184.
(iv) in case of M/s. Filmistan (Private) Ltd. Vs. Balkrishna Bhiwa and another, reported in AIR 1972 Supreme Court 171.
30. The Court has heard learned counsel appearing for the parties and perused the documents annexed with the petition. The few indisputable aspects arising there from needs to be set out as under namely;
(i) The workmen in both the disciplinary proceedings were holding different posts namely 'helper' and 'operator' and incident appears to have triggered off on account of oral order or instruction given to the workman who was working as helper on 08.11.1984. The charge sheet issued on the next date i.e. 09.11.1984, contains specific reference to the incident, wherefrom it appears that the workman was asked to climb over the Oleum tank and rotate the pump by hand to know whether it was moving freely or not. In other words, this instruction was issued to the helper, admittedly, a non technical hand to ascertain as to whether the pump in the Oleum tank was moving freely for which he was required to physically rotate the pump. The helper was thus asked to give his opinion qua the movement of pump in the Oleum tank by physically rotating the same. The helper refused the same. There is one more allegation to ascertain with regard to bring ladder so that person himself can climb and examine, which the workman refused. This is said to have happened at 1.15 A.M. in the night/morning. At 1.45 A.M. one Shri R.D. Purohit called the workman in supervisor's Cabin to inquire as to why he refused to bring the ladder and at that time the workman brought along with fellow workman namely one Shri Marathe, Operator. There is allegation that Mr. Marathe started shouting and manhandling at Shri R.D. Purohit. In other words, there was no charge of manhandling who was working as helper is concerned. The reference to one co-worker namely Mr. M.R.Raval is required to be noticed at this stage to be adverted to hereafter at appropriate place.
(ii) The entire charge sheet which is reproduced at page nos.24, 25 and 26 contains verbatim reproduction of the rules, but the charge sheet does not specifically indicate, as to out of three, the misconduct alleged would fall under which one of them. However, it could be inferred that it could be said to have fallen under two and three, as the drunkenness is said to have one does not alleged in this case.
(iii) The fact remains to be noted that the workman did express apprehension qua absence of congenial and/or appropriate atmosphere during the inquiry, as it was in the aftermath of suspension of as many as 7 to 8 employees of the Company. The presence of police agency i.e. outsider and with regard to Inquiry Officer not being impartial, the Inquiry Officer has made endorsement on the application that no adjournment would be granted in the inquiry proceedings and it would be conducted ex parte.
(iv) The ex parte inquiry was conducted on 01.12.1984 itself. All the three witnesses of the management were examined and the inquiry was concluded, however, subsequently a communication was sent to workmen intimating them, in case if, they are desirous of producing their witnesses and conducting cross examination upon the management's witnesses they can do so by putting up request in writing so that on 28.12.1984, it could be held. The communication dated 13.12.1984 is at page no.46 in the memo of petition. In this communication 48 hours time was accorded to the workmen for availing opportunity of putting up request. It is important to note that in this communication nowhere it is mentioned that the depositions of the management's witnesses were supplied to the delinquents nor has there been any recording even thereafter that said depositions were ever supplied to the workmen and delinquents. The management issued one communication on 19.12.1984, which was replied to the request of the workmen put up on 15.12.1984, indicating company's inability to accept the request, however, affording one more opportunity to produce witnesses and cross examination of the company's witnesses only on the basis of the evidences adduced by them during the inquiry which was admittedly conducted in absence of the delinquents on 01.12.1984. The time fixed for affording opportunity was 28.12.1984 at 12.00 A.M. and on 28.12.1984, it was recorded by the Inquiry Officer that the workmen did not avail the opportunity and the documents were collected which formed part of the proceedings and thus the inquiry was culminated into report which was accepted. The second show cause notice was issued which was replied and ultimate order was passed.
(v) The Labour Court in the first instance vide order dated 08.01.1999, exhibit-30, unequivocally held that the inquiry was vitiated on account of blatant disregard of principle of natural justice and adjourned the matter so as to afford an opportunity to the management for justifying the ultimate order of punishment by leading appropriate evidences.
