Court No. - 33
Case :- WRIT - C No. - 13919 of 2018
Petitioner :- Shahi Exports Private Limited (Earlier Known As Shahi Export House)
Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Diptiman Singh Counsel for Respondent :- C.S.C.
Hon'ble Manoj Misra, J.
Heard Sri Diptiman Singh for the petitioner; the learned Standing Counsel for the respondents 1 and 2; Sri Shekhar Srivastava for the respondent no.3; and perused the record.
The present petition has been filed by the petitioner- employer assailing an award dated 05.09.2017 passed by the Labour Court, NOIDA, Gautam Budh Nagar in Adjudication Case No. 1746 of 2008, published on 15.01.2018, by which the termination of service of the respondent-workman (third respondent) dated 17.10.2001 has been declared illegal and the petitioner-employer has been required to reinstate the respondent-workman with all consequential benefits.
The third respondent (workman - Geeta Bhardwaj) was appointed as Checker on 19.08.1997. On 17.10.2001, her services were dispensed with after an enquiry. The enquiry was a joint enquiry against as many as 56 workers including the third respondent. In the domestic enquiry, charges found proved against third respondent were as follows:- (i) that she along with other workman on 10.07.2001 had indulged in marpeet with fellow workman-Ram Sewak Prasad and Shailendra Kumar, who got injured; (ii) that on 27.07.2001 she threw taunts at fellow workman Asha Devi by calling her 'Draupadi' and inciting fellow women workmen to beat her as a consequence whereof Asha Devi was beaten; (iii) that on 08.08.2001 when the Deputy Labour Commissioner, Gautam Budh Nagar had arrived for conciliation, she along with others had incited workmen as a result no settlement could take place; (iv) that she along with others indulged in go-slow practice as a result production to the tune of 9% was affected; (v) that on account of her conduct in league with other fellow workmen, other workmen instead of working, had been moving here and there in the premises and whiling away their time or chewing tobacco, as a result discipline in the factory had fallen; (vi) that she along with others had been indulging in acts of indiscipline and collecting donation from fellow workmen; (vii) that she along with others on 11.08.2001 and 13.08.2001 did a 'Gherao' to press unreasonable demands.
It may be noticed that except for charge (ii), as above, in none of the charges there was specific overt act of misconduct attributed to the third respondent. The role of the third respondent in charges other than charge (ii), as above, was general as being one amongst those 56 workmen against whom joint enquiry was allegedly held by the management.
The Labour Court held that the domestic enquiry stood vitiated for violation of the principles of natural justice. To draw the above conclusion, the labour court, apart from noticing the stand of the workman that the enquiry was completely ex-parte and was mere paper work of which no information was given, noticed the following facts: (a) that a joint enquiry against 56 workmen was undertaken in which the first date of enquiry was 12.09.2001 on which date no workman appeared therefore the enquiry was adjourned to 15.09.2001; (b) that there was nothing on record to show that any notice was served upon the workmen in respect of the enquiry date 15.09.2001 although the management claimed that notice of the enquiry date 15.09.2001 was sent by registered post but no material was brought on record to substantiate when and on whom notice sent by registered post was served and otherwise also it was not possible to serve registered notice in such a short period;
(c) that although in the minutes of the meeting dated 15.09.2001 it is stated that workmen were present but it was also mentioned that they had refused to sign the minutes of the enquiry and had boycotted the enquiry and, while they were boycotting the enquiry, they were informed that enquiry shall proceed ex parte against them; and (d) that on 18.09.2001, the management allegedly took all evidence including statement of as many as eight witnesses and concluded the enquiry.
In addition to above, the labour court examined the documents relating to the alleged enquiry produced by the management and found that majority of the documents produced were correspondences between the police and the management and in none of those documents, the name of the respondent-workman (Geeta Bhardwaj) figured. It found that only in paper no. 82, which was a letter written by Asha Devi, the name of the respondent-workman (Geeta Bhardwaj) appeared that she had abused Asha Devi and had indulged in marpeet with her. The labour court thereafter perused statement of all witnesses, who were examined in the domestic enquiry, and found that except in the statement of M.W.5 (Asha Devi) in none of the statements any allegation was made against the respondent-workman (Geeta Bhardwaj). It found that in the statement of Asha Devi, recorded in domestic enquiry, though the name of Geeta Bhardwaj is mentioned but her participation is shown with other fellow women workman.
