Court No. - 33
Case :- WRIT - A No. - 254 of 2021 Petitioner :- Rajit Ram Yadav Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Ajay Kumar Srivastava,Sr. Advocate Sri Samir Sharma Counsel for Respondent :- C.S.C.,Sunil Kumar Misra
Hon'ble Ashwani Kumar Mishra,J.
Order of dismissal, as affirmed in appeal and revision, is challenged in this petition primarily on the ground that the conclusions arrived at by the disciplinary authority are not consistent with the charge framed and that the petitioner has been denied adequate opportunity in the disciplinary inquiry. It is also stated that the charges have otherwise not been proved in accordance with law.
Reliance is placed upon a judgment of this Court in Writ Petition No.26080 of 2006 to submit that since the inquiry itself is in violation of principles of natural justice as such the order of the respondent Corporation cannot be sustained.
Petition is opposed by Sri S.K. Mishra, who has entered appearance for the respondent- corporation.
In the facts of the present case, it is apparent that the charge against the petitioner is of carrying ticket less passengers. Petitioner's defence is that a private bus on the same route had suffered break down and the passengers of that bus were allowed to sit in the Corporation bus and that is why many of passengers were found to be without ticket. It is also stated that at the relevant time the vehicle was actually parked. Petitioner's plea in that regard has not been accepted by the disciplinary authority and the plea of break down of other vehicle has been disbelieved.
Sri Samir Sharma, learned Senior Advocate states that the petitioner was not confronted on those aspects and, therefore, there is denial of opportunity of hearing to petitioner before passing the order impugned.
It is admitted that petitioner is employed in the respondent- corporation which falls within the ambit of 'industry' and the petitioner has a remedy of approaching the industrial adjudicator under the provisions of the Industrial Disputes Act. 1947.
So far as the jurisdiction of industrial adjudicator is concerned, law is settled that it has power to examine the legality of domestic inquiry and in the event such inquiry is found unfair or even if no inquiry is held, yet the labour court would have jurisdiction to independently examine the merits of the charge and return a finding as to whether the guilt is established or not? Power under Section 11-A of the Industrial Disputes Act is wide enough and the law in that regard has been settled by a catena of judgments of Hon'ble Supreme Court.
For an effective adjudication of the issue whether petitioner was responsible for carrying ticketless travellers in the Corporation bus, various factual issues would fall for determination. Oral and documentary evidence may have to be recorded for the purposes. From a jurisprudential perspective though many aspects overlap, but there are certain distinctions between service & industrial jurisprudence. If the domestic enquiry is found wanting in service jurisprudence then the employee ordinarily will be entitled to reinstatement for holding fresh enquiry etc. However, in view of Section 11-A of the Act of 1947 the industrial adjudicator would be entitled to examine merits of the charges levelled and independently return its finding on the question whether charges are established or not? That being the position in law it would be appropriate to relegate the petitioner to the remedy available before the industrial adjudicator instead of directly entertaining challenge to the orders passed in disciplinary proceedings.
In view of the availability of alternative remedy, this petition, therefore, is not entertained and is accordingly dismissed. However, it is provided that in the event petitioner approaches the competent authority, his claim would be referred to the industrial adjudicator keeping in view the provisions contained under Section 2-A of the Industrial Disputes Act, who shall make all endeavors to dispose of proceedings, expeditiously, by fixing short dates.
Order Date :- 13.1.2021 n.u.