TMI Blog2013 (1) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... t and no more, where such fresh enquiry is held. Unfortunately, the Labour Court has not adopted the aforesaid approach while passing the impugned award dated 04.09.2009, though the judgment of the Constitution Bench has held sway since 1993. On this short ground, the impugned award dated 04.09.2009 deserves to be set aside and the matter remanded back to the Labour Court for consideration of the aforesaid aspect and for proceeding further in terms of the decision of the Supreme Court in B. Karunakar (1993 (10) TMI 310 - SUPREME COURT). Finding merit in the petitioner's submission that there was no question of the past record of the respondent being put to him as perusal of the order of dismissal dated 30.03.1992 shows that the management did not hold the respondent's past record against him for dismissing him from service. All that was observed was that no extenuating circumstances were found in the past record in favour of the respondent. Also that the misconduct, if taken as proved against the respondent, was sufficient to warrant his dismissal from service. There is also merit in the petitioner's submission that Section 25-F of the act had no application in the facts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nagement was annoyed with him on account of various unjustified reasons, which led the issuance of illegal transfer order dated 30.04.1991 at a time when he was suffering ill-health. Since the respondent could not accept the transfer order for his own reasons, he was issued a charge-sheet and one Sh. R.P. Dutta was appointed as the Enquiry Officer. The Enquiry Officer found the respondent guilty of misconduct alleged against him and, on that basis, the respondent was dismissed from service w.e.f. 30.03.1992. The respondent was not even provided with the Enquiry Report at any stage prior to his being dismissed by the Disciplinary Authority. 4. The petitioner employer filed its written statement before the Labour Court. According to the petitioner when the respondent joined the service on 01.08.1978, he was designated as Junior Analyst Trainee. Thereafter he was transferred to Polymer Division w.e.f. 17.01.1980 and again transferred to Analytical Science Division w.e.f. 04.08.1980. He was designated Junior Analyst w.e.f. 01.08.1980 and worked up to February 1987. From March 1987, he was assigned to and started working in Techno Commercial Section. He was promoted to Junior Technica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25-F of the Industrial Disputes Act, 1947 ( hereinafter referred to as the Act). He also held that the punishment imposed upon the respondent was disproportionate and has no reference to the gravity of the charges. It was held that the respondent remains in the same position as he was before his dismissal. The Labour Court also directed that the respondent shall be paid all legal dues considering as if there is no dismissal against him. Consequently, the reference was answered in favour of the respondent workman. 8. The first submission of learned counsel for the petitioner management is that the admitted position was that the Enquiry Report was not supplied to the respondent workman at any stage prior to his being dismissed from service. Learned counsel candidly admits that the non-supply of the Enquiry Report was improper. However, his submission is that the said failure on the part of the petitioner could not, per se, lead to reinstatement of the respondent with full back wages, seniority, etc., as done by the Industrial Adjudicator while passing the impugned award. 9. He places reliance on the Constitution Bench judgment of the Supreme Court in the case of Managing Direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt could have interfered with the order of punishment, as the enquiry had been held to have been validly conducted by the petitioner. Even in that case, the Labour Court could not have set aside the punishment altogether and directed reinstatement with full back wages, as done by the Labour Court. The Labour Court should have granted liberty to the petitioner to proceed with the enquiry by placing the respondent under suspension and conducting the enquiry from the stage of furnishing him with the Enquiry Report. The question whether the respondent would be entitled to the back wages or other benefits from the date of his dismissal to the date of his reinstatement, if ultimately ordered, should have been left to be decided by the petitioner according to law after the termination of the proceedings and depending upon the final outcome. If the respondent succeeds upon such an exercise being undertaken and is directed to be reinstated, the petitioner would have the liberty to decide according to law as to how it will treat the period from the date of dismissal till the date of reinstatement and what benefits, if any and the extent of the benefits, the respondent would be entitled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a temporary employee. In our opinion, that question does not arise for consideration on the facts of this case. x x x x x x x x x x 8. It may be relevant to mention herein that under Section 2(oo) of the Industrial Disputes Act retrenchment as defined means: 2. (oo) the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include *** 9. In the instant case, as noticed, it is not the case of the management that the services of the respondent were retrenched, on the contrary the specific case of the management is that the dismissal of the respondent is a punitive measure after a departmental inquiry. That case having been rejected, the question of discharge simpliciter does not arise. 14. Learned counsel for the petitioner points out that the Industrial Adjudicator in the impugned award in para 11(vii) has gone off on a tangent inasmuch, as, it was nobody‟s case that the Disciplinary Authority had sought to place reliance on the respondent‟s past record against him, while ordering his dismissal from service. Consequently, there was no ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al head, Mr. K.M. Thomas, Chief (Analytical Services) was also handed over to him on 3rd Aug., 1991 at 10.00 a.m. in the presence of Mr. S.K. Checker, again instructing him to analyse the samples allotted to him which he did not do. 2) Further on 3rd Aug., two samples of thermic fluid were allotted to him for testing by his officer in charge, Mr.V.K. Gupta, but like the earlier occasions as mentioned above, he did not do the analysis of the samples given to him in spite of repeated persuations and instructions given to him by his officer in charge, divisional head from 25th July 1991 onwards till the date of his suspension. He simple either sat idle or roamed about in the institute or whiled away the time in utter disregard to the orders of his superiors since 25th July 1991 even on those days when he remained present in the Institute till his suspension on 5th Sept., 1991. 3) He remained absent unauthorisedly from 24.8.1991 to 30.8.1991 and also on 3.9.1991, which is evident from the attendance card produced by MW2 and exhibited as MW2/1 to MW2/3 and also the statement of details of absentism of Sh. R.K. Gandhi from 25th April 1991 to 5.9.1991 which is already discussed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a lapse on the part of the management cannot result in a windfall for the workman. Once the copy of the Enquiry Report came into the hands of the respondent workman before the Labour Court, it was for the Labour Court to require the respondent to satisfy it as to what prejudice, if any, the non-supply of Enquiry Report, has resulted into. Unfortunately, the Labour Court has not undertaken the said exercise. Even if it were to come to the conclusion that the respondent did suffer prejudice on account of non-supply of the Enquiry Report, while setting aside the dismissal order, the Labour Court would be required to grant liberty to the petitioner management to proceed with the enquiry by placing respondent employee under suspension and continuing the enquiry from the stage of furnishing him with the Report. In that event, the reinstatement that may be ordered as a result of setting aside of the order of punishment for failure to furnish the Enquiry Report would be treated as reinstatement for the purpose of holding a fresh enquiry from the stage of furnishing the report and no more, where such fresh enquiry is held. Unfortunately, the Labour Court has not adopted the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
