*THE HON’BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION No. 27288 OF 2007 % 18-03-2008 # F.G.P. Limited …Petitioner and $ The Presiding Officer, Labour Court-III, Chandravihar, M.J. Road, Hyderabad & another. …Respondents ! COUNSEL FOR PETITIONER : Sri C. R. Sridharan ^ COUNSEL FOR RESPONDENTS: Sri V. Narasimha Goud < Gist: > Head Note: ? CITATIONS: 1) (1994) 1 LLJ 162 THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION No. 27288 OF 2007 Dt: 18th March 2008 Between: F.G.P. Limited …Petitioner and The Presiding Officer, Labour Court-III, Chandravihar, M.J. Road, Hyderabad & another. …Respondents THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION No. 27288 OF 2007 O R D E R: While legislating the Industrial Disputes Act (for short “the Act”), Parliament did make an effort to balance the weakness and disadvantage of an employee, vis-à-vis the strength and advantage of an employer in an industrial dispute. One after the other, the precedents also translated the letter and spirit of relevant provisions of the Act, into reality. Experience, however, shows that given the determination of a strong employer, the life of an employee can be made miserable. This writ petition provides an example. The 2nd respondent was employed in a factory, which was taken over by the petitioner. Disciplinary proceedings were initiated against the 2nd respondent, through a charge sheet, dated 3.9.1988. The first charge was that he was reading newspapers and magazines during working hours. The second charge is that he is liable for disciplinary action for drunkenness and disorderly behaviour. Another charge sheet was issued, alleging that he left the work place, without permission, and that he threatened the employees, inside and outside factory. Through an order, dated 20.12.1988, the petitioner dismissed the 2nd respondent from service. I.D.No. 282 of 1993 was filed by the 2nd respondent, before the Labour Court-III, Hyderabad. Through an award, dated 23.3.1996, the Labour Court had set aside the order of dismissal, and directed reinstatement of the petitioner, into service. Punishment of deferment of two increments was imposed and back wages were denied. The award was published through G.O.Rt.No.1911, dated 4.7.1996. While the petitioner filed W.P.No.16019 of 1996, against the award in I.D.No.282 of 1993, assailing the relief granted to the 2nd respondent, the latter filed W.P.No.8319 of 1997, insofar as the Labour Court denied back wages and imposed punishment of deferment of two increments. Through a common judgment dated 10.11.2005, a learned Single Judge of this court had set aside the award and remanded the matter to the Labour Court, on the ground that the 2nd respondent was not furnished with the copy of the enquiry report. Following the judgment of the Supreme Court in MANAGING DIRECTOR, ECIL v. B. KARUNAKAR [1], this court directed the Labour Court, to require the petitioner to establish as to how he suffered prejudice, on account of the non-supply of the enquiry report. Further steps were to depend on the finding of the Labour Court, on the said issue. A direction was issued to the effect that if domestic enquiry was found to be vitiated, the parties were permitted to adduce evidence, and the Labour Court was directed to exercise the power conferred under Section 11-A of the Act, thereafter. The petitioner filed W.A.No.14 of 2006, against the judgment in W.P.No.16019 of 1996. The writ appeal was dismissed by a Division Bench, through order dated 4.4.2007, with certain observations. The Labour Court resumed the proceedings, after remand. Through an order, dated 13.11.2007, it held that the 2nd respondent suffered prejudice, on account of non-supply of the report of the enquiry officer, and thereby, the domestic enquiry is vitiated. The said order is challenged in this writ petition. Sri C.R. Sridharan, learned counsel for the petitioner, submits that the Labour Court did not record any evidence before arriving at a conclusion that the 2nd respondent suffered prejudice. He submits that though the report of the enquiry officer was not supplied to the 2nd respondent, subsequently, it was made part of the record before the Labour Court. Learned counsel further submits that the report was furnished to the 2nd respondent, when the arguments relating to the validity of domestic enquiry were heard, in the I.D. He submits that the Labour Court did not at all apply the principles laid down in Karunakar’s case1, as directed by this court, and the finding was recorded in a mechanical way. He urged certain other contentions also. Sri V.Narasimha Goud, learned counsel for the 2nd respondent, on the other hand, submits that his client has been subjected to harassment for the past 17 years, on one pretext or the other, and that the filing of this writ petition is nothing but an attempt to protract the proceedings further. He contends that admittedly, the report of the enquiry officer was not furnished to the 2nd respondent, before an order of dismissal was passed, and that a Division Bench of this court in the writ appeal filed by the petitioner, categorically held that prejudice was caused to the 2nd respondent. Learned counsel submits that the Labour Court has arrived at a proper