CWP No.4473 of 2004 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No.4473 of 2004 Date of decision August 19, 2009 State of Haryana through General Manager, Haryana Roadways, Gurgaon ....... Petitioner Versus Dinesh Kumar and others ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. D. S. Nalwa, Additional Advocate General, Haryana for the petitioner. Mr. Rajiv Sharma, Advocate for the respondents. **** 1. Whether reporters of local newspapers 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 writ petition challenges the award directing the reinstatement of the workman. The termination came to be effected, according to the petitioner, when the workman had unauthorisedly absented himself from duty w.e.f. 22.5.1989 to 23.7.1989 and charge sheet had been levied, enquiry conducted and an order of termination was effected. It was challenged by the workman by seeking a reference to the Labour Court. 2. Before the Labour Court, the evidence was led by CWP No.4473 of 2004 2 the workman that he had not been given any opportunity to lead any evidence before the enquiry officer and the enquiry had not been fair and proper. There was no counter evidence to the workman's contention and the Labour Court vide order dated 19.11.2001 held that the enquiry was not fair and proper and directed the parties to adduce evidence. Subsequently Sh. Bhagwati Parsad, a Clerk in Haryana Roadways had been examined as MW-1. He had tendered evidence with reference to photo copies MW-1/1, MW-1/3 which were attendance registers to show that the workman had been absent without adequate reasons for several days during that period. The workman however, did not lead any evidence in rebuttal but the Labour Court held that once the enquiry was held to be unfair and improper the evidence of the Management subsequently cannot rectify that lapse. 3. The reasoning of the Labour Court is absolutely untenable and against the law laid down by the Supreme Court in Workmen Vs. Firestone Tyre and Rubber Co. of India (P) Ltd. AIR 1973 SC 1227. The Hon'ble Supreme Court held, “ If no enquiry is held or the enquiry is defective, then the employee can adduce evidence before the Industrial Tribunal and the Tribunal will decide about the merits of the order of dismissal or discharge and in such cases the point about exercise of managerial functions does not arise. In case no enquiry is held or the enquiry is defective, the Tribunal can not straightaway direct reinstatement. If the employer wants to adduce evidence for the first time before the Tribunal, it should ask at an appropriate stage and then the Tribunal will have no power to refuse. If the misconduct is established by the evidence placed before the Tribunal, except when it is so harsh as to suggest victimization.” Therefore, if the enquiry was bad and improper it is not as if all further proceedings come to a stand still or that the right of reinstatement shall immediately fructify to the workman. Where the CWP No.4473 of 2004 3 enquiry was found to be improper then the Management can seek to prove the charges before the Labour Court and that was what was done when the Management had let in evidence through Bhagwati Prasad. What could not be taken as proved by the fact that the enquiry was not fair and proper was possible of proof before the Labour Court by adducing fresh evidence. The Labour Court was bound to adjudicate whether the termination could be justified or not. The justification for such termination was made through the evidence of Sh. Bhagwati Prasad. The workman ought to have availed the opportunity to explain his absence or how the termination ought not to have been made. The finding of the Labour Court that the moment the domestic enquiry was found to be bad, the workman would be entitled to reinstatement does not accord with law. 4. The award of the Labour Court is set aside and the writ petition is allowed. No costs. (K. KANNAN) JUDGE August 19, 2009 archana