Allahabad High Court

Reginol Manager U.P.S.R.T.C. vs State Of U.P. And 2 Ors. on 1 March, 2019

Bench: Saumitra Dayal Singh




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED/A.F.R.
 

 
In Chamber
 
Case :- WRIT - C No. - 27322 of 2015
 
Petitioner :- Regional Manager U.P.S.R.T.C.
 
Respondent :- State Of U.P. And 2 Ors.
 
Counsel for Petitioner :- M.M. Sahai
 
Counsel for Respondent :- C.S.C.,Ajay Kumar Srivastava,Dharmendra Kumar
 

 
Hon'ble Saumitra Dayal Singh,J.

1. The present writ petition has been filed by the Uttar Pradesh State Road Transportation Corporation (UPSRTC) to challenge the award of the Industrial Tribunal, Allahabad dated 22.09.2014 in Adjudication Case No. 18 of 2009. By that award, the Industrial Tribunal had awarded the relief of reinstatement to the respondent-workman, together with full back-wages.

2. The challenge to the aforesaid award has been made on two counts. First, it has been submitted, once the Industrial Tribunal recorded a finding that the domestic inquiry was vitiated, it could not have, directly proceeded to make the final award without allowing the petitioner/management one opportunity to lead evidence to prove charges against the respondent-workman, in the adjudication proceedings. Second, it has been submitted, in absence of any pleading made by the respondent-workman and in absence of any evidence being led by him in that regard, the Industrial Tribunal had completely erred in granting the relief of full back-wages.

3. The facts giving rise to the present writ petition may be noted in brief. The respondent-workman was engaged as a 'Conductor' by the petitioner-corporation. He was initially charged on 26.09.1997 for carrying passengers without ticket/s on the bus of the petitioner-corporation as also for having lodged bogus first information report. While that proceeding resulted in the order dated 05.08.1997 wherein the respondent-workman was awarded the punishment of dismissal, however, it is on record, that upon appeal, the punishment order was set aside and a fresh inquiry was permitted to be conducted in accordance with law. Upon conclusion of the re-inquiry proceedings, the inquiry report was submitted on 23.10.2001 where upon the Regional Manager of the petitioner-corporation issued a show-cause notice to the respondent-workman calling for his reply.

4. In the meanwhile, on 22.07.1999, a second charge-sheet had been issued to the respondent-workman on an allegation of carrying passengers without ticket on a corporation bus. Arising from that charge-sheet, the Assistant Regional Manager was appointed as inquiry officer who submitted his report on 31.10.2000. The disciplinary authority appears to have issued a notice in pursuance of both inquiries thus concluded against the respondent-workman and thereafter, vide order dated 12.04.2002 dismissed the respondent-workman from service. Against that order, the respondent-workman filed a departmental appeal which also came to be dismissed by order dated 31.01.2005. In such circumstances, the industrial dispute was raised by the respondent-workman. The following question was referred to the Industrial Tribunal, Allahabad for adjudication:

"क्या सेवायोजकों द्वारा सम्बंधित श्रमिक श्री सीता राम गौतम पुत्र स्व0 श्री माता जतन की सेवाएं दिनांक १२.०४.२००२ से समाप्त किया जाना उचित तथा/अथवा वैधानिक है ? यदि नहीं तो सम्बंधित श्रमिक क्या हितलाभ/आनुतोश (रिलीफ) पाने का अधिकारी है एवं अन्य किस विवरण सहित |"

5. In the proceedings before the Industrial Tribunal, both parties filed their written statement. Also, they led evidence. The Industrial Tribunal found, during the domestic inquiry, no evidence was led to prove the charges levelled in the first charge-sheet but, on the last date of the domestic inquiry proceedings, i.e. 30.08.1997, the Assistant Traffic Inspector appeared whose testimony was recorded and inquiry concluded on that date itself without allowing the petitioner any opportunity to cross-examine that witness inasmuch as the petitioner did not appear on that date and he had no notice of the same. With respect to the second charge-sheet, it was found, no witness had appeared to prove those charges.

