Kurukshetra University v. Prithvi Singh
ABHAY MANOHAR SAPRE, J. 1. This appeal is directed
against the final judgment and order dated 22.09.2006 passed by the
High Court of Punjab & Haryana at Chandigarh in C.W.P. No.13094 of
2006 whereby the Division Bench of the High Court dismissed the petition
filed by the appellant herein and affirmed the Award dated 23.01.2006
passed by the Presiding Officer, Labour Court, Ambala in Ref.No.25 of
2003.
2. The controversy involved in the case is short as it would b e
clear from the narration of the relevant facts infra.
KURUKSHETRA UNIVERSITY v. PRITHVI SINGH
3. The appellant is the Kurukshetra University (hereinafter referred
to as “the University”). The respondent was working as Security Guard
in the University as daily rated employee.
4. On 18.08.1999, the respondent while on duty alleged to have
misbehaved with one lady Research Scholar, who was working in the
University. The appellant took note of the incident and held departmental
enquiry by appointing Enquiry Officer to probe into the incident.
5. The Enquiry Officer, in his report dated 20.09.1999, found the
respondent guilty for committing the misconduct. The appellant
accordingly decided to discontinue the services of the respo ndent and
treating him to be the daily rated worker dispensed with his services
with effect from 30.03.2000.
6. This led the State to make the industrial reference to the Labour
Court, Ambala under Section 10 of the Industrial Disputes Act, 1 947
(hereinafter referred to as “ID Act”) for deciding t he legality and
correctness of the respondent’s termination from the serv ices of the
appellant-University w.e.f. 30.03.2000.
7. Before the Labour Court, the stand of the appellant(University)
in the written statement was two-fold. First, the respondent was working
as a daily wager for a period of 89 days and, therefore, he was not
entitled to claim any benefit available to any workman under the ID Act
and Second, the respondent committed misconduct while on duty for
which a departmental enquiry was held though it was not required
because the respondent was a daily rated employee and on being found
guilty in the domestic inquiry, his services were dispensed with.
8. The Labour Court, by award dated 23.01.2006, answered the
reference in respondent’s favour. The Labour Court h eld that the
respondent has worked for more than 240 days in one calendar year. It
was further held that since the appellant had leveled charge of misconduct
against the respondent, it was necessary for the appellant to have held
regular departmental enquiry by issuing a charge sheet etc. a nd then
depending upon the outcome of the enquiry, appropriate orders should
have been passed. It was held that the enquiry held by the appellant was
not legal and proper. With these findings, the Labour Court held this to
be a case of illegal retrenchment and set aside the respondent’s
termination order as being illegal. The Labour Court granted liberty to
the appellant to hold regular departmental enquiry for the charges leveled
by them against the respondent, in case the appellant so desires.
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9. The appellant (University), felt aggrieved of the award of the
Labour Court, filed writ petition before the High Court. By impugned
judgment, the Division Bench of the High Court dismissed the appellant’s
writ petition and upheld the Award passed by the Labour Court.
10. Against this judgment of the High Court, the
appellant(University) felt aggrieved and has filed this appeal by way of
special leave before this Court.
11. Notice of the SLP was sent to the respondent. Despite service
and repeated notices sent to the respondent, he neither appea red nor
represented through any counsel. We have, therefore, no option but to
decide the appeal by hearing the counsel for the appellant.
12. Having heard the learned counsel for the appellant and on
perusal of the record of the case, we are constrained to allow the appeal
and while setting aside the judgment of the High Court and the award of
the Labour Court remand the case to the Labour Court for deciding the
reference afresh in the light of our observations made infra.
13. In our considered opinion, neither the Judge of the Labour
Court and nor the Judges of the High Court applied their judicial mind
while deciding the issues arising in the case and completely ignored the
settled legal principles which are applicable to the case at hand and
proceeded to decide the case contrary to the principles laid down by this
Court. Due to this reason, we are compelled to interfere in the impugned
judgment and remand the case to the Labour Court for deciding it afresh.
