Madan Lal vs The Presiding Officer

S.S. Nijjar, J.—This petition under Articles 226/227 of the Constitution of India seek issuance of a writ of Certiorari quashing the interim award dated 20.10.1998, Annexure P-4 and the final award dated 3.3.1999, AnnexureP-5, made by the Industrial Tribunat-cum-Labour Court, Gurgaon (hereinafter referred to as the Tribunal).

According to the claim statement, workman-petitioner was appointed as a Sweeper w.e.f. 8.11.1978 with M/s. Indian Drugs and Pharmaceuticals Limited, Dundahera Industrial Complex (Udyog Vihar), Gurgaon. His services were abruptly terminated w.e.f. 4.4.1987. The workman-petitioner was drawing wages at the rate of Rs. 1450/- P.M. It is alleged that the services of the workman-petitioner have been terminated without giving any opportunity to defend himself. He has also not been paid any compensation as required u/s 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). On 7.10.1988, the workman-petitioner served a demand notice on respondent No. 2. On 22.11.1988, the dispute raised by the workman-petitioner was referred by the State Government to the Industrial Tribunal-cum-Labour Court, Gurgaon.

It was the plea of the management that the services of the workman- petitioner was terminated after holding proper enquiry. It was also stated that the workman-petitioner was habitual of remaining absent. He had been issued warning letters on several occasions. He had even been awarded punishment of censure. However, appointment of the workman-petitioner as Sweeper w.e.f. 8.11.1978 was admitted. Charge-sheet dated 18.1.1987 was-issued to the workman-petitioner. His reply was considered unsatisfactory. One Shri S.S. Parhar was appointed as Enquiry Officer. He submitted the enquiry report on 27.2.1987 and found the workman-petitioner guilty of the charges.

On the pleadings of the parties, the Tribunal framed a preliminary issue as follows :-"Whether a fair and proper enquiry was conducted by the management against the petitioner ?"

The Enquiry report has been attached with the petition as Annexure P-2. The entire enquiry report is as under :-

"Ex.M-13.

Indian Drugs and Pharmaceuticals Ltd Gurgaon.

Sub : Enquiry Report of Shri Madan Lal, Sweeper, Staff No. 331, connected with charge-sheet dated 28.1.87.

The charge-sheet No. 1DP/GRG/2 (331)/Estt.87 dated 28.1.87 was read over and explained to Sh. Madan Lal Sweeper, Staff No. 331, who denied the charges.

The details regarding his absence without permission was put up by the presenting officer. Sh. Madan Lal was given adequate opportunity to explain his position. However, while going through his leave record for the year 1986 it was found that except in three instances-when he submitted application in advance, in all other cases, the applications were submitted by him after the joining his duty. Therefore, all the charges mentioned in the charge-sheet stand proved. Copy of the proceedings of the enquiry held on 25.2.1987 is enclosed."

Sd/- 27.2. .... S.S. Parhar Enquiry Officer"

The parties were directed to adduce evidence on the preliminary issue. The petitioner-workman appeared as his own witness and stated that he was not given an opportunity of hearing during the enquiry proceedings. The entire enquiry proceedings were completed within 30 minutes. He further stated that no enquiry report was ever supplied to him by the management before terminating his services. The management produced three witnesses, namely, the Executive Assistant R.P. Sikri as MW-1, the Enquiry Officer, S.S. Parhar as MW-2, an Assistant Ashok Sharma as MW-3, before the Tribunal. After appreciating the evidence of the parties, the Tribunal on 20.10.1998 made an interim award. Annexure P-4, deciding the preliminary issue. The issue was decided against the workman-petitioner. Thereafter, the Tribunal proceeded to determine the issue "whether termination of Sh. Madan Lal is justified and if not what relief he is entitled to ?" In view of the fact that in the earlier award dated 20.10.1998, the Tribunal had come to a conclusion that the enquiry had been conducted in a fair and proper manner, the parties were directed to adduce evidence only on the point of punishment. The workman-petitioner appeared as his own witness in support of his case. The management did not adduce any evidence. The workman-petitioner had sought to argue that the punishment awarded to him be reduced u/s 11A of the Act. The Tribunal held that the workman-petitioner has not spelt out any circumstances for holding that the punishment is exorbitant and disproportionate to the misconduct.

