Beas Project Administration vs State of Punjab and others

Man Mohan Singh Gujral, J.—Makhan Singh respondent No. 4 was employed as (sic) in the (sic) Division of the Beas Project in 1966. On the 13th September, 1966, the Executive Engineer, of Concreting Division No. 3, while on a round of the area, found Makhan Singh sleeping in a corner of the pump shed during duty hours and when questioned in this respect he is alleged to have used abusive and improper language towards the Executive Engineer. On the allegation that the conduct of respondent No. 4 constituted misconduct under the Certified Standing Orders in force he was charge-sheeted on the same day and was suspended the next day. As this respondent refused to accept the notice, another notice under registered cover was sent which was also refused. The Executive Engineer then appointed two Sub Divisional Officers to hold an inquiry, and on learning about it, Malkhan Singh informed the Executive Engineer that as he himself was involved in this incident some independent officer should be appointed to hold inquiry, as otherwise the inquiry would not be fair and impartial. The matter was then referred to the Superintending Engineer who accepting the representation of respondent No, 4 appointed two Executive Engineers as an Inquiry Committee. The Committee, after giving a proper opportunity to the petitioner, held the inquiry and submitted its report; a copy of which is Annexure F. Accepting this report a notice to show cause-as to why action should not be taken against him was served on respondent No. 4 and he was subsequently dismissed from service under orders Annexure H. Being dissatisfied with this order, Makhan Singh raised an industrial dispute which was referred to the Arbitrator, Shri Sham Lal respondent No 2, who was the Deputy Labour Commissioner, Punjab. Both the parties appeared before the Arbitrator who, after taking appropriate proceedings, gave his award Annexure K which was published in the Government Gazette on the 6th March, 1971 By this award it was held that Makhan Singh was entitled to reinstatement with continuity of service and that he was also entitled to 7 per cent of the back wages for the period of enforced unemployment. Being aggrieved against this award, the Beas Project Administration filed this writ petition under Articles 226 and 227 of the Constitution of India.

Shri Mohinderjit Singh Sethi, appearing for the petitioner has mainly challenged the award on the following grounds--

(a) that the award having been made beyond the period of six months was bad;

(b) that the finding of the Arbitrator that there had been a violation of the principles of natural justice was vitiated as it was beyond the pleadings; and

(c) that the Arbitrator had erred in holding that the show-cause notice was erroneous.

So far as the first ground is concerned, the arbitration agreement provided that the Arbitrator shall make his award within a period of six months or such further time as is expended by mural agreement between the parties in writing It was further mentioned that if the award was not made within the period specified, the reference shall stand automatically cancelled. The petitioner''s case is that the award had not been made within six months and that no extension had been given to the arbitrator. This argument is entirely without any foundation. No mention was made about this matter in the writ petition, with the result that the respondents did not have opportunity to produce the relevant record to show that extension in the time during which the award could be made had been agreed upon between the parties. The question of fact not having been raised in the petition, it is not now open to the petitioner to base any argument on this ground.

It is no doubt true that neither in the statement of the case furnished by respondent No. 4 to the Arbitrator nor in his statement was it mentioned in express terms that opportunity to produce evidence had not been provided to him, but it was mentioned in the claim filed on behalf of the workman that his services were terminated without any charge-sheet and without any inquiry against him. This ground world (sic) witnesses cited by Makhan Singh could not be examined as they were absent from duly Baling himself on these facts, the arbitrator con-eluded that the non-examination of these witnesses was a violation of the principles of natural justice Having regard to the material on the record that the presence of the three witnesses mentioned by respondent No. 4 had not been secured and their statements had not been recorded, I am unable to persuade myself that the view taken by the Arbitrator was erroneous.

In the second show-cause notice which was served after the inquiry report had been submitted by the Committee, it was not mentioned as to what punishment it was proposed to inflict on Makhan Singh. By this notice all that Makhan Singh was required to explain was as to why disciplinary action should not be taken against him, The nature of the punishment proposed to be inflicted not having been mentioned in this notice, the Arbitrator was right in coming to the conclusion that the workman could not properly defend himself. I also, therefore, find no merit in the third argument canvassed on behalf of the petitioner.

Lastly it was urged on behalf of the petitioner that the Arbitrator had erred in awarding back wages to the workman without the workman having led evidence to show that during the relevant period he had remained unemployed. It is not controverted that the petitioner had not led any evidence to show that at any time during this period respondent No. 4 had remained in employment. It is well sealed that an employee, whose service is found to have been illegally terminated, was entitled to full back wages normally. In case, however, the employer presses for departure from this rule, it is for him to establish circumstances which would persuade the Court to use the discretion against the workman The burden is not on the workman to establish that he had tried to minimise the loss during the period of enforced idleness. Viewing the facts of this case in the light of the above, I find that in the absence of evidence to establish circumstances justifying departure from the normal rule the Arbitrator was right in awarding 75 per cent, of the back wages to the workman.

In view of what has been stated above. I find that the award of the Arbitrator is unexceptionable. Consequently the petition fails and is dismissed but with no order as to costs.