IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. NO. 12664 of 1993. Date of Decision : April 02, 2009. Kishan Chand. ...... Petitioner. Versus. The Presiding Officer, Industrial Tribunal-cum- Labour Court, Rohtak, and another. ...... Respondents. CORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present: Mr. Rameshwar Malik, Advocate, for the petitioner. Mr. R.K. Malik, Senior Advocate, with Mr. Ashish Chaudhary, Advocate, for the respondent No. 2. AUGUSTINE GEORGE MASIH, J. The workman in this petition has challenged the award dated 07.04.1993, passed by the Industrial Tribunal-cum-Labour Court, Rohtak, vide which the reference made by the appropriate Government has been answered against the workman. Counsel for the petitioner contends that the workman has an unblemished record of 27 years of service with the management where he was appointed on 16.05.1963 as Spinner. His services were terminated without issuing any chargesheet or warning or holding an inquiry or paying him compensation as per the Industrial Disputes Act. He contends that the finding as recorded by the Labour Court, is not sustainable as the workman had pleaded and asserted that the confession statement was got recorded by the management under duress and was never given by him out of his free will. He was coerced and forced to give such writing and in any case that would not absolve the management of its statutory duty to hold an inquiry C.W.P. No. 12664 of 1993. before proceeding to pass an order of punishment against the workman. In any case, he submits that the punishment imposed on the workman for the mis-conduct alleged to have been committed by him, is disproportionate and the Labour Court should have interfered with the same while exercising its powers under Section 11-A of the Industrial Disputes Act, keeping in view his unblemished service of 27 years with the management. He relies upon the judgment of Hon'ble the Supreme Court in the case of D.K. Yadav Versus J.M.A. Industries Limited, 1993 (3) S.C.C. 259, wherein it has been held that principles of natural justice and duty to act in just, fair and reasonable manner, is enshrined under Articles 14 and 21 of the Constitution of India. Holding a domestic inquiry and affording an opportunity to the workman is the mandate of the constitution, and therefore, has to be followed. Termination of service results in deprivation of right to livelihood implicit under Article 21 of the Constitution of India, and therefore, the requirement of law is that it has to be effected in accordance with just, fair and reasonable procedure. On the other hand, counsel for the respondent contends that the workman had misbehaved and teased a female worker of the factory inside the factory. On verbal explanation sought from the workman, the workman had given his explanation in writing on 16.02.1989, wherein he had admitted that he had misbehaved and teased a female worker of the factory. He has further stated therein that he would not repeat the same in future. In view of the written admission made by the workman and taking into account the seriousness of mis-conduct of the workman, his services were terminated for the mis-conduct committed by him. It was so done to maintain peace in the factory as this retention would have agitated other -2- C.W.P. No. 12664 of 1993. female workers of the factory and the management having lost confidence in him, it was not found desirable to retain him in service and his services were terminated by giving him one month's salary in lieu of notice which the workman did not collect from the management. He anyway contends that although no inquiry was held in the given facts and circumstances due to prevalent atmosphere in the factory which was fully surcharged, the management was able to prove the writing of the workman which he had admitted before the Labour Court and had also been able to prove before the Labour Court, the mis-conduct on the part of the workman and on this basis, has been able to prove the mis-conduct on the part of the workman which finding has been recorded by the Labour Court in its impugned award. He contends that the management is fully authorised under Section 11-A of the Industrial Disputes Act to justify its order of termination even where no inquiry is held against the workman. The management having been able to prove the same, no fault can be found with the award passed by the Labour Court and would, thus, not call for any interference by this Court. For this preposition, he relies upon the judgment of Hon'ble the Supreme Court in the case of Engineering Laghu Udyog Employees Union Versus The Judge, Labour Court and Industrial Tribunal and another, 2004 (2) R.S.J. 163. I have heard counsel for the parties and have gone through the records of the case as well as impugned award. With the able assistance of counsel for the petitioner, I have gone through the evidence led by the parties before the Labour Court. The basic contention