L.P.A. No.247 of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No.247 of 2004 Decided on : 11-11-2008 Joginder Singh ....Appellant VERSUS Presiding Officer, Labour Court, Patiala & another ....Respondents CORAM:-HON'BLE MR. JUSTICE HEMANT GUPTA. HON'BLE MR. JUSTICE NAWAB SINGH. Present:- Ms. Deepinder Kaur, Advocate for the appellant. Ms. Jagdeep Bains, Advocate for respondents. HEMANT GUPTA, J The challenge in the present appeal is to the order passed by the learned Single Judge of this Court on 28.04.2004, whereby the writ petition filed by the workman was allowed and the order of termination in pursuance of Resolution dated 17.06.1981 was found to be illegal. Consequently, the workman was ordered to be reinstated. Respondent-Joginder Singh (hereinafter referred as 'workman') was employed as a Secretary with the Management i.e. appellant since 05.10.1978. His services were terminated on 17.06.1981. It is the case of the workman that his services were terminated without any notice or charge- sheet. In reply, the stand of the Management was that the workman remained absent from duty and in spite of notices, he did not resume his duty. The workman was dismissed in pursuance of a Resolution. It was also pleaded that the respondent shall prove all these charges before this L.P.A. No.247 of 2004 -2- Court by adducing direct evidence. The learned Labour Court has returned a finding that the termination order is justified, as the workman was absent from duty w.e.f. 11.05.1981. The said Award of the learned Labour Court was set aside by this Court in the order under challenge in the present Appeal. The learned Single Judge has held that no domestic enquiry was conducted and that perusal of the Award passed by the Labour Court does not show that the Management has been able to prove the alleged misconduct of the workman or that the charges against the workman stand proved. Learned counsel for the appellant has vehemently argued that learned Labour Court has not found the termination invalid on account of want of domestic enquiry. Had it done so, the Management would have produced evidence before the Labour Court to prove the misconduct against the workman. The stage of proof of the misconduct before the Labour Court never arose. Therefore, the finding returned by the learned Single Judge that the appellant has not proved misconduct, is not sustainable. The admitted factual position is that the opportunity was not granted to the Management to prove misconduct before the Labour Court in terms of the right reserved in the written statement of defence. It is well settled that the management has a right to produce evidence to prove misconduct before the Labour Court in the event of no domestic enquiry or deficient domestic enquiry. Reference may be made to AIR 1973, SC 1227, reported as Workmen of M/s Firestone Tyre & Rubber Co. Of India P. Ltd. Vs. The Management & Others. Since no opportunity was granted to prove the misconduct before the Labour Court in terms of the right reserved in the written statement, after holding the termination vitiated on one or the L.P.A. No.247 of 2004 -3- other ground, we are of the opinion that reinstatement with continuity of service ordered by the learned Single Judge, is not sustainable. Consequently, we allow the present appeal and set aside the order dated 28.04.2004, granting reinstatement with continuity of service. The matter is remanded back to the Labour Court to give an opportunity to the appellant to prove the alleged misconduct before the Labour Court on the independent evidence which may be led by the parties before the Labour Court. The parties through their counsel to appear before the Labour Court, Ludhiana on 12.01.2009, as the dispute pertains to jurisdiction falling within the Labour Court, Ludhiana. (Hemant Gupta) Judge 11th November 2008. (Nawab Singh) Monika Judge