IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.3428 of 2001 Date of decision:05.10.2009 Jagran Prakashan Limited …Petitioner Versus The Presiding Officer, Labour Court, U.T., Chandigarh and another. ...Respondents II. Civil Writ Petition No.6447 of 2001 Jagran Prakashan Limited ...Petitioner Versus The Presiding Officer, Labour Court, U.T., Chandigarh and another. ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. R.Kartikya, Advocate, for Mr. Sanjiv Bansal, Advocate, for the petitioner. Mr. G.S.Bal, Advocate, for respondent No.2. ---- 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. Both the writ petitions arise out of interlocutory orders in a reference No.163 of 1994 made to the Labour Court, Chandigarh, seeking for an adjudication whether the termination of a person claiming to be a workman was illegal and void. The impugned order of termination resulted after a domestic enquiry purported to have been held, gave a report against the workman after two notices. The Labour Civil Writ Petition No.3428 of 2001 - 2 - Court passed a preliminary order finding that the enquiry was not fair and proper on 27.11.2000 and directed the matter to be posted for enquiry on 13.12.2000, affording an opportunity to the management to tender his service. This order dated 27.11.2000 is the subject of challenge in Civil Writ Petition No.3428 of 2001. As it turned out, the management did not appear with witness on that particular date when the case was posted and the Labour Court had passed an order on 09.04.2001 denying opportunity to the management the permission to lead evidence and directed the arguments to be advanced. The management moved an application under Section 10(b)(9) of the Industrial Disputes (Central) Rules,1957, for recalling the order dated 09.04.2001. The application was rejected on 25.04.2001 and that is the subject of challenge in Civil Writ Petition No.6447 of 2001. 2. The learned counsel appearing for the management would contend that the finding of the Labour Court that the enquiry had not been fair and proper, was made on two grounds: i) there had been no sufficient opportunity granted to the workman to participate in the enquiry; ii) that the Enquiry Officer had been a standing counsel of the management and therefore, there was a personal bias of the Enquiry Officer in the conduct of proceedings. The learned counsel appearing for the management took me through the various dates when the case had been posted namely between 18.03.1993 to 10.06.1993 and that the workman had admitted in evidence even before Labour Court that he was aware of the dates of hearing through personal service of notices and through paper publications. The management had adduced evidence and Civil Writ Petition No.3428 of 2001 - 3 - ultimately the report of the Enquiry Officer was made and the management had ultimately taken a decision to terminate the services. The Labour Court although had noticed that there were several dates fixed found that between the dates of service of notices and the actual dates of hearing, there were hardly sufficient time for the workman to attend the enquiry and had observed that the Enquiry Officer had been therefore hasty in the conduct of proceedings. The Labour Court had pointed out to several reasons as to why the enquiry could not be said to be fair and proper. In particular it has referred to the fact that the Enquiry Officer had not made any specific note in his file as to whether the notices had been actually received by the workman or not. The Labour Court also found that there was no justification for substituted service and such justification itself was not recorded in the enquiry file. It was the contention of the workman through counsel that as regards the specific dates when the management had tendered the witnesses and recorded the evidence, the Enquiry Officer had not stated anywhere whether the workman had been aware of the dates of hearing of the management witnesses and that it was posted for cross-examination of the witnesses on any specific date. In my view, once there was a justification for proceeding against the workman set ex parte for his non- appearance in spite of due service, it may not have been necessary for the Enquiry Officer to serve notices of dates of hearing for every subsequent date. The defect pointed out by the counsel for the workman included even aspects of procedure such as, the documents being not attested by Civil Writ Petition No.3428 of 2001 - 4 - the Enquiry Officer as exhibited before him. I find the defect to be of significance. 3. The substantial prejudice as pointed out by the learned counsel appearing for the workman was that the enquiry was being conducted at Delhi, when the place where the workman was actually employed was at Chandigarh. During the period of enquiry, he had not been suspended and had not also been paid his wages after August 1992. He had also complained that the workman had not been paid his TA/DA. The attempt of the workman was, therefore, to show before the Labour Court that he did not have the wherewithal to participate in the enquiry. The learned counsel appearing for the petitioner would respond to this argument by stating that the plea for his salary or his TA/DA never came at any time before the actual evidence tendered before the Labour Court and if such pleas had been made at the time of enquiry before the Enquiry Officer, the management would have certainly addressed the issue. The fairness and propriety of the enquiry is invariably seen through whether adequate opportunity had been granted to the workman to participate in the enquiry. The