6. In such circumstance and for other facts and circumstances recorded in the award and to which no dispute had been raised by the learned counsel for the petitioner, the two domestic inquiries conducted by the petitioner were held to be vitiated. Then, the Industrial Tribunal proceeded to frame the award of reinstatement of the respondent-workman, with full back-wages.

7. Learned counsel for the petitioner submits, though the reference order did not specifically provide for adjudication on the issue whether the domestic inquiry was fair and proper, however, as is the normal practice, the Industrial Tribunal should itself have framed a preliminary issue to test whether the domestic inquiry conducted by the petitioner was fair and proper. Since that issue was not framed, the petitioner remained under the impression, it would not be burdened to prove the charges leveled against the respondent-workman. It has thus been elaborated, the petitioner-corporation only led evidence to prove the fairness and propriety of the domestic inquiry and that the stage to lead evidence to prove the charges before the Industrial Tribunal was never reached.

8. Relying on the decision of the Supreme Court in the case of Cooper Engineering Limited Vs. Shri P.P. Mundhe reported in AIR 1975 SC 1900 (paragraph no. 22), it has been submitted, the question whether the domestic inquiry was fair and proper should have been decided as a preliminary issue, and on that decision being pronounced, it would have been for the management to decide whether it wanted to lead any evidence before the Industrial Tribunal, to prove the charges. Also, reliance has been placed on the later decision of the Supreme Court in the case of Divyash Pandit Vs. Management, NCCBM (2005) 2 SCC 684, wherein taking note of the Constitution Bench of the Supreme Court in the case of Karnataka State Road Transport Corporation Vs. Laxmidevamma (Smt.) and Another reported in (2001) 5 SCC 433, it was opined, though the management may not have prayed in the written statement to lead additional evidence, it did not place fetters on the powers of the Labour Court/Industrial Tribunal to require or permit the parties to lead evidence, to prove the charges. Relying on the aforesaid principle, it has been submitted, the Industrial Tribunal had grossly erred in not allowing the petitioner an opportunity to lead additional evidence to prove the charges and in directly proceeding to grant the relief of reinstatement, that too with full back-wages.

9. Alternatively, questioning the relief of back wages, it has been submitted, in absence of any pleading and proof that the workman was not gainfully employed during the period of termination, the burden that lay on the workman was never discharged. Consequently, the respondent-workman was not entitled to any back-wages.

10. In this regard, it may be taken note, the respondent workman was appointed by the petitioner-corporation in the year 1989. He was dismissed from service in the year 12.04.2002 i.e. after 13 years of service when he was about 36 years of age. The award of Industrial Tribunal dated 22.09.2014 was made 12 years after the dismissal order i.e when he would have been about 48 years of age. Under the interim order of this court, the operation and effect of the entire award had been stayed. Today the workman would be about 52 years of age.

11. Sri Samir Sharma, Advocate, learned counsel has appeared on behalf of the workman, along with Sri Ajay Srivastava. He submits, the Industrial Tribunal had not erred to any extent in making the award of reinstatement inasmuch as the present is not a simple case where the management may have been completely deprived of an opportunity to lead evidence to prove the charges before the Industrial Tribunal. The instant case had a chequered history. Earlier also, a similar dismissal order came to be passed in the year 2002 (in pursuance of the first charge-sheet), without evidence being led before the inquiry officer. That order was set-aside in a departmental appeal. In the re-inquiry conducted thereafter, practically no evidence was led in as much as the testimony of only one witness was recorded, that too behind the back of the workman, on the last day of the re-inquiry. Then, admittedly, in the inquiry arising from the second charge-sheet, no evidence was received against the workman.

