INDIAN AIRLINES LTD Vs. PRAKASH R PARAB

JUDGEMENT

(1.) The petitioner employee, by the present petition has challenged the Award Part 1, dated 28th May, 2002. By that award, the learned Central Government Industrial Tribunal has recorded a finding vide order dated 24-11-1994, holding that the enquiry against the workman was vitiated, and consequently giving an opportunity to the employer to prove the charge of misconduct at an independent enquiry before the Tribunal.

(2.) A few facts may now be noted. The respondent-workman joined the services of the petitioner-company as an Engineering Helper on 11-3-1979. On 29-4-2002 the respondent was assigned to duties at Goa flight and Calcutta flight for pushing the baggage containers. On 10-5-1992 the respondent was arrested by the police, pursuant to the complaint received from one Mr. S. M. Jariwala a passenger on the flight operated by petitioner company, for committing theft of an amount of Rs. 25,000/- from his baggage. Pursuant to that a charge-sheet was served on the respondent which is dated 18/26-8-1992. The charge-sheet was received by the petitioner on 21st September, 1992. An Enquiry Officer was appointed who commenced the enquiry on 13-4-1993. In the course of the enquiry the Enquiry Officer put a question to respondent as to whether he had understood the contents of the charge-sheet. In answer to the query the workman stated that he has read and understood the contents of the charge-sheet. When he was asked whether the same needs to be explained to him, the answer recorded was that it was not necessary. The workman pleaded not guilty of the misconduct alleged. On 18-5-1993 the respondent raised an objection that the charge-sheet was not signed by the competent authority. After following due procedure, including issuing the show cause notice to the respondent by order dated 24-11-1994 the Competent Authority of the petitioner-company imposed the punishment of dismissal on the respondent having been found guilty of the charges levied against him. An application was simultaneously moved under section 33 (2) (b) of the Industrial Disputes Act, 1947 before the National industrial Tribunal seeking approval of the action taken. The approval was granted on 9th May, 1999 holding that the action taken by the petitioner company in dismissing the respondent was proper. Dispute then were taken in conciliation. A reference was made to the National Tribunal in the matter of the industrial dispute, of dismissal. A preliminary issue was framed as to the validity of the enquiry. The Learned Tribunal by its order dated 28th May, 2002 was pleased to hold, as stated earlier, that the enquiry conducted was not fair and proper and is vitiated and accordingly directed the petitioner to lead evidence de novo before it.

(3.) At the hearing of this petition on behalf of the petitioner the learned counsel has urged the following two issues : (a) Whether the issuance of the charge-sheet, without being signed,vitiates the disciplinary proceedings (b) Whether the learned Tribunal could have proceeded to consider that the evidence of MW 5 Darshan, even though the said witness was not available for cross-examination. On behalf of the respondent learned counsel contends that once the charge-sheet is not signed by the competent officer all proceedings based on the said chargesheet are a nullity at law and consequently the learned Tribunal was right in so holding. It is further submitted that the learned Tribunal has made a reference to the evidence recorded of MW 5 which can be clearly seen from the findings of the Enquiry Officer and as such also the learned Tribunal was right in setting aside the enquiry on that ground. It may be mentioned that the same Tribunal had earlier adjudicated the application by the petitioner for approval of the action in imposing the punishment of dismissal against the respondent. The very contention now raised viz. , that the charge-sheet was not signed and consequently the enquiry was vitiated was also an issue before the learned Tribunal. The learned Tribunal by its order dated 11th May, 1999 after considering the contention in para 5 of the order came to the conclusion that it could not be said that the charge-sheet is bad on account of failure by the competent officer to sign the same. The question therefore will arise as to whether in proceedings between the same parties, before a competent forum, where the very same question was in issue and has been answered against the respondent, was it be open to the respondent-workman once again to raise the same issue and in the alternative was it open to the Industrial tribunal, once having answered that issue against the respondent-workman, in the pending reference to hold that the enquiry held was not fair and proper. In such circumstances would respondent-workman be barred by the principle of issue estoppel in once again raising such contention and the like manner the tribunal be barred from answering the very same issue once again.