Anwarkhan vs The Management of Walchand Industries Ltd.

H. Billappa, J.—1. In this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner has called in question the award dated 7/10/2008 passed by the Principal Labour Court, Hubbballi, in KID No. 7/1998 vide Annexure ''F''.

By the impugned award, the Labour Court, Hubballi, has rejected the petition filed by the petitioner under Section 10(4-A) of the Industrial Disputes Act, 1947.

Aggrieved by that, The petitioner has filed this writ petition.

Briefly stated the facts are; the petitioner was employed with the respondent in the year 1969. Articles of charges were issued to the petitioner on 20/12/1988 by the Assistant General Manager alleging unauthorised absence for duty for a period of 31.5 days during the period from September 1987 to December 1988. Thereafter, enquiry was held and the enquiry officer submitted his findings. The petitioner was dismissed from service by order dated 24/2/1989 as per Annexure-B. The petitioner filed petition under Section 10(4-A) of the Industrial Disputes Act, 1947 challenging the order of dismissal dated 24/2/1989. The Labour Court by its award dated 7/10/2008 has rejected the petition filed by the petitioner. Therefore, this writ petition.

The learned counsel for the petitioner contended that the impugned award cannot be sustained in law. He also submitted that the enquiry was biased. Articles of charges i.e,-Annexure-A shows that the authority had decided to conduct an enquiry and Enquiry Officer was appointed in the articles of charges itself and enquiry date was also fixed. There was no opportunity for the petitioner to reply the charges. Therefore, the enquiry was biased. Further, he submitted along with the articles of charges, no documents were furnished to the petitioner. The Assistant General Manager was not the competent authority to issue the articles of charges under the standing order, it was the Director, Managing Director or any person authorised by them was the competent authority to issue the articles of charges. Therefore, the enquiry was not fair and proper. The Labour Court without applying its mind to the facts and circumstances of the case has held that the enquiry was fair and proper which is not correct. Further, the Labour Court has failed to consider that the enquiry was biased and without authority of law. Therefore, the impugned award cannot be sustained in law. In support of his submission, he placed reliance on the following decisions:--

"i) , AIR 2001 SC 343

ii) LAWS (SC) 2010-2-53

iii) 2006(6) KARU Page 696

iv) , 2015 LAB. I.C. 67"

As against this, the learned counsel for the respondent submitted that the impugned award does not call for interference. The Labour Court considering the material on record and also the contentions urged by the petitioner has held that the Enquiry was fair and proper and the competent authority had issued the articles of charges and that the dismissal was proper. Therefore, the impugned award does not call for interference.

I have carefully considered the submissions made by the learned counsel for the parties.

The point that arises for my consideration is; whether the impugned award calls for interference?

It is relevant to note, the petitioner was employed in the respondent company in the year 1969. On 20/12/1988, articles of charges have been issued to the petitioner by the Assistant General Manager as per Annexure-A. Perusal of Annexure A shows that the charges leveled against the petitioner are that he used to remain absent for duty unauthorisedly and that he was indulging in subversive activities. Annexure-A also shows that the authority had decided to conduct an enquiry and one Sri. Shridhar Pujar was appointed as enquiry officer and the date of enquiry was also fixed. It is relevant to refer to the decision of Hon''ble Supreme Court in State of Panjab v. V.K. Khanna and others reported , 2001 LAB I.C. 391. The Hon''ble Supreme Court has observed as follows at paragraph 34.

"The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an Inquiry Officer to substantiate the frame of mind of the authorities and thus depicting bias - What bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindset viz.: the inquiry shall proceed irrespective of the reply - Is it an indication of a free and fair attitude towards the concerned officer? The answer cannot possibly be in the affirmative. It is well settled in Service Jurisprudence that the concerned authority has to apply its mind upon receipt of reply to the charge-sheet or show-cause as the case may be, as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative - the inquiry follows but not otherwise and it is this part of Service Jurisprudence on which reliance was placed by Mr. Subramaniam and on that score, strongly criticised the conduct of the respondents here and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record".

It is clear from the above decision, if an enquiry is initiated even before a reply was filed, it indicates the mind set and biased attitude of the disciplinary authority. In the present case, without giving any opportunity for the petitioner to submit his reply to the charges, Annexure-A has been issued deciding to hold an enquiry and appointing the enquiry officer and also fixing the date of enquiry. It is clear, the enquiry was biased.

It is also relevant to note, the articles of charge must accompany necessary documents. In the present case, except issuing the articles of charges, as per Annexure-A, no documents have been furnished to the petitioner. Hon''ble Supreme Court in State of U.P. v. Saroj Kumar Sinha reported in , LAWS (SC)-2010-2-53 has held that non furnishing of the documents would deny an opportunity to the concerned parties to make effective representation against the charge sheet.

It was contended by the learned counsel for the petitioner that the charges do not indicate that the petitioner wilfully and deliberately remained absent for duty unauthorisedly. Reliance was placed on the decision of the Hon''ble Supreme Court in Chhel Sings v. M.G.B. Grameen Bank, Pali and others, reported in , 2015 LAB. IC page 67 wherein it has been held, when there was no allegation that the unauthorised absence for duty was willful or deliberate the termination was not proper.

The petitioner has contended that the enquiry was not fair and proper. The Labour Court taking into consideration that its predecessor had held that the domestic enquiry was fair and proper has proceeded to pass the impugned award. The Labour Court has failed to notice that the articles of charges were not supported by any documents. No documents were furnished. The articles of charges contained that the authority had decided to hold an enquiry and enquiry officer was appointed and date of enquiry was also fixed. Without noticing this, the Labour Court has passed the impugned award which cannot be sustained in law.

It is clear, the initiation of enquiry itself was bad in law. The articles of charges contained that the authority had decided to hold an enquiry and enquiry officer was also appointed and date of enquiry was also fixed. There was no opportunity for the petitioner to submit his reply to the charges. It indicates the mind set of the authority. The enquiry was biased. Therefore, the Labour Court was not justified in holding that the enquiry was fair and proper. It was also not justified in holding that the dismissal of the petitioner from service was proper. This Court could have considered remanding the matter for reconsideration. But, having regard to the fact that the enquiry initiated was contrary to law and biased and there was no opportunity for the petitioner to submit his reply to the charges levelled against him, in my considered view, no purpose would be served in remanding the matter. Further, the petitioner is now aged 67 years. The enquiry was initiated in the year 1988. Therefore, in the circumstances, it is not proper to remit the matter. The enquiry was biased and not proper. Therefore, the impugned the award passed by the Labour Court cannot be sustained in law.

The petitioner has not worked since 1988. Now he is aged 67 years. The litigation is going on since 1988. In the circumstances of the case, it is appropriate to direct the respondents to pay 30% of the backwages with continuity of service and other monetary benefits from the date of dismissal till the date of superannuation.

Accordingly, the writ petition is allowed and the impugned award passed by the Principal Labour Court, Hubli, in KID No. 7/1988 is hereby set aside. KID No. 7/1988 is allowed and the order of dismissal dated 24/2/1989 is hereby set aside. Further, it is directed as follows:

The respondent shall pay 30% of the backwages from the date of dismissal till the date of superannuation with continuity of service and other monetary benefits.