Executive Engineer (ELE) Chamundeshwari Electric Transmission Company (CHESCOM) vs Nagarathna

A.S. Bopanna, J.—1. The petitioner is before this Court assailing the award dated 31.12.2011 passed by the Labour Court, Mysuru in Ref. No. 14/2007 impugned at Annexure-P to the petition.

The respondent was employed in the petitioner-management on compassionate grounds. The appointment was through the order dated 22.09.2001 which was also subject to the condition that if in future any discrepancy with regard to the nature of the appointment is found, appropriate action would be taken.

The case of the petitioner is that the school certificate relied on by the respondent was fabricated and did not pertain to the respondent and on noticing the same, a show cause notice was issued to the respondent and the respondent though had sought time to reply and such extension time was granted, the respondent did not reply to the show cause notice. In that view, the petitioner having secured appropriate confirmation from the institution where the respondent claimed to have studied, on arriving at the conclusion that the marks card relied on were not genuine, proceeded to dismiss the respondent from the services of the petitioner by the order dated 15.05.2002.

The respondent claiming to be aggrieved by the same raised a dispute which was referred to the Labour Court, Mysuru, in Reference No. 14/2007. The Labour Court on taking note of the rival contentions has by its award dated 31.12.2011 set aside the order of dismissal dated 17.05.2002 and has directed reinstatement with 50% backwages. The petitioner claiming to be aggrieved by the same is before this Court.

Heard Sri Subramanya, learned counsel for the petitioner and Sri K. Subba Rao, learned senior counsel appearing on behalf of the respondent and perused the petition papers.

A perusal of the award in the light of the evidence that had been tendered before the Labour Court would indicate that the petitioner had relied on the evidence of M.W.1, an officer of the petitioner and had relied on the documents at Exhs.M1 to M24. The respondent herein had examined herself as W.W.1 and had relied upon the documents at Exhs.W1 to W4. The Labour Court while taking note of the said evidence was of the opinion that dismissal order dated 17.05.2002 cannot be sustained for the reason that the dismissal of the respondent was not preceded by a domestic enquiry though the respondent had rendered service of 240 days. Learned counsel for the petitioner while assailing such conclusion would contend that the petitioner had in fact tendered the evidence before the Labour Court to establish the charge and as such, the Labour Court ought to have considered such evidence and thereafter should have arrived at a conclusion.

Learned senior counsel for the respondent would however dispute this aspect of the matter by pointing out that the evidence as tendered was not sufficient and in a matter of the present nature where serious charge was made against the respondent about fabrication of the records to secure employment, the charge ought to have been established in the domestic enquiry by tendering appropriate evidence and only thereafter the conclusion could have been reached by the petitioner-management as to whether the charge was established and in that light, based on the findings to be rendered by the Enquiry Officer, whether the action as proposed could be justified.

In the light of such contention as already noticed, the manner in which the Labour Court has proceeded is only to take note that the domestic enquiry had not been held and in that view, the order was set aside and an observation has also been made by the Labour Court while answering Point Nos. 3 and 6 that the appropriate course would be direct the petitioner to reinstate the respondent into service, provide liberty to initiate necessary domestic enquiry after framing the charge to find out the truth in the matter and thereafter proceed further in accordance with law. This in itself would indicate that though the respondent is sought to be reinstated, if the award is left intact, the proceedings could once again be held against the respondent in accordance with law.

Having taken note of that aspect of the matter, what is also not in dispute is that a defective enquiry and an action without enquiry would be in a similar position where the management would be entitled to establish the charge afresh before the Labour Court. If that be the position, in the instant case, when admittedly the domestic enquiry had not been concluded, though the petitioner would seek to justify that such enquiry was not necessary since the respondent had not replied to the show cause notice, the petitioner should have availed the remedy of establishing the charge before the Labour Court. Learned counsel for the petitioner no doubt would seek to refer to the evidence that had been tendered before the Labour Court to contend that the same was sufficient to establish the charge therein.