12. Thus, it has been submitted, it may have been an entirely different case if the domestic inquiry proceedings were based on any evidence. In that case, it may have been open to the management to contest, it had been taken by surprise upon the procedure adopted by the Industrial Tribunal. However, in the facts of the present case, it was not so. The management was always aware of the gross inadequacies or the complete lack of substance in the domestic inquiry proceedings. Examined in that light, the conduct of the management in not pleading and/or praying in the written statement, to be permitted to lead additional evidence, to prove the charges before the Industrial Tribunal and alternatively; in not filing any application before the Industrial Tribunal to that effect, though on the other hand, some evidence was led by the management before the Industrial Tribunal, clearly proved-the management consciously did not claim and/or waived its right to lead additional evidence.

13. As to the judgments relied upon by the learned counsel for the petitioner, it has been submitted, it is not the law of the land that in every case, where the fairness and propriety of the domestic inquiry is to be tested, the Industrial Tribunal must always first frame a preliminary issue in that regard or it must (of its own), afford an opportunity to the management to lead evidence to prove the charges, after finding the domestic inquiry proceedings to be vitiated.

14. Having heard learned counsel for the parties and having gone through the record, as a matter of fact, practically, no evidence was led in the domestic inquiry proceedings. In the first domestic inquiry proceedings, pursuant to the first charge-sheet, no evidence was led in the first leg of inquiry. Upon the same being set-aside in appeal and the matter being re-inquired, again no evidence was led. Only on the last day of the re-inquiry proceedings, one witness was examined on behalf of the management, that too, at the workman's back, without allowing the workman an opportunity to cross-examine that witness. Then, the domestic inquiry with respect to the second charge-sheet was concluded without any evidence being received by the Inquiry Officer. Therefore, the Industrial Tribunal did not err in holding the two domestic enquiries, vitiated. Those proceedings were of no consequence. They could not give rise to any adverse inference or consequence against the workman.

15. Also, as for the rule, in Shambhu Nath Goyal v. Bank of Baroda, (1983) 4 SCC 491, a three judge bench of the Supreme Court examined the issue. In the main judgement by his Justice A Varadarajan held:

"16. We think that the application of the management to seek the permission of the Labour Court or Industrial Tribunal for availing the right to adduce further evidence to substantiate the charge or charges framed against the workman referred to in the above passage is the application which may be filed by the management during the pendency of its application made before the Labour Court or Industrial Tribunal seeking its permission under Section 33 of the Industrial Disputes Act, 1947 to take a certain action or grant approval of the action taken by it. The management is made aware of the workman's contention regarding the defect in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under Section 33 of the Act. Then, if the management chooses to exercise its right it must make up its mind at the earliest stage and file the application for that purpose without any unreasonable delay. But when the question arises in a reference under Section 10 of the Act after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry there is no question of the management filing any application for permission to lead further evidence in support of the charge or charges framed against the workman, for the defect in the domestic enquiry is pointed out by the workman in his written claim statement filed in the Labour Court or Industrial Tribunal after the reference had been received and the management has the opportunity to look into that statement before it files its written statement of defence in the enquiry before the Labour Court or Industrial Tribunal and could make the request for the opportunity in the written statement itself. If it does not choose to do so at that stage it cannot be allowed to do it at any later stage of the proceedings by filing any application for the purpose which may result in delay which may lead to wrecking the morale of the workman and compel him to surrender which he may not otherwise do.

