Present: Mr. V.K. Sharma Advocate Vs. State of Haryana and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1059622
CourtPunjab and Haryana High Court
Decided OnMar-01-2013
AppellantPresent: Mr. V.K. Sharma Advocate
RespondentState of Haryana and Others
Excerpt:
c.w.p no.7614 of 1994 (o&m) -1- in the high court of punjab & haryana at chandigarh c.w.p no.7614 of 1994 (o&m) date of decision :01. 03.2013 central state farm, hisar ......petitioner versus state of haryana and others ...respondents coram: hon'ble ms.justice ritu bahri present: mr.v.k.sharma, advocate for the petitioner mr.nitin kaushal, aag, haryana **** ritu bahri , j. (oral) the present writ petition under articles 226/227 of the constitution of india is for issuance of an appropriate writ quashing the order of reference issued by the state of haryana dated 10.08.1998 (annexure p-4).award dated 03.12.1993 (annexure p-7) and award dated 08.02.1994 (annexure p-10).the petitioner-management had removed respondent no.3 from service vide order dated 11.03.1988 (p-3).the workman- respondent no.3 was engaged as tractor helper on daily wages in april, 1980. the charge sheet was served upon him on 18.09.1987 (p-1) c.w.p no.7614 of 1994 (o&m) -2- that he had manhandled sh. s.c.sharma, junior agricultural assistant on 30.08.1987. after holding a regular enquiry and after giving him opportunity of hearing, the officer found him guilty (p-2) and thus he was removed from service vide order dated 11.3.88 (p-3).the workman served a demand notice and the dispute was referred to the labour court, hisar (p-4).the labour court framed the following issues:- 1. as per terms of reference.”2. whether this reference is not maintainable?.”3. whether this reference is time barred?.”4. whether this court has no jurisdiction over the dispute?.”5. whether the management has conducted the fair and proper enquiry against the workman?. treating the issue no.5 as preliminary issues, the presiding officer labour court decided this issue against the management vide award dated 03.12.1993 (p-7) and held that the charge sheet was not a valid and is a sham formality. the proceedings conducted thereafter were also not found to be proper. vide a separate order, the case was adjourned to 15.12.1993 to enable the management to produce independent evidence to prove misconduct of the worker. the workman filed a review application (p-8).the labour court decided this application c.w.p no.7614 of 1994 (o&m) -3- and held that the management was not entitled to lead independent evidence on the ground that no request had been made by the management to lead independent evidence to prove the charges against the workman and the court was not correct in giving suo moto to give such an opportunity to the management to lead independent evidence unless the management has asked for such an opportunity. the labour court has referred to supreme court judgment reported as delhi cloth and general mills co.versus ludh budh, singh, 1972-lab.i.c.-573 and management of new delhi tuberculolsis centre ltd versus the presiding officer, labour court, jalandhar and others.1993(1) rs.331 the judgment in delhi cloth's case (supra) related to a case where the management had made an application under section 33 of the industrial disputes act to lead evidence at a belated stage. the management in a case where the departmental proceedings were found to be violated by the labout court could lead evidence afresh at an appropriate stage by making an application. the application made under section 33 of the industrial disputes act after closure of the arguments was at a belated stage were not to be allowed in favour of the management. however, in the facts of the present case, once the labour court has returned a finding against the c.w.p no.7614 of 1994 (o&m) -4- management on 03.12.1993 (p-7) that the departmental proceeding the charge sheet were invalid but by the order of same date, the court again granted the opportunity to the management to appear on 15.12.1993 to lead evidence before the labour court. it was at the initial stage itself that the management was to lead evidence before the labour court on the preliminary issue no.5. hon'ble bombay high court in a case of basu deba das versus m.r.bhope and another, 1990 lab. i.c.1677 after discussing the case law on the point, in paragraph no.25 held as under:- “25. the above cases, in my view, do not lay down any hard and fast rule. they do not lay down a criteria for deciding in which cases permission to lead evidence to justify the action of dismissal should or should not be granted. these cases, however, lay down broad guidelines. the guidelines provide that the employer must seek for the opportunity diligently and without undue delay. it should be an application ...bona made. it should not be made at a belated stage so as to prejudice the interest of the worker. it should not be made by an employer who is found to adopt dilatory tactics so as to break the backbone of the worker through financial stress. the application should not have the effect of further delaying the proceedings. if the application does not suffer from any these vices ordinarily an application ought to be granted. if, however, the application is shown to be tainted with any of the aforesaid defects or some such similar defects c.w.p no.7614 of 1994 (o&m) -5- no duty is case upon the labour court/industrial tribunal to grant an application. the application of the employer, in these circumstances is liable to be dismissed.” in view of the above, the present writ petition is allowed and the award dated 08.02.1994 (annexure p-10) is hereby set aside and the matter is remanded back to the labour court to proceed ahead by giving an opportunity to the petitioner to lead evidence against the workman. march 01, 2013 (ritu bahri) g.arora judge
Judgment:

C.W.P No.7614 of 1994 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.W.P No.7614 of 1994 (O&M) Date of decision :

01. 03.2013 Central State Farm, Hisar ......Petitioner versus State of Haryana and others ...Respondents CORAM: HON'BLE Ms.JUSTICE RITU BAHRI Present: Mr.V.K.Sharma, Advocate for the petitioner Mr.Nitin Kaushal, AAG, Haryana **** RITU BAHRI , J.

