CHIRANJI LAL Vs. JUDGE INDUSTRIAL

JUDGEMENT

(1.) THIS appeal is directed against the judgment of the learned single Judge dated September 2,1998 whereby the writ petition of the appellant was dismissed. The appellant in the writ petition challenged the award of the Industrial Tribunal, Jaipur dated October 23, 1991. The appellant was appointed as Shop Incharge with Khetri Copper Complex Welfare Trust on July 14, 1976. His services were terminated on July 2,1980 by respondent No. 2. Aggrieved thereby, appellant approached the Conciliation Officer and consequent upon failure report submitted by him, reference of the industrial dispute was made by the appropriate government to the Industrial Tribunal. The Tribunal in its order dated May 20, 1987 held that since no enquiry was conducted by the management against the appellant -workman and therefore, the respondent -Trust could lead evidence to prove the charges against the appellant workman before the Tribunal itself. The charges against the appellant were found proved by the evidence led by the respondent -Trust and opportunity of rebuttal was given to the appellant. The Tribunal therefore by its award dated October 23, 1991 held that in view of the nature of charges and misconduct of the appellant, termination of his services by the respondent -trust was justified. However, since the termination was made without holding any enquiry and charges were proved before the Tribunal only, Tribunal by applying relation back theory awarded to the appellant wages and other benefits from the date of termination i.e. July 2,1980 till the date of award dated October 23, 1991. Respondent -trust separately filed writ petition being SBCWP No. 7044/1991 which was dismissed by the learned single Judge of this Court vide order dated January 21, 1992. Special appeal filed there against being DBSAW No. 262/1992 was dismissed by our order dated September 3, 2008.

(2.) SHRI Vigyan Shah, learned Counsel for the appellant has challenged the judgment of the learned single Judge of this Court as also the award of the Tribunal on various grounds. He argued that the Tribunal was wholly unjustified in permitting the respondents to lead evidence as no such request was made by the respondents before the Tribunal. Once, it was proved that no enquiry was held, order of termination was liable to be set -aside. Learned single Judge has failed to consider this important aspect of the matter. It was contended that the evidence that was produced before the Tribunal did not prove charges against the appellant. Major charge against the appellant was the alleged embezzlement which was not proved. Reference was made to the findings recorded by the Tribunal in paras 8 and 9 of its award. Other charges were minor in nature which in the first place were not proved and secondly, even if it is taken as proved, it cannot be said on that basis that appellant lost the confidence of the respondents. It was argued that the Tribunal was not justified in relying on the statements of other witnesses, Shri R.K. Varshney, Secretary to the respondent -Trust, Shri Ashok Gupta and Shri Lal Chand Verma, who were the employees of the respondents and were therefore the interested witnesses. Once it was established that the appellant was removed by the repsondents without any enquiry, termination of the appellant in view of definition of 'retrenchment' in Section 2(oo) of the Industrial Disputes Act, 1947 (for short, the 'Act of 1947'), would amount to retrenchment without compliance of the provisions of Section 25 -F of the Act of 1947, which being void ab initio and thus was liable to be declared as such. Learned Counsel argued that alleged charge of misbehaviour by the appellant with the employees and customers of the respondent - Trust was not at all proved as two witnesses namely; Shri Ashok Gupta and Shri Lal Chand Verma alleged so only before the Tribunal and did not ever make any complaint and there was no documentary evidence to prove such charge. It was argued that the learned single Judge has failed to consider all these aspects of the matter and that award passed by the learned Tribunal is liable to be set -aside and consequently, the writ petition may be allowed.

(3.) WE have given our anxious consideration to the arguments made by the learned Counsel for the parties and perused the material on record.