IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 21855 of 2008. Date of Decision : January 06, 2009. M/S Bhartia Cutler Hammer ........ Petitioner. Versus The Presiding Officer and others ......... Respondents. -.- CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. -.- Present:- Mr. Sumeet Mahajan, Senior Advocate, with Mr. Manu K. Bhandari, Advocate, for the petitioner. -.- AUGUSTINE GEORGE MASIH, J. (ORAL). Through this writ petition, the petitioner has challenged the award dated 25.08.2008 (Annexure-P-15) passed by the learned Labour Court-II, Faridabad, whereby the reference of the claimant workman was accepted with costs and an award was passed to the effect that dismissal of the claimant workman is illegal, unjustified, and he is entitled to full back wages alongwith all consequential benefits of service from the date of his dismissal till the date of his superannuation. Counsel for the petitioner has contended that the Labour Court has proceeded in the matter as if deciding the case on criminal side on the assumption that strict principles of Evidence Act are applicable to the proceedings of the Labour Court. It has been submitted by him that the Management/petitioner has been able to establish the fact that an incidence did occur on 25.02.2000. This he contends on the basis of the statement of Surinder Singh M.W.2 - Head Constable, Police Station, Sector-7, C.W.P. No. 21855 of 2008. -2- Faridabad, who had proved copy of the F.I.R. Ex. M.W.2/1 from the original record and on the statement of Dr. Sudhir Khurana, M.W.3 who medically examined Jiwat Singh on 25.02.2000 vide M.L.R. M.W.3/1 and found five injuries on his person. He further submits that the management/petitioner has been able to prove on record that tool down in the factory was started on the said date. This he states on the basis of the statement of both the management witnesses as well as the workman witnesses. He has relied upon the statement of Jiwat Singh (Annexure-P-9) workman W.W. 3 who had accepted that he had suffered injuries in the fight which took place on 25.02.2000. He has further relied on the statement of Suchia Yadav M.W.1 (Annexure-P-1) to contend that the witness has resiled from his statement which proves that there was such fear of the claimant workman Khazan Singh. This shows that the workman had violated the discipline and the situation was so surcharged and everyone was fear stricken that it was not possible for the management/petitioner to conduct a domestic inquiry at that stage and the Management/petitioner had no option but to pass the order of dismissal of the workman. He on the basis of the above submits that the dismissal of Khazan Singh was justified and therefore, the award passed by the Labour Court cannot be sustained. In any case, he submits that since the claimant has not in his claim petition stated that he has not been gainfully employed, therefore, he was not entitled to full back wages alongwith other consequential benefits of service from the date of his dismissal. I have given my thoughtful consideration to the submissions put forth by counsel for the petitioner and with his able assistance have C.W.P. No. 21855 of 2008. -3- gone through the records of the case and impugned award dated 25.08.2008 (Annexure-P-15) challenged herein. It is true that the management/petitioner has been able to prove that there was an incidence on 25.02.2000 in the factory. It is also true that Jiwat Singh was injured in the said incidence but that alone does not show that Khazan Singh respondent workman was involved in the said incidence. The evidence which has been produced on record by the Management/petitioner and the workman go to show that on 25.02.2000 Khazan Singh was absent from the duty. The management witness Suchia Yadav examined as M.W.1, has categorically stated that no such incidence has ever taken place in his presence nor he has received any injury in this incident. This witness has not supported the allegations of the management/petitioner that the workman or his associates had caused injuries to him. Jiwat Singh W.W.3 who is alleged to have been injured in the incidence apart from Suchia Yadav M.W.1, has also denied that Khazan Singh workman had caused him any injury. He has denied that any such incidence had taken place where Khazan Singh was present on 25.02.2000. He has gone to the extent that he has named Khazan Singh in the F.I.R. at the instance of the management/petitioner. He further goes to say that no action was taken on this F.I.R. as it was false as Khazan Singh was absent on 25.02.2000. He in his cross examination states that he was beaten by workers namely Rumal Singh and others. W.W.2 Ravi Kumar Behl and W.W.3 P.V. Sudarshan had in their statements stated that Khazan Singh was not present in the factory on 25.02.2000. In the light of this it can safely be said that the management/petitioner has miserably failed to C.W.P. No. 21855 of 2008. -4- connect Khazan Singh workman with the incidence which took place in the factory on 25.02.2000 what to say of his active participation in the said incidence. That being so the submission of counsel for the petitioner that the atmosphere in and around the company was surcharged to such an extent that it is not possible for the management/petitioner to conduct domestic inquiry before passing the order of dismissal, also cannot be sustained as a person who is not involved in an incidence, cannot be dismissed from service at the whims and fancies of the management/petitioner when the management fails to connect him with the incident alleged to have taken place. It is true that the management can lead evidence before the learned Labour Court to justify the dismissal of the workman even if the said dismissal is without conducting inquiry but since the management has failed to discharge its onus, the termination of the workman by the petitioner management cannot be upheld. Further, there is clear violation of certified standing orders of the Company. As per the Standing Order 25 of the Company, a workman shall be liable to be dismissed if he is found guilty of mis-conduct after he has been given full opportunity to defend himself in a domestic inquiry in accordance with the Standing Orders. It further says that while awarding punishment under this Standing Order, the company shall take into account the gravity of the mis-conduct and the previous record. Standing Order 26 provides for the procedure in case of mis-conduct which requires service of chargesheet setting out in details the allegations of mis-conduct and requiring him to submit his written reply within two days. None of these procedures as prescribed under the C.W.P. No. 21855 of 2008. -5- Standing Orders 25 and 26 have been complied with. Even if the situation was such that the inquiry could not be held as per the standing orders but since the management has failed to connect such atmosphere and the conduct of the respondent workman with the incident which could be attributed to the workman holding him responsible for such a situation where the holding of inquiry was not reasonably practicable, it can only be said that the Standing Orders 25 and 26 have not been complied with and thus the termination of the workman is not in accordance with law. It is true that strict rules of evidence are not applicable to the departmental inquiries but nevertheless there has to be some evidence on record which could justify the action of the management. Having failed to discharge its onus the management cannot be given benefit of its own lapse. This is a case where the management has failed to connect Khazan Singh-workman with the incidence dated 25.02.2000. The evidence which has come on record shows that workman Khazan Singh was absent on 25.02.2000. The evidence which has been produced on record does not establish that the atmosphere in and around the company was surcharged with fear due to the act of the workman Khazan Singh and it was not possible for the management to conduct a domestic inquiry. That being the position, I do not find any merit in the contentions raised by the petitioner in the present writ petition while challenging the award dated 25.08.2008 passed by the learned Labour Court-II, Faridbad. The present writ petition, therefore, stands dismissed. (AUGUSTINE GEORGE MASIH) JUDGE January 06,2009. sjks.