SUPERINTENDING ENGINEER Vs. GANPATBHAI HEMCHANDRABHAI SHRIMALI

JUDGEMENT

(1.) Heard learned advocate Mr. Hasurkar for the petitioner and Mr. Dastoor for the respondent workman. By way of this petition, the petitioner has challenged the award made by the labour court in reference no. 733 of 1996 dated 1/10/1999 wherein the labour court has granted reinstatement with continuity of service, with full back wages for the intervening period. Mr. Hasurkar has submitted that there was ample evidence against the respondent and it was made available before the labour court and the labour court ought to have taken it into consideration for the misconduct committed by the respondent workman. He has submitted that the labour court has erred in overlooking the evidence against the respondent which was on record before it. He has further submitted that the labour court ought to have considered whether the misconduct is found to be proved or not against the respondent on the basis of the inquiry papers which were before it alongwith the statements of the customers and other related persons. He has submitted that the serious misconduct has been committed by the respondent and only on technical aspect, that inquiry has been vitiated and only on the technical aspect, full relief has been given by the labour court. He has submitted that under the Rules of the Gujarat Electricity Board, summary procedure is permissible and the same has been applied and followed by the Board and there is no illegality committed by the labour court which would require interference of the labour court. He has submitted that the labour court has committed error in declaring that the inquiry against the respondent workman has been vitiated.Alongwith the rejoinder, the petitioner has produced certain papers relating to inquiry findings and final orders which were passed by the Board. He has submitted that before the labour court, once the inquiry was held to have been vitiated, thereafter, the respondent was examined and only on the ground that the petitioner board has not proved the charge of misconduct levelled against the workman, the order of dismissal has been held to be illegal and such findings given by the labour court are erroneous and required to be interfered by this court in exercise of the powers under Article 226/227 of the Constitution of India. Alternatively, he has submitted that the matter may be remanded back to the labour court for enabling the petitioner to prove the charge levelled against the respondent workman and such permission can be granted by this court while remanding the matter back to the labour court permitting the petitioner to lead evidence before the labour court for proving charge of misconduct levelled against the workman. In support of his submissions, he has relied upon the decision of the apex court in case of Neeta Kaplish versus Presiding Officer, Labour Court and Anr. reported in 1999 I CLR 219 and has submitted that looking to the charges levelled against the respondent workman, and also looking to the statements of the customers of the GE Board, in such case, reinstatement ought not to have been granted by the labour court.

(2.) As against that, learned advocate Mr.Chirag B. Dastoor appearing for the respondent workman has submitted that the labour court has passed order below Exh. 31 and has declared that the inquiry has been vitiated. He has further submitted that the said order declaring that the inquiry has been vitiated has not been challenged by the petitioner before any higher forum till this date and, thus, the order declaring that the inquiry has been vitiated has been accepted by the petitioner board but thereafter, no further evidence was led by the petitioner before the labour court to prove the misconduct against the respondent workman and in absence of that, there is no material before the labour court to justify the misconduct and, therefore, the labour court was right in setting aside the order of dismissal and in making the award of reinstatement with full back wages for intervening period for want of proof of gainful employment and, therefore, this Court should not interfere with the award in question made by the labour court in exercise of the powers under Article 226/227 of the Constitution of India.

(3.) I have considered the submissions made by the learned advocates for the parties. I have also perused the award in question. Before the labour court, order dated 19/08/1993 was challenged by the respondent workman by filing statement of claim at Exh.5. Under the said order, the respondent was dismissed from service. Certain documents were produced by the respondent at Exh. 6 and ... and the petitioner has produced documents vide list at Exh. 16. The respondent was examined at Exh. 15 before the labour court and the witness for the petitioner board was examined at Exh. 29. Thereafter, the labour court examined the question whether the inquiry held against the respondent was legal and proper or not and has come to the conclusion that the inquiry was illegal and was vitiated. That order passed below Exh.31 by the labour court has not been challenged by the petitioner before the higher forum. Again the respondent was examined before the labour court at Exh. 33 and thereafter, no oral evidence was led by the petitioner board to prove the misconduct committed by the respondent workman. This aspect has been taken into consideration by the labour court and it was of the view that once the departmental inquiry is vitiated, then, the papers forming part and parcel of the departmental inquiry held to be vitiated have no meaning and such papers have no evidentiary value in the eye of law and such documents are required to be proved by the petitioner by leading oral evidence before the labour court. Such opportunity was granted by the labour court to the petitioner but the petitioner has not availed such an opportunity subsequent to the order vitiating the departmental inquiry and, therefore, the inquiry papers and other relevant papers would remain as they were without proving the same before the labour court and therefore, such documents cannot be relied upon by the labour court and the labour court has rightly not relied upon the said documents. The submission of Mr. Hasurkar for the petitioner is to the effect that the statements of the customers and other statements of the relevant persons which are not forming part and parcel of the departmental inquiry can be considered by the labour court. The submission made by Mr. Hasurkar cannot be accepted simply on the ground that such statements have been relied upon by the officer, while passing the order of dismissal and, therefore, such documents are required to be proved by the petitioner by leading proper and sufficient evidence before the labour court subsequent to the order passed below Exh.31 wherein the departmental inquiry has been held to have been vitiated. However, no evidence whatsoever was led by the petitioner thereafter and the matter remained as it was as if no misconduct has been proved and in such situation, the labour court was having no other option but to set aside the order of dismissal based upon the inquiry which was declared to have been vitiated by the labour court. This aspect has been considered by the apex court in case of Neeta Kaplish versus Presiding Officer, Labour Court and Anr. reported in 1999 (1) CLR 219 wherein the appellant was a clerk in the DMC College who had challenged the order of dismissal. It was held by the labour court that the domestic enquiry was not fair and proper and the management, when called upon to lead evidence, led no evidence except to produce the record of domestic enquiry. In the said case, in absence of any fresh evidence from the management side, the appellant also has not led any evidence. The claim of the appellant was dismissed by the tribunal and was then confirmed by the High Court. In the said decision, it was observed by the apex court that the domestic enquiry having been held to be not fair and proper, the evidence in domestic enquiry cannot be said to be material on record and the appellant was entitled to be granted relief. In the said decision, this aspect has been considered by the apex court in para 23, 24, 25 and 26. Said paragraphs are reproduced as under: