CWP No.6711 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: CWP No.6711 of 2007 DATE OF DECISION: February 13, 2008 HARYANA TOURISM CORPORATION LTD. ...PETITIONERS AND ANOTHER VERSUS PRESIDING OFFICER AND ANOTHER ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE K.C. PURI. PRESENT: MR. D.S. NALWA, ADVOCATE FOR THE PETITIONER. MR. R.K. MALIK, ADVOCATE FOR RESPONDENT NO.2. ASHUTOSH MOHUNTA, J.(ORAL) The petitioner Management has invoked the extra ordinary writ jurisdiction of this Hon'ble Court under Articles 226/227 of the Constitution of India for seeing issuance of the writ in the nature of certiorari quashing the orders dated 14.11.2005, 16.11.2006 and the award dated 1.12.2006 vide which reference has been answered in favour of the workman and against the management and the workman has been ordered to be reinstated with continuity of service and 50% back wages from the date of issuance of the demand notice till the publication of the award and full back wages thereafter till reinstatement. The brief facts need to be noted are that the workman has joined the Haryana Tourism Corporation (hereinafter referred to as 'the Management') as Petrol Pump Attendant. During the period of service, CWP No.6711 of 2007 -2- physical verification of the Petrol Pump of Asakhera on 30.9.1995 and 26.10.1995 was conducted, it came to the knowledge of the inspecting staff that there was a shortage of oil worth Rs.3,37,237.60 and Rs.8212.26. In view of the above mentioned facts, the workman was issued charge sheet dated 15.7.96, under Rule 21 of the Certified Standing Order by the Management. Workman submitted reply to the above mentioned charge sheet on 16.9.96. Dis-satisfied with the reply filed by the workman, Management appointed Sh. Arun Kumar, Divisional Manager to initiate departmental enquiry against the workman. The inquiry was conducted on different dates. However, the workman did not appear before the Inquiry Officer inspite of the fact that Management had informed the workman by issuing various letters. After taking into consideration the reply filed by the workman to the charge sheet issued by the Management Inquiry officer held the charges proved against the workman and submitted Inquiry Report dated 19.5.97. On the basis of the Inquiry Report submitted by the Inquiry Officer, Show Cause notice was issued to the workman dated 16.7.97. Workman duly filed reply dated 7.11.97 to the above mentioned Show Cause notice. Reply filed by the workman was duly considered by the competent authority and the same was found to be un-satisfactory. Resultantly, the workman was dismissed from service vide order dated 15.4.98 and the recovery of amount to an extent it was found short was order to be recovered. The workman aggrieved against the order of dismissal dated 15.4.98, filed an appeal dated 28.7.98, before the competent authority. Appeal filed by the workman was considered by the competent authority and the same was dismissed by the competent authority on CWP No.6711 of 2007 -3- 13.10.98. the workman aggrieved against the order dated 13.10.1998, filed a Civil Writ Petition bearing CWP No.19223 of 1998. This Court vide order dated 12.5.99, quashed the order dated 13.10.1998. However, liberty was granted to the Management to decide the mater afresh in accordance with law after hearing the workman. In pursuance to the order passed by the High Court on 12.5.99, the workman appeared before the appellate authority on 25.5.99. After perusing the record, the management again passed an order dated 18.6.99, vide which the appeal filed by the workman was again dismissed by the Management. Workman aggrieved against the orders dated 15.4.98 and 18.6.99, served a demand notice dated 29.7.99, upon the Management which was contested by way of filing written statement before the appropriate government. The conciliation proceedings failed, resultantly, the appropriate Government referred the “Industrial Dispute” for adjudication to the Labour Court, Hisar. The workman submitted the claim statement before the Labour Court which had been duly contested by way of filing written statement by the Management. The case made out by the workman before the Labour Court was that the Inquiry conducted by the Inquiry Officer was not fair and proper because no list of documents or witnesses were supplied to the workman, apart from this it was also the case of the workman that as the Inquiry officer did not take into consideration any evidence while holding the charges proved against the workman, as it was the case of no evidence, therefore, the inquiry was not held in a fair and proper manner, and as such the orders dated 15.4.1998 and 18.6.1999, cannot be sustained in the eyes of law. The case of the Management before the Labour Court was that the services of the workman was legally terminated on the basis of inquiry CWP No.6711 of 2007 -4- conducted by the Inquiry officer which was in accordance with law. Upon the pleadings of the parties, issues were framed before the Labour Court. Issue No.2 related to the inquiry as to whether the same was conducted by the management in a fair and proper manner. The issue was treated as a preliminary issue and the Labour Court returned a finding vide order dated 14.11.2005. the copy of the same is attached as Annexure P-11 with the writ petition. It has been opined that the inquiry conducted against the workman was not fair and proper and the preliminary issues were decided in favour of the workman and against the Management. Thereafter, the Management filed an application for permission to adduce additional evidence to prove the charges. However, the Labour Court passed an order dated 16.11.2006, vide which the application filed by the management before the Labour Court was rejected on the ground that the management did not exercise its right of leading fresh evidence at the stage by filing written statement nor had stated in the written statement that if the inquiry is not held to be fair and proper, it may be given chance to prove the allegations against the workman by leading evidence before the Court. The Labour Court had relied on the judgement passed by the Hon'ble Supreme Court of India in a case tiled as Karnataka State Road Transport Corporation versus Smt. Lakshmi Devamma and another reported as 2001 (2) RSJ 777. Thus the parties were directed to lead evidence on the remaining issues. Copy of the aforesaid order is attached at Annexure p-14. It is, therefore, that the award dated December 1, 2006 was passed by the Labour Court wherein, the reference was decided in favour of the workman and against the Management. A copy of the same is attached as Annexure P-15. CWP No.6711 of 2007 -5- Notice of motion was issued by the Division bench of this Court on October 9. 