THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
WRIT APPEAL No.627 of 2019
JUDGMENT: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)
The present writ appeal is arising out of order dated
26.07.2018 passed in W.P.No.15805 of 2001 by the learned
Single Judge.
The undisputed facts of the case reveal that the
respondent/employee in the present appeal was appointed as
a Cleaner on 09.01.1981. He was charge sheeted on 07.11.1989 for manhandling one M.R.L. Sharma, AFM, Bhadrachalam while he was on duty on 04.11.1989. It was also alleged that he entered into the depot in a drunken condition. A reply was filed to the charge sheet and the disciplinary authority, not being satisfied with the reply of the employee, appointed an enquiry officer.
The undisputed facts further reveal that the enquiry officer submitted report holding the workman guilty of the misconduct and a show cause notice was also issued and thereafter, an order of termination was passed on 12.08.1991. The employee thereafter raised a dispute i.e., I.D.No.98 of 1992 under Section 2A(2) of the Industrial Disputes Act, 1947 (for short, "the Act") and the Labour Court though held the enquiry to be proper in exercise of powers conferred under Section 11A of the Act, however as the punishment was 2 disproportionately shocking to the guilt of the employee, passed an order of reinstatement into service with continuity in service without back wages and the punishment of deferment of three annual increments with cumulative effect was inflicted upon him. The respondent/employee being aggrieved by the order of the Labour Court, preferred a writ petition and the learned Single Judge has passed an order moderating the punishment to that of deferment of three annual increments without cumulative effect. The order passed by the learned Single Judge in paragraphs 5 and 6 read as under:
"5. In the facts and circumstances of the case, having considered the rival contentions of both the counsel and in considered view of this Court, the Enquiry Officer, on appreciation of evidence available on record, found that the petitioner had committed the misconduct of manhandling the superior for not granting leave, in a drunken state. But the Enquiry Officer has not considered the statement of the petitioner and his cross-examination of witnesses and brushing aside the same, are found to be illegal. However, the Labour Court on mere surmises and conjectures found that the charges were proved in the enquiry against the petitioner. The Labour Court, having exercised the power under Section 11-A of the Act, considering the long length of service of the petitioner and his financial sufferings during the period which he was out of employment, granted reinstatement of the workman with continuity of service but without back wages and deferment of three annual increments with cumulative effect. But, insofar as imposing punishment of deferment of three annual increments is concerned, it is disproportionate to the proved misconduct and amounts to inflicting serious punishment on the petitioner, which has an affect on the future pay and retirement benefits.
6. This Court, by an order dated 16.08.1999 passed in Writ Petition No.4947 of 1999, granted notional increments to the petitioner and thereby the pay of the petitioner was fixed by giving notional increments. During the pendency of the writ petition, the petitioner has retired from service on attaining the age of superannuation. Having considered the same and to meet the ends of justice, the award to the extent of 'deferment of three annual increments with cumulative effect' is modified as 'deferment of three annual increments without cumulative effect', by upholding the award of the Labour Court in all other aspects. The 3 respondents are also directed to settle the terminal benefits of the petitioner, if not already settled, within two (2) months from the date of receipt of a copy of this order."
The undisputed facts reveal that the employee was not permitted to cross-examine the witnesses during the departmental enquiry. The statement of the employee was not considered by the enquiry officer. In those circumstances, the learned Single Judge has interfered in the matter.
In the considered opinion of this Court, denial of opportunity of cross-examination of witnesses is a serious lapse in a departmental enquiry, as it is violative of principles of natural justice and fair play and therefore, the learned Single Judge was justified in allowing the writ petition partly. This Court does not find any reason to interfere with the order passed by the learned Single Judge.
Accordingly, the writ appeal is dismissed. Miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.
__________________________________ SATISH CHANDRA SHARMA, CJ ______________________________ N. TUKARAMJI, J 16.12.2021 ES