CWP No.17038 of 2000 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 23.03.2011 CWP No.17038 of 2000 M/s Belliss India Ltd. ... Petitioner Versus Presiding Officer, Industrial Tribunal -cum-labour court, Faridabad & another ... Respondents CWP No.17035 of 2000 M/s Belliss India Ltd. ... Petitioner Versus Presiding Officer, Industrial Tribunal -cum-labour court, Faridabad & another ... Respondents CWP No.17037 of 2000 M/s Belliss India Ltd. ... Petitioner Versus Presiding Officer, Industrial Tribunal -cum-labour court, Faridabad & another ... Respondents CWP No.17039 of 2000 M/s Belliss India Ltd. ... Petitioner Versus Presiding Officer, Industrial Tribunal -cum-labour court, Faridabad & another ... Respondents CWP No.15218 of 2001 Tota Ram ... Petitioner Versus Presiding Officer, Industrial Tribunal -cum-labour court, Faridabad & another ... Respondents CWP No.17038 of 2000 (O&M) -2- CWP No.14599 of 2001 Ram Naresh Singh ... Petitioner Versus Presiding Officer, Industrial Tribunal -cum-labour court, Faridabad & another ... Respondents CWP No.17114 of 2001 Sangram Singh ... Petitioner Versus Presiding Officer, Industrial Tribunal -cum-labour court, Faridabad & another ... Respondents CORAM: HON'BLE MR. JUSTICE MAHESH GROVER Present : Mr. Pradip Bhandari, Advocate for the petitioner in CWP Nos.17035, 17037 to 17039/2K and for respondent No.2 in CWP Nos.14599, 15218 and 17114 of 2001. None for workmen. *** MAHESH GROVER, J. (Oral) This order will dispose of CWP Nos.17035, 17037 to 17039 of 2000 and CWP Nos.14599, 15218 and 17114 of 2001 as common question of law is involved in these cases. Brief facts of the case are taken from CWP No.17038 of 2000. The instant petition has been filed against the award dated 09.10.2000 passed by the Labour Court, Faridabad. Respondent- workman through this case has stated that the termination of his service is improper and in violation of provisions of Industrial Disputes Act (hereinafter called the 'Act'). The sole issue, which has been agitated before the tribunal, was that whether the termination of the CWP No.17038 of 2000 (O&M) -3- services of respondent-workman was contrary to the principle of natural justice as the workman was given a notice proposing the punishment of termination and he was required to give explanation within a period of 72 hours but before the expiry of the said period, the termination order were passed. The Tribunal concluded that the respondent-workman had been prejudiced on this account and thus, ordered his reinstatement in service with 50% back wages. While concluding in this manner, the tribunal also returned a finding that a proper inquiry had been conducted against the workman before he was proceeded against by awarding punishment of dismissal. The petitioner, who is the employer, is aggrieved by the award. CWP Nos.17035, 17037 to 17039 of 2000 have been filed by the employer while CWP Nos.14599, 15218 and 17114 of 2001 have been filed by the workmen. No one has put in appearance on behalf of workman despite the fact that the case has been shown in the regular list for the last so many days. It is the contention of the learned counsel for the petitioner that once a proper procedure has been followed by holding an inquiry, the respondent-workman could not raise any dispute merely because termination order was passed just before the stipulated period of 72 hours i.e. the period, which was given to the respondent-workman to respond to the notice of the proposed punishment, especially when the respondent-workman has failed to show any prejudice on this score. On due consideration of the matter, I find that the respondent-workman was accused of creating unrest and indiscipline in the establishment. The charges which were levelled against the CWP No.17038 of 2000 (O&M) -4- workman, are extracted hereunder: “1) (a) On 18th February 1993 at about 4.30 pm you along with Rajinder Singh Chauhan and Tota Ram left your place of work and approached Mr. P.P.Jha, Assistant Manager, and threatened that if advance payment by the Works Manager on collection of Rs.5.00 from every worker is not given to the workman G.P.Gupta, even though the factory workmen declined to give written authority for such collection, you won't let the Works Manager or any officer or staff to leave the factory after duty hours (i.e. 5.30 pm) that day. (b) Thereafter you went to the Works Manager's office and along with Rajinder Singh Chauhan, Tota Ram, Abraham Thomas, Brij Mohan, Satya Prakash, Sukh Pal gheraoed the Works Manager and threatened not to allow him and other officers and staff from leaving the factory if the advance payment of the collection of Rs.5.00 after deduction from all the workmen is not given to G.P.Gupta today itself otherwise you and your co-workers will not let him leave the factory. When the Works Manager again tried to explain that he could not make the deduction from wages of workers unless the concerned workers give written authorisation in this behalf, you shouted at him that the payment will have to be made as per your instructions only. (c) You and Rajinder Singh Chauhan squatted on the floor next to the Works Manager's table to ensure that he does not walk out and ordered the others not to allow him to go out of the room. (d) In the open space between Bay I and Bay II all the workmen had collected and on the inciting of all of you 6 or 7 workmen they had started shouting slogans and abuses when they saw the Works Manager. Your further incited them shouting “I will get the Company closed. We do not need the jobs. If you do not care, then leave your job. He CWP No.17038 of 2000 (O&M) -5- is an alcoholic and has came to get the factory closed. He