16. Then, supplementing that view, Justice D.A.Desai, further observed:

"2. .........................................................................................................................................It was further contended that it is the obligatory duty of the Labour Court/Industrial Tribunal after deciding the preliminary issue in favour of the workman and against the management to call upon the employer to lead his evidence to substantiate the charge of misconduct. It is in this context that this Court observed that the employer must plead in the statement of defence filed before the Labour Court/ Industrial Tribunal that in the event domestic enquiry which led to the termination of service is held to be vitiated or invalid, he must be given opportunity to lead evidence to substantiate the charge of misconduct. Explaining how the pleading can be raised this Court observed that if such a relief is claimed in the statement of claim, application for approval of its action or written statement of defence, the Labour Court/Industrial Tribunal must give such an opportunity. The Court further observed that if the request is made before the proceedings are concluded, the Labour Court/Industrial Tribunal should ordinarily grant the opportunity to adduce evidence. It was further observed that "if such a pleading is raised and an opportunity is sought, it is to be given, but if there is no such pleading either in the original application or in the statement of claim or written statement or by way of an application during the pendency of the proceedings, there is no duty cast in law or by the rules of justice, reason and fair play that a quasi-judicial tribunal like the Industrial Tribunal or the Labour Court should adopt an advisory role by informing the employer of its rights". The statement that if an application is made during the pendency of the proceedings does not mean that some independent right to make an application at any time is conferred on the employer. Ordinarily, where a party claims relief, it must plead for the same. The pleading can be incorporated in a statement of claim or a written statement of defence. It was not for a moment suggested that an application at any stage of the proceedings without explaining why the relief was not claimed in the original pleading has to be granted. If a separate application is made, it would be open to the Labour Court/Industrial Tribunal to examine the question whether it should be granted or not depending upon the stage when it is made, the omission to claim the relief in the initial pleading, the delay and the motivation for such delayed action. Without being specific, it can be said that such an application has to be examined as if it is an application for amendment of original pleadings keeping in view all the aforementioned considerations and if it does not appear to be bona fide or has been made after a long unexplained delay or the explanation for the omission of claiming the relief in the initial pleading is unconvincing, the Labour Court/Industrial Tribunal would be perfectly justified in rejecting the same. The observation was not made to lay down a proposition of law that as and when it suits the convenience of the employer at any stage of the proceedings, it may make an application seeking such opportunity and the Labour Court/Industrial Tribunal was obliged to grant the same".

17. Then by the Constitution bench pronouncement in the case of Karnataka SRTC v. Lakshmidevamma (supra), all doubts with respect to the aforesaid aspect were cleared. It was held, the Industrial Tribunal was not obliged to first frame a preliminary issue to test the fairness and propriety of the domestic inquiry proceedings. That procedure was not required to be followed and finding adverse to the petitioner-management was not required to be recorded as a pre-condition before the latter could claim a right to adduce evidence to prove the charges before the Industrial Tribunal. In this regard, Justice N. Santosh Hegde, whose opinion forms the core of the majority view, opined:

"14. As is seen from the above, this Court in Cooper Engg. case held that when the Tribunal/Labour Court was called upon to decide the validity of the domestic enquiry the same had to be tried as a preliminary issue and thereafter, if necessary, the management was to be given an option to adduce fresh evidence. But the problem did not stop at that.

15. The question again arose in the case of Shambhu Nath Goyal case as to the propriety of waiting till the preliminary issue was decided to give an opportunity to the management to adduce evidence, because after the decision in the preliminary issue on the validity of the domestic enquiry, either way, there was nothing much left to be decided thereafter. Therefore, in Shambhu Nath Goyal case this Court once again considered the said question in a different perspective. In this judgment, the Court after discussing the earlier cases including that of Shankar Chakravarti v. Britannia Biscuit Co. Ltd. which was a judgment of this Court subsequent to that of Cooper Engg. laid down the following principles: (SCC p. 506, para16)

18. Thereafter, referring to the concurring judgment of Justice D.A. Desai [in Shambhu Nath Goyal Vs Bank of Baroda (1983) 4 SCC 491], it was explained, the said decision had taken note of the earlier decision in the case of Cooper Engineering Limited Vs. Shri P.P. Mundhe (supra) and had thereafter held, the management would have a right to adduce evidence, if it had reserved that right, either in the application made under section 33 or in the objection to the reference under section 10 of the Industrial Disputes Act, 1947. Thus, for that right to be availed, the management had to claim it at the first available opportunity and not at any time thereafter. That scheme was held to be just and fair and therefore not required to be varied. It was found to be beneficial to both the management as also the workman. Last, it was observed, the judgment in the case of Shambhu Nath Goyal Vs Bank of Baroda (supra) having held the field for 18 years since 27.9.1983, that long standing position of law, did not call for any change, in absence of any strong cause.

