AUGUSTINE GEORGE MASIH, J. (ORAL)
Prayer in the present writ petition is for quashing of the Award dated 22.05.2009 (Annexure P-9), vide which the Industrial Tribunal-cum-Labour Court, Hisar, has directed reinstatement of the workman-respondent No. 2 by holding the order of termination to be not in accordance with law with all consequential benefits including 60% back wages from the date of issuance of demand notice dated 02.03.2005
Counsel for the petitioner inter alia contends that the Award passed by the Labour Court is not in accordance with law as order dated
21.10.1994, which was passed by exercising the powers conferred under Article 311 (2) (b) of the Constitution of India on the punishing authority to dispense with the enquiry and terminate the services of the workman, was not appreciated by the Labour Court in the right perspective. He contends that the Labour Court had proceeded to hold the order of termination as illegal on the ground that no regular departmental enquiry was held against the workman before terminating his services. He contends that the provisions of Article 311 (2) (b) of the Constitution of India have not been taken into consideration by the Labour Court which itself provides for the dispensation of the enquiry and, therefore, there was no need to hold an enquiry against the workman before passing an order of termination. He, on this basis, contends that the Award dated 22.05.2009 passed by the Industrial Tribunal-cum-Labour Court, Hisar, cannot be sustained and deserves to be set aside.
On the other hand, counsel for respondent No. 2-workman submits that no justifiable reason has been given in the order of termination dated 21.10.1994 for dispensing with the enquiry. The only reason, which has been spelt out for dispensing with the enquiry while exercising the powers under Article 311 (2) (b) of the Constitution of India, is that despite the publication of the notice in the newspaper requiring the workman to join the enquiry proceedings, he had failed to report before the Enquiry Officer. He submits that in any case, the provisions under Article 311 (2) (b) of the Constitution of India would not be applicable to the case of the workman and, therefore, invoking of the said provisions also in itself is illegal qua the workman. His further contention is that for the allegations, which were made in the charge-sheet with regard to the misappropriation of the funds, an FIR No. 465 dated 10.08.1993 under Section 409 IPC was registered
against the workman. In the said criminal case, the General Manager, Haryana Roadways, Hisar was the complainant. After the trial was held, the workman was acquitted vide judgment dated 11.07.2002 passed by the Judicial Magistrate Ist Class, Hisar. He, on this basis, contends that there is no reason that now the enquiry should be held against the workman. He, therefore, contends that order dated 21.10.1994 passed by the General Manager, Haryana Roadways, Hisar, cannot be sustained and the Award passed by the Labour Court is fully justified and, therefore, does not call for any interference by this Court.
I have heard the counsel for the parties and have gone through the records of the case.
A perusal of the Award shows that the basic question, which the Labour Court was required to address and answer, was the applicabity of the provisions qua the workman and the implications thereof as also the proper exercise of the same, if the said provisions were applicable to the workman. This aspect has not been referred to by the Labour Court. Article 311 (2) (b) of the Constitution of India reads as follows:-
“311 (2) (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry; or”
The above Article gives an authority to dismiss or remove a person or to reduce him in rank to dispense with the holding of the enquiry provided it is not reasonably practicable to hold such enquiry and that satisfaction has to be recorded by the authority in writing. Unless the
question whether the reasonable satisfaction of the Authority was justified or not, is gone into by the Court, the question of holding a departmental enquiry does not arise. The Court, therefore, has driven itself in a totally different direction and has returned a finding with regard to the termination being illegal because no regular departmental enquiry was held. The Award passed by the Labour Court dated 22.05.2009 (Annexure P-9) thus, cannot be sustained and is hereby set aside. The case is remanded to the Industrial Tribunal-cum-Labour Court, Hisar for fresh adjudication in the light of the observations made herein above.
The parties are directed to appear before the Industrial Tribunal-cum-Labour Court, Hisar on 26.04.2010
(AUGUSTINE GEORGE MASIH) JUDGE
April 01, 2010
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