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Judgment
Sudhir Agarwal, J.—Heard Sri Bhanu Pratap Singh for Petitioner and Sri B.N. Singh for contesting Respondent No. 2.
Writ petition is directed against the award dated 30.10.2002 passed by Labour Court (1st) U.P. Kanpur answering the reference in adjudication case No. 259 of 1999 against the employer holding that Sri Prem Shankar Bajpai, workman, was wrongly/illegally dismissed from service on 31.8.1998. The Labour Court held that no enquiry was conducted against the Workman concerned by holding oral enquiry and, therefore, the entire proceeding are in utter violation of principle of natural justice. Learned Counsel for Petitioner contended that after issuance of charge-sheet, the workman did not submit any reply and, therefore, there was no occasion for holding oral enquiry.
The submissions is thoroughly misconceived. Even if delinquent employee has not submitted any reply to the charge-sheet, it does not amount to acceptance of the allegations made in the charge-sheet and it is incumbent upon the enquiry officer to hold the oral enquiry wherein the charges have to be proved.
Holding of oral enquiry is mandatory before imposing a major penalty as held by the Apex Court in 1996 VII AD 821 (SC) as well as by a Division Bench of this Court in Subhash Chandra Sharma v. Managing Director and Anr. 2000 (1) UPLBEC 541.
The question as to whether non holding of oral inquiry can vitiate the entire proceeding or not has also been considered in detail by a Division Bench of this Court (in which I was also a member) in the case of Salahuddin Ansari v. State of U.P. and Ors. 2008 (3) ESC 1667 and the Court clearly held that non holding of oral inquiry is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment. This Court has said in paras 10 and 11 of the judgment as under:
...Non holding of oral inquiry in such a case is a serious matter and goes to the root of the case.
A Division Bench of this Court in Subhash Chandra Sharma v. Managing Director and Anr. 2000 (1) UPLBEC 541 , considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subhash Chandra Sharma Vs. U.P. Co-operative Spinning Mills and Others, and Laturi Singh v. U.P. Public Service Tribunal and Ors. Writ Petition No. 12939 of 2001, decided on 6.5.2005.
Learned Counsel for Petitioner further contended that the workman was not entitled for consequential benefits, i.e., arrears of salary since the principal of "no work no pay" will apply, however, I find no force in the submission. This Court in the case of Brijendra Prakash Kulshrestha v. Director of Education and Ors. 2007 (3) ADJ 1 (DB), has considered the applicability of "no work no pay" and it has been held that an employer cannot deny salary to an employee, who is always willing and ready to work but was not allowed to do so by an act or omission directly attributable to the employer.
In view of above, I find no error apparent on face on record in the order impugned in writ petition warranting interference. Writ petition lacks merit. Dismissed.