14. The question as to what are the powers of the Labour Court
and how it should proceed to decide the legality and correctness of the
termination order of a workman under the Labour Laws in refer ence
proceedings and what are the rights of the employer while defending the
termination order in the Labour Court remains no more res integra and
is settled by series of decisions of this Court beginning from AIR 1958
SC 130 (Indian Iron & Steel Co. Ltd. & Anr. Vs. Their Worken)
till AIR 1979 SC 1653 (Shankar Chakravarti vs. Britannia Biscuit
Co. Ltd. & Anr.) and also thereafter in several decisions as mentioned
below.
15. In between this period, this Court in several leading case s
examined the aforesaid questions. However, in Shankar’s case (supra),
KURUKSHETRA UNIVERSITY v. PRITHVI SINGH
[ABHAY MANOHAR SAPRE, J.]
this Court took note of entire case law laid down by this C ourt in all
previous cases and reiterated the legal position in detail.
16. The legal position, in our view, is succinctly explained by this
Court (two-Judge Bench) in the case of Delhi Cloth & General Mills
Co. vs. Ludh Budh Singh, 1972(3) SCR 29=1972(Lab IC) 573 in
Propositions 4, 5 and 6 in the following words:
“( 4) When a domestic enquiry has been held by the
management and the management relies on the same, it is
open to the latter to request the Tribunal to try the valid ity
of the domestic enquiry as a preliminary issue and also ask
for an opportunity to adduce evidence before the Tribunal,
if the finding on the preliminary issue is against the
management. However elaborate and cumbersome the
procedure may be, under such circumstances, it is open t o
the Tribunal to deal, in the first instance, as a prelimin ary
issue the validity of the domestic enquiry. If its find ing on
the preliminary issue is in favour of the management, the n
no additional evidence need be cited by the management.
But, if the finding on the preliminary issue is against the
management, the Tribunal will have to give the employer
an opportunity to cite additional evidence and also give a
similar opportunity to the employee to lead evidence contra,
as the request to adduce evidence had been made by t he
management to the Tribunal during the course of the
proceedings and before the trial has come to an end. When
the preliminary issue is decided against the manage ment
and the latter leads evidence before the Tribunal, the
position, under such circumstances, will be, that t he
management is deprived of the benefit of having the finding
of the domestic Tribunal being accepted as prima facie proof
of the alleged misconduct. On the other hand, the
management will have to prove, by adducing proper
evidence, that the workman is guilty of misconduct and that
the action taken by it is proper. It will not be just and fair
either to the management or to the workman that the
Tribunal should refuse to take evidence and thereby a sk
the management to make a further application, after holding
a proper enquiry, and deprive the workman of the benefit
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of the Tribunal itself being satisfied, on evidence addu ced
before it, that he was or was not guilty of the all eged
misconduct.
(5) The management has got a right to attempt to sustain
its order by adducing independent evidence before t he
Tribunal. But the management should avail itself of the said
opportunity by making a suitable request to the Tribuna l
before the proceedings are closed. If no such opportuni ty
has been availed of, or asked for by the management, before
the proceedings are closed, the employer can make n o
grievance that the Tribunal did not provide such an
opportunity. The Tribunal will have before it only the
enquiry proceedings and it has to decide whether th e
proceedings have been held properly and the finding s
recorded therein are also proper.
(6) If the employer relies only on the domestic enquiry and
does not simultaneously lead additional evidence or ask
for an opportunity during the pendency of the proceedings
to adduce such evidence, the duty of the Tribunal is on ly to
consider the validity of the domestic enquiry as well as the
finding recorded therein and decide the matter. If the
Tribunal decides that the domestic enquiry has not been
held properly, it is not its function to invite suo motu the
employer to adduce evidence before it to justify the acti on
taken by it.”
17. The aforesaid principle of law was quoted with approval in
Shankar’s case (supra) by a Bench of three Judges in Para 23
observing,
“…..After an exhaustive review of the decisions bear ing
on the question and affirming the ratio in R.K. Jain’s case
(1972 Lab IC 13) this Court extracted the emerging
principles from the review of decisions. Proposition s 4, 5
and 6 would be relevant for the present discussion.”
18. The aforementioned decisions were extensively discussed by
the Constitution Bench in the case of Karnataka State Road Transport
Corpn. vs. Lakshmidevamma(Smt.) & Anr. , 2001 (5) SCC 433
KURUKSHETRA UNIVERSITY v. PRITHVI SINGH
[ABHAY MANOHAR SAPRE, J.]
wherein the law laid down in the aforementioned two cases was
approved.
