Partly allowed

Dayaram v. Presiding Officer Labour Court and Another

Allahabad HC12 Nov 2018WRIC/33512/2012

Case brief

AI extract

What is this about?

The High Court quashed a Labour Court award validating a dismissal. The Court held the domestic inquiry violated natural justice by proceeding exparte without serving the inquiry report or second show cause notice. However, due to a long litigation delay preventing reinstatement, the petitioner was awarded monetary compensation.

What did the court decide?

The dismissal order is quashed. The petitioner is awarded Rs. 5,00,000/- as compensation, to be deposited by the employer within three months.

Dayaram Vs Presiding Officer Labour Court… — Labour and Industrial Disputes | Allahabad HC (2018)

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Court No. - 36

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Case :- WRIT - C No. - 33512 of 2012

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Petitioner :- Dayaram Respondent :- Presiding Officer, Labour Court And Another Counsel for Petitioner :- Jagdev Singh Counsel for Respondent :- S.S. Nigam,S.C.

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Hon'ble Mrs. Sunita Agarwal,J.

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Heard Sri Jagdev Singh, learned counsel for the petitioner and Sri Shakti Swarup Nigam, learned counsel appearing for the respondent no.2.

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The present petition arises out of an award dated 30.3.2012, published on 17.4.2012, passed by the Presiding Officer, Labour Court, U.P. Rampur. The reference made to the labour court vide order dated 21.7.2005 reads as under :-

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" क्यया ससेवयाययोजक दयारया अपनसे श्रममिक श्रश्री दययारयामि पपुत्र श्रश्री सश्रीतयारयामि श्रममिक कयो ससेवयाएएं मदनयाएंक ३१ . ०१ . ०५ ससे समियाप्त मकयया जयानया उमचित / ववैधयामनक हवै यमद नहहीं तयो सबएंधधत श्रममिक क्यया महतलयाभ / अनपुतयोष पयानसे कया अधधकयारश्री हवै तथया अन्य मकस मववरण समहत ."

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The dispute has arisen on account of termination of the petitioner with effect from 31.1.2005. The stand of the respondent-employer is that the dismissal order dated 31.1.2005 was passed after conducting a full-fledged domestic inquiry wherein the charges levelled against the petitioner were found proved as the petitioner himself did not participate in the domestic inquiry despite due intimation. The inquiry officer had no option but to proceed exparte. The disciplinary authority, after consideration of the inquiry report, reached at the conclusion that the petitioner had caused financial loss to the employer and, as such, he was not fit to remain in service. It is contended that the labour court, therefore, cannot be said to have erred in accepting the inquiry report and in holding that the inquiry was perfectly legal.

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On the issue, with regard to the status of the petitioner being workman, the counsel for the parties agree to the extent that the said question addressed by the labour court in the award impugned has been settled by this Court with

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the judgment and order dated 7.2.2018 passed in Writ-C No. 33511 of 2012 (Pramod Kumar Vs. Presiding Officer, Labour Court and another). In the similar circumstances in which the petitioner has been employed, it was held that the person from whom the work of weighment and purchaser of cane was being taken, which is the work of an incumbent working on the post of weighment clerk and if he was having eligibility qualification cannot be said to be a seasonal weighment workman, rather he would be treated as an employee working on the post of weighment clerk and cannot be said to be a daily wager employee. The findings returned by the labour court that the workman was not entitled for reinstatement being a daily wager employee having not worked for more than 240 days in one calender year, therefore, was found vitiated, in the said case.

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Thus, the learned counsel for the respondent no. 2 agree that the findings returned by the labour court in the award impugned regarding the nature of engagement of the petitioner herein cannot be sustained and that the issue has been settled with the aforesaid judgment of this Court.

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Only submission made by Sri S.S.Nigam, learned counsel appearing for the employer-respondent no. 2 is that the petitioner herein was dismissed from service after conducting a full-fledged inquiry and he himself abstained from the inquiry proceeding, the dismissal order cannot be said to suffer from any error of law. The petitioner would not be entitled to any relief as such.

