HOTEL ASIA THE DAWN Vs. LAXMI CHAND

JUDGEMENT

(1.) The H.P. Industrial Tribunal-cum-Labour Court, Shimla, answered the hereinafter extracted reference against the employer, and, vis -vis, the workman, and, the employer/managment, being aggrieved therefrom, has, hence, through the instant petition strived, to beget the reversal of the impugned award. The Reference reads as under:-

(2.) The order of termination, was, a sequel to an inquiry report, proven by the inquiry officer, and, the afore, is, embodied in Ex.RW1/A. The learned counsel appearing for the petitioner/management, contends, (i) that the inquiry report, borne in Ex.RW1/A, carries categorical expression(s), vis -vis, the articles of charge, being cogently proven, (ii) and, thereupon, the inquiry report, was amenable, for credence being meted thereto, (iii) and, rather, for, non meteings, of, credence, thereto, renders, the impugned award, to stand, gripped with, an, infirmity, (iv) as the reason, qua therewith, assigned in the impugned award, and, comprised in the workman, being not permitted to be purveyed, the services, of, a defence assistant, and, thereupon, rules of natural justice being infracted, rather becoming redundant, and, unworkable. Even if, the afore submission addressed before this Court, by the learned counsel, for, the petitioner, and, centered upon, the afore factum, may not prima facie be extremely frail, (v) as the inquiry report embodied, in, Ex.RW1/A, and, traversing(s) therethrough, and, also a perusal, of, the apt proceedings entered into prior thereto, by the inquiry officer, and, as stand appended therewith, though disclose(s) (vi) that the delinquent workman, one Laxmi Nand, a, making statement before the inquiry officer, wherein, he refused, to avail the services, of, a qualified defence assistant, for his efficaciously, being enabled, to, defend the articles, of, charges framed against him, (vii) and, also his making hence disclosure therein, qua, he would rather personally defend, the articles of charges, during, the course of theirs, hence, being put to inquiry, (viii) however, the afore echoings, borne in the statement, of Laxmi Nand, would not hold the requisite effects, of his, being efficaciously, facilitated to defend the articles, of charges, as, thereafter stood inquired into, by the inquiry officer, nor would the afore echoings borne therein, would render negate, the, findings made in the impugned award, qua the principles of audi alteram partem, standing infracted, (ix) as given the nature, of his avocation, as, a Plumber, and, the consequent therewith, disabling effects, of his being unenabled, to, fully defend the articles of charges, (x) thereupon, hence in, the, inquiry officer proceeding to inquire into, the article(s) of charges, was enjoined, to, ensure qua his suo moto ordering, for, appointment, of, a defence counsel, for the latter, hence, being fully enabled, to, defend, the articles, of, charges framed, against, him. However, the inquiry officer, has, apparently made the afore grave omission, and, also when a reading of the statements of the officials, of, the management, as, recorded before the inquiry officer, (xi) disclose(s) that the delinquent workman, not holding, the, management's witnesses, to cross-examination, (xii) thereupon, it appears that his failure to cross-examine, the, management's witnesses, rather ensuing from, his inability to conduct, their, efficacious cross-examination. In aftermath, the afore disabling effects, of the inquiry officer, to, not suo moto appoint, an able defence assistant, for therethrough the delinquent workman, hence being facilitated, to, ably defend, the articles of charges, qua in the inquiry conducted, by the inquiry officer, is, qua the enquiry being obviously done, in a manner, contrary to the principles of natural justice, and, rather the further effect(s), of, the afore non appointment, of, an able defence assistant, by the inquiry officer, (xiii) is qua the inquiry being conducted, in a partisan, and, in a rough shod manner, and, obviously, it, prejudicing the valuable rights, of, defence, of, the workman.

(3.) Be that as it may, on the contentious, issue struck, by the learned Industrial Tribunal-cum-Labour Court, RW-1 stepped into the witness box, on behalf of the management, and, though he has in his crossexamination, admitted qua the relevant intimation, being purveyed, to him, by one Prem Sharma. However, when the afore echoings, are not, borne in his statement, made before the inquiry officer, thereupon, it appears that the ascription(s), of, misconduct by the management, vis -vis, the delinquent workman, being both imaginary, and, concocted. Moreover, when he has also in his cross-examination, made disclosure(s), qua, the Charcoal being kept in the store(s), and, also records being maintained, vis -vis, its daily consumption, (i) thereupon, it was imperative, for, the management to place on record, the, consumption chart, as, maintained, vis -vis, consumption of charcoal, for, hence, therefrom truthful ascertainments being made, vis -vis, the delinquent workman, filching charcoal from the store, (ii) whereas, with the afore remaining unadduced, rather begets an inference qua the delinquent workman, hence, succeeding in proving, qua, during the winter season, his lifting the fuel wood, from, the adjoining forest. In addition, when the management, has not, through the best evidence, comprised in the report of the laboratory concerned, and, it making unfoldments, that, the ash in the "Shigry" being from charcoal, and, not being from fuel wood, thereupon, also it cannot be concluded, that, the delinquent workman, had rather stolen the charcoal, from, the stores, of, the management.