2007, and the operation of the impugned award was stayed subject tot he rigour of Section 17B of the Act. The workman has duly filed written statement. Learned counsel appearing on behalf of the petitioner has argued hat the Labour Court has totally misinterpreted the judgement of the Hon'ble Supreme Court in the case of Karnataka State Road Transport Corporation's case (supra). The counsel for the petitioner has contended that as per the above mentioned judgment even if the management has not filed an application for adducing additional evidence at the stage of filing written statement or had not stated in the written statement, even then, the Labour Court has got power to permit or direct the parties to adduce additional evidence including production of documents at any stage of the proceedings before they are concluded. In view of Section 11-A of the Industrial Disputes Act, 1947 learned counsel for the petitioner has further argued that the Hon'ble Supreme Court has expressed its view in the subsequent judgement vide which it has been held that once the Labour Court come to the finding that the inquiry was not fair and proper, the Labour Court should given an opportunity to the management to establish the charges before passing an award in favour of the workman, reference has been made upon the dicta of Hon'ble Supreme Court rendered in re:Divyash Pandit vs. Management N.C.C.C.B.M., 2005(2) Supreme Court Cases 684. In this case, learned counsel for the petitioner submits that the Hon'ble Supreme Court has noticed the dicta of the Hon'ble Supreme Court rendered in Karnataka State Road Transport Corporation's case (supra), and it has been held that by virtue of said judgement, no fetters on the power CWP No.6711 of 2007 -6- of the Court/Tribunal could be placed to require or permit the parties to lead additional evidence at any stage of hearing, before they are concluded. Reliance has been placed on the judgement of this High Court rendered in Punjab Agriculture University, Ludhiana and others versus Presiding officer, Labour Court, Ludhiana and another, 2007(2) RSJ 545 wherein, similar issue has already been decided by this Hon'ble Court. On the other hand learned counsel appearing on behalf of the workman contends that in view of the law laid down by the Hon'ble Supreme Court in Karnataka State Road Transport Corporation's case (supra), the Labour Court has come to the correct conclusion that the inquiry was not fair and proper and has rightly rejected the application filed by the Management for permission to lead evidence on November 16, 2006. since no infirmity can be found in the above said order of the Labour Court, the final award dated December 1, 2006 cannot be interfered and therefore, the management could not be granted opportunity to adduce evidence in support of the charges on the basis of which, the order of dismissal has been passed. We have heard learned counsel for the parties and have also perused the paper book and the order dated 16.11.2006 and the Award dated 1.12.2006, copy Annexure P-14 and P-15. We are of the considered opinion that the Labour Court erred in declining the request of Management for adducing additional evidence in support of the charges made against the workman on the basis of which, the services of the workman were terminated. The powers which are conferred upon the Courts/Tribunal cannot be placed under any kind of fetters while affording opportunity CWP No.6711 of 2007 -7- under the doctrine of the Principle of Natural Justice. Where-ever, the courts find that it shall be in the interest of justice that the party has to be accorded opportunity to spell out its view point, denial of such opportunity can never be appreciated in the realms of justice. Hon'ble Supreme Court while rendering judgement in Karnataka State Road Transport Corporation's case (supra), has considered the dicta and has held that by virtue of the said judgement that no fetters on the power of the Court/Tribunal could be placed to require or permit the parties to lead additional evidence including production of any documents at any stage of hearing, before they are concluded. Apart from this, a kind perusal of the judgement passed by this High Court in Punjab Agriculture University, Ludhiana and another's case (supra), would show that similar issue was decided by this High Court after considering Karnataka State Road Transport Corporation' case (supra), and Divyash Pandit's case wherein it was held that no doubt, the Management may spell out its mind by taking alternative plea int eh written statement submitted to the claim of the workman but if such plea has not been taken, the Court/Tribunal cannot be made power less to give indulgence in the facts and circumstances spelled out and brought before it. In the instant case, the management had filed an application to adducing additional evidence on 14.11.2005, by placing reliance upon the judgement of Hon'ble Supreme Court and as well as this Court we are satisfied that as there was no delay on the part of the Management in making the request for permission to lead additional evidence for proving the charge of misconduct against the workman, if such indulgence is granted, the workman could not suffer in any manner as he is also to be CWP No.6711 of 2007 -8- given an appropriate opportunity to defend himself, which the Labour Court did not grant. In view of the above, the petition is allowed and the order dated 16.11.2006 and award dated 1.12.2006, copies Annexure P-14 and P-15 are quashed. The matter is remitted to the jurisdiction of the Labour Court for adjudication afresh by granting opportunities to the parties to lead additional evidence in accordance with law. The parties through their counsel are directed to appear before the Labour Court on 8.4.2008. As a sufficient time has elapsed, therefore, the Labour Court is directed to decide the matter expeditiously, preferably, within six months from the date of appearance of the parties. (ASHUTOSH MOHUNTA) JUDGE February 13, 2008 (K.C. PURI) Gulati JUDGE