The Management Of Ashok Hotel ... vs Shri R.B. Bansal
2010 Latest Caselaw 1051 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) No. 5649/2008

%                                     Judgment delivered on: 23.02.2010

The Management of Ashok Hotel (ITDC)                  ...... Petitioner
                                      Through: Mr. V.K. Rao, Sr. Advocate
                                      with Mr. Saket Sikri, Advocate
                        versus

Shri R.B. Bansal                 ..... Respondents

Through: Mr. S. Kumar, Advocate

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.       Whether the Reporters of local papers may
         be allowed to see the judgment?                     No

2.       To be referred to Reporter or not?                  No

3.       Whether the judgment should be reported
         in the Digest?                                      No

KAILASH GAMBHIR, J. Oral:

1. By this petition filed under Article 226 of the Constitution of

India the petitioner seeks directions for quashing of award dated

21.2.2008 passed by the Labour Court, Karkardooma Courts, Delhi in

I.D. No. 128/2003.

2. Mr. Rao, learned Senior Advocate appearing for the

petitioner, with a view to cut short the controversy, submits that the

matter may be remanded back to the labour court so as to give an

opportunity to the petitioner to prove alleged misconduct on the part

of the respondent workman by leading additional evidence after

placing some additional documents.

3. Mr. Rao has placed reliance on the judgment of the Apex

Court in Divyash Pandit Vs. Management, NCCBM, (2005) 2 SCC

684 to support his argument that even in the absence of any plea

taken by the management in the written statement to seek leave of

the court to prove misconduct on the part of the workman in the

event of the enquiry being held to be vitiated, then the Labour Court

suo moto should have given an opportunity to the management to

prove misconduct on the part of the respondent workman. Counsel

thus submits that since no such opportunity was afforded to the

petitioner, therefore, the petitioner could not prove the misconduct on

the part of the respondent workman before the Labour Court.

4. Opposing the present petition, Mr. S. Kumar, counsel for the

respondent submits that the petitioner management never sought

any opportunity to lead any additional evidence before the Labour

Court on the alleged misconduct of the respondent nor any such plea

was taken by the petitioner in the present petition. Counsel thus

submits that the judgment of the Apex Court as cited by the counsel

for the petitioner would not be of any help to the petitioner. Another

contention raised by the counsel for the respondent is that once the

appointment of the enquiry officer itself was held to be illegal in

violation of the standing order, therefore, the entire proceedings held

before the enquiry officer became void-ab-initio and nonest. The

counsel further submitted that the Labour Court could not have held

enquiry in place of the enquiry officer to conduct proceedings against

the respondent for his alleged misconduct. Counsel for the respondent

further submits that the respondent has been superannuated on

30.4.2003, and therefore, if the matter is remanded back, he would

have to again suffer the ordeal of fresh trial.

5. I have heard learned counsel for the parties at considerable

length and have perused the records.

6. In the judgment of Divyash Pandit (Supra), the court

was confronted with such a similar situation as in the facts of the said

case also, no plea was raised by the management to lead evidence to

prove misconduct on the part of the employee and in the facts of the

said case the Court after placing reliance on the earlier decision of the

Constitutional Bench of the Apex court in Karnataka SRTC

Vs.Laxmidevamma (2001) 5 SCC 433 took a view that no fetters

can be placed on the powers of the Tribunal to permit the parties to

lead additional evidence including production of documents at any

stage of proceedings before the conclusion. Indisputably, in the facts

of the present case also the petitioner neither made any specific

averment in their written statement to lead additional evidence in

the event of the enquiry proceedings held to be vitiated nor any

separate request was made by the petitioner either orally or by moving

an application to lead additional evidence. Even in the present writ

petition no such plea has been taken by the petitioner, yet considering

the fact that the enquiry was held to be vitiated by the learned labour

court vide order dated 21.2.2008, therefore, so far the charges leveled

by the petitioner against the respondent with regard to his alleged

misconduct are concerned could not be decided by the labour court.

Perusal of the said award also shows that even no specific issue was

framed by the learned labour court on the misconduct of the

respondent workman and the only issue framed by the labour court

was with regard to the validity of the appointment of the enquiry

officer and as to whether the enquiry was conducted fairly and

properly in accordance with the principles of natural justice. In all the

cases of misconduct necessarily the labour courts have to frame the

issue on the misconduct but since no such issue was framed by the

labour court, therefore, no independent finding could be given by the

labour court on the alleged misconduct of the respondent workman.

Taking into consideration the aforesaid position and also the

judgment of the Apex Court in Divyash Pandit's case (Supra), I am

of the view that interest of justice would be better served if the

matter is remanded back to the labour court to decide the said issue

with regard to the alleged misconduct of the respondent workman.

Since the matter is quite old, therefore, it is directed that the learned

Labour Court after framing fresh issue on the misconduct shall decide

the same within a maximum period of four months from the date of

this order.

7. Both the parties are directed to appear before the Labour

Court on 8.3.2010. Both the parties shall make every possible

endeavor to complete their evidence and pleadings before the said

deadline of four months period. It is made clear that if any of the

parties feel aggrieved with the order of the labour court then they will

be at liberty to challenge the same before this court.

8. The amount which is lying deposited before this court shall

remain deposited here only and necessary directions for the release

of the same shall be passed after having known the final decision of

the labour court.

9. In the light of the above position the impugned award is

set aside.

The present petition stands disposed of.

FEBRUARY 23, 2010                                 KAILASH GAMBHIR,J
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