C.W.P. No.4972 of 2001 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.4972 of 2001 Date of Decision: 06.10.2009 Maruti Udyog Limited .....Petitioner Versus Presiding Officer, Labour Court, Gurgaon and another ...Respondents Present: Mr. M.L. Sarin, Sr. Advocate with Mr. Nitin Sarin, Advocate for the petitioner. Mr. R.K. Malik, Sr. Advocate with Mr. Jitender Bedwal, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest?Yes -.- K. KANNAN J.(ORAL) 1. The order in challenge in the writ petition is a finding by the Labour Court that the domestic enquiry conducted by the management against a workman complaining of misconduct was not fair and proper. In so holding, the Labour Court found that a permission sought by the workman for the assistance of a person outside his department was proper. Its reasoning was that the incident of misconduct had taken place outside the factory and therefore, an outsider should have been permitted and that the workman had been unduly denied the opportunity of taking the assistance of the outsider. The management moved an application for review of the order by stating that the workman had the benefit of assistance through a C.W.P. No.4972 of 2001 -2- worker Chander Prakash who was in yet another department and he was not in any way prejudiced. The Labour Court did not feel constrained to review its order. The original order which was passed on 24.02.2000 and the order passed on the application for review on 13.01.2001 are the subjects of challenge before this Court. 2. Learned senior counsel appearing for the management would contend that the Industrial Standing Orders allowed for assistance to workman in the following words:- “A workman against whom an enquiry is to be held shall be given a chargesheet clearly setting forth the circumstances appearing against him and requiring explanation. He shall be given an opportunity to answer the charges and permitted to be defended by a workman working in the same department as himself or a representative of the recognized Union. Except for reasons to be recorded in writing by the Enquiry officer holding the enquiry, the workman shall be permitted to produce witnesses in his defence and cross-examine any witness on whose evidence the charge rests. A concise summary of the evidence led by either side and the workman's plea shall be recorded.”(underlining mine) According to him, only two classes of persons could be taken as lawful representatives of the workman. One, a co-worker working in the same department as himself and two, a representative of the recognized union. The Enquiry Officer did not accede to the request of the workman that any person other than the above two categories C.W.P. No.4972 of 2001 -3- could be permitted and he was apprised that he could have the benefit of assistance only of a co-worker in the same department or representative of the union. The workman, therefore, did not avail to himself any assistance from the above two categories and when the management tendered the evidence, Sh. K.K. Aggarwal, the workman had himself cross-examined the management witness. Subsequently on 17.01.1991 after the enquiry officer had changed, the workman had been afforded the assistance of one Sh. Chander Prakash, the worker in the same factory but in yet another department, as earlier requested by the workman, to assist the workman. The management, however, chose not to let in any further evidence and ultimately the enquiry was concluded and report was given on the basis of which a punishment had been given to the workman which was a subject of reference before the Labour Court. 3. The contention of learned Senior Counsel, Sh. Sarin appearing on behalf of the management was that the workman was not shown to have been in any way prejudiced for, the workman had himself cross-examined the management witness. When the Enquiry Officer had originally denied the opportunity to the workman to obtain the assistance of an outsider, he was acting as per the Standing Orders and no exception could be taken to the refusal to permit the workman to engage the services of an outsider. He also contended that in any event when the particular person namely of Sh. Chander Prakash, whose assistance the workman had earlier sought was actually given to him, the workman had never sought the permission of the Enquiry Officer to re-examine the witness Sh. K.K. Aggarwal. C.W.P. No.4972 of 2001 -4- According to him, the conduct showed that there was no prejudice caused to the workman by the refusal of the Enquiry Officer in the first place to give to him the assistance of a person who was an outsider. 