which requires and goes to the root of the case is whether by non holding of domestic inquiry -3- C.W.P. No. 12664 of 1993. by the management and terminating the services of the workman without compliance of the principles of natural justice, would vitiate the order of termination. Counsel for the petitioner relied upon the judgment of Hon'ble the Supreme Court in the case of D.K. Yadav (supra). He on this basis has submitted that the termination of services of the workman without holding any domestic inquiry or affording an opportunity to the workman before termination of his services, would be violative of the right to livelihood implicit in Article 21 of Constitution of India. That right having been deprived of, it has affected his right of fair, just, and reasonable procedure which would have given an opportunity to explain his position with regard to the mis-conduct attributed to him and therefore, the termination cannot be sustained. A duty is caste on the management to act fairly and reasonably, which the management, in the present case has failed to do. Therefore, he contends that the termination is bad in law and deserves to be set aside. No doubt, the principles of natural justice require and mandate that no one should be punished, un-heard and he should be given reasonable opportunity to defend himself before an order affecting civil rights of the person, is passed but Section 11-A of the Industrial Disputes Act which holds the field, gives the right to the management to justify the action before the Labour Court by leading of relevant evidence before it. Hon'ble the Supreme Court in the case of Workmen of Motipur Sugar Factory (Private) Limited Versus Motipur Sugar Factory, 1965 (3) S.C.R. 588, has held as follows :- -4- C.W.P. No. 12664 of 1993. “It is now well-settled by a number of decisions of this Court that where an employer has failed to make an inquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic inquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic inquiry has been properly held (see Indian Iron and Steel Co. versus Their Workmen, 1958 S.C.R. 667) but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. We may in this connection refer to M/s Sasa Musa Sugar Works (P) Limited Versus Shobrati Khan, 1959 Supp. S.C.R. 836, Phulbari Tea Estate Versus Its Workmen, 1960 (1) S.C.R. 32 and the Punjab National Bank Limited Versus Its Workmen, 1960 (1) S.C.R. 806. These three cases were further considered by this Court in Bharat Sugar Mills Limited Versus Shri Jai Singh, 1962 (3) S.C.R. 684, and reference was also made to the decision of the Labour Appellate Tribunal in Shri Ram Swarath Sinha Vesus Belaund Sugar Co., 1954 L.A.C. 697. It was pointed out that “the import effect of commission to hold a enquiry was merely this : that the tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made.” It is true that three of these cases, except Phulbari Tea Estate's case, were on applications under Section-33 of the Industrial Disputes Act, 1947. But in principle we see no difference whether the matter comes before the tribunal for approval under Section 33 or on a reference under Section 10 of the Industrial Disputes Act, 1947. In either case if the eqnuiry is defective or if no enquiry has been held as required by Standing Orders, the entire case would be open before the tribunal and the employer would -5- C.W.P. No. 12664 of 1993. have to justify on facts as well that its order of dismissal or discharge was proper. Phulbari Tea Estate's was on a reference under Section 10, and the same principle was applied there also, the only difference being that in that case, there was an enquiry though it was defective. A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper.” In Workman of Messrs Firestone Tyre and Rubber Company of India (P) Limited Versus Management and others, 1973 (3) S.C.R. 587, Hon'ble the Supreme Court on consideration of the provisions of Section 11-A of the Industrial Disputes Act has enunciated several principles on this subject and there also in principles 4, 6 and 7 has held as follows :- “4. Even if no enquiry has been held by an employer or if the enquiry held by him found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to be given an opportunity to the employer and employee to adduce evidence for the first time justifying his action; and it is open to the employer to adduce evidence contra. 6. 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 found to be defective. 