(vi) The workmen examined themselves and led evidence to support their version to indicate that there was no misconduct on their part and that the punishment order was, therefore, deserved to be quashed and set aside.
(vii) The management did not lead any evidence despite the opportunity available nor did it prayed any handicap, as it is set out by the learned counsel at this stage in this Court in respect of availability of the witnesses on account of passage of time etc.
(viii) The Court recorded its finding qua unsustainability of the order of punishment and hence passed appropriate order, as in the interregnum period the VRS Scheme was floated and accepted by all the concerned, the said benefit was ordered to be accorded to the workmen also and 50% wages for the period of unemployment till the order of VRS Scheme was to be made. This award was subject matter of challenge along with order dated 08.01.1999.
31. The Court is of the considered view that learned counsel for the petitioner employer has heavily and elaborately submitted on the first order that is order dated 08.01.1999 and very fairly submitted that in case if Court accepts the submission of counsel qua unsustainability of that order, then in that eventuality the counsel need not have to be argued elaborately on the subsequent aspect. Though, in fact, later on the submissions were canvassed on this aspect of the subsequent order also namely the VRS could not have been offered and that on account of non availability of the witnesses, the management felt handicap in justifying the order of punishment.
32. The Court, therefore, proposes to deal with the submissions made by the counsels in respect of the order dated 08.01.1999 in the first place. Before adverting to the submissions in respect of the final order that is order dated 24.05.2002 impugned in this petition, the development of the incidences right from the alleged misconduct which took place on 08.11.1984 till the punishment order came to be passed, would betray unholy, unexplained haste on the part of the petitioner in completing the proceedings, which in my view, betrays lack of bona fide in conducting the inquiry. The atmosphere during the inquiry of 01.12.1984, was required to be explained, as the presence of police is absolutely not dealt with by either the Inquiry Officer or Disciplinary Authority thereafter in any manner whereas the workmen have deposed in a testimony to this effect and the fact that as many as 7 to 8 other employees were also suspended. All these factors coupled with requirement of affording reasonable opportunity to the delinquents for engaging defense counsel and preparing for domestic inquiry should have appropriately weighed with the Inquiry Officer as well as the management and, therefore, it could not have straightway proceeded with ex parte inquiry right from the day one after the issuance of charge sheet. Learned counsel for the workman was, therefore, justified in his submission that the inquiry proceedings amply reveals that there was lack of compliance with principle of natural justice and the basic minimum requirement of procedural recording was also conspicuously absent. The testimony of the management witnesses have never been shown to have been supplied to the delinquents at any point of time. The communications namely two communications inviting the delinquents to participate in the inquiry without affording them an opportunity to even reexamine the witnesses in their presence would indicate that the order dated 08.01.1999 passed by the Labour Court cannot be said to have resulted into any miscarriage of justice so as to call for any interference. The inquiry proceedings when has been held to be vitiated on account of breach of principle of natural justice by the competent Court and after recording elaborate finding of fact on this behalf, this Court would naturally not be justified in reexamining them at this instance of the petitioner even if the petition is treated to have been filed under Article 226 of the Constitution of India also. Though, it is required to be noted that the petition is required to be treated as one having been filed only under Article 227, as the mandatory provision of law now it has been pronounced by Full Bench of this Court in case of The Bhagyodaya Co-operative Bank Limited Vs. Natvarlal K. Patel and Anr., reported in 2011 (3) GLH (FB) 89, namely joining the Tribunal as a party is not complied with and, therefore, this petition is required to have been treated having been filed only under Article 226 of the Constitution of India.
