Raj Karan v. M/S. All India Womens Conference

11. Learned counsel submitted that in the aforesaid case, the Apex Court while discussing the law with respect to interpretation of Section 33(2)(b) of the Act held that where an application is made under Section 33(2)(b) of the Act and the authority refuses to grant approval, it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. Consequently, the employee is deemed to continue in service entitling him all the benefits available.

12. Ms. Gupta, learned counsel further submitted that the Management failed to comply with the mandatory provisions of Section 33(2)(b) of the Act as no approval was taken at the time of issuing the dismissal order of the workman despite pendency of dispute under Section 36A before the Labour Court. Since the matter was remanded by this Court with liberty to move the application seeking approval under Section 33(2)(b) of the Act, therefore, the Management moved the said application, however, the same was dismissed by the Labour Court. Hence, the workman was to be deemed to continue in service with all benefits as held by the Apex Court in the case of Jaipur Zila Sahakari Bhoomi Bank Ltd. Vikas (supra). Thus, the Labour Court had no jurisdiction to further adjudicate the matter as dismissal of the application under Section 33(2)(b) of the Act was conclusive determination of the industrial dispute between the parties.

13. Learned counsel for the petitioner, without prejudice to the aforesaid contentions, argued that despite numerous opportunities granted earlier, the Management had failed to lead any evidence, however, award dated 12.01.2004 had been passed by the Tribunal. Moreover, in order dated 05.04.2010 passed in W.P.(C) NO. 15211/2004, no permission to reopen the evidence or lead fresh evidence was granted by this Court. Thus, after dismissal of the application moved by the Management under Section 33(2)(b) of the Act, nothing further remained and learned Labour Court erred in permitting the Management to lead evidence de novo.

14. Learned counsel further submitted that even Section 11A of the Act lays down the jurisdiction of the Labour Court where an industrial dispute relating to discharge or dismissal of a workman has been referred for adjudication. The proviso to aforesaid Section specifically states “PROVIDED that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.”

15. While concluding her arguments, learned counsel for the petitioner submitted that issuance of chargesheet for unauthorized absence to workmen after 26 years of unblemished service, despite the leaves had been duly sanctioned and regularized by the Management, was itself an action of victimization and unfair labour practice on the part of the Management. Accordingly, the award dated 24.03.2012 is unjustified, illegal and perverse having a patent illegality and is liable to be set aside.

16. On the other hand, Mrs. C.T.Chopra, learned senior counsel appearing on behalf of the respondent Management submitted that absence of the workman for 115 days had given a cause to the Management to proceed against him. The details of the absence are mentioned in para 16 of the award dated 24.03.2012, which read as under:-

17. She further submitted that legal heirs of the deceased workman are only entitled to the dues, if any, to an employee before his death or any other amount lying in his credit and further any benefits which were available to deceased employee. The dismissal of the petitioner from service is misconduct on account of long absence from duty every year. The inquiry was conducted after giving proper and effective opportunities to the workman to represent his case and it is a matter of record that the deceased workman had participated in the inquiry. Since no fault could be found by the learned Tribunal in the inquiry proceedings, therefore, the inquiry report became the base of dismissal from service and accordingly, the order of dismissal is strictly valid, binding and in accordance with law. The allegations of mala fide are baseless and without any foundation as no material was placed on record by the workman to establish the same on the part of the Management. The learned Tribunal has passed the award after giving opportunities to the workman and the Management. However, the workman has not produced any evidence in rebuttal. The Management sought approval of dismissal of the workman under Section 33(2)(b) of the Act, which was accepted by the learned Tribunal after leading evidence by the Management vide award dated 24.03.2012.

18. I have heard the learned counsel for the parties.

19. In the case of Jaipur Zila Sahakari Bhoomi Bank Ltd. Vikas (supra), the Apex Court has held that where an application is made under Section 33(2)(b), the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. As a consequence, employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement. Once the application of the Management under Section 33(2)(b) of the Act was dismissed, that was conclusive determination of the industrial dispute between the parties. Thereafter, the Labour Court is not required to direct the parties to lead evidence.

20. Moreover, Section 11A of the Act lays down the jurisdiction of Labour Court where an industrial dispute relating to discharge or dismissal of a workman has been referred for adjudication. The proviso to aforesaid Section specifically states that in any proceeding under this Section the Labor Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.

21. Case of the respondent Management is that principles of natural justice have been complied with by the Enquiry Officer and accordingly, sufficient opportunities were given to the deceased workman to defend his case. Whereas Enquiry Officer, Sh. L.K.Singh, had conducted the domestic enquiry simultaneously against the deceased workman as well as a co-workman Jagat Singh for similar charges. On 19.12.1998, the deceased workman had filed a letter dated 17.12.1998 before the Enquiry Officer authorizing Jagat Singh to represent him in the enquiry proceedings. He was allowed to be represented by Jagat Singh on 19.12.1998 itself by the Enquiry Officer. On 05.01.1999, the deceased workman had filed an application before the Enquiry Officer stating that his Authorized Representative was unwell. Accordingly, proceedings were adjourned to 08.01.1999. On the said date, the deceased workman again requested for adjournment on the ground that above-named Authorized Representative Jagat Singh was not well; however, the request was declined by the Enquiry Officer stating that no medical certificate of co-workman was produced. The fact of illness of said Authorized Representative and defence representative of the deceased workman was well within the knowledge of the Enquiry Officer. Despite, Enquiry Officer proceeded to record the deposition of Management witness, which was recorded partly on 08.01.1999 and concluded on 11.01.1999 in the absence of Authorized Representative, who was on leave. The fact of being on leave was brought to the notice of the Enquiry Officer by none other than the Accounts Officer of the Management. The Enquiry Officer acted in the same manner on 30.01.1999, when he concluded the proceedings and after closing the evidence of the Management, also closed the evidence of the workman despite being informed that AR Jagat Singh, who was assisting the deceased workman in the inquiry proceedings, was not well and was on leave. Thus, action of the Enquiry Officer was arbitrary and illegal.

22. In my considered view, if the Tribunal had recorded the above noted findings, then there was no occasion before the Tribunal to proceed further and allow the respondent management to lead evidence and pass the impugned award.

23. In view of the discussion above and settled law, the award dated 24.03.2012 is set aside being unjustified, illegal and passed without jurisdiction.

24. I note, the deceased workman had expired on 19.10.2005.

25. In view of the facts recorded above, services of the deceased workman deserve to be reinstated with full back wages and all other consequential benefits till the date of his death, i.e., 19.10.2005.

26. Accordingly, the respondent Management is directed to pay full pay and allowances from 16.04.1999 to 19.10.2005, i.e., the period to which the deceased workman would have been entitled had he not been terminated, subject to adjustment in respect of subsistence allowance and other allowances, if already paid, to the petitioner / legal heir of deceased workman within a period of two months from the date of receipt of this order. In default, the petitioner / legal heir shall be entitled to interest at the rate of 9% per annum on delayed payment.

27. The petition stands allowed on the above terms with no order as to costs.

SURESH KAIT (JUDGE) FEBRUARY 5, 2015 Sb/jg