I have heard the learned counsel for workman-petitioner.

I perusal of the enquiry report reproduced above, makes it abundantly clear that it has not been made by observing the rules of natural justice. The enquiry report is wholly cryptic and is not supported by any reasons. This Court has no hesitation in coming to the conclusion that such an enquiry report cannot be said to be fair and proper. The workman-petitioner has been held guilty merely on the basis of the record produced by the Presenting Officer. Thus, the Presenting Officer has acted as a witness also. No evidence was produced by the management in support of the charges contained in the charge-sheet. No reasons were given as to why explanation submitted by the workman-petitioner is not found satisfactory. He has not been given any opportunity to lead evidence in support of his case. He has not even been informed of his basic right that he can take the assistance of his fellow workman in presentation of his case before the Enquiry Officer. The Enquiry Officer has proceeded in the most lackadaisical and slip-shod manner. He has not acted in a manner becoming of a quasi-judicial authority. Holding of a departmental enquiry is not an empty formality. The Enquiry Officer has to while conducting the proceedings observe the rules of natural justice.

The enquiry report does not comply with even the bare minimum requirement of rules of natural justice. The charge-sheet itself runs into three pages. The enquiry report reproduced above, consists of two paragraphs only. No evidence on behalf of the management was summoned. Even the statement of the workman-petitioner was not recorded. In my view, there is wholesale violation of rules of natural justice. Before the Tribunal, the Enquiry Officer appeared as MW-2. It is admitted that no management witness was produced in the enquiry. It is also admitted that the Enquiry Officer had given findings on the basis of the record produced by management and the reply submitted by the workman-petitioner. In the examination-in-chief, MW-2 stated that copies of the proceedings and findings were given to the workman-petitioner. However, in the cross-examination he stated that even the copy of the findings was not given to the workman-petitioner. It is also admitted by the Enquiry Officer that he cross-examined the workman during the enquiry. Thus, the Enquiry Officer acted as the prosecutor as well as a Judge. Inspite of the overwhelming evidence tending to show that a fair enquiry has hot been held, yet, the issue has been decided in favour of the management by the Tribunal. I am of the considered opinion that the interim award dated 20.10.1998, Annexure P-4, deserves to be quashed on the sole ground that it has been given without any application of mind and suffers from an error apparent on the face of the record.

I am of the considered opinion that whilst giving the interim award, the Tribunal did not appreciate the grave consequence and prejudice which would be caused to the workman-petitioner, in case it is held that the enquiry conducted by the management is fair and proper. Once it is held that the enquiry held by the management is fair and proper, it would follow that very little relief could be given to the workman-petitioner. On the other hand, if the issue was to be decided in favour of the workman-petitioner and it was to be held that the enquiry was defective, no prejudice would have been caused to the management. It is now well settled that in case the Tribunal comes to a conclusion that the employer has held a defective enquiry prior to the passing of the order of dismissal, the employer has a right to adduce evidence before the Tribunal and justify its action. Therefore, it was incumbent on the Tribunal to examine with great caution the procedure which has been adopted by the management before passing the order of dismissal. A perusal of the interim award shows that the Tribunal has examined the issue in a very casual manner. In that process, the workman-petitioner has been treated most unfairly. Having decided the preliminary issue against the workman-petitioner, the Tribunal examined only the question as to whether the punishment of dismissal was disproportionate to the proved misconduct. This award is based on the earlier award. Since the interim award has to be quashed, the final award must also meet the same fate. Consequently, the impugned awards dated 20.10.1998 and 30.34.1999, Annexure P-4 and P-5, respectively, are hereby quashed. The matter is remanded back to the Tribunal to re-decide the reference. The Tribunal will proceed on the basis that the dismissal order has been passed after the management has conducted a defective enquiry. The management shall be given an opportunity justify its action, if an application to that effect is moved before the Tribunal. In the event of an application being moved, the Tribunal shall give an opportunity to both the parties to adduce evidence in support of their case.

The present writ petition is allowed in the aforesaid terms. No costs.

Petition allowed.