In that light, having perused the documents and having noticed the witness who was examined on behalf of the petitioner, it is seen that as against the charge which was made against the respondent of producing a fabricated document to indicate that she had studied in Sri Ganapathi Sachchidananda Vidaya Samsthe, the petitioner has relied on the letter said to have been written by the said school as at Ex.M10 before the Labour Court. Apart from the said document, all other documents relied on by the petitioner essentially to establish the charge are the notice issued by the petitioner to the respondent and the conditions imposed at the time of appointment etc. The evidence tendered was through M.W.1 who is an officer of the respondent. In a circumstance where the petitioner was contending that the document was fabricated and when it is contended that the school where the respondent is claimed to have studied was itself established on a date subsequent to the date indicated in the certificate and the letter relied on to contend that the school authorities have stated the documents relating to the respondent is not available, the said aspect of the matter could have been established before the Labour Court only if the author of the said letter or a competent witness to speak about the school had been examined as a witness. Therefore in the present circumstance, it cannot be said that the charge has been established by examining appropriate witness before the Labour Court.

Having arrived at the above conclusion, it would have been sufficient for this Court in that background in a normal circumstance to hold that the charge had not been established and therefore the interference with the award would not be necessary. However, as already noticed above, the Labour Court has reserved liberty to the petitioner to conduct the domestic enquiry after reinstating the respondent and thereafter take appropriate action. Such action to be taken once over again by the petitioner could be regulated if the award is set aside and the matter is remitted to the Labour Court itself wherein the parties could tender evidence so as to enable the petitioner to establish the charge, if they deem to do so and in such proceedings, the respondent in any event would have the liberty of disputing the position as put forth by the petitioner.

Therefore in such circumstance, I am of the opinion that the award is to be set aside and the matter be remanded to the Labour Court to provide opportunity.

At this stage, the issue that arises for consideration is also with regard to the benefit that had been derived by the respondent by the award being passed in her favour at the first instance. In that regard, the learned senior counsel on behalf of the respondent would contend that the respondent is entitled to payment of 17-B wages in view of the challenge to the award before this Court. Learned counsel for the petitioner would however dispute the said position since it is contended that at this juncture, when this Court has heard the petition and the award is being set aside, the question of granting 17-B wages at this stage would not arise.

Learned senior counsel for the respondent would however rely on the decision of the Hon''ble Supreme Court in the case of Workmen of Hindustan Vegetable Oils Corporation Ltd. v. Hindustan Vegetable Oils Corporation Ltd. and Others [, 2000-11-LLJ 792] and on the decision of a Hon''ble Division Bench of this Court in the case of Islamia Institute of Technology, Bangalore v. Islamia Institute of Technology Employees Union - 2012 (2) AIR Kar R 270.

Having taken note of the law that has been laid down therein, there can be no dispute to the fact that when the award is passed in favour of a workman and when the management challenges the said award and if any interim order disentitling the reinstatement is provided under the award, the same is to be done in terms of Section 17-B of the Industrial Disputes Act, 1947. If the said decisions are taken into consideration, in the instant facts, at the first instance, no such condition had been imposed by this Court. Even if that be the position, the payment of 17-B wages would arise on an appropriate affidavit being filed by the workman concerned indicating that the workman is not gainfully employed and the said amount is required for sustenance.

If the said aspect of the matter in the background of the decisions relied upon is taken note, though at the first instance the interim order was granted by this Court, on the affidavit being filed in support of the application in I.A. No. 1/2014 seeking grant of 17-B wages, the statement as made in the affidavit about the respondent not being employed will have to be taken into consideration from the said date i.e., 20.06.2014 as this Court was required to consider such application at that point itself.

Therefore notwithstanding the fact that the award is being set aside and the matter is being remanded to the Labour Court, the respondent would have the benefit of 17-B wages to be paid by the petitioner with effect from 20.06.2014 when the affidavit was filed before this Court till this day. The amount shall be calculated and be paid to the respondent as expeditiously as possible, but not later than four weeks from the date of receipt of a copy of this order.

In the light of the above discussion, the award dated 31.12.2011 passed in Ref. No. 14/2007 is set aside. The proceedings in Reference No. 14/2007 is restored to the file of the Labour Court at Mysuru. The parties shall appear before the Labour Court without issue of fresh notice on 22.02.2016 as the first date of appearance. The Labour Court shall thereafter regulate the proceedings. The 17-B wages as indicated shall be paid from the date of the application i.e., 20.06.2014 to till date. If the respondent is still unemployed and any interim relief during the proceedings of the Labour Court is desired, liberty in that regard is reserved to the respondent to file such application and if such application is filed, the Labour Court shall consider the same in accordance with law.

In terms of the above, the petition stands disposed of.