After noticing the above facts, the labour court proceeded to examine the enquiry report submitted by the Enquiry Officer and found that there was no proper analysis of the charges, particularly, as to what evidence was led in respect of which charge. Thus, upon a conspectus of the material brought on record, the labour court came to the conclusion that the domestic enquiry report was a mere paper formality; and the enquiry was conducted in a hasty manner just to ensure that the fate of 56 workmen could be sealed. Accordingly, it found it appropriate to declare the domestic enquiry bad in law.
After holding the domestic enquiry bad, the labour court proceeded to examine the evidence led by the management to prove the charges before it. After carefully analyzing and assessing the evidence led by the management it came to a well considered conclusion that the charges were not proved. While holding so, the labour court noticed that the incidents in respect of which charges were leveled had been reported to the police and several persons were named but, in police report, the name of the respondent-workman (Geeta Bhardwaj) was conspicuous by its absence.
After holding the charges not proved, the labour court proceeded to deal with the issue as to what relief the respondent-workman was entitled to.
In that regard, the labour court found that the workman had stated that despite best efforts she could not get employment and to rebut the same the management had led no evidence to show that the respondent-workman was gainfully employed. Accordingly, the labour court not only declared the termination of service illegal but allowed reinstatement with all consequential benefits to the respondent-workman.
Sri Diptiman Singh, learned counsel for the petitioner, has assailed the award passed by the labour court by claiming that the labour court had erred in law by not deciding the issue as regards validity of the domestic enquiry as a preliminary issue, as a consequence whereof, the management was deprived of its right to prove the charges before the labour court. It has been submitted that in the written statement, the management had taken a plea that if, for any reason, the departmental enquiry is held bad, the management be given opportunity to lead evidence to prove the charges. It has been submitted that such opportunity would be meaningful only if the issue as regards validity of domestic enquiry is decided as a preliminary issue and, thereafter, if the domestic enquiry is held bad, evidence is allowed to be led to prove charges. It has been submitted that whatever evidence was led by the petitioner was to substantiate that the departmental enquiry was not vitiated and therefore, on the basis of the said evidence, holding that the petitioner had failed to prove the charges was not justified. It has thus been submitted that the award be set aside and the petitioner be allowed to lead evidence to prove the charges. It has also been submitted that the charges were serious, suggestive of loss of confidence, therefore there was no justification for directing reinstatement of the respondent- workman and in lieu thereof award of lump sum amount by way of compensation would have been appropriate.
Per contra, Sri Shekhar Srivastava, who has appeared for the respondent-workman, submitted that the labour court, by its order dated 28.07.2006, had framed the issue as to whether the domestic enquiry was fair and proper. In the order dated 28.07.2006 it has been clearly mentioned that both sides representatives have agreed that the said issue shall be decided while deciding the matter finally. Therefore, on the basis of the said understanding, both sides had led evidence and, in fact, the petitioner had also led evidence to prove the charges on merit and not only for substantiating the validity of the domestic enquiry, though, despite opportunity, star witness Asha Devi was not examined before the Labour Court.
Sri Shekhar Srivastava further submitted that on 16.11.2011, after leading of evidence by the petitioner- employer, statement of the representative of the petitioner- employer was recorded by the labour court that no further evidence is now to be led on their part and, therefore, with the agreement of both sides, a date was fixed for arguments. It has accordingly been submitted that the petitioner-employer cannot now complain that it was not given opportunity to lead evidence to prove the charges or that issue as regards validity of domestic enquiry ought to have been decided as a preliminary issue.
In response to the contention that there was loss of confidence and therefore compensation in lieu of reinstatement ought to have been awarded, the learned counsel for the respondent-workman submitted that the petitioner has not been found guilty of any misconduct, which may involve moral turpitude, and, otherwise also, it was found that there was an attempt on the part of the management to deal with as many as 56 workmen simultaneously and, in that process, the respondent-workman was made a scape goat without any specific material against her. It has been urged on behalf of the respondent-workman that since it has not been proved that she was gainfully employed elsewhere after her termination, the labour court was justified in directing that she be reinstated with full consequential benefits.
Sri Shekhar Srivastava has also submitted that, in similar circumstances, another fellow workman, namely, Ranjana Jha, whose services were similarly terminated as the petitioner, the labour court had held her termination to be bad and directed reinstatement with all consequential benefits by award dated 05.09.2017 against which Writ C No. 1267 of 2018 was filed by the petitioner raising similar pleas as raised here, but this Court dismissed the writ petition vide order dated 09.02.2018, and had discarded those pleas by placing reliance on decisions of the Apex Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324; and State of U.P. v. Charan Singh, (2015) 8 SCC 150, where it was held that the workman cannot be deprived of wages on the principle of no work no pay particularly when it is proved that workman's services have been wrongfully dispensed with and it is not proved that the workman had been gainfully employed elsewhere. Sri Shekhar Srivastava has passed on a copy of the order dated 09.02.2018 passed in Writ C No. 1267 of 2018. The existence of the aforesaid judgment has not been disputed by the learned counsel for the petitioner-employer.
