CWP No. 4978 of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 4978 of 2000 Date of decision: 21.01.2010 The Haryana Diary Development Co-operative Federation Ltd. ...... PETITIONER VERSUS The Presiding Officer, Labour Court-II, Faridabad and another ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr.Gaurav Jindal, Advocate, for the petitioner. Mr. Anil Shukla, Advocate, for respondent No. 2. *** AUGUSTINE GEORGE MASIH, J. (ORAL) The prayer in the present petition is for setting aside the award dated 04.08.1999 (Annexure P-6) passed by the Presiding Officer, Labour Court-II, Faridabad, vide which the reference made by the workman- respondent No. 2 was answered in his favour and he was ordered to be reinstated with 15% back wages. CWP No. 4978 of 2000 2 Counsel for the petitioner contends that the award could not be sustained as the Labour Court has misread the evidence. He contends that the only ground, which has been given by the Labour Court for setting aside the dismissal order, is that the workman-respondent No. 2 was not duly served to appear before the Enquiry Officer. He contends that no prejudice was caused to the workman-respondent No. 2 as he had fully participated during the enquiry proceedings. The reasons, therefore, assigned by the Labour Court for holding that the enquiry was vitiated for non-service of the summons upon the workman-respondent No. 2 and thus the dismissal order is not valid, cannot be sustained. He submits that respondent No. 2 had himself, while filing reply to the charge-sheet, accepted that he had made an offer to return the balance amount which he was alleged to have embezzled i.e. Rs. 525/-. If the said reply is taken into consideration, the said amount comes to Rs. 325/-. Therefore, he submits that the amount is not relevant but the fact that the workman had made an offer to return the balance amount to the petitioner itself establishes that he has admitted his guilt. He contends that in the light of the admission made by the workman, the order of termination passed against the workman was fully justified. He further submits that the order of dismissal dated 13.05.1991 (Annexure P-5) passed by the General Manager, Milk Plant, Ballabhgarh further reflects that on the issuance of a show cause notice the workman appeared before him and had admitted that he was ready and willing to deposit the amount. The workman has also asked for amnesty after having accepted all the charges, which have been proved against him. On the other hand, counsel for respondent No. 2-workman submits that although the finding, as has been recorded by the Labour CWP No. 4978 of 2000 3 Court and the basis for granting benefit to the workman, may not be so sweetly worded yet the final conclusion drawn by the Labour Court was fully justified. He submits that there is complete evidence with regard to the enquiry available on the file of the Court and on a perusal of the same, it would clearly establish that the Enquiry Officer had given his finding without any basis and nothing has been found against the workman- respondent No. 2 in the said enquiry report. No one had appeared as witness to press the charges against the workman. Mere documents have been submitted and that too, by the Presenting Officer, before the Enquiry Officer and no one had come in support of the fact that the documents were correct documents. He submits that the workman had appeared before the Enquiry Officer and had categorically stated that he had given all his explanations and there was nothing due from the workman. In any case, he submits that the workman is in service after the passing of the award and there is nothing against the workman thereafter, which would suggest that the workman-respondent No. 2 had indulged in such like activities either earlier or thereafter. He states that the enquiry held against the workman-respondent No. 2 and the enquiry report submitted by the Enquiry Officer being not based on admissible evidence, the findings, as recorded by the Enquiry Officer, cannot be sustained. He, on this basis, prays for dismissal of the writ petition. I have heard the counsel for the parties and have gone through the records of the case. The reason, as has been assigned by the Labour Court for setting aside the dismissal order, cannot be sustained for the simple reason that no prejudice was caused to the workman-respondent No. 2 by non-service of summons on him. The fact remains that despite the service CWP No. 4978 of 2000 4 having not been effected on the workman to appear before the Enquiry Officer, at no stage had the workman absented from the enquiry proceedings or not participated therein. There being no prejudice caused to the workman on that count, the basis for setting aside the order of dismissal against the workman, cannot be sustained. That being so, the matter, therefore, now needs to be remanded to the Labour Court for a fresh decision on the other aspects of the case, as has been pressed by the counsel for the parties as to whether the enquiry held against the workman-respondent No. 2 was not in accordance with law or not. In view of the above, the present petition is allowed. The award dated 04.08.1999 (Annexure P-6) passed by the Labour Court-II, Faridabad is set aside. The case is remanded to the Labour Court-II, Faridabad for a fresh decision in accordance with law. The parties are directed to appear before the Labour Court on 05.02.2010. Order be sent. ( AUGUSTINE GEORGE MASIH ) JUDGE January 21, 2010 pj