^ ^dlhc".T-r?"""_ ^^^S^k^^" presentedbf ^T['XZ.?&..-""""" dated. ® ^. ^'^- IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH PETITIONER RESPONDENT / ^ W.P. N0.S7S& /06 MAHENDRA KUMAR SAHOO Aged 38 Yrs. Son of Sri Dharam Singh Sahoo Profession Bus-Conductor Resident of Village Bhanpuri Post Dhaneli Tahsil and District Raipur Chhattisgarh. VERSUS 1. CHHATTISGARH INFRA-STRUCTURE DEVELOPMENT CORPORATION (TRANSPORT CELL) through its Managing Director, D.K.S. Bhawan, Mantralaya Raipur Chhattisgarh. 2. STATE CHHATTISGARH INDUSTRIAL COURT RAIPUR, Chhattisgarh having its siting place at D.K.S. Bhawan Mantralaya, Raipur Chhattisgarh. 3. LABOUR COURT, Anand Nagar, Raipur Chhattisgarh WRIT PETITION UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE WRIT^WRITS. ORDERS. DIRECTION ETC. fc ^ HIGH COURT OFCHHATTISGARH AT BILASPUR Hon'ble hflr. Justice PritinkerDiwaker Writ Petltion No. 3750/2006 PETITIONER Mahendra Kumar Sahoo Versus RESPONDENT Chhattisgarh Development another Infrastructure Corporation and Shri Sanjay K.Agrawal, counsel for the petitioner. Shri Sushil Dubey GA for respondent No.1. Shri Chandresh Shrivastava PL for respondent Nos.2 and 3. WRTI PETITJONJJNDERART!CLES 226 & 227 OF THE CONSTITUION OF INDIA ORDER (18.07.2011) Challenge in the present petition is to the order dated 13.3.2006 (Annexure P-10) passed by respondent No.2 i.e. Chhattisgarh Industrial Court, Raipur, affirming the order' dated 17.10.2005 (Arinexure P-8) passed by the Presiding Officer, Labour Court Raipur. 2. Compendiously stated facts of the case are that the petitioner - an employee of the then Madhya Pradesh State Road Transport Corporation ("MPSRTC" for short) was appointed as Bus Conductor and rendered his services therein till the date of his termination i.e. 9.1.2002 vide Annexure P-5 on the ground of unauthorized absence from 22.10.2001 to 9.1.2002. From the record available before this Court it appears that challenging his termination order (Annexure P-5), the petitioner had approached the Labour Court under the provisions of Section 31 read with Sections 61 and 64 of M.P. Industrial Relation Act, 1960. Record also goes to show that after entertaining the petitioner's application, following seven issues were framed by the Labour Court: 1. wr sii^f? STT^ ^cir sicrfSr ^ sigqRarf?r ^'ii'ci'i"! w ^rft ?f t? -qfe ?f TTt ffWT ? 2. WT aicii;* ^r, ci?r ii^ •^ir 'wqif^r sir^r aite t? 7i^t '^^ —3-— 3. cRIT 31|c|<cb •^qr -CTEIlf^T R.1|ch -^ ^c[T 4 ^ SIT^ ^ R'11'cb ^f WP ^T Rucll ^RR TT^ q5T a.riSlqiTft t? ^^- 4. WT ^ft. an^.A^ft. i|?t Wq TI^?T WS?R 4R»lg'1 PtIPT ^t wCTn'M'lis ^rsq ^r tetf •y*4Ry4f ^ '^^-'^.''grcT aft? ct><lTiiR^f ^ ^WTT'IT c^ ^p? •.Tfe?T T^Nt ^ 'W ^ W4 ^.'^ ^ 1$P? ^ar 7rar t? sn^r R'^'w ^ ^ R'<itt>'<ui ^i 5. TOT ^ffl. an^. ^t. ^ft. SRT <RT ^cIT ^PT •'r€t teiT ^IHT t gft? cPTT ^T ^PRUT ^€ft? 6. WT sntep ^ ycb>i"i ^ t? iri^ sf ?ft R>d-ii <<lPlri t? 7. 'HSI'tlcll l^T SPT? •SST^T ^S SItTiftT 'l-ffi'HRtd ^f ^ft. SIT^.^t.^ft. ?CT cllRlri ^t ^ 3||c|c;-1 l-'l'i'W Perusal of the record goes to show that in support of his case the petitioner has examined himself whereas the respondent No.1 has not examined any witness in support of its case. 3. After considering the material available on record, the Labour Court has found the termination of the petitioner as valid and proper. holding him to be guilty of misconduct. As the main issue has been decided against the petitioner, the Labour Court has not decided the other issues regarding liability of MPSRTC etc. In appeal preferred by the petitioner under Section 65 of the Chhattisgarh Industrial Relation Act, the learned Industrial Court has upheld the orderof the Labour Court dated 17.10.2005. Hence this petition. 4. Counsel for the petitioner submits that admittedly no inquiry whatsoever was conducted by the department before passing the termination order and in view of the provisions of Rule 12 (4) of Industrial Employment (Standing Orders) Rules, no punishment can be imposed on an employee unless proved guilty of misconduct in an inquiry conducted in the manner prescribed therefor. He submits that the termination of services amounts to major misconduct and therefore ^ 'fty'^afe, '^&^^B^: "•^\x-y- .I? K ••/ /-s K' 'l^ 3- the department was under obligation to hold a proper departmental inquiry before terminating the services of the petitioner. He submits that even if the departmental inquiry was not conducted by