TaxTMI 
TaxTMI 
2013 (1) TMI 656
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.... Technical-Coordinator. The respondent claimed that the duties performed by him were of clerical and manual in nature in the office of Shri Ram Test House, known as Analytical Division. The last drawn wages of the respondent were Rs.4050/- including employer‟s share of PF, conveyance reimbursement and medical reimbursement in the pay scale of 1400-40-1800-50-2300-EB-60-2600. 3. The respondent claimed that the management was annoyed with him on account of various unjustified reasons, which led the issuance of illegal transfer order dated 30.04.1991 at a time when he was suffering ill-health. Since the respondent could not accept the transfer order for his own reasons, he was issued a charge-sheet and one Sh. R.P. Dutta was appointed as the Enquiry Officer. The Enquiry Officer found the respondent guilty of misconduct alleged against him and, on that basis, the respondent was dismissed from service w.e.f. 30.03.1992. The respondent was not even provided with the Enquiry Report at any stage prior to his being dismissed by the Disciplinary Authority. 4. The petitioner employer filed its written statement before the Labour Court. According to the petitioner when the respo....
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....air & proper manner and in accordance with the principles of natural justice and that the findings of the Enquiry Officer were not perverse. This finding of the Industrial Adjudicator has been accepted by the respondent and has not been assailed by him in any proceedings till date. 7. Thereafter the Labour Court passed the impugned award on 04.09.2009, thereby holding that the dismissal of the respondent was in breach of Section 25-F of the Industrial Disputes Act, 1947 ( hereinafter referred to as the Act). He also held that the punishment imposed upon the respondent was disproportionate and has no reference to the gravity of the charges. It was held that the respondent remains in the same position as he was before his dismissal. The Labour Court also directed that the respondent shall be paid all legal dues considering as if there is no dismissal against him. Consequently, the reference was answered in favour of the respondent workman. 8. The first submission of learned counsel for the petitioner management is that the admitted position was that the Enquiry Report was not supplied to the respondent workman at any stage prior to his being dismissed from service. Learned c....
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....sume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice. 31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since....
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....ld have placed before the Disciplinary Authority to convince the Disciplinary Authority not to pass an order of penalty of dismissal or any other lesser punishment. 11. Learned counsel submits that the Industrial Adjudicator has, however, failed to carry out the exercise, as aforesaid. He submits that only in the event of the workman establishing the fact that he had suffered a prejudice on account of non-supply of the Enquiry Report, the Labour Court could have interfered with the order of punishment, as the enquiry had been held to have been validly conducted by the petitioner. Even in that case, the Labour Court could not have set aside the punishment altogether and directed reinstatement with full back wages, as done by the Labour Court. The Labour Court should have granted liberty to the petitioner to proceed with the enquiry by placing the respondent under suspension and conducting the enquiry from the stage of furnishing him with the Enquiry Report. The question whether the respondent would be entitled to the back wages or other benefits from the date of his dismissal to the date of his reinstatement, if ultimately ordered, should have been left to be decided by the petiti....
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.... respondent for an alleged misconduct and based on the finding in the said inquiry he was dismissed from service and it is not the case of the management that his services were not required and he being a casual employee his services were discharged simpliciter. Since the management has taken a specific stand in regard to the dismissal of the respondent, it was not open to the management to raise before the Labour Court alternative stand that the respondent was a temporary employee. In our opinion, that question does not arise for consideration on the facts of this case. x x x x x x x x x x 8. It may be relevant to mention herein that under Section 2(oo) of the Industrial Disputes Act retrenchment as defined means: "2. (oo) ... the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include- ***" 9. In the instant case, as noticed, it is not the case of the management that the services of the respondent were retrenched, on the contrary the specific case of the management is that the dismissal of the respondent is a punitive measure after a departmental inqu....
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....8.1991 and 5.9.1991 issued to Sh. R.K. Gandhi. From the above-mentioned discussions, the following charges against Sh. R.K. Gandhi stand conclusively proved. 1) That on 25th July 1991, Sh. R.K. Gandhi was allotted a sample of Bitumen for analysis by his officer-in-charge, Mr.V.K. Gupta but he deliberately and contemptuously did not do the analysis of the said sample till 30th July 1991. Thereafter an advisory note dated 31st July 1991 from his divisional head, Mr. K.M. Thomas, Chief (Analytical Services) was also handed over to him on 3rd Aug., 1991 at 10.00 a.m. in the presence of Mr. S.K. Checker, again instructing him to analyse the samples allotted to him which he did not do. 2) Further on 3rd Aug., two samples of thermic fluid were allotted to him for testing by his officer in charge, Mr.V.K. Gupta, but like the earlier occasions as mentioned above, he did not do the analysis of the samples given to him in spite of repeated persuations and instructions given to him by his officer in charge, divisional head from 25th July 1991 onwards till the date of his suspension. He simple either sat idle or roamed about in the institute or whiled away the time in utter disregard to the ....
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....ice and findings of Enquiry Officer were not perverse." 21. This being the position, the issue arises whether the non-supply of the Enquiry Report by the petitioner to the respondent before the imposition of the punishment of dismissal from service would vitiate the entire disciplinary proceedings and entitle the respondent workman to reinstatement with full back wages and seniority, etc. As observed by the Supreme Court in B. Karunakar (supra), such a lapse on the part of the management cannot result in a windfall for the workman. Once the copy of the Enquiry Report came into the hands of the respondent workman before the Labour Court, it was for the Labour Court to require the respondent to satisfy it as to what prejudice, if any, the non-supply of Enquiry Report, has resulted into. Unfortunately, the Labour Court has not undertaken the said exercise. Even if it were to come to the conclusion that the respondent did suffer prejudice on account of non-supply of the Enquiry Report, while setting aside the dismissal order, the Labour Court would be required to grant liberty to the petitioner management to proceed with the enquiry by placing respondent employee under suspensi....