Vijay Kumar Nayyar vs P.O.L.C. and Another

Augustine George Mashi, J.—In the present writ petition, the challenge is to the order dated 22nd February, 1995 (Annexure P-14) passed by the Labour Court in favour of the Management on the issue as to whether the departmental enquiry conducted against the workman was fair and proper and also to the award dated 17th November, 1995 (Annexure P-15) passed by the Labour Court, Ludhiana, wherein reference has been answered against the workman, however, granting him some compensation.

At the very outset, counsel for the Petitioner has submitted that he would restrict the claim in present writ petition only to the question of remand of the case as he submits that the Labour Court has not gone into the legality and validity of the order of termination dated 30th November, 1979 by observing that the enquiry proceedings have been upheld by the Labour Court in its earlier order dated 22nd February, 1995 and therefore, the Court did not have the jurisdiction to proceed and decide on the said argument raised by the Authorized Representative of the workman.

He submits that merely because the enquiry proceedings have been held by the Labour Court to be in accordance with law does not mean that the order passed thereafter on the basis of the said proceedings is legal and valid order even if the statutory Rules, which were required to followed after the completion of the enquiry proceedings, were violated and not followed by the punishing authority. He further submits that accordingly, the appellate order also needs to be looked into with regard to the legality or otherwise on the touchstone of the compliance of the statutory Rules governing the service. He, on this basis, submits that the Labour Court has failed to exercise its powers conferred on it u/s 11A of the Industrial Disputes Act and therefore, the award cannot be sustained. He submits that in case the award is set aside, it would be just and appropriate that the matter be remanded back to the Labour Court for giving a finding on this aspect i.e. legality of the order as per the statutory Rules governing the service; after going through the pleadings and the evidence led by the parties on this question apart from other issues.

Counsel for Respondent No. 2, on the other hand, submits that the Labour court having come to the conclusion that the enquiry proceedings have been held against the workman as per law, had no option but to proceed the way it has vide its impugned award dated 17th November, 1995. He, however, submits that even if the prayer of the counsel for the Petitioner for remand of the case is to be accepted, then also prima facie the Petitioner has to establish that there indeed has been violation of the statutory Rules governing the service. He, on this basis, supports the award passed against the workman and states that the writ petition deserves to be dismissed.

I have heard the counsel for the parties and have gone through the records of the case with their able assistance.

It is true that after the enquiry proceedings are over, a report is submitted by the Enquiry Officer and thereafter action is initiated to consider the report and to pass an appropriate order as per Rules govrning the service. An organization, which has statutory Rules governing the service of its employees, is bound to follow the same while proceeding to deal with its employees. An assertion is put forth by the workman that after holding of the enquiry, the statutory Rules governing the service have not been complied with and therefore, the termination order is bad in law being violative of the same. The Labour Court in such cases, is enjoined with the responsibility of firstly determining the legality of the order of termination and thereafter proceeding to decide whether the said order of punishment was justified or not. In any case, an order, which is held to be illegal, cannot be siad to be justifiable. Thus, to come to a conclusion whether an order is justified or not, determination of the legality or otherwise of the order of punishment is the first requirement. Once an order of termination is held to be legal and valid, the question of it being justified on the basis of the misconduct attributed and proved against the employee would arise.

In the present case, the Labour Court has not gone into the legality of the order of punishment, which was passed by the punishing authority, which according to the claimant-workman is not in accordance with the statutory Rules governing the service. Having failed to do so, the Labour Court has illegally refrained itself from exercising power, which is conferred on it under the Statute leading to the passing of an order, which cannot be accepted in law.

In view of the above, the impugned award dated 17th November, 1995 passed by the Labour Court, Ludhiana (Annexure P-15) cannot be sustained and deserves to be set aside.

Accordingly, the present writ petition is allowed. The impugned award dated 17th November, 1995 (Annexure P-15) passed by the Labour Court, Ludhiana is set aside. The case is remanded to the Labour Court, Ludhiana for fresh decision in accordance with the observations made above and as per the provisions of the Industrial Disputes Act. It is made clear that it would be open to the Petitioner-workman to challenge the order dated 22nd February, 1995 (Annexure P-14) in subsequent proceedings before this Court, in case an award is passed against him and he prefers to challenge the same in this Court.

The parties are directed to appear before the Labour Court on 30th July, 2009. The Labour Court would make an endeavor to decide the case expeditiously in view of the matter being old and pending since long.