LPA No. 166 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 166 of 2009 (O&M) Date of decision: December 1, 2009 Punjab State Cooperative Supply & Marketing Federation Ltd. ...Appellant. Versus Presiding Officer, Labour Court, Gurdaspur and another ...Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Ashwani Parashar, Advocate, for the appellant. Mr. ADS Jattana, Advocate, for respondent No.2. ORDER 1. This appeal has been preferred against the order of learned Single Judge upholding the award of the Labour Court, reinstating the workman with continuity of service and backwages for the period after 6.3.1984 i.e. date of dismissal of departmental appeal filed by the management to the rate of the award. 2. The workman was employed as Manager B Grade with the Marketing Federation (MARFED) since 1969. He was alleged to have committed misconduct of causing shortage of wheat of the value of Rs. 16,000/- in the year 1974 . After inquiry, charge was held to have been proved which led to dismissal on 25.4.1980. The workman raised industrial dispute, which was referred to Labour Court for adjudication. The main issue before the Labour Court was whether departmental inquiry was fair LPA No. 166 of 2009 2 and consistent with the natural justice. The Labour Court, vide award dated 8.7.1988 held that the order of dismissal was not passed by the competent authority, opportunity to cross-examine was not given, copy of inquiry report was not furnished to the workman, before passing order of dismissal. Accordingly, the Labour Court held that dismissal was not justified. 3. The management filed writ petition challenging findings of the Labour Court by submitting that even if inquiry was unfair, opportunity to lead evidence before the Labour Court should have been given, as sought. 4. Learned Single Judge dismissed the writ petition holding that there was no rule that if the inquiry was unfair, Labour Court was bound to hold fresh inquiry. Judgments of Hon'ble Supreme Court in The Chartered Bank, Bombay v. The Chartered Bank Employees' Union and another AIR 1960 Supreme Court 919 and The Management of Murugan Mills Limited v. The Industrial Tribunal, Madras and another AIR 1965 Supreme Court 1496, relied upon on behalf of the appellant-management, were held to be distinguishable. Reliance was placed on judgment of this Court in Mr. Bhupinder Singh and others v. The State of Punjab and others, 1986 (1) Punjab Law Reporter 68 to the effect that only Board of Directors was the appointing authority and order of dismissal could not be passed by the Managing Director. 5. We have heard learned counsel for the parties and perused the record. 6. Main contention raised on behalf of the appellant is that plea for opportunity to justify order of dismissal, by leading evidence before Labour Court was taken by the appellant in the written statement itself but Labour Court erred in not granting such opportunity. Reliance has been LPA No. 166 of 2009 3 placed on judgment of Hon'ble Supreme Court in Karnataka State Road Transport Corporation versus Smt. Lakshmidevamma AIR 2001 Supreme Court 2090, wherein it was held that if employer fails to lead evidence at the earliest, even at later stage the Labour Court has discretion to allow the Management to give an opportunity to lead evidence in support of order passed by it, in an appropriate case. In the said judgment reference was made to the earlier view taken by Hon'ble Supreme Court in Workmen of Motipur Sugar Factory (Pvt) Ltd. v. Motipur Sugar Factory, 1965 (3) SCR 588, wherein it was laid down that where inquiry is found to be unfair and employer seek to lead evidence, such opportunity should be given. 7. We find merit in the contention raised. Opportunity having been sought by the management at the earliest, ought to have been given as laid down by the Hon'ble Supreme Court. 8. Learned counsel for the appellant also submitted that order in the present case was passed by Administrator and not by Managing Director and the Administrator had the authority of Board of Directors under the provisions of the Punjab Cooperative Societies Act, 1961. He also submitted that there was evidence available with the management to show that copy of inquiry was furnished to the workman. He, however, unable to state whether opportunity to cross-examine was allowed to the workman. He submits that in such a situation the management should have been given opportunity to prove the misconduct by leading evidence. 9. It may have been possible to accept the plea raised on behalf of the appellant that the matter should be remanded to the Labour Court for giving opportunity to the appellant to lead evidence in support of misconduct, but having regard to subsequent developments, it may not be LPA No. 166 of 2009 4 possible to accept such plea at this stage. After the award, the workman was reinstated in the year 1989 and retired in the year 1995 i.e. 14 years ago at the age of 58 and he is now said to be 72 years of age. It will not be fair and reasonable if the workman is required to face another round of litigation at this stage. The workman having been reinstated and having served the management, it will be fair that terminal benefits due under the rules, if not paid, be paid to him. Let the same be paid within three months from the date of receipt of copy of this order. 10. Only other point which remains to be decided is with regard to the direction for payment of backwages from 6.3.1984 till award i.e. 8.7.1988. There is no material to show that the workman was not gainfully employed during this period. The burden to show that he was not gainfully employed was on the workman. The principle that backwages must follow reinstatement is no longer natural consequence of reinstatement, as held by Hon'ble Supreme Court in J.K. Synthetics Ltd. v. K.P. Aggarwal 2007 (2) SCC 433, paras 15-16. 11. Accordingly, we uphold the reinstatement of the workman with continuity of service but modify the impugned award to the extent that the workman would not be entitled to backwages from 6.3.1984 to 8.7.1988. 12. Appeal is disposed of accordingly. (ADARSH KUMAR GOEL) JUDGE December 1, 2009 (GURDEV SINGH ) prem JUDGE