IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.3251 of 1989 Date of decision: 12.08.2009 Bishambar Dass …Petitioner versus The Presiding Officer, Labour Court, Jalandhar and others. .....Respondents CORAM: HON’BLE MR. JUSTICE K.KANNAN Present: Mr. J.C.Verma, Senior Advocate with Ms. Deepinder Kaur, Advocate, for the petitioner. Ms. Monica Chhibbar Sharma, Deputy Advocate General, Punjab. Mr. Vikas Mohan Gupta, Advocate, for respondent No.3 ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? K.Kannan, J.(Oral) 1. The workman, who had been ordered to be dismissed pursuant to a departmental enquiry raised at industrial dispute and sought for an adjudication before the Labour Court. The Labour Court found the enquiry before the Enquiry Officer to have been fair and proper and proceeded to confirmation the punishment of dismissal from service. 2. The alleged misconduct against the workman was, on 02.03.1979, the workman was seen carrying 'one skin' when the manager intercepted and asked him why was carrying only 'one skin' and the workman manhandled him and asked him to 'talk sense'. This act purported to constitute willful insubordination and gross misbehaviour. The Enquiry Officer, who had been appointed, was alleged to have conducted an enquiry after notice and after examining witnesses on the Civil Writ Petition No.3251 of 1989 - 2 - side of the management to give a report finding the workman guilty. The report showed that the workman had remained ex parte in the proceedings. The Enquiry Officer had also been examined before the Labour Court to whom the suggestion was that he had not given any notice to the workman after 22.05.1979 and that he proceeded with enquiry in the absence of the workman and this suggestion was admitted by him to be true. The Labour Court found the report of the Enquiry Officer to have conformed to the principles of natural justice and affirmed the punishment of removal from service. 3. The learned Senior counsel appearing on behalf of the petitioner points out to the proceedings before the Enquiry Officer from the enquiry file that on 02.05.1979, the Enquiry Officer had received instructions not to proceed with the enquiry and that he was returning the file. The instructions not to proceed with the enquiry evidently came after some industrial dispute between the workmen and the management that commenced on 01.03.2009 came to an end, evidenced through the proceedings of the Deputy Commissioner (Labour) dated 26.03.1979, that the workman had been on strike from 01.03.1979 due to some misunderstanding and the persons who had been suspended, including the present petitioner Bishambar Dass, were to be reinstated as per the decision of the Board of Directors. The letter records the fact that the misunderstanding between the worker and the management had been removed and that all the suspended workmen would be taken back in service after the decision of the Board which was proposed to be held on 30.03.1979. Civil Writ Petition No.3251 of 1989 - 3 - 4. The learned Senior counsel's attempt was, therefore, to show that incident which was said to have taken place on 02.03.1979 could not be true since the strike had started on 01.03.1979 and all the workers were to rejoin duty when the suspension orders had been recalled by the management. Pursuant to the settlement between the workmen and the management, he would show that even the finding of the Labour Court that the enquiry was fair and proper was brazenly wrong, in view of the fact that on admitted case that the workman had not been served with any notice and when there was proof of record that the Enquiry Officer had himself returned the file without holding the file on 02.05.1979, it was incomprehensible as to when the enquiry came to be held and how the decision had been made by the Enquiry Officer finding the charges to be true. The learned counsel also brings the attention of this Court that the management ultimately went on to dismiss the workman on the basis of an enquiry report which was not even served on the workman and no opportunity had even been given to explain the findings of the Enquiry Officer. Even before the Labour Court, apart from merely relying on the Enquiry Officer's report, no evidence had been let in by the management. 5. In the manner on which the enquiry was said to have been conducted for an incident which was doubtful in view of the fact that admittedly at the relevant time the workman had been on strike, the finding of the Labour Court that the enquiry was fair and proper, is wholly unjustified. Even if it were to be taken that the incident did happen, the inability expressed by the workman to carry more than 'one skin' could not be taken to be such a serious misconduct or an act of Civil Writ Petition No.3251 of 1989 - 4 - insubordination. At least no material had been brought before the Enquiry Officer that it was always be possible to carry more than 'one skin' or that there had been any guidelines with reference to the same, as to what the minimum load which the workman should carry. I have no hesitation in finding that the incident itself is suspect and the report of the Enquiry Officer which had proceeded ex parte was wholly without basis or justification. The findings of the Labour Court upholding the report of the Enquiry Officer and affirming the punishment, in my view, is untenable. 6. The award of the Labour Court, under the circumstances, is set aside and the writ petition is allowed against the management. During the course of the proceedings, it was stated that the management has now remained closed and that the Punjab State Industrial Development Corporation has taken over the said establishment. A notice had been issued to the Punjab State Industrial Development Corporation impleading it and it has filed a short written statement setting out the fact that the Company has not been taken over but being a financier, the Corporation had taken action under Section 29 of the State Financial Corporation Act, for recovery of monies and the assets of the Company has been sold. According to the Corporation, the Company itself was not taken over by the said Corporation. In view of the statement, I find no relief is possible to be issued against the Punjab State Industrial Development Corporation. The workman shall have only such remedy as it is permissible against the second respondent- management namely M/s Punjab Tanneries Limited, Nakokar Road, Civil Writ Petition No.3251 of 1989 - 5 - Jalandhar City. The award of the Labour Court, under the circumstances, is set aside and the workman shall have remedy against the second respondent. The workman shall be entitled to reinstatement, continuity of service and back wages as sought for by him. 7. The writ petition is allowed in the above terms. (K.KANNAN) JUDGE 12.08.2009 sanjeev