M/S Jac Air Services Pvt. Ltd. vs Pramod Kumar
2014 Latest Caselaw 6402 Del

$~45
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                              Judgment delivered on 3rd December, 2014
+                                   W.P.(C) 8454/2014
       M/S JAC AIR SERVICES PVT. LTD.               ..... Petitioner
                      Represented by: Mr.Pramod Kumar Sharma
                                      and Mr. Manish Kumar
                                      Sharma, Advocates.
                      Versus

    PRAMOD KUMAR                                              ..... Respondent
                  Represented by: None.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

CM No. 19520/2014 (for exemption)

Exemptions allowed, subject to all just exceptions. Accordingly, the application is allowed.

W.P.(C) 8454/2014

1. Vide the instant petition, the petitioner/Establishment has assailed the award dated 24.03.2014, whereby while setting aside the order of suspension and dismissal dated 18.02.2010 passed by the petitioner/Establishment, the learned Tribunal directed reinstatement of the respondent/workman with directions to the petitioner/Establishment to conduct a fresh inquiry after observing all the principles of natural justice and giving the workman fair and proper opportunity to represent himself and

to defend the charges. Further held that the respondent/workman was not entitled to back wages till the inquiry is finalized. Also directed to complete the inquiry within six weeks from the date of publication of the award, failing which the respondent/workman shall be paid compensation at the rate of Rs.5,000/- per month till completion of the inquiry.

2. Mr.Pramod Kumar Sharma, learned counsel appearing on behalf of the petitioner/Establishment submits that the respondent/workman has accepted his misdemeanour before the Inquiry Officer and the learned Tribunal as well. Despite, the learned Tribunal has set aside the orders of suspension and dismissal from service.

3. Learned counsel submits that the respondent/workman was a habitual offender and earlier also he committed such type of misconducts. In the proceedings before the Inquiry Officer, he admitted his guilt that he had a fight with Virender Kumar and while fighting he had a wooden cudgel (phatti) in his hand. Thus, in such a situation, it is not necessary to use the same for beating and holding the wooden cudgel itself during a fight is enough to cover the said act within the purview of 'misconduct'. Hence, for the aforesaid misconduct, the respondent/workman is liable to the penalty for removal from service, which the petitioner/Establishment has rightly passed the orders against him.

4. Further submits that the charge sheet was issued to the respondent/workman, to which he did not object; he filed reply to the chargesheet. The petitioner/Establishment furnished all the documents to the respondent/workman and he never objected to any of the procedure adopted by the petitioner/Establishment during the inquiry proceedings. He

admitted his guilt; therefore, there was no question of conducting further inquiry and to lead evidence to prove his misconduct.

5. Fact remains that the petitioner/Establishment did not examine the Inquiry Officer before the Tribunal, who could have proved the inquiry proceedings and the report. The validity of the inquiry could only have been ascertained from his cross-examination. During the inquiry, a chargesheet was issued to the respondent/workman and charges were read over to him. Pursuant thereto, he was put questions regarding the charges and his answers were recorded, wherein he had admitted the charges but with certain explanations. He had apologized for his misdemeanour during the said questioning as well as through his letter Ex.MW1/4. In the inquiry report Ex.MW1/10, it has been mentioned by the Inquiry Officer that before conducting the inquiry, summary of allegations alongwith documents were served upon the charged officer and explained to him in Hindi. It has also been recorded that he was given an opportunity to produce defence witness and documents but he denied. Thus, neither any witness was examined by the petitioner/Establishment nor the respondent/workman examined any witness in his defence, accordingly, the Inquiry Officer prepared the report on the basis of the questions put to the respondent/workman.

6. However, the petitioner/Establishment examined its Executive Director in its evidence who had issued the letter of dismissal from service to the respondent/workman. He deposed in his cross-examination that he was satisfied that the workman had admitted the misconduct committed by him before initiating an inquiry against him or before issuing chargesheet. It establishes the prejudicial mind of the petitioner Authority. Moreover, it

was deposed by MW1 that the respondent/workman was forgiven for the charges mentioned at serial Nos. 2 to 6 of the chargesheet but in the dismissal letter Ex.MW1/1, it is stated that Articles 1 to 6 of the chargesheet stood proved against the respondent/ workman.

7. Neither the respondent/workman had admitted the charges against him vide his letter dated 17.03.2010, Ex. MW1/4, nor admitted during the questioning by the Inquiry Officer in entirety. However, admitted with certain riders and explanations, which were required to be proved by giving an opportunity to the respondent/workman.

8. As per the inquiry and the questioning by the Inquiry Officer, it is clearly established that the Inquiry Officer exceeded his jurisdiction by cross-examining the respondent/workman, which is against the law and procedure. This type of attitude cannot be expected from the Inquiry Officer, who supposed to be an independent person.

9. After going through the questions put by the Inquiry Officer and answers given by the respondent/workman, it seems that the petitioner/Establishment had given an assurance to the respondent/workman that whatever had happened, he should narrate the same and nothing will happen to him and his services will be ensured. Accordingly, the respondent/workman honestly deposed each and every instance before the Inquiry Officer and before the learned Tribunal as well. Moreover, the respondent/workman sought apology and assured not to repeat it in future. In such a situation, instead of removing the respondent/workman from service, the petitioner/Establishment should have given a chance to the respondent/workman to improve in life. This type of attitude would

discourage the persons, who introspect themselves and come out with truth. Moreover, the inquiry has not been properly conducted as discussed above and the learned Tribunal has given an opportunity to the petitioner/Establishment to conduct a fresh inquiry as per the procedure.

10. In addition, during the inquiry, the respondent/workman specifically stated that he had not beaten Virender Kumar and admitted that though he was holding a wooden cudgel in his hand but not used the same. Also admitted that one Naresh Kumar intervened in the fight, who stated that the respondent/workman did not use the wooden cudgel. The aforesaid misdemeanour accepted by the respondent/workman in reply to the chargesheet dated 17.03.2010 and also apologized with assurance that he will not repeat in future and sought forgiveness. With these riders, he accepted his misdemeanour. The Inquiry Officer should have examined the witness from the petitioner/Establishment to establish that the respondent/workman had beaten Virender Kumar, as alleged in the chargesheet, but the petitioner/Establishment failed to do so.

11. In view of the above recorded facts, I do not find any discrepancy in the award dated 24.03.2014 passed by the learned Tribunal.

12. Accordingly, the present petition is dismissed in limine. CM No. 19519/2014 (for stay) With the dismissal of the petition itself, the instant application has become infructuous. The same is accordingly dismissed.

SURESH KAIT (JUDGE) DECEMBER 03, 2014/sb