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Sri Jagdev Singh, learned counsel for the petitioner submits that the inquiry report is exparte and the contents of the inquiry report were never brought in the knowledge of the petitioner as it was never served nor any second show cause notice was given to the petitioner before the dismissal order was passed. The findings recorded by the inquiry officer could not be accepted without granting an opportunity to the petitioner to show cause. The labour court has completely overlooked this part of the matter and has, thus, erred in holding the dismissal order being valid. Heard learned counsel for the parties and perused the record.

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So far as the issue of legality of the domestic inquiry is concerned, from the record it transpires that the inquiry was initiated on the charges of alleged loss caused to the

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employer due to the act of the petitioner. The entire proceeding of inquiry and inquiry report have been appended as annexure 'C.A. 2 and 3' to the counter affidavit filed by the respondent no. 2.

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A perusal thereof indicates that the charge-sheet was served upon the petitioner on 14.6.2004. The petitioner had submitted his reply on 22.6.2004. As the reply filed by the petitioner was not found satisfactory, the domestic inquiry was instituted and 27.7.2004 was fixed. The Charge were read over to the petitioner who had denied the same. During the course of the inquiry, the statement of the Office Superintendent, who has been termed as a complainant, had been recorded who stated that approximately 1440.23 quintals sugarcane was misappropriated by the petitioner. The financial loss caused to the employer has been adjusted from the retainership payable to the petitioner. The order-sheet further records that the petitioner appeared in the inquiry till 4.8.2004, thereafter on 14.9.2004, which was the date fixed, when he had submitted an application seeking fresh date on the ground that he was not well. The inquiry was, however, proceeded exparte and was concluded on the same date i.e. 14.9.2014.

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There is nothing on the record which would indicate the reason as to why the inquiry officer did not accept the request of the petitioner for giving a fresh date by adjournment of inquiry on 14.9.2004. This fact shows that due opportunity has not been provided to the petitioner in the domestic inquiry conducted by the employer. Further, from the record, it is evident that no second show cause notice was given to him on the proposed charges and the inquiry report dated 24.9.2004 was never served upon the petitioner. There was no occasion for the petitioner to assail the findings in the inquiry report. Further, the inquiry report and the charges levelled against the petitioner were not examined by the labour court on its own.

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For the aforesaid, the findings recorded by the labour court that the inquiry was legal and the dismissal order was valid is vitiated. Upsetting the said finding, it is held that the inquiry conducted by the respondent no. 2 is hit by the principles of natural justice, inasmuch, due opportunity to the petitioner to participate in the inquiry has not been given. Further, no second show cause notice on the

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proposed charges along with the inquiry report was provided to him which caused serious prejudice to the petitioner. The dismissal order dated 31.1.2005, therefore, cannot be sustained. Resultantly, the award passed by the labour court dated 22.2.2012 is hereby quashed.

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However, the last question arises as to what relief can be granted to the petitioner who has not worked in the establishment after 31.1.2005. There are allegations on the part of the petitioner that he did not get any gainful employment after dismissal from service. No contrary assertions have been made by the respondent no. 2.

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The petitioner is aged about 52 years. Approximately 14 years have lapsed in the litigation. This Court is, therefore, of the view that instead of awarding reinstatement to the petitioner, he shall be provided a lump sum of Rs. 5,00,000/- towards compensation. The compensation awarded to the petitioner shall be deposited by the respondent no. 2 within a period of three months before the Presiding Officer, Labour Court, U.P. Rampur, whereafter, the petitioner can withdraw the same after completion of necessary formalities.

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Subject to the above, the present petition is allowed in part.

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Order Date :- 12.11.2018 Pratima

Dayaram v. Presiding Officer Labour Court and Another

Case brief

What is this about?

What did the court decide?

Dayaram v. Presiding Officer Labour Court and Another

Case brief

What is this about?

What did the court decide?

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