Labour Court had brought out as many as 15 instances as to how the enquiry was not fair and proper which included inter alia the short notice period from the date of service to actual dates of hearing and it had also referred to the fact that the workman had not been paid his wages or the TA/DA. In my view, the fairness of enquiry cannot be appraised only from the fact that the workman had not made any demands for his salary or for expenses for his travel to the place of enquiry. It ought to have been on the other hand Civil Writ Petition No.3428 of 2001 - 5 - a voluntary act on the part of the management to ensure that the workman was not in any way handicapped during the time of enquiry. The management shall not be entitled to contend that since the workman had not made a specific demand, he shall not be entitled to canvass the point relating to hardship caused to him by his not being afforded either subsistence allowance or travelling allowance to participate in the enquiry. The Labour Court had considered all the relevant facts while coming to the conclusion that the enquiry was not fair and proper. Although the learned counsel appearing for the petitioner elaborated also on points relating to the conduct of the workman in filing civil suits and stalling all action for effective conclusion of proceedings, I do not feel inclined to join issues on the merits of the contention relating to the justification of the order of termination. If the enquiry was not fair and proper, the only option for the management would be to avail of an opportunity to prove the alleged misconduct before the Labour Court. I do not find any reason to take a different view from how the matter has been dealt with by the Labour Court in relation to his preliminary finding that the enquiry was not fair and proper. If there were two inferences possible from a given set of facts, both of which were equally weighty, it shall be perfectly legitimate to lean in favour of one view expressed by the Labour Court. The writ petition challenging the order of Labour Court passed on 27.11.2000 ought, in my view, to fail and the Civil Writ Petition No.3428 of 2001 is, accordingly, dismissed. There shall be, however, no order as to costs. 4. The writ petition i.e. Civil Writ Petition No.6447 of 2001 Civil Writ Petition No.3428 of 2001 - 6 - only addresses the issue relating to lack of adequate opportunity given to the management to tender its evidence after the Court passed an order on 27.11.2000 directing evidence to be given by the management on 13.11.2000. The learned counsel for the petitioner refers to the events that took place from the date when the order was passed on 27.11.2000 to the date when the application had been filed by the management to recall the order closing the evidence of the management. I notice that the workman had also contributed to the inability of the management to tender its evidence immediately. The workman had sought for filing a reply to the charge-sheet on the date when it was posted for hearing for letting in evidence on the side of the management. It subsequently applied for supply of copies of documents and the workman was also not in a position to participate in the enquiry immediately. The management had actually filed Civil Writ Petition No.3428 of 2001 and had sought interim stay of proceedings and it appears that this Court had issued notice regarding stay on 08.03.2001 and on the day when the case had been posted for enquiry before the Labour Court, it appears that there had been a boycott by lawyers that further aggravated the problem by the management to tender his evidence. Ultimately the order was passed by this Court staying the proceedings, but in the meanwhile, the impugned order had been passed refusing permission to the management to let in evidence. 5. I find that there are contentious issues between parties and the matter cannot be effectively adjudicated, even while denying an opportunity to the management to tender its evidence. The management Civil Writ Petition No.3428 of 2001 - 7 - was justified in making its plea for affording an opportunity and pointing out to the pendency of the earlier writ petition i.e. Civil Writ Petition No.3481 of 2001 when orders were being awaited on the prayer for stay of proceedings. The Labour Court could have granted one more opportunity before closing the case of the management. In my view, interest of justice would be best made by affording to parties sufficient opportunity to let in evidence on the merits of the contentions raised by the respective parties. It shall be open to the management to establish the alleged misconduct before the Labour Court by adopting the procedure as contemplated under Section 11-A of the Industrial Disputes Act. 6. The order impugned in the writ petition is set aside and the matter is remitted to the Labour Court for affording opportunities to the management as well as to the workman to establish the respective contentions and for disposal in accordance with law. The reference is of the year 1994 and having regard to the extraordinary delay that is occasioned over a period of time by the pendency of the civil proceedings, it is requested that the Labour Court takes up the case on a priority basis and make endeavour to conclude the contentious issues and render an adjudication as expeditiously as possible preferably within a period of six months from the date of receipt of the copy of this order. The Civil Writ Petition No.6447 of 2001 is allowed in the above terms. The parties shall appear before the Labour Court on 09.11.2009. (K.KANNAN) 05.10.2009 JUDGE sanjeev