HIGH COURT OF JUDICATURE AT ALLAHABAD ?(Judgment reserved on 18.05.2011) (Judgment delivered on 31.05.2011) Case :- WRIT - C No. - 27424 of 1996 Petitioner :- Vinod Kumar Srivastava Respondent :- State Of U.P. & Others Petitioner Counsel :- Suniti Sachan,Ramjee Sharma Respondent Counsel :- C.S.C.,V.B.Singh Hon'ble S.U. Khan, J.
Heard learned counsel for the petitioner.
No one appeared on behalf of the contesting respondent on the date on which arguments were heard.
This writ petition has been filed by the workman and is directed against the award dated 27.03.1996 given by Presiding Officer Labour Court (III) Kanpur in adjudication case no.175 of 1994, (number of the case is not clear at another place it is mentioned as 59 of 89). The matter which was referred to the labour court was as to whether the action of employer respondent no.3 M/s. Lohia Machines, Kanpur terminating the service of its workman petitioner who was draft man w.e.f.17.12.1987 was just and valid or not. According to the petitioner workman he was appointed on 03.07.1973, initially services were terminated on 27.07.1987, however, on the intervention of Additional Labour Commissioner, Kanpur, petitioner was taken back in service and domestic inquiry was held against him and, thereafter, on the basis of recommendation of inquiry officer services were terminated on 17.12.1987. The employer contended that petitioner was employed on 03.07.1978 that petitioner was on medical leave from 15.07.1987 to 21.07.1987, however, he did not report on duty on 22.07.1987. It was further stated that petitioner did not participate in the domestic inquiry, hence, ex parte inquiry was held against him and his services were terminated on 16.12.1987 and not on 17.12.1987.
A preliminary issue was framed regarding fairness of domestic inquiry and it was decided on 02.09.1992 copy of which is Annexure 6 to the writ petition which does not bear any date. However, in para 19 of the writ petition it is mentioned that it was passed on 02.09.1992. Through the said order, the version of the workman that on the dates fixed for inquiry he was not permitted to enter the room where inquiry officer was sitting and was supposed to hold the inquiry was found correct and domestic inquiry was rejected as being unfair and 1.10.1992 was fixed for the evidence of the employer. Thereafter, review petition was filed to review the said order and both the parties stated that as all the documents had been filed by them, hence, they must be considered and preliminary issue should be decided along with final judgment. In the award in para 9 it is mentioned that charge sheet was given on 9.11.1987, reply was given by petitioner on 13.11.1987 and 26.11.1987 and 3.12.1987 were the dates fixed in the inquiry. Contrary to the finding recorded in the earlier order dated 2.9.1992 in the ultimate award labour court held that petitioner was permitted to enter the room where inquiry officer was sitting and it was held that inquiry was fair and full opportunity was provided to the workman. On the order sheet of the inquiry proceedings there were no signatures of the petitioner. Labour court held that termination on the ground of absence from 22.07.1987 onwards was quite correct and conduct of the petitioner was also bad as he did not cooperate in the inquiry and that date of termination was 16.12.1987 and not 17.12.1987.
Firstly, in my opinion presiding officer of the labour court had no jurisdiction to review the earlier order through which it had been held that inquiry was not fair Under I.D. Act or U.P.I.D. Act there is no provision of review vide U.P.S.R.T.C. Vs. Imtiyaz Hussain, AIR 2006 S.C.649. Secondly, there is no specific finding that since 22.07.1987, the workman had not reported on duty for how many days. The dispute had already arisen and as asserted by the workman before the labour court and mentioned in the award the services had been terminated on 22.07.1987 itself in the first instance, however, on the intervention of Additional Labour Commissioner petitioner was taken back in service and thereafter inquiry was held. If the absence was only for few days then termination was not warranted vide Pepsu Road Transport Corporation Vs. Rawel Singh A.I.R. 2008 S.C.(Supp)1591 and Mavji C. Lakum Vs. Central Bank of India A.I.R. 2008 S.C.(Supp) 1817 and Depot. Manager, A.P.S.R.T.C. Vs. Surender A.I.R. 2009 S.C.(Supp) 622.
Thirdly, labour court was not at all justified in holding that non cooperation in the inquiry was an additional misconduct of the petitioner as that was not sub judice. By maximum it could be a ground for curtailing back wages, that also if it was proved.
However, the fact is that since 1987 i.e. for 24 years petitioner is not in service. In the year 1996 when writ petition was filed petitioner mentioned his age in his affidavit as 40 years therefore now he must be about 55 yeas.
Even though I do not agree with the impugned award, however, remanding the matter will not be appropriate as finalisation may thereafter take several years. Under the facts and circumstances of the case, I am also not inclined to direct reinstatement out rightly after a gap of 20 years. It will be improper vide Management of Aurofood Pvt. Ltd. Vs. S. Rajulu, A.I.R. 2008 S.C.(supp)1885. Looking to the entire facts and circumstance of the case I am of the opinion that interest of justice and law will best be served by directing the employer respondent no.2 to pay consolidated damages/compensation to the petitioner which are quantified as Rs.2,00,000/- (Rs.2 lacs). The amount shall be paid either through draft to the workman or deposited before the labour court for immediate payment to the workman within two months from the date on which certified copy of this judgment is served upon respondent no.3 M/S. Lohia Machine Kanpur failing which 1.5% per month interest shall be payable since after two months from the date on service of this judgment till actual payment realisation/deposit.
Writ petition is accordingly allowed and impugned award is set aside.
Date: 31.05.2011 vkg