the department, before the labour Court itself, the respondent No.1 could have led the evidence in respect of the altegations made against the petitioner regarding his unauthorized absence and then after giving due opportunity of hearing to the petitioner inquiry ought to have been conducted by the labour Court itself. Counsel for the petitioner placed strong reliance on the decision of the Apex Court in the matter of M/s Amrit Vanaspati Co. Ltd. v. Khem Chand and another reported in JT 2006 (6) SC 436. Counsel for the petitioner further submits that in paragraph 8 of its order the Labour Court has given an erroneous finding in relation to so-called unauthorized absence of the petitioner from 11.3.2001 to 6.7.2001 whereas as per the termination order the period of unauthorized absence is from 22.10.2001 to 9.2.2001. He submits that without application of mind the order was passed by the Labour Court which subsequently came to be affirmed by the Industrial Court by the order impugned. 5. On the other hand counsel for the respondents support the order impugned and submit that conducting an inquiry as argued by the petitioner's counsel, would have been a futile exercise for the reason that admittedly the allegation against the petitioner was of unauthorized absence from 22.10.2001 to 9.1.2002 and the department was not required to adduce any evidence rather it is the petitioner who should have come forward along with his witnesses to prove the allegation otherwise. They further submit that once a finding has been recorded by the Labour Court later on confirmed by the Industrial Court, the petitioner has absolutely no case. 6. In the matter of The Workmen of M/s Firestone Tyre & Rubber Co. of India (Pvt.) Ltd. etc. v. The hflanagement & ors. Etc. reported in [1973 (1) SCC 813] it has been held by the Apex Court as under: (i) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, r 1B^f-;""'.?'i!SS<' .[^.^'sfe:?;-: M -i-1. but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified. (ii) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality. (iii) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimization, unfair labour practice or ma/a fide. (iv) Even if no enquiry has been held by an employer, or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra. (v) The effect of an employer not holding an enquiry is that the . Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry. N (vi) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is foun'd to be defective. (vii) It has never been recognized that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. (viii) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (ix) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimization. (x) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in the Management of Panitole Tea Estate v. The Workmen (1971) 1 SCC 742 within the judicial decision of a Labour Court or Tribunal." Further in the matter of M/s Amrit Vanaspati Co. Ltd. v. Khem Chand and another reported in JT 2006 (6) SC 436 it has been held by the Apex Court as under: "9. This Court in the above judgment held that even if no inquiry has been held by the employer or the inquiry .- -'\ 6- bi'1,^ held is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra. Hence, the submission made by the learned counsel for the respondent has no merit in view of the above verdict of this Court as referred to above." 7. Admittedly, in the case in hand, neither any departmental inquiry has been conducted by respondent No.1 nor the respondent No.1 has made any effort to lead any evidence to prove the allegation of misconduct by remaining unauthorizedly absent from 22.10.2001 to 9.1.2002, made against the petitioner. In the facts and circumstances of the case, the orders passed by the Labour Court as well as by the Industrial Court cannot be sustained in the eye of law and accordingly they are liable to be set aside. As agreed by the parties, the matter is remanded to the Labour Court to decide all the issues framed by it in accordance with law after giving due opportunity of hearing to the parties. 8. Consequently, the orders passed by the Labour Court as well as by the Industrial Court (Annexure P-8 and P-10 respectively) are set aside. Let the petitioner as well as respondent No.1 remain present before the Labour Court, Raipur on 11.8.2011 . 9. Petition thus stands disposed of. Sd/- Pritinker Diwaker Judge fy^ t