CHANDER SHEKHAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) The three cases relate to challenge to orders of the Labour Court in three distinct references against the same management. The workmen had been proceeded against in a domestic enquiry for alleged misconduct that led to removal from service by dismissal. The challenge to the orders before the Labour Court had been on the basis that the copies of the enquiry report had not been given, before the Disciplinary Authority chose to inflict the punishment. The Labour Court rejected the contention on the ground that the actual prejudice caused to the workmen had not been established by specific pleadings in the claim statement. There was an additional ground which the Labour Court took that the establishment had been transferred to Tupperware India Pvt. Ltd., which had been subsequently added as a party respondent at the instance of the workmen. The Labour Court found that the transfer was true but it found that the management failed to prove that it had closed down the factory and retrenched all its workers.

(2.) The challenge before this Court by the workmen was on the ground that the enquiry before the Enquiry Officer had been vitiated and the Disciplinary Authority had not forwarded the finding of the Enquiry Officer to join a contest on the findings of the Enquiry officer. The Labour Court had taken a strict view of the pleadings by observing that since the prejudice had not been specifically pleaded in the claim statement, the workmen were not entitled to take up such a contention before the Labour Court. As a general proposition of law, which has been laid down by a Constitution Bench of the Hon'ble Supreme Court in M.D., ECU v. B. Karunakar AIR 1994 SC 1074 : (1993) 4 SCC 727 : 1994-I-LLJ-162, that mere absence of furnishing the copy of the enquiry report would not vitiate the enquiry unless a clear prejudice was shown by an employee. It is again not merely a case where the copy of the report had not been furnished but even a show cause notice before inflicting the punishment had not been given to the workmen. In a similar situation in Swapan Ganguly v. State of U.P. (1995) LIC 235, the Hon'ble Supreme Court applied the principle in M.D., ECIL v. B. Karunakar (supra) and remitted the matter to the Labour Court again only for the purpose of considering whether any lesser punishment could have been awarded. In this case also the punishment of removal from service that was ordered even without furnishing copy of the report or affording an opportunity to the workmen constitutes a serious prejudice to the reasoning of the Labour Court that the prejudice had not been pleaded in the claim statement or in the demand notice by taking a technical view of imparting strict rule of pleading in labour jurisprudence which was uncalled for, especially when the parties had known the respective stand. The reference itself was on the ground that the enquiry was not proper and the dismissal from service was unjustified. The Labour Court ought to have, therefore, considered the issue relating to prejudice that the workmen complained of, for non-furnishing of the copy of the report and the punishment inflicted.

(3.) Before the final disposition, there is another point that would require consideration of whether the subsequent transferee namely Tupperware India Pvt. Ltd. was liable in any way for the action Before the Labour Court and whether it had to take any responsibility. The Hon'ble Supreme Court had in one of the earliest decisions in Hariprasad Shivshankar Shukla and Another v. A.D. Divelkar and Others AIR 1957 SC 121 had held that there can be no retrenchment compensation under Section 25-F, when services were terminated by an employer at closure and transfer of the undertaking. This led to an amendment in the provisions of the Industrial Disputes Act by making provisions through Section 25-FFF that provided for reliefs to workman in case of transfer of undertaking. It is apposite to reproduce Section 25-FFF here: