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Judgment
A.S. Bopanna, J.—The petitioners are before this Court assailing the order dated 21.08.2012 passed on issue No. 1 in Reference No. 27/2012 and also the order dated 03.09.2012 passed in the said reference. In that light the petitioners are assailing the order dated 18.06.2010 whereby the predecessor of the petitioners was dismissed from service.
The petitioners being the legal representatives of late Mohd. Zakir Hussain had assailed the dismissal order dated 18.06.2010 by filing a claim petition before the Labour Court under Section 2A(2) of the Industrial Disputes Act seeking the relief of reinstatement, back wages and continuity of service. The same was registered in Reference No. 27/2012.
Since the action of dismissal was preceded by a disciplinary enquiry, issue No. 1 with regard to the validity of the domestic enquiry conducted against the deceased was framed before the Labour Court. By the order impugned dated 21.08.2012 the issue was held in the affirmative namely to hold that the domestic enquiry was fair and proper and the matter was listed for evidence of the claimant on the other issues. Subsequent thereto the order dated 03.09.2012 has been passed holding the second issue also against the petitioners and the reference has been rejected. It is in that view, the petitioners are before this Court.
Learned counsel for the respondents seeks to sustain their action and also the finding rendered by the Labour Court on both the issues. It is the case of the respondents that the deceased did not choose to either reply to the show cause notice nor appear in the domestic enquiry and as such based on the evidence available on record the Enquiry Officer has rendered the finding which does not call for interference. In that light it is contended that the Labour Court having appreciated these aspects of the matter has arrived at its conclusion and therefore the order passed on the preliminary issue as well as the award ultimately passed by the Labour Court does not call for interference.
The learned counsel for the petitioners would however point out that the finding rendered on issue No. 1 cannot be accepted since the only witness who was examined on behalf of the respondent - management as MW-1 was neither the Enquiry Officer nor the Presenting Officer in the absence of the Enquiry Officer for valid reasons so as to speak with regard to the correctness or otherwise of the proceedings to establish that opportunity had been granted to the deceased employee and thereafter the finding had been rendered. It is pointed out that in the cross-examination of MW-1 he has admitted that he is not the Enquiry Officer. It is in that light the correctness or otherwise of the order passed on issue No. 1 requires consideration since the finding on issue No. 1 would ultimately regulate the further proceedings before the Labour Court as has been enunciated in several decisions.
In that regard, a perusal of the reasons indicated by the Labour Court on issue No. 1 would disclose that the Labour Court has only taken into consideration the enquiry report at Ex. M-4 and in that light has taken into consideration the evidence of MW-1 wherein he has stated that though the witnesses were examined in the enquiry and other charged workmen had appeared, the employee late Zakir Hussain did not appear before the Enquiry Officer and has not cross examined the witnesses. It is also stated by him that the workman had thereafter not appeared, tendered his evidence and therefore the Enquiry Officer has accepted the evidence on behalf of the management and rendered the finding.
When in a circumstance where it is alleged that the workman concerned had not appeared before the Enquiry Officer despite opportunity being provided and further when such workman was not alive to tender his evidence to rebut such contention, the burden was heavy on the management to examine the Enquiry Officer himself to state with regard to the opportunities that had been provided to the workman and the workman not having utilized such opportunities. Such evidence was required to be tendered by the Enquiry Officer with reference to the proceedings sheet maintained by him and the recording made therein so as to establish before the Labour Court that opportunity which was required to be granted to the workman was granted in the enquiry and therefore the procedure adopted is to be held as fair and proper.
Hence, essentially the requirement while answering issue No. 1 was to concentrate on the procedure that had been followed and the opportunity that was granted. The very fact that the Labour Court has thereafter proceeded in the matter for evidence of the claimant on the other issues would disclose all that was to be considered thereafter was with regard to the perversity of the finding and as to whether there was unfair labour practice. When such heavy burden was there on the management with regard to issue No. 1 and the appropriate witness required to be examined had not been examined before the Labour Court to establish the validity of the enquiry, the documents that had been relied on by MW-1 at Exs.M1 to M10 if made use for rendering the finding on issue No. 2 certainly prejudice would be caused to the workman when a valuable right with regard to the validity or otherwise of the domestic enquiry available to the workman was very lightly dealt with by the Labour Court. Therefore in a circumstance when the appropriate witness was not examined, the Labour Court was required to set aside the validity of the enquiry and an opportunity ought to have been granted to the management to establish the charges afresh before the Labour Court.
Further the very reasons as indicated by the Labour Court would show that there is no application of mind to all these aspects of the matter but has only accepted the finding of the disciplinary authority that the Enquiry Officer had granted opportunity and thereafter rendered his findings. Therefore, the findings on issue No. 1 cannot be sustained.
If that be the position, the consequent finding rendered on issue No. 2 by the relied upon document that were marked while considering the case on issue No. 1 would also not be sustainable. Accordingly, the order passed on issue No. 1 dated 21.08.2012 and the award dated 03.09.2012 are set aside. The matter is remitted to the Labour Court, Gulbarga to restore the proceedings in Reference No. 27/2012 on board and re-consider issue No. 1 by providing opportunity to the respondent -management to examine the appropriate witness and thereafter proceed in accordance with law.
It is however clarified that if the respondents do not choose to utilize the opportunity to tender evidence on issue No. 1, it would be open for them to seek to tender such evidence before the Labour Court on merits to establish the charge afresh by conceding the issue No. 1 and thereafter proceeding to tender evidence on issue No. 2 to establish the charges afresh.
The parties shall appear before the Labour Court without fresh notice, on 14.12.2015 as the first date for appearance. The Labour Court shall thereupon regulate the matter and conclude the proceedings as expeditiously as possible but not later than six months from the date of first appearance. All contentions of the parties are left open to be urged before the Labour Court.
The petition is accordingly disposed of.