Bombay High Court
Larsen & Toubro Limited vs Arvind Salaram Rudrakshe on 12 May, 2017
Bench: R.V. Ghuge
WP/5226/2001
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5226 OF 2001
Larsen & Toubro Limited,
A-9/10, MIDC Area,
Ahmednagar through
Deputy General Manager. ..Petitioner
Versus
Arvind Salaram Rudrakshe,
R/o Durgesh Bungalow,
Near Pumping Station,
Bhutkarwadi, At & Post
Ahmednagar. ..Respondent
...
None present
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: May 12, 2017
...
ORAL JUDGMENT :-
1. Despite service of court notice, none appears for the
petitioner. No appearance is entered by the petitioner either
through a representative or an Advocate after the court notice was
served in the backdrop of the learned advocate for the petitioner
being elevated as the Honourable Judge of this Court.
2. None appears even for the respondent.
3. Considering the above, I could have dismissed this petition in
default. However, I am deciding the same on it's merits.
WP/5226/2001
4. I have gone through the petition paper book and the detailed
Part I award, delivered by the II Labour Court, Ahmednagar dated
29.12.2000. The Labour Court was dealing with a preliminary issue as
under:-
"Does the second party workman prove that the enquiry
conducted against him by the first party is illegal, improper
and against the principles of natural justice?"
5. The Labour Court concluded on the basis of the enquiry before
it, as well as on the basis of the additional evidence adduced, that
the respondent was not given an opportunity to submit an
explanation to the charge sheet. No show cause notice was issued
along with the charge sheet. It is settled law in the light of the
judgment in the case of Om Prakash Yadav Vs. Union of India and
others [2009 (121) FlR 151], that the employer cannot proceed to
conduct an enquiry without giving a show cause notice on the charge
sheet to a workman and without considering his reply. Paragraph
No.7 of the said judgment reads as under:-
" 7. In view of the above admitted facts of the case
in adjudicating the question of legality of the charge-
sheet disclosing the name of the enquiry officer, I find
that it is the settled principles of law that after issuing
the charge-sheet the principles of natural justice is
WP/5226/2001
required to be followed by giving an opportunity to the
delinquent employee to submit a reply to the same. On
receipt of such reply the disciplinary authority is to
decide as to whether the enquiry proceeding is
required to be conducted. In the event the decision is
taken by the disciplinary authority to conduct enquiry
proceeding without giving opportunity to the
delinquent employee to give reply to the charge-sheet,
the decision making process suffers from the violation
of the principles of natural justice on the ground of
biasness. In this regard the relevant portions of the
decision State of Punjab v. V.K. Khanna (supra) are
quoted below:
34. The High Court while delving into the
issue went into the factum of
announcement of the Chief Minister in
regard to appointment of an Inquiry Officer
to substantiate the frame of mind of the
authorities and thus depicting bias. What
bias means has already been dealt with by
us earlier in this judgment, as such it does
not require any further dilation but the
factum of announcement has been taken
note of as an illustration to a mindse viz.
the inquiry shall proceed irrespective of the
reply. Is it an indication of a free and fair
attitude towards the concerned officer? The
answer cannot possibly be in the
affirmative. It is well settled in Service
Jurisprudence that the concerned authority
has to apply its mind upon receipt of reply
WP/5226/2001
to the charge-sheet or show-cause as the
case may be, as to whether a further
inquiry is called for. In the event upon
deliberations and due considerations it is in
the affirmative the inquiry follows but not
otherwise and it is this part of Service
Jurisprudence on which reliance was placed
by Mr. Subramaniam and on that score,
strongly criticised the conduct of the
Respondents here and accused them of
being biased. We do find some justification
in such a criticism upon consideration of
the materials on record."
6. The respondent was charged under Standing Order 24(a), (b)
and (l) of the Model Standing Orders for having committed willful
insubordination, disobedience, going on an illegal strike or abetting,
instigating or acting in furtherance thereof and having committed
acts subversive of discipline and good behaviour on the premises of
the establishment. He was held guilty of these charges. However, he
was not given the copy of the enquiry officer's report for submitting
his explanation as to why the management should discard the report
and should not accept the findings of the enquiry officer. The case
of the respondent was squarely covered by the judgment of the
Honourable Apex Court in the matter of Union of India Vs.
Mohammed Ramzan Khan [AIR 1991 SC 471] and in the matter of
Managing Director, ECIL, Hyderabad etc. Vs B.Karunakar etc. [AIR
WP/5226/2001
1994 SC 1074 = (1993) 4 SCC 727],
7. It is settled law that under the 15th amendment to the
Constitution, a charge sheeted employee has two rights. Firstly, to
show cause on the charge sheet and explain his conduct of not being
guilty and secondly, to show cause on the quantum of punishment.
By the 42nd Amendment to the Constitution, the first right was
maintained and the second right of the worker was altered. His right
to show cause on the quantum of punishment was taken away and
instead he was given the right to show cause on the findings of the
enquiry officer. The quantum of punishment was, therefore, left
within the domain of the employer, only after considering the
explanation of the charge sheeted employee on the findings of the
enquiry officer and his past service record. In the instant case, the
findings of the enquiry officer were not given to the respondent /
workman and a second show cause notice was not issued.
8. In the light of the above, I do not find that the impugned Part I
award, dated 29.12.2000, delivered by the Labour Court thereby
vitiating the enquiry could be termed as being perverse or erroneous.
9. In the light of the above, this petition is devoid of merits and
is, therefore, dismissed.
WP/5226/2001
10. Rule is discharged.
11. I deem it proper to direct the Labour Court to issue notices to
the litigating sides in Reference (IDA) No.69 of 1993 and proceed with
the said Reference by keeping in view the law laid down by the
Honourable Supreme Court (5 Judges' Bench) in the matter of
Karnataka State Road Transport Corporation Vs. Laxmidevamma &
another [2001 (II) CLR 640]. It is expected that the said Reference
Case, which is 24 years' old, shall be decided as expeditiously as
possible and on/or before 31.3.2018.
( RAVINDRA V. GHUGE, J. )
...
akl/d