conclusion, and the matter cannot brook any further delay. Since the subject matter of this writ petition is only an order passed by the Labour Court, holding that the domestic enquiry was vitiated, it is not necessary to refer to the background of the case, in detail. Suffice it to say that it had started with framing of a charge against the 2nd respondent, way back in the year 1988, with allegations, such as, reading of newspapers and magazines while on duty, misbehaviour with fellow employees, leaving the premises unauthorisedly, etc. In I.D.No.282 of 1993, the Labour Court held the charges leveled against the petitioner are proved. However, in exercise of its discretion under Section 11-A of the Act, the court granted relief of reinstatement into service, without back wages, by imposing punishment of withholding of two increments. The petitioner, on the one hand, and the 2nd respondent, on the other hand, filed writ petitions, against the award, to the extent they felt aggrieved. It was not disputed that the 2nd respondent was not furnished with the copy of the report of the enquiry officer. In view of the judgment of the Supreme Court in Karunakar’s case1, non-supply of report of the enquiry officer, by itself, does not vitiate the disciplinary proceedings, unless the prejudice on account thereof, is proved by the employee. Thereafter, the matter was remanded to the Labour Court, requiring it to bestow its attention, on this aspect. The success of the 2nd respondent in the said writ petition, made him, to land in a peculiar and typical situation. The benefit of reinstatement, or in the alternative, to comply with Section 17-B of the Act, stood withdrawn, even while his contention as to non-supply of enquiry officer’s report was upheld. That, however, is a different aspect. The petitioner filed Writ Appeal No.14 of 2006, against the judgment of the learned Single Judge. The Division Bench discussed the matter at length, in view of the contentions advanced by the parties, before it. While dismissing the appeal, it recorded a finding to the following effect: “It is, thus, evident that the disciplinary authority had passed the order of punishment with a pre-determination and closed mind. This factor is strongly indicative of the ‘prejudice’ caused to respondent No.2, on account of non- supply of enquiry officer and denial of opportunity to submit his explanation against the proposed penalty.” The Labour Court took the observation of the Division Bench into account, and held that the 2nd respondent was prejudiced on account of non-supply of enquiry report, and that thereby the domestic enquiry vitiated. It is alleged on behalf of the petitioner that the Labour Court misunderstood the purport of the orders passed by this court in the earlier round of litigation. It is urged that the observation made by the Division Bench, was treated as a final pronouncement on the issue. Firstly, it has to be noticed that the Labour Court had undertaken a detailed discussion, before it held that the domestic enquiry was vitiated. Secondly, if at all any one, it is the petitioner that has to blame itself, for the present situation. It would have been possible for the petitioner to argue that the 2nd respondent was under obligation to place all the material before the Labour Court, to prove prejudice, as directed by this court, in the context of non-supply of enquiry officer’s report; provided, the order of the learned Single Judge was left at that. It was not a case of the dismissal of the writ appeal, without expression of any views on the merits. The Division Bench had independently discussed the matter at length, and expressed the views as indicated above. The order of the learned Single Judge merged in the order passed by the Division Bench. The observation made in the writ appeal has become final. Neither the parties, nor the Labour Court were entitled to ignore such a specific, categorical and unequivocal observation, equivalent to a finding. The argument that the 2nd respondent was furnished with the copy of the report, when the question of the validity of domestic enquiry was dealt with by the Labour Court, in the first round of litigation; does not hold any water. The report is required to be furnished, at the proper stage i.e. before an order of imposing punishment is passed, but not subsequent thereto. A casual observation made by the Labour Court that the report was not furnished to the 2nd respondent, even till today, cannot be read bereft of the context. Viewed from any angle, this court does not find any basis to interfere with the impugned order. The petitioner was able to protract the proceedings thus far, and the disciplinary proceedings initiated in the year 1998, could not be given a quietus so far. The petitioner deserves to be imposed costs for subjecting the 2nd respondent, to such a protracted litigation. Hence, the writ petition is dismissed, with costs of Rs.10,000/- (ten thousand only), payable to the 2nd respondent, within four weeks from today. The Labour Court shall proceed to decide the matter, at the earliest, and shall ensure compliance with the direction as to payment of costs. __________________ 18th March 2008 Note: L.R. copies to be marked. (B/o) PAN [1] (1994) 1 LLJ 162