AIR INDIA LTD Vs. D G PATIL

JUDGEMENT

(1.) IS writ petition takes exception to the judgment and order passed by the National Industrial Tribunal, Mumbai, dated March 3, 1999, in Approval Application No. NTB/42/1995. Briefly stated, respondent No. 1 was working as Senior Master Technician in Equipment Facility departments. He was transferred by order dated 7th February, 1992 from cabin Repair Section (Sahar Side) to Fabrication Section (Santa Cruz Side)within the same Airport in Mumbai. Respondent No. 1 did not comply with the said transfer order; instead, absented himself from service. Since respondent No. 1 had to his credit privilege leave, his absence from 7th February, 1992 till 25th July, 1992 was regularised by the petitioner by adjusting the said privilege leave. In other words, respondent No. 1 remained on unauthorised leave from 26th July, 1992. It is the case of the petitioner that since 26th july, 1992, respondent No. 1 did not attend work and was unauthorisedly absent. However, according to respondent No. 1, he had applied for leave on, medical grounds to the concerned authority, which application has not been considered. Sufficient to observe that the petitioner decided to take disciplinary action against respondent No. 1 for unauthorised absence, for which disciplinary Committee was constituted and charge-sheet came to be issued to respondent No. 1 dated 6th July, 1993. It is the case of the petitioner that respondent No. 1 did not participate in the enquiry proceedings, inspite of reminders sent to respondent No. 1 on different dates. Eventually, the Enquiry Officer concluded the enquiry ex parte against respondent No. 1 and recommended dismissal of respondent No. 1 from service. As is required by virtue of section 33 (2) (b) of the Industrial Disputes Act, the petitioner made a formal application for approval of this order of dismissal. That application has been rejected by the impugned judgment and order.

(2.) THE Industrial Tribunal has found as of fact that the charge-sheet has not been served upon respondent No. 1 as was contended by respondent No. 1. In view of that finding, the Industrial Court rejected the application for approval and, instead, directed the petitioner to serve charge-sheet on respondent No. 1 and hold enquiry afresh by observing necessary legal formalities. This decision is subject-matter of challenge in the present writ petition.

(3.) ACCORDING to the Counsel for the petitioner, the finding recorded by the industrial Tribunal on the factum of service of charge-sheet is perverse. He further submits that, in any case, the documents on record establish that respondent No. 1 had complete knowledge about the nature of charge against him, as we clearly stated in the letter sent by the Convenor of the Enquiry committee dated 1st December, 1993 to respondent No. 1, as well as another letter dated 16th December, 1993. It is, therefore, contended that if respondent No. 1 had knowledge about the nature of charge and, in any case, about the pendency of enquiry, it was obligatory on respondent No. 1 to appear before the Enquiry Officer and ask for all the documents, so as to enable him to effectively defend his case, if so advised; and having failed to do so, no fault can be found with the Enquiry Officer having proceeded exparte in the matter against respondent No. 1. It is lastly contended that assuming that the finding recorded by the Industrial Tribunal about the factum of service of charge-sheet was correct, even in that situation, the Industrial Tribunal could not have directed the petitioner to serve the charge-sheet and conduct enquiry afresh, but in that case, the Industrial Tribunal itself ought to have allowed the petitioner to lead evidence so as to justify the action taken against respondent No. 1. That stand was taken by the petitioner at the threshold in the application as filed, which can be discerned from paragraph 8 of the application. In support of this proposition, reliance is placed on the decision of the constitution Bench of the Apex Court reported in 2001 (3) Bom. C. R. (S. C.)623 : 2001 (5) S. C. C. 433 in the case of (Karnataka State Road Transport Corpn. v. Lakshmidevamma and another ).