C.W.P.No.15749 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.15749 of 2008 Date of Decision:- 03.03.2009 Ram Niranjan ....Petitioner(s) vs. The Presiding Officer, Industrial Tribunal- cum-Labour Court, Gurgaon and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Raj Mohan Singh, Advocate for the petitioner. Mr.Ashwani Chopra, Sr.Advocate with Mr.Rohit Khanna, Advocate for the respondents. *** AUGUSTINE GEORGE MASIH, J. The challenge in the present writ petition is to award dated 31.12.2007 (Annexure P-5) passed by the Industrial Tribunal-cum-Labour Court, Gurgaon, vide which the reference has been answered against the workman on the ground that the enquiry held against the workman was in accordance with law and the punishment awarded to him is fully justified and does not call for any interference by the Labour Court. Counsel for the petitioner contends that the order passed by the Labour Court dated 6.11.2000 (Annexure P-4) wherein the Labour Court came to the conclusion that the domestic enquiry held by the Management is fair and proper, is not sustainable on the ground that the Inquiry Officer appointed by the Management was a Junior Counsel to the Standing C.W.P.No.15749 of 2008 -2- Counsel of the Management and he himself had been appearing on behalf of the Company on various occasions. He further contends that the Inquiry Officer was biased against the workman and was over-awed by the Management as he was being obliged by the Management by assigning him work. He further, while referring to the statement of MW-1 Sh.P.N.Dwivedi, who was the Inquiry Officer, submits that this factual aspect has been accepted by the Inquiry Officer that he remained junior to Sh.J.S.Saroha and also admitted that he had been representing the Management from time to time. He further contends that the Inquiry Officer has admitted various lapses in the enquiry report which included non- affixation of signatures on the exhibits and non-marking of the documents in his own hand as exhibits. He further contends that all this goes a long way to show that the Inquiry Officer had not conducted the enquiry in a proper manner nor did he follow the procedure so settled for conducting an enquiry. He challenges the award dated 31.12.2007 (Annexure P-5) on the ground that the Labour Court has failed to exercise its powers under Section 11-A of the Industrial Disputes Act by not interfering into the disproportionate punishments awarded to the workman and, therefore, the award deserves to be set aside. On the other hand, counsel for the respondent-Management has contended that the minor discrepancies which have been pointed out by the counsel for the petitioner in the enquiry file, do not vitiate the enquiry proceedings as no prejudice has been caused to the workman by these omissions on the part of the Inquiry Officer. He submits that in the cross- examination of the Inquiry Officer, it has clearly been mentioned that although the documents have not signed by him but the proceedings for the C.W.P.No.15749 of 2008 -3- day on which the said documents were accepted, indicates the nature of the documents as well, being taken on record. He submits that the workman has not been able to show as to what prejudice has been caused to him by such lapses. In any case, he contends that it is not open to the workman to challenge the order dated 6.11.2000 (Annexure P-4) passed by the Labour Court holding therein that the domestic enquiry held by the Management is fair and proper as the workman had challenged this order before this Court by way of C.W.P.No.13906 of 2001 decided by this Court on 9.2.2004, which was dismissed as withdrawn by the petitioner-workman and, therefore, the said order has attained finality. He further contends that in the present writ petition, the workman has not challenged order dated 6.11.2000 and, thus, the contention as raised by the counsel for the petitioner is beyond pleadings and, thus, cannot be entertained in the absence of the prayer for quashing of the said order. He further submits that the Hon'ble Supreme Court in the case of M/s. Dalmia Dadri Cement Ltd. vs. Murari Lal Bikaneria AIR 1971 SC 22 in similar circumstances while considering the contention of the workman that the domestic enquiry was biased as the Inquiry Officer was a Junior Advocate to the counsel for the Management and at times, appeared on behalf of the Management, has held that merely on this basis, no bias could be inferred. On the question raised by the counsel for the petitioner with regard to non-exercise of powers under Section 11-A of the Act on the quantum of punishment, counsel for the respondent-Management relies upon a judgment of the Hon'ble Supreme Court in the case of Usha Breco Majdoor Sangh vs. Management of Usha Breco Ltd. And others, 2008 (5) SCC 554 to contend that the Court should not interfere with the C.W.P.No.15749 of 2008 -4- punishment awarded to the workman on the basis of the proved charges against him unless the same are shocking the conscience of the Court and are totally unreasonable. He contends that in the present case, the enquiry held against the workman has been upheld by the Labour Court to be in accordance with law. Having come to that conclusion, the punishment which has been awarded to the workman could not be interfered with especially when the workman had instigated the workers not to do work and has indulged in indiscipline. He contends that to maintain the discipline of the workman, the punishment which has been given to him is in consonance with the misconduct proved against him and, thus, calls for no interference by this Court. I have heard counsel for the parties and have gone through the records of the case. The contentions as raised by the counsel for the petitioner cannot be accepted in the given facts and circumstances of this case. The discrepancies as pointed out by the counsel for the petitioner in the enquiry proceedings which have been admitted by the Inquiry