Heard learned counsel for the parties.
This writ petition is directed against award dated 27.10.1998 given by Presiding Officer, Labour Court (IV), Kanpur in Adjudication Case No.18 of 1998. The matter which was referred to the labour was as to whether the action of petitioner employer terminating the services of its workman respondent No.1 w.e.f. 12.09.1996 was just and valid or not.
At the time of termination of services, respondent No.1 was working as booking clerk. The allegation against respondent No.1 was that the way bills from 15.08.1994 to 17.08.1994 submitted by a conductor before the respondent No.1 contained overwriting and lesser amount had been deposited by the conductor still they were passed by the respondent No.1. Before termination of services domestic enquiry was held. The respondent No.1 had admitted the cutting and overwriting, however he asserted that it was done by some other employees like posting clerk, senior clerk, junior clerk, junior and senior centre incharge, accountants and higher officers.
The labour court found some ultra technical/ trivial defects in the inquiry. Labour court in Para-8 of the award held that the workman did not intend to cross-examine senior centre incharge, however he wanted to cross-examine junior centre incharge. Accordingly, Sri Rajendra Singh, Junior Centre Incharge appeared as a witness and proved its report and the workman cross-examined him. Thereafter, the labour court mentioned that only on this evidence report was submitted by the Inquiry Officer (I.O.). This is a strange finding. I.O. is required to give report on the basis of evidence available on record. There is absolutely no finding that the workman wanted to adduce some more evidence for which permission was not granted to him by I.O. A bald allegation was made before the labour court by the workman that he was not permitted to adduce evidence in defence, however there was absolutely no detail of the evidence which he intended to adduce whether oral or documentary, if oral then which witness he wanted to examine and if documentary, what document he wanted to adduce. In any case the documents which were allegedly not permitted to be filed by the I.O. could be produced by the workman before the labour court, however it was not done by the workman. Labour court also held that along with the charge sheet, copy of the report was given to the workman but annexures of the said report were not provided. On this basis the labour court held that the enquiry was not fair. If the Annexures were not relied upon by the I.O., then their non-supply was not much relevant. There is no finding by the labour court that before the I.O. workman had made any complaint regarding non-supply of some documents.
Firstly, such a finding should have been recorded as preliminary issue so that employer could request for proving the charges before the labour court. Secondly on ultra technical/ trivial grounds enquiry cannot be held to be unfair. In Para-11 of the award, it was observed that in the report of the I.O., it was mentioned that the workman took the defence that due to over load of work, he was working overtime. From this, labour court inferred that error or negligence was quite possible due to over work hence it was not proved that manipulation in the way bills was deliberately made by the workman. This finding is also erroneous in law. Overwork is no licence for negligence. Taking such a plea amounted to admission of guilt. Ultimately direction for reinstatement with full back wages was given. Through the punishment order (termination order), the employer had also directed that balance salary for the suspension period would not be paid. The said amount was also directed to be paid through the impugned award.
In this writ petition, a conditional stay order was granted on 03.05.1999 directing deposit of 50% back wages to be kept by the labour court in Bank and compliance of Section 17-B of U.P. Industrial Disputes Act.
Learned counsel for the workman stated that pursuant to the interim order workman was taken back in service on 14.09.1999 and thereafter retired in 2003, however no back wages have been paid to him and complete retrial benefits have also not been paid to him.
Firstly, termination order has been set aside on ultra technical/ trivial grounds. Secondly, workman could not show that he was not employed anywhere else during the period for which he was not in service of the petitioners.
Accordingly, writ petition is disposed of with the direction that no back wages shall be payable to the workman. The amount deposited by the petitioner under interim order dated 03.05.1999 passed in this writ petition shall be returned to the petitioner along with accrued interest. All retiral benefits shall at once be paid to the workman and for calculation and payment of retrial dues, workman shall be deemed to be in continuous service since appointment till retirement. The balance salary for the suspension period shall also not be payable to the workman.
Order Date :- 03.05.2011 NLY