(Oral) The present writ petition under Articles 226/227 of the Constitution of India is for issuance of an appropriate writ quashing the order of reference issued by the State of Haryana dated 10.08.1998 (Annexure P-4).award dated 03.12.1993 (Annexure P-7) and award dated 08.02.1994 (Annexure P-10).The petitioner-management had removed respondent No.3 from service vide order dated 11.03.1988 (P-3).The workman- respondent No.3 was engaged as Tractor Helper on daily wages in April, 1980.

The charge sheet was served upon him on 18.09.1987 (P-1) C.W.P No.7614 of 1994 (O&M) -2- that he had manhandled Sh.

S.C.Sharma, Junior Agricultural Assistant on 30.08.1987.

After holding a regular enquiry and after giving him opportunity of hearing, the Officer found him guilty (P-2) and thus he was removed from service vide order dated 11.3.88 (P-3).The workman served a demand notice and the dispute was referred to the Labour Court, Hisar (P-4).The Labour Court framed the following issues:- 1.

As per terms of reference.”

2. Whether this reference is not maintainable?.”

3. Whether this reference is time barred?.”

4. Whether this Court has no jurisdiction over the dispute?.”

5. Whether the management has conducted the fair and proper enquiry against the workman?.

Treating the issue No.5 as preliminary issues, the Presiding Officer Labour Court decided this issue against the Management vide award dated 03.12.1993 (P-7) and held that the charge sheet was not a valid and is a sham formality.

The proceedings conducted thereafter were also not found to be proper.

Vide a separate order, the case was adjourned to 15.12.1993 to enable the management to produce independent evidence to prove misconduct of the worker.

The workman filed a review application (P-8).The Labour Court decided this application C.W.P No.7614 of 1994 (O&M) -3- and held that the Management was not entitled to lead independent evidence on the ground that no request had been made by the Management to lead independent evidence to prove the charges against the workman and the Court was not correct in giving suo moto to give such an opportunity to the Management to lead independent evidence unless the Management has asked for such an opportunity.

The Labour Court has referred to Supreme Court judgment reported as DELHI CLOTH AND GENERAL MILLS Co.versus LUDH BUDH, SINGH, 1972-LAB.I.C.-573 and MANAGEMENT OF NEW DELHI TUBERCULOLSIS CENTRE LTD versus THE PRESIDING OFFICER, LABOUR COURT, JALANDHAR AND OTHERs.1993(1) Rs.331 The judgment in Delhi Cloth's case (supra) related to a case where the Management had made an application under Section 33 of the Industrial Disputes Act to lead evidence at a belated stage.

The Management in a case where the departmental proceedings were found to be violated by the Labout court could lead evidence afresh at an appropriate stage by making an application.

The application made under Section 33 of the Industrial Disputes Act after closure of the arguments was at a belated stage were not to be allowed in favour of the Management.

However, in the facts of the present case, once the Labour Court has returned a finding against the C.W.P No.7614 of 1994 (O&M) -4- Management on 03.12.1993 (P-7) that the departmental proceeding the charge sheet were invalid but by the order of same date, the Court again granted the opportunity to the Management to appear on 15.12.1993 to lead evidence before the Labour Court.

It was at the initial stage itself that the Management was to lead evidence before the Labour Court on the preliminary issue No.5.

Hon'ble Bombay High Court in a case of Basu Deba Das versus M.R.Bhope and another, 1990 LAB.

I.C.1677 after discussing the case law on the point, in paragraph No.25 held as under:- “25.

The above cases, in my view, do not lay down any hard and fast rule.

They do not lay down a criteria for deciding in which cases permission to lead evidence to justify the action of dismissal should or should not be granted.

These cases, however, lay down broad guidelines.

The guidelines provide that the employer must seek for the opportunity diligently and without undue delay.

It should be an application ...bona made.

It should not be made at a belated stage so as to prejudice the interest of the worker.

It should not be made by an employer who is found to adopt dilatory tactics so as to break the backbone of the worker through financial stress.

The application should not have the effect of further delaying the proceedings.

If the application does not suffer from any these vices ordinarily an application ought to be granted.

If, however, the application is shown to be tainted with any of the aforesaid defects or some such similar defects C.W.P No.7614 of 1994 (O&M) -5- no duty is case upon the Labour Court/Industrial Tribunal to grant an application.

The application of the employer, in these circumstances is liable to be dismissed.”

In view of the above, the present writ petition is allowed and the award dated 08.02.1994 (Annexure P-10) is hereby set aside and the matter is remanded back to the Labour court to proceed ahead by giving an opportunity to the petitioner to lead evidence against the workman.

March 01, 2013 (RITU BAHRI) G.Arora JUDGE