33. The decision in case of Pepsu Road Transport Corporation Vs. Rawel Singh (supra) relied upon by the counsel for the petitioner, in my view would be of no avail to the petitioner, inasmuch as, there cannot be any dispute to proposition of law that ex parte inquiry on account of defiant attitude is always permissible. But the question arises as to whether in the given facts and circumstances of the present case was ex parte proceeding of inquiry on the very first day when the delinquents were invited, would justify the action of the Inquiry Officer. The answer would be emphatic 'no'. The facts of the case on hand are glaringly differed than the facts in case of Pepsu Road Transport Corporation Vs. Rawel Singh (supra) and, therefore, that judgment would be of no avail to the petitioner. In the instant case, the Inquiry Officer was at least under obligation to give sufficient opportunity to the delinquents to engage defense counsel and informed that they are invited to engage defense counsel and if they need time it ought to have been granted. The Inquiry Officer was also under obligation to bring it to the notice of the disciplinary authority that is management that delinquents have expressed apprehension qua his being not impartial. These factors are distinguishing factors which would not indicate that there was absolutely no substance in the request for adjournment made by the delinquents. Therefore, the decision cited at the bar wherein the delinquents' absent was recorded and the inquiry was proceeded ex parte would be of no avail to the petitioner, as it is stated hereinabove.
34. The decision of the Apex Court in case of Bank of India Vs. Apurba Kumar Saha (supra) is also of no avail to the petitioner, inasmuch as there cannot be any doubt about the proposition of law that the refusal to participate in inquiry without any valid reason would forfeit the right of the delinquents to plead the breach of principle of natural justice. But in the instant case, the peculiar facts and circumstances which emerged from the date of incident till 1st December that is first day on which the first sitting of inquiry was held indicated the request for adjournment should have been granted by the Inquiry Officer, as there was no earthly reason for declining such request except that there was lack of consent or rather it was acting under influence of management. The attempt is made to indicate that the opportunity was afforded, but in fact the findings recorded by the Labour Court and the circumstances attending the case would indicate that the facts and ratio in case of Bank of India Vs. Apurba Kumar Saha (supra) would not be applicable to the facts of the case on hand.
35. The decision in case of Union of India and Others, Vs. Mohd. Ramzan Khan (supra) and in case of Managing Director, ECIL, Hyderabad etc. Vs. B. Karunakar, etc.(supra) are of no avail, inasmuch as assuming for the sake of examining without holding that there was no requirement of issuance of second show cause notice along with copy of the report of the Inquiry Officer or that there was no prejudice pleaded, the Court is of the considered view that this proposition of law cannot be disputed in any manner, but the Labour Court has not held inquiry to be vitiated only on this ground namely non supply of copy of the Inquiry Officer's report and lack of prejudice on the part of the delinquents in not getting the report. On the contrary, the Labour Court in its order dated 08.01.1999, has unequivocally recorded its finding qua blatant disregard to the principle of natural justice in conducting the inquiry and, therefore, on this count, the inquiry is held to be vitiated. The employer should not have felt prejudiced at all, as after holding that in accordance with the provision of law full-fledged opportunity was afforded to the employer to lead evidences and justify the order of punishment. The employer chose not to lead any evidence in support of the version or in support of the order of punishment. This Court, therefore, is of the view that the findings recorded by the competent Court on 08.01.1999 in its order cannot be said
are upheld as just and proper.
36. This bring the Court to consider the subsequent submission qua the final order passed by the Court, as it is stated hereinabove, the final order is essentially based upon the findings recorded by the Court after taking into consideration the workmen's testimony and the arguments and submissions of the employer, wherein the employer did not plead anywhere any handicap and/or infirmity in their capacity to examine the witnesses on account of passage of time and when the management for the reasons best known to it, did not choose to justify their own action. The findings recorded by the Court in respect of lack of prove of charge so as to justify the order of punishment needs no interference by this Court. Learned counsel for the workman has relied upon the authorities which includes the authority which has been relied upon by the Labour Court also, which indicate that the lack of witnesses or non availability of the witnesses cannot be pleaded as a ground for justifying the order of punishment before the Court.
37. The Labour Court, in my view, has passed absolutely correct and proper order, as straightway reinstatement is not ordered and it is observed that other workmen were given benefit of VRS, the same benefit should have been granted and accordingly as it was forceful unemployment foisted upon the employee, 50% wages ordered till that date and thereafter the benefit of VRS is granted, as if the order is not passed. In my view, this order cannot be said to be perverse in any manner so as to call for any interference. In the result, the petition being bereft of merit, deserve to be dismissed and it is hereby dismissed. Rule is discharged. No costs. Interim relief granted earlier stand vacated.
Pankaj
(S.R.BRAHMBHATT, J.)