1.0 Rule. Mr. Clerk, learned Advocate waives service of notice of rule on behalf of the respondent. No.1
2.0 With the consent of both the parties, the matter is taken up for hearing today.
3.0 By way of present petition, the petitioner has challenged the impugned order dated 22.03.2011 passed by the learned Labour Court in T. Application No. 192 of 2003 and impugned revisional order dated 29.08.201 1passed by the learned Industrial Court in Appeal (IC) NO.
12 of 2011.
4.0 The respondent No. 1 (‘the respondent’ for short) was an employee of the petitioner company who came to be discharged from the service of the petitioner company because of his misconduct of theft, fraud and acting dishonestly in connection with the business and property of the petitioner company as well as causing willful damages to the work and progress of the petitioner company. The respondent was served with show cause notice. Since the show cause notice was not replied, respondent was served with chargesheet for the misconduct committed by him on 29.07.2003. Thereafter enquiry was initiated. The respondent raised dispute before Labour Court. Thereafter on 19.11.2003, the respondent was found guilty of the charges levelled against him and he was terminated from the service.
4.1 The respondent filed T. Application No. 192 of 2003 challenging his termination. The learned Labour Court passed the impugned order whereby the inquiry held against the respondent came to be held legal and valid till the stage of supply of inquiry report. However, the Labour Court directed reinstatement of the respondent from the date of the order till passing of a fresh order after supplying inquiry report to the respondent.
4.2 The petitioner company challenged the impugned order dated 22.03.2011 before the learned Industrial Court by filing Revision Application No. 12 of 2011 along with stay application. The learned Industrial Court passed the impugned revisional order dated 29.08.2011 confirming the order dated 22.03.2011 passed by the Labour Court in T application No. 192 of 2003. Hence, this petition.
4.3 Mr. Trivedi, learned Senior Advocate appearing for the petitioner placed reliance on the decision of the Hon’ble Supreme Court in case of Managing Director, ECIL, Hyderabad and others versus B. Karunakar and others reported in (1993) 4 SCC 727, which clearly holds that the aggrieved employee if supplied with the inquiry report should show the prejudice caused to him because of nonsupply of the report. Here, though the respondent was supplied with the inquiry report he did not state a single word as to how prejudice is caused to him. He could have voiced his grievance in the examinationinchief which is recorded after supplying the inquiry report which was also not done.
4.4 He further submitted that it is settled law that when no inquiry has been held or the inquiry held has not been proper, the Tribunal has jurisdiction to allow the management to lead evidence to justify the action taken. In support of this he placed reliance on the decision in case of Firestone Tyre and Rubber Company of India (P) Ltd. versus Workmen employed, represented by Firestone Tyre Employees’ Union reported in (1981) 3 SCC 451 wherein in para 10 and 11 it is held as under:
“10. We find no reason to disturb the finding that the inquiry held was not proper. The Tribunal has found that the chargesheets issued were vague as they did not disclose the relevant material on which the charges were based. It was contended on behalf of the Union on the basis of this finding that no useful purpose would be served by remitting the case to the Tribunal. It is settled law now that when no inquiry has been held or the inquiry held has not been proper, the Tribunal has jurisdiction to allow the management to lead evidence to justify the action taken. The contention is that the charge-sheets being vague, the Tribunal would not be in a position to decide what evidence to let in, and, therefore, sending the matter back to the Tribunal would only be an idle formality. It is not possible to accept this contention. Normally an inquiry by the management starts by issuing a charge-sheet to the workmen proposed to be discharged or dismissed. In a case where the chargesheet is vague, it must be held that there has been no proper inquiry. In M/s. Bharat Sugar Mills Ltd.
v. Shri Jai Singh and others,(1) this Court held:
"But the mere fact that no inquiry has been held or that the inquiry has not been properly conducted cannot absolve the Tribunal of its duty to decide whether the case that the workman has been guilty of the alleged misconduct has been made out. The proper way for performing this duty where there has not been a proper inquiry by the management is for the Tribunal to take evidence of both sides in respect of the alleged misconduct".
Whether in a case, as the one before us, where it is found that proper charge-sheets had not been served on the workmen, the Tribunal can ask the parties to lead evidence to enable the Tribunal to decide the dispute between them is directly covered by an authority of this Court. In Management of Ritz Theatre (P) Ltd. v. Its Workmen, (2) Gajendragadkar J. (as he then was) speaking for the Court said:
" if it appears that the departmental enquiry held by the employer is not fair in the sense that proper charge-sheets had not been served on the employee or proper or full opportunity had not been given to the employee to meet the charge, or the enquiry has been affected by other grave irregularities vitiating it, then the position would be that the Tribunal would be entitled to deal with the merits of the dispute as to the dismissal of the employee for itself. The same result follows if no enquiry has been held at all. In other words, where the Tribunal is dealing with a dispute relating to the dismissal of an industrial employee, if it is satisfied that no enquiry has been held or the enquiry which has been held is not proper or fair or that the findings recorded by the Enquiry Officer are perverse, the whole issue is at large before the Tribunal. This position also is well settled".
11. In view of the well-settled legal position, the order directing reinstatement of the 12 workmen without a consideration of the merits of the case cannot be sustained ”
5.0 Mr. Clerk, learned advocate appearing for the respondent supported the impugned orders and submitted that under Article 227, of the Constitution of India, it will not be appropriate to entertain the petition.
6.0 Heard learned advocates for the parties. The main ground made out by the respondent before the Labour Court was that the report of the Enquiry Officer was not supplied to him. It is required to be noted that the petitioner had sought permission of the Labour Court to produce material before the Labour Court to justify the order of termination. Accordingly the enquiry report has already been produced on record before the Labour Court. The Labour Court is not powerless to weigh the findings of the Enquiry Officer and the objections of the respondent. The Labour Court could have examined the enquiry report and called for explanation of the employee on the enquiry report and thereafter could have examined justifiability of the punishment of the termination order. In fact the impugned order passed by the Labour Court has resulted into setting aside the termination order at an interlocutory stage without even calling upon the respondent to submit his objections against the inquiry report. This is against the ratio laid down in the case of B. Karunakar (supra). The Labour Court ought to have weighed the findings of the Enquiry Officer and the objections of the respondent against the same and to come to an independent conclusion whether the findings of the Enquiry Officer are perverse or not. If the Labour Court finds that the findings of the Enquiry Officer are not perverse, it could not have set aside the dismissal order at an interlocutory stage granting final relief.
7.0 In view of the above position I am of the view that the Labour Court has committed an error in passing the impugned order. Both the impugned orders are quashed and set aside.
8.0 The matter is remanded to the Labour Court for fresh decision after considering the Inquiry Report and the reply by the respondent. It will be open to the petitioner to proceed further and adduce evidence before the Labour Court after supplying necessary documents and report not supplied to the delinquent.
9.0 Both the parties shall appear before the Labour Court on 09.01.2013. The Labor Court is directed to hear and decide the matter within a period of one year from the date of receipt of the order of this Court. It is made clear that both parties will cooperate with the Labour Court for early disposal of the case. Rule is made absolute to the aforesaid extent with no order as to costs.
(K.S.JHAVERI, J.) niru*