19. The aforesaid opinion was penned by Justice N. Santosh Hegde for himself and Justice S.P.Bharucha (as his lordship then was). Concurring with that and thus rendering the majority view, Justice Shivraj V. Patil [for himself and Justice V.N.Khare (as his lordship then was)], added his own opinion that illuminates the inherent powers of the Labour Court/Industrial Tribunal in such matters, as exists and may be exercised by that Court/Tribunal, irrespective of the conduct of the parties before it.

"45 .................................We reiterate that in order to avoid unnecessary delay and multiplicity of proceedings, the management has to seek leave of the court/tribunal in the written statement itself to lead additional evidence to support its action in the alternative and without prejudice to its rights and contentions. But this should not be understood as placing fetters on the powers of the court/tribunal requiring or directing parties to lead additional evidence including production of documents at any stage of the proceedings before they are concluded if on facts and circumstances of the case it is deemed just and necessary in the interest of justice".

20. It is the last part of the above noted observation that became the ratio in Divyash Pandit Vs. Management, NCCBM (supra) and no new law or principle, contrary or in addition to that settled by the Constitution Bench of the Supreme Court, may be inferred therefrom. In that case, it was held:

"8. ..................................................It is true no doubt that the respondent may not have made any prayer for (sic submitting) additional evidence in its written statement but, as held by this Court in Karnataka SRTC v. Laxmidevamma this did not place a fetter on the powers of the Court/Tribunal to require or permit parties to lead additional evidence including production of document at any stage of proceedings before they are concluded. Once the Labour Court came to the finding that the enquiry was non est, the facts of the case warranted that the Labour Court should have given one opportunity to the respondent to establish the charges before passing an award in favour of the workman.

21. Clearly, such a power (to be exercised by the Labour Court/Industrial Tribunal), is inherent and it would remain discretionary, to be exercised solely in the interest of justice. It may never be construed as allowing the management another chance or a second innings to lead evidence or to get over its own lethargy, negligence or plain inaction. In absence of that right being claimed at the first instance, tough no right may exist, however, an inherent, discretionary power would continue to exist with the Labour Court/Industrial Tribunal to either suo moto or upon an application moved behalf of either party, require any party to adduce any particular evidence. This power by its very nature would not be to allow a party before it enforce its (own) right, but a power vested in the Labour Court/Industrial Tribunal to compel or direct any party to lead that evidence, which it requires, in the interest of justice. The fact that exercise of such power may be left open to be invoked by a party before it, would not vest, create or grant a right to any party, to adduce additional evidence.

22. In such and other cases the Labour Court/Industrial Tribunal would consider the attending facts and circumstances of each case and pass appropriate order, solely on considerations of 'the interest of justice'. However, in absence of a right being claimed by the management, to adduce additional evidence, as laid down in Karnataka SRTC v. Laxmidevamma (supra), before the Labour Court/Industrial Tribunal, that right may not be claimed in the garb of the power of the Labour Court/Industrial Tribunal to direct any party to lead any particular evidence, in the interest of justice. To allow that would be contrary to and in the teeth of the majority opinion in Karnataka SRTC v. Laxmidevamma (supra).

23. Thus a conscious and categorical declaration of law has been made by the Supreme Court as to the procedure to be followed in cases where the workman chooses to challenge the fairness and propriety of the domestic inquiry, in the adjudication proceedings. While Cooper Engineering Limited Vs. Shri P.P. Mundhe (supra), had laid down the requirement on part of the Industrial Tribunal to first frame a preliminary issue as to the fairness and propriety of the domestic inquiry, before making it open to the management to adduce evidence, to prove the charges before the Industrial Tribunal/Labour Court, the Constitution Bench of the Supreme Court, in Karnataka SRTC v. Lakshmidevamma (supra), held:- the Industrial Tribunal was neither bound to either first frame a preliminary issue to test the fairness and propriety of the domestic inquiry nor it was obliged by any rule of law or of precedence to first specifically question the management, at any stage of the proceedings, whether it would lead any evidence to prove the charges and to thereafter proceed to decide the reference on merits.

