KALYAN DUTT SHARMA Vs. JUDGE INDUSTRIAL TRIBUNAL

JUDGEMENT

(1.) THE undisputed facts are that on 13. 9. 1965 the petitioner was appointed as `karya Karta' in the services of Rajasthan Khadi Vikas Mandal, Govind Garh, Distt. , Jaipur, respondent No. 2. He was working in the services of the said organisation till 8. 5. 1978 when he was served with a charge sheet by the management on account of irregularities committed by him while performing his duties with the said organisation. He submitted reply to the charge sheet. THE petitioner denied all the charges being false, baseless and being of no consequence. It has been alleged that since the management was bent upon to victimise the petitioner, a domestic enquiry was held in the matter by Shri D. N. Sharma, a permanent advocate of respondent No. 2. THE contention of the petitioner is that he was not supplied with the enquiry report recommending his dismissal from the services of respondent No. 2 therefore, he could not file representation against his dismissal order dt. 6. 9. 1978. THEreafter, respondent No. 2 filed an application for approval of the said dismissal order under Section 33 of the Industrial Disputes Act, 1947 (for short ``the ID Act'') before the competent authority in respect of action taken by the employer which was granted. THEreafter, the petitioner raised an industrial dispute which was referred for adjudication to the State Govt. THE petitioner filed his statement of claim before the Industrial Tribunal while respondent No. 2 filed its reply. THE learned Judge, Industrial Tribunal passed its award on 5. 12. 1990 justifying the action of respondent No. 2. It was published on 15. 4. 1991. It is under the aforesaid circumstances that the petitioner has moved to this Court by way of this writ petition which is now disposed of finally by this order.

(2.) DURING the course of hearing, learned counsel for the petitioner assailed the impugned award on the following grounds:- `` (a) that the award of the learned Tribunal is contrary to law and facts apparent on the face of the record; (b) the learned Tribunal has also failed to exercise jurisdiction vested in him under Sec. 11a of the ID Act; (c) that the learned Tribunal has not cared to appreciate that the Enquiry Officer was the permanent counsel of respondent No. 2. He himself has represented respondent No. 2 before the Tribunal against the petitioner. Therefore, he could not be said to be an impartial Judge. His attitude has been amply proved by his conduct during the enquiry proceedings as well as by giving his findings. His findings about some charges were not having been proved but a show of impartiality while he has found the other charges proved, so as to give pretext to respondent No. 2 to victimise the petitioner; (d) that the learned Tribunal has also not appreciated that copies of the enquiry proceedings as well as the enquiry report was not supplied to him and he was not given any opportunity before passing dismissal order. It has been finally settled by the Hon'ble Supreme Court that an employee must be heard before passing any punishment against him on the basis of the enquiry held against him. This opportunity is a part of natural justice and in its absence the punishment imposed on the employee is invalid. Needless to point out that this opportunity can only be availed by the employee when he is supplied with a copy of enquiry report and other enquiry record; (e) that the learned Tribunal has not adopted a correct approach while considering the evidence of enquiry record. After insertion of Section 11-A of the I. D. Act, the powers of the Industrial Tribunal in such matter of reference is that of an appellate Court and, therefore, he should have reappreciated the evidence and should have come to his own conclusions he has only considered the evidence to see the evidence that whether the findings of the enquiry officer are not completely unjustified. This approach is not in accordance to law; (f) that even the findings of the enquiry officer were based on extraneous consideration a charge of pilfering the material belonging to the Bhandar could only be proved by the records and discrepancies therein, but admittedly there is no such discrepancy in the records and stock of the cloth. Simply by statement of Tailor that he was given less clothes for making dresses is no evidence at all particularly when no dress was produced during the enquiry. Thus, the findings of the Enquiry Officer which have been approved by the respondent No. 1 is based only on conjectures and surmises. The same can be said about the two other charges, which in fact are no charge at all; and (g) that even the charges are of trivial in nature on the face of them. Punishment of dismissal from services of a person with about 13 years of service is shockingly disproportionate. The learned Tribunal has not exercised his powers under Sec. 11a of the ID Act properly. ''

(3.) APART from above, following additional charges were also framed against the petitioner:- ******