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2013 (1) TMI 656 - HC - Indian LawsDismissal from service by the management - Whether it was illegal and/or unjustified and to what relief is he entitled - whether the non-supply of the Inquiry Report to the respondent workman before the imposition of the punishment of dismissal from service would vitiate the entire disciplinary proceedings and entitle the respondent workman to reinstatement with full back wages and seniority, etc.? - Held that:- Even if Labour Court 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, it 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 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 the respondent's case since his dismissal from service was by way of punishment and this species of termination is excluded from the definition of retrenchment. Thus fail to appreciate how the Industrial Adjudicator could have observed that in view of Section 25-F, dismissal without any notice is in violation of principles of natural justice. The Industrial Adjudicator, while directing the respondent's reinstatement with full back wages, allowances, seniority, etc. has not even applied its mind to the fact that the Enquiry Report had found the respondent guilty of misconduct. It is not that in all cases the Labour Court is bound to reinstate the workman with full back wages. There is no application of mind by the Labour Court to this aspect. Thus the present petition succeeds and the impugned award is quashed & set aside with the matter is remanded back to the Labour Court concerned in terms of the observations made above.
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