IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 15228 of 1995 Date of decision: 01.05.2009 The Haryana State Federation of Consumer's Co-operative Whole Sale Store Ltd. .....PETITIONER VERSUS The Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak and another ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Praveen Gupta, Advocate, for the petitioner. Mr. H.S.Sethi, Advocate, for respondent No. 2. *** AUGUSTINE GEORGE MASIH, J. (ORAL) In the present writ petition, the challenge is to the award dated 31.03.1995 passed by the Industrial Tribunal-cum-Labour Court, Rohtak (Annexure P-10), vide which the reference has been answered in favour of the workman holding him entitled to reinstatement in service with 50% back wages. Briefly, the facts of the present case are that the workman was CWP No. 15228 of 1995 -2- appointed as Salesman on 23.04.1981. He continued as such and was working with the petitioner-Management, when on 29.04.1987, the workman was charge-sheeted. According to the Management, an enquiry was conducted and on the basis of the enquiry report submitted by the Enquiry Officer, the services of the workman were terminated w.e.f. 23.08.1988. On the termination of the services, a demand was made by the workman and as the conciliation proceedings failed, the matter was referred to the Labour Court for adjudication. On the basis of the pleadings, issues were framed by the Labour Court and issue No.2 'whether any just and fair domestic enquiry was held, if so, to what effect' was taken up as a preliminary issue and decided by the Labour Court. On the basis of the pleadings and the evidence led by the parties, the Labour Court came to a conclusion that the enquiry, which was held against the workman, was not in consonance with the statutory Rules/Regulations governing the service. A finding has been recorded therein that the Enquiry Officer, while appearing before the Labour Court as MW-1 Karnail Singh, has admitted that he had not recorded the statements of the witnesses, he had not recorded the statements of the applicants and he has further admitted that he had not given any opportunity to examine any of the witnesses produced by the Management. He has also admitted that he did not record the enquiry proceedings. Although he has submitted the enquiry report but since the principles of natural justice were not complied with, which would include an opportunity to the workman to cross-examine the witnesses, which admittedly has not been given to the workman. The enquiry proceedings stood vitiated and, therefore, the enquiry report could not have been taken into consideration for terminating the services of the workman. In this view of the matter, the findings as recorded by the Labour CWP No. 15228 of 1995 -3- Court left the Management with an option to prove the charges against the workman before the Labour Court. A perusal of the award does not indicate that any evidence thereafter was led by the Management to substantiate its charges against the workman or to justify the order of termination before the Labour Court. On the basis of the pleadings and the evidence led by the parties and further taking into consideration the submissions made by the authorized representatives of the respective parties, the Labour Court gave its findings holding therein that the services of the workman were not terminated in accordance with law. It is an admitted position that the workman has completed more than 240 days in the 12 preceding months from the date of his termination and the provisions, as contained in Section 25-F of the Industrial Disputes Act, having not been complied with and further the Management having failed to prove or justify the order of termination before the Labour Court after the enquiry proceedings having been held to be vitiated, the findings, as recorded by the Labour Court, cannot be said to be illegal or perverse, which would entitle the petitioner to claim interference by this Court while exercising the discretionary jurisdiction under Article 226 of the Constitution of India. The findings, therefore, as recorded by the Labour Court, are based on the evidence of the parties, which has been properly appreciated and the findings given are fully justified. Faced with this situation, counsel for the petitioner submits that majority of the retailer outlets stands closed and because of which, they do not have any post of Salesman, on which the workman can be adjusted. It has further been submitted by the counsel for the petitioner that as per the Policy of the Government, respondent No. 2-workman has now been rehabilitated and he has been given appointment elsewhere. He further CWP No. 15228 of 1995 -4- submits that in the light of this factual position, the reinstatement of the workman would not be possible. This factual aspect has not been disputed by the counsel for respondent No. 2-workman and he fairly concedes that as a matter of fact, the workman is in service as per the Policy of the Government of Haryana, which was made applicable to all retrenched employees in the State of Haryana. Taking into consideration this factual position, it would be just and appropriate that the workman be granted a lump-sum compensation for the period he has put in service with the Management. The workman was appointed on 23.04.1981 and he continued as such till 23.08.1988. It would, thus, be just and appropriate that a compensation of Rs. 80,000/- in lump-sum may be paid to the workman by the Management in lieu of his reinstatement and other benefits, which have been granted by the Labour Court vide its impugned award dated 31.03.1995. It would not be out of way to mention here that this Court, while staying the impugned award, directed the payment of benefits under Section 17-B of the Industrial Disputes Act. Counsel for respondent No. 2 submits that from January, 2000 onwards, the said benefits of Section 17-B of the Industrial Disputes Act have not been granted to him till the date of his re-employment. It goes without saying that the workman would be entitled to benefit of Section 17-B of the Industrial Disputes Act as the same is applicable during the pendency of the proceedings before the High Court. It is not in dispute that the requirements of Section 17-B of the Industrial Disputes Act are fully complied with by the workman and the workman had been paid his dues under Section 17-B of the Industrial Disputes Act from the date the workman was held entitled to the benefits of Section 17-B of the Industrial Disputes Act till 31.12.1999. It would be just and appropriate CWP No. 15228 of 1995 -5- that the arrears, which the workman would be entitled to as per the provisions of Section 17-B of the Industrial Disputes Act, be paid to the workman till the date of his re-employment, if any. In view of the above, the writ petition is disposed of with a direction to the petitioner to release the amount of compensation, as assessed, as well as the arrears of last wages drawn as per Section 17-B of the Industrial Disputes Act within a period of two months from the date of receipt of a certified copy of this order. ( AUGUSTINE GEORGE MASIH ) JUDGE May 01, 2009 pj Whether referred to Reporters..............Yes/No.