C.W.P.No.13946 of 1990 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.13946 of 1990 Date of Decision:- 20.01.2009 M/s Suraj Textile Mills a unit of National Textile Corporation ....Petitioner(s) vs. Presiding Officer, Labour Court, Bathinda and another ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.H.N.Mehtani, Advocate for the petitioner. Mr.Ashish Grover, Advocate for respondent No.2. *** AUGUSTINE GEORGE MASIH, J. (Oral) In this writ petition, the petitioner has challenged the award dated 12.3.1990 (Annexure P-3) passed by the Labour Court, Bathinda vide which it has been held that as the petitioner had not issued the show cause notice before terminating the services of the respondent-workman, therefore, the order of termination is bad and as a consequence thereof, the workman has been held entitled to reinstatement with continuity of service and full back wages. Counsel for the petitioner has submitted that the Labour Court has over-looked the submission of the petitioner-Management wherein a specific stand was taken that no show cause notice was necessary as there is no service rule requiring issuance of show cause notice before taking action against the workman. The said stand has been taken by the petitioner in para 14 of the writ petition which has not been denied by the workman in C.W.P.No.13946 of 1990 -2- his reply. In the light of this, there can be no dispute that there was no requirement of the Rules with regard to issuance of show cause notice to a workman before taking action in pursuance to the enquiry report. Counsel for the petitioner further contends that the Labour Court has categorically held that the enquiry and/or the enquiry proceedings are in accordance with law and no ambiguity as far as the holding of the enquiry or the enquiry proceedings has been found by the Labour Court. This finding has attained finality as the same has not been challenged by the workman. Counsel, on this basis, submits that when there is no requirement of issuing a show cause notice, as has been admitted by the workman, the Labour Court ought not to have interfered in the matter and proceeded to reinstate the workman with continuity of service with full back wages. Counsel for the petitioner also submits that the Court has proceeded on the assumption that the requirement of the Rules has not been fulfilled as show cause notice was necessary before terminating the services of the workman on the ground that the petitioner-Management is a Government of India undertaking and, therefore, an authority under Article 12 of the Constitution of India, and thus was required to comply with the provisions of the Constitution of India. It cannot be disputed that the order of termination of the workman is dated 22.3.1988 and the judgment of the Hon'ble Supreme Court in Union of India vs. Mohd.Ramzan, 1991 (1) RSJ 397 is of 20.11.1990 which has further been explained by the Hon'ble Supreme Court in the case of Managing Director ECIL, Hyderabad vs. B.Karunakar, 1994 (1) RSJ 443, wherein it has been held that the judgment in the case of Mohd.Ramzan (supra) would be prospective in effect from the date the judgment was pronounced. Therefore, the C.W.P.No.13946 of 1990 -3- judgment in Mohd.Ramzan's case (supra) has no application to the present case as the order of termination is dated 22.3.1988 which is before the date of judgment of the Hon'ble Supreme Court. Counsel for the respondent states that although the Rules may not require for issuance of a show cause notice upon the workman but he relies upon the Industrial Employment (Standing Orders) at Central Rules, 1946 Part-C wherein it is mandated that show cause notice is required to be issued after an enquiry is held against the workman on the proposed punishment. The Hon'ble Supreme Court in the case of Managing Director ECIL, Hyderabad's case (supra) has held in paras 44 and 45 as follows:- “44. However, it has to be noticed that although it is in Mohd. Ramzan Khan's case (supra) that this Court for the first time accepted and laid down the law that the delinquent employee is entitled to the copy of the report before the disciplinary authority takes its decision on the charges levelled against him, Guajarat High Court in a decision rendered on 18th July, 1985 in Dr. H.G.Patel vs. Dr.