24. If the management so elects, it would have a right to adduce evidence to prove the charge/s before the Labour Court/Industrial Tribunal (in the event of the domestic inquiry being found vitiated), provided that right is claimed at the beginning i.e. immediately after the workman impeaches the fairness and propriety of the domestic inquiry proceedings, in his written statement. Thus, the right given to the management is conditional, being subject to it being exercised, at the earliest opportunity.

25. In a case where the workman may have filed his written statement first and which maybe in the knowledge of the management, the right may be claimed while filing the written statement by the management. However, if the management files its written statement (in response to the reference made), before the workman does, it may claim to first gain knowledge (of the challenge raised to the fairness and propriety of the domestic enquiry), later, i.e. upon service of the written statement of the workman containing that challenge. It may claim the right to adduce evidence to prove the charge/s by filing the rejoinder/replication statement. To that extent, no exact prescription is available to determine, at what stage, the earliest opportunity to claim the right to adduce additional evidence arises. It may remain an issue to be considered by the Labour Court/Industrial Tribunal, in the facts of each case.

26. Once that right is thus claimed by the management, either in its written statement or the rejoinder/replication statement, as the case may be, it would remain a matter for the Labour Court/Industrial Tribunal to provide for appropriate stage, time and opportunity to the management to adduce evidence in exercise of that right.

27. In this regard, the management cannot dictate to the Labour Court/Industrial Tribunal to allow it to exercise that right at any particular stage or time. Also, in view of absence of requirement of law for a preliminary issue to be framed, the Labour Court/Industrial Tribunal may not necessarily pass an interlocutory order to vitiate the domestic enquiry, in every case, so as to clearly define a point in time when management may adduce evidence to prove the charge/s.

28. These being quasi-judicial proceedings, and the right claimed being vital to the outcome of the proceedings, it is desirable that the Labour Court/Industrial Tribunal may, in all such cases (where the right may have been claimed by the management, at the initial stage), provide by a specific order passed at the initial stage of the proceedings itself, the manner in which it proposes to allow the management to exercise its right i.e. by either letting the management lead evidence in lump sum or after the Labour Court/Industrial Tribunal first reaches a conclusion as to the domestic enquiry being vitiated.

29. As to the facts, in Divyash Pandit Vs. Management, NCCBM (supra), the Labour Court had declared the domestic enquiry to be vitiated and framed the award of reinstatement. Immediately thereafter, the management made an application to be allowed an opportunity to lead evidence. It was disallowed by the Labour Court. The High Court then set aside the award and remitted the matter to the Labour Court, which approach was sustained, referring to the principle laid down in Karnataka SRTC v. Laxmidevamma (supra), discussed above. Therefore, in the opinion of the Supreme Court, the facts in the case of Divyash Pandit Vs. Management, NCCBM (supra) warranted an exercise by the Labour Court, of its power to permit the parties to lead evidence.

30. Turning to the facts of the present case, the workman had impeached the domestic inquiry proceedings. That challenge was laid out in paragraph nos. 12 to 17 of the written statement filed by the workman, dated 9.11.2009. The petitioner management filed its written statement dated 22.12.2009. Therein, the petitioner management did not plead and did not claim at that first opportunity to adduce evidence to prove the charges before the Industrial Tribunal in case the domestic enquiry proceedings were found vitiated. Therefore, no right was claimed by the petitioner management in terms of the Constitution Bench decision of the Supreme Court in Karnataka SRTC v. Lakshmidevamma (supra). Consequently, no right arose, in its favour. The submission of learned counsel for the petitioner, aligned to the minority opinion expressed in the aforesaid Constitution Bench decision, cannot be accepted for that reason. It is therefore, rejected.