7. It has never been recognized that the tribunal should straightway, 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.” -6- C.W.P. No. 12664 of 1993. Similar position emerges in the judgment relied upon by counsel for the respondent i.e. Engineering Laghu Udyog Employees Union (supra). In this view of the position with reference to Section 11-A of the Industrial Disputes Act, the management was, therefore, at liberty to produce evidence before the Labour Court to justify its action with regard to order of termination of services of the workman. On the basis of evidence produced by the management before the Labour Court, the Labour Court has come to a conclusion that the order of termination of the workman, was fully justified. Merely for the reason that an inquiry has not been held before the order of termination was passed by the management, does not confer a right on the workman to be reinstated in service. In this view of the matter, it can fairly be said that the management was at liberty to produce evidence before the Labour Court and justify its order of termination which the management has successfully done. The next contention which has been put forth by counsel for the petitioner is that the only document which has been produced by the management before the Labour Court to prove the guilt of the workman is the admission note which according to the management is an explanation in writing dated 16.02.1989. He referring to the admission note submits that the said note is divided into two parts wherein the first part is with regard to his admission for having mis-conducted with a female employee of the factory and thereafter signatures are appended by the workman. Further after that note goes on where it is attributed to the workman wherein he says that he will not do it again and if he does commit such a mistake, he would resign or the management could give him any punishment which -7- C.W.P. No. 12664 of 1993. would be acceptable to him. He on this basis submits that it is apparent that the admission note was forced on the workman. He was coerced and compelled to make this admission and therefore, it was not a voluntary admission on the part of the workman. That being so, the said document cannot be made the basis for terminating his services. This contention of counsel for the petitioner, cannot be accepted for the reason that initially the workman denied the writing made by him altogether which has been placed on record as Ex. M.1. He submitted that it was not by his hand but thereafter, the workman admitted that it is by his own hand. Perusal of the same would show that there is a categoric admission on the part of the workman that he had molested / teased a female worker and for his this conduct, he apologized to the Manager. He further stated that in future I would not commit such a mistake and he further stated and assured that he would not commit any mistake in future. No evidence whatsoever has been brought on record by the workman to substantiate his contention that the same was not a voluntary writing on his part but was forced upon him. In this view of the matter, the mis-conduct attributed to the workman, stood proved before the Labour Court. It has further been contended by counsel for the petitioner that the Manager and the Accountant before whom writing Ex.M.1 was inked by the workman, have not been examined by the management to prove the writing Ex. M.1. He submits that as they have not been produced before the Labour Court, the workman has been deprived of his right to cross examination who would have been the material witnesses to prove his assertion with regard to the writing being obtained from him by coercing and undue influence. This contention again of counsel for the petitioner, -8- C.W.P. No. 12664 of 1993. cannot be accepted as the onus to prove that the writing was obtained from the workman not voluntary, was on the workman himself. He having failed to discharge the same, cannot attribute non production of the witnesses by the management as an excuse to shift the onus on the management. This contention, therefore, does not have any force. The only question left out for consideration whether the punishment imposed upon the workman is disproportionate to the mis- conduct attributed to him. As is apparent from the mis-conduct committed by the workman which would pollute the work atmosphere of the factory where, it is an admitted position, female workers are also employed. The female workers come to the workplace, posing their confidence in the management that their honour and dignity is safe at the workplace. If this confidence is shattered or in any manner dented with, no female worker would like to join factory or work thereunder. The whole atmosphere would be polluted and vitiated rather no work atmosphere would exist. It is, therefore, natural that the management has taken a stand that they had lost confidence in the workman. The mis-conduct is of very serious nature which is of teasing and molesting a female worker in the factory. He indeed used abusive language as is apparent from the admission note of the workman. The punishment, therefore, imposed by the management by no stretch of imagination can be said to be disproportionate to the mis- conduct, attributed and proved against the workman. In this view of the matter, the present writ petition deserves to be dismissed. Ordered accordingly. (AUGUSTINE GEORGE MASIH) JUDGE April 02,2009. sjks. -9-