(Mrs.) K.S.Parikh and others, 1985(2) GLR(XXVI) 1385 and a Full Bench of the Central Administrative Tribunal in its decision rendered on 6.11.1987 in Premnath K.Sharma vs. Union of India and others 1988(2) ASLJ 449, had taken a similar view on the subject. It also appears that some High Courts and some Benches of the Central Administrative Tribunal have given retrospective effect to the law laid down in Mohd. Ramzan Khan's case (supra) notwithstanding the fact that the said decision itself had expressly made the law prospective in operation. The fact, however, remains that C.W.P.No.13946 of 1990 -4- although the judgments in H.G.Patel's case and Premnath K.Sharma's case (supra) as well as some of the decisions of the High Courts and of the Benches of the Central Administrative Tribunal were either taking a similar view prior to the decision in Mohd. Ramzan Khan's case (supra) or giving retrospective effect to the said view and those decisions were not specifically challenged, the other decisions taking the same view were under challenge before this Court but before Mohd. Ramzan Khan's case (supra) was decided and thereafter. In fact, as stated in the beginning, the reference to this Bench was made in one such case as late as on the 5th August, 1991 and the matters before us have raised the same question of law. It has, therefore, to be accepted that at least till this Court took the view in question in Mohd. Ramzan Khan's case (supra), the law on the subject was in a flux. Indeed, it is contended on behalf of the appellants/petitioners before us that the law on the subject is not settled even till this day in view of the apparent conflict in decisions of this Court. The learned Judges who referred the matter to this Bench had also taken the same view. We have pointed out that there was no contradiction between the view taken in Mohd. Ramzan Khan's case (supra) and the view taken by this Court in the earlier cases, and the reliance placed on K.C.Asthana's case (supra) to contend that a contrary view was taken there was not well- merited. It will, therefore, have to be held that notwithstanding the decision of the Central Administrative Tribunal in H.H. Patel's case (supra) and of the Gujarat High Court in Premnath C.W.P.No.13946 of 1990 -5- K. Sharma's case (supra) and of the other courts and tribunals, the law was in an unsettled condition till at least 20th November, 1990 on which day the Mohd. Ramzan Khan's case was decided. Since the said decision made the law expressly prospective in operation the law laid down there will apply only to those orders of punishment which are passed by the disciplinary authority after 20th November, 1990. This is so, notwithstanding the ultimate relief which was granted there which, as pointed out earlier, was per incuriam. No order of punishment passed before that date would be challengeable on the ground that there was a failure to furnish the inquiry report to the delinquent employee. The proceedings pending in courts/tribunals in respect of orders of punishment passed prior to 20th November, 1990 will have to be decided according to the law that prevailed prior to the said date and not according to the law laid down in Mohd. Ramzan Khan's case (supra). This is so notwithstanding the view taken by the different Benches of the Central Administrative Tribunal or by the High Courts or by this Court in R.K.Vashist's case (supra). 45. The need to make the law laid down in Mohd. Ramzan Khan's case (supra) prospective in operation requires no emphasis. As pointed out above, in view of the unsettled position of the law on the subject, the authorities/managements all over the country had proceeded on the basis that there was no need to furnish a copy of the report of the Inquiry Officer to the delinquent employee, and innumerable employees have been punished without giving them the copies of the reports. In C.W.P.No.13946 of 1990 -6- some of the cases, the orders of punishment have long since become final while other cases are pending in courts at different stages. In many of the cases, the misconduct has been grave and in others the denial on the part of the management to furnish the report would ultimately prove to be no more than a technical mistake. To reopen all the disciplinary proceedings now would result in grave prejudice to administration which will far outweigh the benefit to the employees concerned. Both administrative reality and public interests do not, therefore, require that the orders of punishment passed prior to the decision in Mohd. Ramzan Khan's case (supra) without furnishing the report of the Inquiry Officer should be disturbed and the disciplinary proceedings which gave rise to the said orders should be reopened on that account. Hence, we hold as above.” In the light of the fact that the Rules governing the service do not require for issuance of such a show cause notice, Standing Orders as issued under the Industrial Employment (Standing Orders), Act 1946, would not be applicable and the Rules governing the service would have an over- riding effect. In view of the above position, I have no option but to accept the writ petition and set aside the award dated 12.3.1990 passed by the Labour Court, Bathinda (Annexure P-3). It is ordered accordingly. January 20, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No