should be beaten so much that the factory may even close for ever.” (e) Thereafter you continued to incited the workmen to gherao the Works Manager and the officers and staff as a result of which they (Works Manager, Officers & Staff) all could not leave the factory for about 2 & ½ hours. They could not move in any direction and remained under constant fear of instant danger while in illegal confinement during this period. You also had intention to get them mercilessly beaten when it got dark. It was only on the timely intervention of the State Police who arrived at about 7:15 p.m that they were released from this unlawful gherao by about 8:00 p.m. II) Again, on the next working day on 29th Feb., 1993, you stopped your work, left your place of work and alongwith Rajinder Sigh Chauhan, Tota Ram, Brij Mohan, Sukh Pal and Abraham Thomas at about 11:45 a.m. collectively confronted the Works Manager, when he was on his usual round in Bay No. III, interfered in performing his duties and insisted on his issuing a gate pass to Prahlad Singh which had already been refused to him the morning. You alongwith others physically surrounded him and did not allow him to perform an urgent work regarding excise duty which was to be done before close of banking hours i.e. 12 O' clock that day. You then insisted on the Works Manager being taken to his office to pressurize and insisting upon him of your unreasonable demand. In the office when you were again explained that gate passes must be issued only in cases of emergencies, you continued to conduct yourself in a threatening postures, standing right in his face and accused the Works Manager of being a drug addict and threatened to issue a gate pass to every individual workman. You alongwith the others continued to interfere in his performing his duties till about 12:35 pm and kept arguing with him and thereafter threatened to come back CWP No.17038 of 2000 (O&M) -6- after lunch on the same issue. Since the charges levelled against you constitute grave and serious act of misconduct as defined under the Standing Orders of the Factory, you have been placed under suspension pending enquiry with effect from 23rd February, 1993 vide suspension order dated 23rd Feb., 1993. You are advised to show cause within 48 hours of receipt of this letter of charge as to why disciplinary action should not be taken against you. In case your explanation is not received within 48 hours, the Management will be within its right to take suitable disciplinary action as per certified Standing Orders.” There is no doubt that the said charges were established during the course of inquiry where complete opportunity was given to the workman. Thereafter second notice was issued to the respondent on 08.07.1994 and he was required to respond within 72 hours to show cause as to why the penalty of dismissal be not awarded to him. From the material on record, it is to be seen whether the tribunal which categorically recorded its finding while deciding issue No.2(a) (in some cases issues No.3) to hold that there was nothing on record to vitiate the inquiry which was held to be fair and proper vide orders dated 04.11.1999 and 28.9.1999 did so correctly. Once the inquiry was held to be fair and proper, the tribunal was obliged to look into the matter to see as to whether there was any violation of principle of natural justice which could have the effect of holding the order of dismissal to be bad in the eyes of law. The petitioner had issued notice to the respondent-workman to respond within 72 hours, which was issued on 08.07.1994. The order of dismissal was passed on 11.07.1994. The stipulated period of 72 hours CWP No.17038 of 2000 (O&M) -7- was to expire on that very day. In this odd circumstance could it be said that if an order had been passed slightly before the period of the notice expired, then such action could result in serious prejudice to the respondent. I am of the opinion that tribunal committed an illegality in holding so. The Supreme Court in Managing Director, ECIL, Hyderabad vs. B. Karunakar, 1994(1) ILJ 162 has observed as follows: “What is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases? The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely, while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing the report, no different consequence would have followed it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an unnatural expansion CWP No.17038 of 2000 (O&M) -8- of natural justice which in itself is antithetical to justice.” The Tribunal was also obliged to see the gravity of the circumstances in which the disciplinary proceedings were initiated against the respondent-workman. All the workmen were facing charges of indiscipline and of having verbally assaulted their superiors. The employer can never be expected to be a passive spectator to the activities of an employee or employees, which has the effect of creating unrest and indiscipline and set in the process of demoralisation and degeneration. It is also settled principle of law that observation of principle of natural justice and violation thereof should be decided only in the backdrop of the facts and the factum of any prejudice being shown and mere non-compliance of or deviation from principle of procedure will not ipso facto vitiate the proceedings on account of such a deviation. For the reasons stated in the instant petition, the writ petitions filed by the Management i.e. CWP Nos.17035, 17037 to 17039 of 2000 are accepted and the impugned awards are set aside. The petitions filed by the respondent-workmen i.e. CWP Nos.14599, 15218 and 17114 of 2001 stand dismissed. March 23, 2011 (Mahesh Grover) sonia Judge