I have given thoughtful consideration to the rival submissions and have carefully perused the record.
Before dealing with the contentions of the learned counsel for the petitioner, this Court may observe that the petitioner's counsel had also made a feeble attempt to demonstrate that the domestic enquiry was not vitiated but, upon going through the detailed finding recorded by the labour court in that regard, the plea was not carried further and the other points, already noticed above, were pressed.
The contention of the learned counsel for the petitioner that the issue regarding validity of the domestic enquiry should have been addressed as a preliminary issue and since it was not addressed as a preliminary issue, the petitioner was deprived of opportunity to lead evidence to prove the charges before the labour court cannot be accepted for the following reasons: (a) The order-sheet of the labour court, which has been brought on record as Annexure 21 (at page 197 of the paper book) to the petition, would reveal that on 28.07.2006, the issue as regards validity of the domestic enquiry was framed by the labour court and both sides had agreed that it be decided while deciding the reference finally and, thereafter, with the consent of the parties, the labour court proceeded to record evidence. Therefore, the petitioner cannot complain that the labour court erred by not deciding the said issue as a preliminary issue. And (b) that the petitioner had led its evidence not only to prove the validity of the domestic enquiry but also the charges as would be clear from the evidence brought on record and, that apart, from the order dated 16.11.2011, contained in the order-sheet at page 205 of the paper book, it is clear that the employer had specifically stated before the Labour Court that they have no other evidence to lead whereupon, with the consent of the employer and the workman, the Labour Court had fixed a date for arguments. There appears nothing in the order-sheet or in the writ petition to suggest that any application was moved thereafter by the petitioner to allow the petitioner to lead further evidence to prove the charge. Under the circumstances, no prejudice whatsoever was caused to the petitioner by not deciding the validity of the domestic enquiry as a preliminary issue. Accordingly, this court is of the considered view that the contention on behalf of the petitioner that, by not deciding the said issue as a preliminary issue, the award passed by the labour court stood vitiated is liable to be rejected.
The second contention of the learned counsel for the petitioner that the respondent-workman had been in service only for four years and the charges leveled against her suggested lack of confidence of the management in her therefore she ought not to have been reinstated in service with full benefits is also worthy of rejection for the following reasons:-
(a) The charges leveled against the respondent-workman were not in respect of any such misbehavior or conduct of the respondent workman which may reflect upon her character as a person unworthy of confidence. The charges which were allegedly found proved in the departmental enquiry were general in nature involving participation of the respondent- workman with 55 other workmen. The only specific charge was in respect of her interaction/ marpeet with one fellow woman workman - Asha Devi. The labour court had found that the incident involving Asha Devi had been reported to the police but the name of the respondent-workman was conspicuous by its absence. Otherwise also, Asha Devi was not examined as a witness before the Labour Court. Under the circumstances, there was no cogent material brought before the labour court to come to the conclusion that the conduct of the respondent- workman was such that there may be loss of confidence of the management in her.
(b) The engagement of the respondent-workman for about four years only, by itself, is not a circumstance which would deprive her of consequential benefits upon declaration of her termination illegal because here it was not a case of retrenchment simpliciter but was a case where the workman was proceeded on charges that were found not proved therefore her services were wrongly dispensed with. Hence, in view of the law declared by the Apex court in various judgments which have been noticed by this Court while deciding the matter of fellow workman in Writ C No. 1267 of 2018, this Court is of the view that merely on ground that the respondent-workman had worked for four years, she could not have been deprived of the consequential benefits.
(c) The finding returned by the labour court that the statement of workman that she had not been gainfully employed after her unlawful termination was not rebutted by the petitioner - employer by leading cogent evidence remains unchallenged.
In view of the above, the argument that the respondent- workman was not entitled to reinstatement with back-wages is also liable to be rejected and is accordingly rejected.
It may be observed that the learned counsel for the petitioner has not been able to demonstrate that the findings returned by the labour court were vitiated for misreading or ignorance of any relevant material/evidence. Further, there appears no perversity in the reasoning of the Labour Court which may warrant interference. The petition therefore has no merit and is dismissed.
Order Date :- 26.4.2018 Sunil Kr Tiwari