19. When we examine the facts of this case in the light of the
aforementioned principles of law, we find that the terminati on of the
respondent was by way of punishment because it was based on the
adverse findings recorded against the respondent in the domestic enquiry.
20. So the question, which the Labour Court was expected to
decide in the first instance as a “preliminary issue”, was whether the
domestic enquiry held by the appellant (employer) was legal and proper.
In other words, the question to be decided by the Labour Court w as
whether the domestic enquiry held by the appellant was conduct ed
following the principles of natural justice or not.
21. If the domestic enquiry was held legal and proper then the
next question which arose for consideration was whether the punishment
imposed on the respondent(delinquent employee) was proportionate to
the gravity of the charge leveled against him or it called for any
interference to award any lesser punishment by exercising t he powers
under Section 11-A of the ID Act.
22. If the domestic inquiry was held illegal and improper then the
next question, which arose for consideration, was whether to allow the
appellant (employer) to prove the misconduct/charge before the Labour
Court on merits by adducing independent evidence against the respondent
(employee). The appellant was entitled to do so after pra ying for an
opportunity to allow them to lead evidence and pleading the misconduct
in the written statement. (see- also Para 33 at page 1665/66 of Shankar’s
case (supra) ).
23. Once the appellant(employer) was able to prove the
misconduct/charge before the Labour Court, then it was for the Labour
Court to decide as to whether the termination should be upheld or
interfered by exercising the powers under Section 11-A of the ID Act
by awarding lesser punishment provided a case to that effect on facts is
made out by the respondent(employee).
24. We are constrained to observe that first, the Labour Cour t
committed an error in not framing a “preliminary issue” for deciding the
legality of domestic enquiry and second, having found fault in the domestic
inquiry committed another error when it did not allow the appellant to
lead independent evidence to prove the misconduct/charge on merit s
275
and straightaway proceeded to hold that it was a ca se of illegal
retrenchment and hence the respondents’ termination is bad in law.
25. By no stretch of imagination, in our view, the Labour Court
could treat the respondent’s termination as “retrenchment” much less
an “illegal retrenchment”. The Labour Court failed to notice the definition
of retrenchment in Section 2(oo) of the ID Act which, in clear terms,
provides that retrenchment does not include termination of the service if
it is imposed by way of punishment.
26. In this case, the respondent’s services were terminated by the
appellant by way of punishment after holding a departmental enquiry
and therefore, the termination in question could never be regar ded as
“retrenchment”. The Labour Court was, therefore, wholly wrong i n
treating the termination of the respondent as “retrenchment”.
27. We notice that the Labour Court held on facts t hat the
respondent had worked for 240 days in one calendar year. We do not
consider it proper to set aside this factual finding. Indeed, it is due to this
finding, the respondent is held entitled to claim protection of Labour
Laws.
28. The High Court while deciding the appellant’s writ petition did
not take note of any legal issues mentioned above and cursorily dismissed
the writ petition.
29. In the light of the foregoing discussion, we cannot countenance
the approach and the manner in which the Labour Court and the High
Court dealt with the issues arising in the case. The award of the Labour
Court and judgment of the High Court are, therefore, held per se without
jurisdiction and legally unsustainable.
30. In view of the foregoing discussion, we allow the appeal, set
aside the award of the Labour Court to the extent indicated abov e and
the judgment of the High Court and remand the case to the Labo ur
Court.
31. The Labour Court will now afford the appellant (employer )
an opportunity to lead evidence to prove the misconduct alleged by them
in the written statement against the respondent and depending upon the
findings, which the Labour Court would record on the issue of misconduct,
the issue of termination would be decided in the light of what we have
observed supra.
KURUKSHETRA UNIVERSITY v. PRITHVI SINGH
[ABHAY MANOHAR SAPRE, J.]
32. The appellant shall appear before the Labour Co urt on
05.03.2018 and will file the copy of this judgment. Since the respondent
has not appeared in this Court despite service on him, the Labour Court
will issue fresh notice to the respondent for his appearanc e before the
Labour Court and then decide the case as directed above within thre e
months from the date of service of notice to the respondent.
Ankit Gyan Appeal allowed.