Officer are not of such nature as would amount to violation of the Standing Orders or the instructions governing the conduct of an enquiry to the extent of vitiating it. The discrepancies and omissions on the part of the Inquiry Officer are not of such nature as would cause prejudice to the workman or could be said to be violative of the principles of natural justice. What has been found in the statement of the Management witness, Mr.P.N.Dwivedi, are mere insignificant omissions which cannot be termed to be illegal. The contention of the counsel for the petitioner with regard to the bias in holding enquiry against the workman since the Inquiry Officer was junior to Sh.J.S.Saroha, Advocate and has been representing the Management from C.W.P.No.15749 of 2008 -5- time to time, also does not hold the field in the light of the judgment of the Hon'ble Supreme Court in Murari Lal Bikaneria's case (supra) wherein the Hon'ble Supreme Court in para 19 at page 27 has observed as follows:- “19.We find ourselves unable to accept the conclusions arrived at by the Tribunal. The Tribunal seems to have been greatly impressed by the fact that instead of appointing someone in the appellant's factory itself as the Enquiry Officer the Works Manager had brought in an outsider who was no other than a junior advocate occasionally assisting Anand Prakash, their counsel in some matters. The Tribunal's view that this was wholly unwarranted and done with the purpose of loading the dice against the workmen appears to be unreasonable. Merely because the Enquiry Officer was a junior advocate and that he had on occasions been engaged by the appellant, it is not possible to take the view that he would necessarily be biased against the workmen. Evidently some of the workmen had behaved rudely to some members in the managerial cadre and it would not have been at all difficult for the Works Manager to appoint as Enquiry Officer some person of the factory itself over whom he was likely to have greater influence than on an outsider. As he himself was going to be a witness in the enquiry he entrusted the appointment of the Enquiry Officer to the Director of the Company. We C.W.P.No.15749 of 2008 -6- find nothing unfair in this and are unable to take any exception to the course adopted.” The observations of the Hon'ble Supreme Court are fully applicable to the facts of the present case and, therefore, this contention of the counsel for the petitioner is rejected. As regards the challenge to the order dated 6.11.2000, this contention of the counsel for the petitioner cannot be accepted for the simple reason that this Court while considering the challenge to this order in C.W.P.No.13906 of 2001 Ram Niranjan vs. The Presiding Officer and another, passed the following order on 9.2.2004:- “Present:- Mr.R.M.Singh, Advocate for the petitioner. Ms.Ritu Bahri, DAG, Haryan for respondent No.1. Mr.T.N.Gupta, Advocate for respondent No.2. Counsel for the respondent has cited S.Pattaraiswamy v. Management of Sundram Industries Ltd. & another, 2000 (1) LLN Madras High Court, 292 and The Cooper Engineering Ltd. v. P.P. Mundhe, 1975 L.A.B.I.C. 1441=1975 S.C. 1900 to contend that the petitioner is not entitled to challenge the findings of the Labour Court on the preliminary issue when the reference is still pending. Faced with this position, counsel for the petitioner prays that he be allowed to withdraw the petition with liberty to raise all his objections against the preliminary issues as well as before the Labour Court. C.W.P.No.15749 of 2008 -7- Allowed to do so. Dismissed as withdrawn. No costs. Parties through their counsel are directed to appear before the Labour Court, Gurgaon, for further proceedings on 1.3.2004. sd/- N.K.Sud (Judge) sd/- J.S.Narang 9.2.2004 (Judge)” A perusal of this order would clearly show that the counsel for the petitioner had prayed that he be allowed to withdraw the writ petition with liberty to raise all his objections against the preliminary issues before the Labour Court. A perusal of impugned award dated 31.12.2007 (Annexure P-5) shows that no evidence was led nor was it asserted by the petitioner-workman before the Labour Court with regard to the objections to the order dated 6.11.2000 (Annexure P-4). The workman had not led any evidence to substantiate his plea of victimization or had alleged that the order of termination was not in accordance with law thereby calling for interference by the Labour Court. The enquiry having been held in accordance with law, the objections which the petitioner had sought to take before the Labour Court qua the order dated 6.11.2000 passed by the Labour Court having not been taken and no evidence having been led by the workman to substantiate his claim of victimization, no fault can be found with the award passed by the Labour Court. The contention of the counsel for the petitioner with regard to non-interference by the Labour Court in the quantum of punishment, again does not call for any interference as the evidence so led by the parties before the Labour Court has been fully dealt C.W.P.No.15749 of 2008 -8- with. While exercising its discretion under the Industrial Disputes Act, 1947, the Labour Court has come to a reasonable conclusion on the basis of the oral as well as documentary evidence that the punishment meted out to the workman was fully justified and in consonance with the misconduct proved against him. The judgment of the Hon'ble Supreme Court in Usha Breco's case (supra) can be relied upon at this stage wherein it has been held that the Management cannot resort to victimization to get rid of Union Leaders, however, in their turn, the workmen are bound to maintain discipline and the Court should refrain from interfering with the punishment. In view of the above, I do not find any merit in the present writ petition and, therefore, dismiss the same. March 03, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE Whether referred to Reporters ________ Yes/No