DCM SHRIRAM CONSOLIDATED LTD. Vs. SHRI JAI SINGH

JUDGEMENT

(1.) BY way of this common order, both the petitions bearing WP(C) 13747/2004 & 6735/2004 shall be disposed of. By way of the writ petition bearing No. 13747/2004 filed under Articles 226 and 227 of the Constitution of India the petitioner management seeks to challenge the orders dated 2.12.1995, 17.1.1996 and 5.11.2003 passed by the industrial tribunal. The other writ petition No. 6735/2004 has been preferred by the workman seeking implementation of the order dated 5.11.2003, whereby Ld. Industrial Tribunal rejected the application of the management filed under Section 33(2)(b) of the I.D. Act.

(2.) VIDE orders dated 2.12.1995 the Industrial Tribunal decided issue No. 1 in favour of the respondent workman and against the petitioner management holding that the enquiry conducted by the petitioner management cannot be said to be either fair or proper or in accordance with the principles of natural justice. Vide orders dated 17.1.1996 the application moved by the petitioner to seek review of the order dated 2.12.1995 was rejected. The final Award was passed against the petitioner vide order dated 5.11.2003, and the same along with the said two orders is assailed by the petitioner management in the present petition. The workman, on the other hand, seeks his reinstatement as a result of dismissal of application of the petitioner management filed under Section 33(2)(b) of the I.D. Act through the same order dated 5.11.2003. The facts relevant for deciding the present petition are:

(3.) MR . Harvinder Singh, counsel for the petitioner management contended that full fledged adjudication is not envisaged under Section 33(2)(b) of the Act where only the Tribunal has to take a prima facie view on the action of the management terminating the service of the workman being justified or not, unlike under Section 10 of the Industrial Disputes Act where a detailed examination is required. Counsel for the petitioner further submitted that in a domestic enquiry the workman has no legal right for representation by an outsider and also a workman who himself boycotted the domestic enquiry cannot subsequently challenge the same or to term it illegal or unfair. Counsel further contended that while passing the order dated 2.12.1995 the Tribunal wrongly observed that the respondent workman was not allowed the assistance of Shri Roshan Lal an employee of the petitioner while the fact was that the said Roshan Lal was never an employee of the petitioner mill but was an outsider. Even when the said mistake on the part of the Tribunal was brought on record by an application dated 20th December, 1995 moved by the petitioner management, even then the Tribunal although realized its mistake in wrongly terming the said Roshan Lal as an employee of the petitioner, but still sustained its view of holding the enquiry to be unfair and improper. Contention of the counsel for the petitioner is that both the orders passed by the Tribunal dated 2.12.1995 and 17.1.1996 are illegal, unjustified and perverse. The other contention raised by the counsel for the petitioner is that there was no question of violation of principles of natural justice on the part of the enquiry officer as sufficient opportunity was given to the respondent workman to effectively participate in the enquiry proceedings. On 16.11.1985 the respondent workman gave an application to bring an outsider as representative and the said application of the respondent workman was rejected by the enquiry officer on 18.11.1985 with clear direction to the respondent workman to bring only such employee as a representative who is an employee of the mill and not an outsider. The proceedings were accordingly adjourned for 19.11.1985 as one day 's time was sought by the petitioner to bring an employee of the mill as his representative. On 19.11.1985 the respondent workman walked out of the proceedings on the ground that he was not permitted to bring an outsider. Counsel for the petitioner thus submitted that in view of such defiant conduct of the respondent workman the Tribunal wrongly held that the enquiry officer conducted the proceedings in haste or in violation of the principles of natural justice. Counsel for the petitioner further submitted that wrong stand was taken by the respondent workman that he had submitted a letter dated 19.11.1985 to the management raising grievance against the enquiry officer for his refusal to bring Roshan Lal as his representative to get the proceedings adjourned on that date. No such letter was received by the petitioner management which in fact was delivered on 26.11.1985 after passing of the dismissal order, the counsel contended. Even otherwise, as per the contention of the counsel for the petitioner Roshan Lal was an outsider and not an employee of Swatanter Bharat Mills and already request made by the respondent workman to bring Roshan Lal was not entertained by the enquiry officer. Counsel thus submitted that under the standing orders of the mill the respondent workman was not entitled to be represented in the domestic enquiry by an outsider and, therefore, the enquiry officer rightly rejected the request of the workman to bring an outsider as representative in the enquiry proceedings. Merely because the entire ex parte evidence was recorded on one date by the enquiry officer and the dismissal order was passed within a week thereafter, that, by itself would not show that the enquiry officer acted in undue haste or fair opportunity was not granted to the respondent workman.