4. Learned Senior counsel appearing for the workman Sh. Malik would contend that on 25.08.1990 when he had sought for the permission to obtain the assistance, he had named also the person, Sh. Chander Prakash although not so found in the order of the Enquiry Officer refusing such permission. According to him, on 17.01.1991 such permission had been granted to him by yet another Enquiry Officer, who had been replaced the officer who had been first appointed to hold the enquiry. He sought for an expansive interpretation to the expressions found in the Standing Orders in allowing the co-worker to include also persons not of the same department to render assistance to the workman. According to him, the workman did not have the benefit of the assistance of the worker, Chander Parkash in view of the fact that the management had chosen not to put any more witness after Sh. K.K. Aggarwal was examined. It was his further contention that the writ petition itself was not maintainable for a decision on a preliminary issue not to have been made the subject of interference in Article 226. The learned Senior Counsel relies on the decision of the Hon'ble Supreme Court in D.P. Maheshwari Vs. Delhi Admn. and others AIR 1984 SC 153 that held: “.....Nor should High Courts in the exercise of their jurisdiction under Article 226 of the Constitution stop C.W.P. No.4972 of 2001 -5- proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the Supreme Court under Article 226 of the Constitution nor the jurisdiction of the Supreme Court under Article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues avoiding decision on issues more vital to them. Article 226 and Article 136 are not meant to be used to break the resistance of workman in this fashion. Tribunals and Courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences.” 5. The decision of the Hon'ble Supreme Court was brought out in consideration of a reality that the management with its resourcefullness could drag the workman to courts on peripheral issues and delay the proceedings and Courts shall not, therefore, entertain any writ petition against any interim orders. The Hon'ble Supreme Court was not dealing about the maintainability of the writ petition itself. It was more a matter of exigency and propriety that a Court exercising jurisdiction under Article 226 will not hold up proceedings. Unfortunately, for me the case has been filed and admitted in the year 2001 and it shall be improper on my part to make an assessment of whether it should have been admitted at that time or not. If it had merited admission in the first place, I cannot shirk the C.W.P. No.4972 of 2001 -6- responsibility of examining whether there is an issue for consideration which is urged on behalf of the parties. The question before me is whether the reason given by the Labour Court for finding the enquiry to be not fair and proper could be supported. The only ground which was taken up by the Labour Court was that the workman had not been afforded the assistance of a co-worker. In my view, the reasoning of the Labour Court is faulted by failing to examine the relevant Standing Order which is binding on both parties. Post facto, after the order was passed by the 1st Enquiry Officer on 25.08.1990, yet another officer had allowed for another worker of the establishment in yet another department to assist the workman. That by itself will not render invalid a decision by the earlier Enquiry officer, if he felt constrained to apply the relevant provisions of the Standing Order to a T. The workman, who could have the assistance of the co-worker who was of the same department or a representative of the union did not allow himself of such a facility when it was specifically apprised to him in the enquiry. Yet another officer gave to him that opportunity and in my view, cannot, by itself, provide a justification to extend that the 1st officer should also have granted a similar opportunity. If he had refused to allow, Sh. Chander Prakash to assist the workman on an interpretation given to the Standing Orders, it was perfectly tenable. I have already observed that it was the only ground on which the enquiry was found to be not fair and proper. The workman had not complained of any prejudice, which he could have done before the Enquiry Officer after he had the assistance of Chander Prakash. He had not availed himself the opportunity of recalling Sh. C.W.P. No.4972 of 2001 -7- Aggarwal to cross-examine him through his representative. The finding given by the Labour Court that the enquiry was not properly done and its refusal to review the earlier order, in my view, was not correct and the impugned orders are set aside. The matter shall go back to the Labour Court for consideration of the fact that is required to be adjudicated on reference and taking the proceedings before the Enquiry Officer as having been conducted in a fair and proper manner. The workman shall be entitled to urge all the contentions relating to the findings of the Enquiry Officer and urged to his own benefit that he had been victimized as alleged by him. 6. The case under reference is of the year 1992 and it is, therefore, requested that the Labour Court takes up the case on a priority basis and dispose of the case as expeditiously as possible preferably within a period of six months from the date of receipt of the copy of the order. For appearance before the Labour Court on 09.11.2009. 7. The civil writ petition is allowed on the above terms. There shall be however no direction as to costs. (K. KANNAN) JUDGE October 06, 2009 Pankaj*