31. Then as to the inherent power of the Industrial Tribunal to itself require the petitioner management to adduce evidence to prove the charges before it, the same could have been exercised solely in accordance with the law declared by the Supreme Court in Karnataka SRTC v. Lakshmidevamma (supra). In that regard:

(i) the reference order itself was of date 07.05.2009 and it came to be decided by award dated 22.09.2014. It is self apparent, the matter remained pending for almost five years. The reference was specific to adjudicate whether the dismissal of the respondent-workman by order dated 12.04.2002 was legal and valid.

(ii) neither by any application nor by any oral prayer, made at any stage of the proceedings, either before or after the award was made, did the petitioner establish any fact or need (on part of the Industrial Tribunal) to examine any additional evidence.

(iii) it is also not the case of the petitioner-management that during the arguments advanced before the Industrial Tribunal, it was ever established that any evidence was necessary to be led, in the interest of justice.

(iv) on the other hand in paragraph no. 28 of the writ petition it has been stated the management had led evidence in the shape of statement of Ram Narayan Trivedi and Faujdar Singh in support of its case. Neither witness was a witness of fact but only a witness as to conduct of the domestic inquiry.

(v) admittedly, no evidence was received in the domestic enquiry instituted upon the second charge-sheet while in the other there was only one testimony that too received on the last date of the re-inquiry proceedings when the respondent-workman was not present. Thus, there was practically no evidence led in either of the domestic inquiry proceedings.

(vi) as a fact, the petitioner was always in the know of lack of evidence in the domestic inquiry proceedings. Still, it waived its right to adduce additional evidence and no fact or other circumstance has been shown to exist as may have obliged the Industrial Tribunal to exercise its inherent jurisdiction.

32. Therefore, it merits acceptance that in the present case, the plea of lack of opportunity to lead evidence before the Industrial Tribunal has been set up in the writ proceedings, only by way of a pretence and not to bring out any real or existing prejudice caused to the petitioner. Even earlier, the domestic inquiry conducted against the respondent-workman with respect to same or similar charge was found vitiated in the departmental appeal proceedings. Accordingly, the Tribunal has not erred in not exercising its discretionary, inherent power and in not calling the petitioner-management to adduce additional evidence to bring home the charges against the respondent workman.

33. Consequently, the domestic enquiry being found vitiated, and in absence of any right to lead evidence being claimed and in absence of any other evidence to bring home the charge/s against the respondent-workman, the Industrial Tribunal committed no error in making the award of reinstatement. It does not call for any interference, to that extent.

34. As to the back wages, it does appear, the respondent-workman neither pleaded nor proved the fact that he was not gainfully employed during the period of industrial dispute remaining pending. That burden having not been discharged by him, clearly, the award of full back wages appears to be excessive, in absence of any special or cogent reason being assigned for the same.

35. However, learned counsel for the respondent states, the respondent-workman is still seeking reinstatement. Also, the matter has remained pending since 2002. In that view of the matter, it would be in the interest of justice that the matter be brought to a close now. Therefore, instead of remitting the matter, the award of the Industrial Tribunal is partially modified thus: in addition to relief of reinstatement with continuity of service for all future purposes, in lieu of the relief of full back-wages, the respondent workman be entitled to a lump sum payment equal to 50% of his last drawn wages for the period from date of his termination till his reinstatement in service. However, for the period of suspension, the workman would be entitled to his full wages. The petitioner shall itself compute and deposit the above amount with the Labour Court, Kanpur within a period of three months from today. Upon such deposit being made, the Labour Court shall proceed to forthwith release the same in favour of the respondent-workman Seeta Ram Gautam. In the event of failure on the part of the petitioner to deposit the aforesaid amount within time specified, the petitioner shall be further liable to pay interest @ 8% on that amount, from the date of this order till the date of actual payment.

36. Writ petition is thus partly allowed. No order as to costs.

Order Date :- 01.03.2019

Prakhar