C.W.P. No.8239 of 1989 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.8239 of 1989 (O&M) Date of Decision: 18.12.2009 The Doaba Cooperative Sugar Mills Ltd., Nawashahr ....Petitioner Versus Sh. Hardev Singh and another ....Respondents Present: Mr. Rahul Sharma, Advocate for the petitioner. Mr. Deepak Sibbal, Advocate for respondent No.1. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J.(ORAL) C.M. No.16554 of 2009 Application is allowed as prayed for. C.M. No.16555 of 2009 Application is allowed. Delay of 84 days in filing the application for recalling of the order is delayed. C.M. No.16556 of 2009 For the reasons stated in the application, the order of dismissal, which was made on 14.07.2009 for default of appearance, is recalled. The case is taken up for hearing on merits. C.M. stands disposed of. C.W.P. No.8239 of 1989 (O&M) -2- C.W.P. No.8239 of 1989 1. The award under challenge is a direction for reinstatement to a workman in a Cooperative Sugar Mills Ltd. The management had served two separate charge-sheets on the workman for alleged misconduct that resulted in financial losses to the management. One of a shortall in the cane purchased and two, a surprise visit yielding to unearthing a deliberate omission to make entries in the bill prchi. The result of the enquiry purported to be proof of the misconduct and the management went ahead with an order of termination. This order of termination was challenged through a reference to a Labour Court where the Labour Court had framed several issues that included whether the enquiry was fair and proper. The Labour Court had, after obtaining the statement of claim filed by the parties, directed to come up for evidence only on Issue No.1 namely whether the enquiry relied on by the management was fair and proper on 19.02.1986. It appears that the case had been adjourned to several dates and on 15.05.1987, the Court directed the respondent to produce its entire evidence on own responsibility. After letting in the evidence, written arguments were filed where the management had stated that they should be granted an opportunity to let in evidence on other issues if a finding was recorded that the enquiry had not been fair and proper. The Labour Court, however, while passing the impugned award found that the enquiry was not fair C.W.P. No.8239 of 1989 (O&M) -3- and proper and he had also given his finding on other issues. It is not possible to discern from the award as to whether the counsel had been specifically apprised of the fact that the award would be delivered on all the issues. Indeed, the Labour Court could not have undertaken such an exercise and could not have answered its findings on other issues without affording to the management an opportunity to lead evidence on other issues and particularly giving an opportunity to prove the misconduct if it chose to give evidence before the Court. 2. The issue as to how and under what circumstance the permission to let in evidence for proof of misconduct had been dealt with by the Consitution Bench of Hon'ble Supreme Court in Karnataka State Road Transport Corpn. Vs. Lakshmidevamma (2001) 5 SCC 433. The procedure laid down refers to the fact that the management shall seek for such an option in its written statement or it may arise in a case where the Labour Court itself frames a preliminary issue and directs the parties to lead evidence only on such issue. By an implication, it would mean that the issues are still open as regards the other issues. The Hon'ble Supreme Court held that the Labour Court may in its discretion provide for such an option notwithstanding the fact that the management did not seek for such specific option. In this case, the Court when it directed evidence be let in only on one issue namely Issue No.1, it could not have delivered an award on all C.W.P. No.8239 of 1989 (O&M) -4- other issues without putting it to the managment whether they wanted to lead any evidence on other issues. The award in so far as it gives a finding on all issues without giving the opportunity to the management to prove the misconduct before the Labour Court was unjustified. 3. The direction for reinstatement, however, has become over the period of time, meaningless, in view of the subsequent events that have taken place when the workman was reinstated and he was also superannuated. The admitted position does not go beyond that and it is not known whether the workman was given the wages on a regular scale of pay or whether he had been allowed only the benefit of what was in another way possible for drawing the benefits under Section 17-B of the Industrial Disputes Act. The issue turns on whether the workman should be granted the back wages for the period when he was terminated from service pursuant to a departmental enquiry on 17.12.982 and when he was reinstated in service by virtue of the award dated 22.12.1987. I do not think the matter should go for a fresh adjudication after 20 years, for the workman had the benefit of reinstatement on an award, which I have held to be not validly passed. If the workman had not been put a regular scale of pay but he was merely afforded last drawn wages under Section 17-B of the Industrial Disputes Act, I direct that the management shall pay the wages on the regular scale of a person working in his C.W.P. No.8239 of 1989 (O&M) -5- cadre. However, if the wages have been paid to the workman as a regular employee, nothing remains to be done. He shall also be entitled to all terminal benefits. The workman shall not be entitled to any back wages during the period when he did not give his services to the Society. 4. The writ petition is disposed of in the above terms taking note of the subsequent events as well. No costs. (K. KANNAN) JUDGE December 18, 2009 Pankaj*