Gulbarga Electricity Supply And ... vs Sri Mohd Zakir Hussain And Ors
2022 Latest Caselaw 9232 Kant

                              1         W.P.No.201000/2017


           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

        DATED THIS THE 21ST DAY OF JUNE, 2022

                           BEFORE

     THE HON'BLE MR. JUSTICE S. VISHWAJITH SHETTY

       WRIT PETITION No.201000/2017 (S-DIS)
BETWEEN:

1.     GULBARGA ELECTRICITY SUPPLY
       COMPANY LIMITED,
       THROUGH ITS MANAGING DIRECTOR,
       MAIN ROAD, GULBARGA.

2.     THE CHIEF ENGINEER (ELE.)
       O&M ZONE, GESCOM,
       GULBARGA.

3.     THE SUPERINTENDENT ENGINEER (ELE.)
       O&M ZONE, GESCOM,
       GULBARGA.                       ... PETITIONERS

(BY SRI RAVINDRA REDDY, ADVOCATE)

AND:

SRI. MOHD. ZAKIR HUSSAIN
S/O KHAJA HUSSAIN,
SINCE DECEASED, BY LRS.,

1.     ISHRAT BEGUM
       W/O LATE MOHD. ZAKIR HUSSAIN,
       AGE: 40 YEARS, OCC: NIL,

2.     MOHD. HUSANAN
       S/O LATE MOHD. ZAKIR HUSSAIN,
       AGE: 16 YEARS, OCC: STUDENT,
                             2             W.P.No.201000/2017


     SINCE MINOR U/G OF RESPNODENT NO.1,

3.   ADIBA BEGUM
     D/O LATE MOHD. ZAKIR HUSSAIN,
     AGE: 13 YEARS, OCC: STUDENT,
     SINCE MINOR U/G OF PETITIONER NO.1,

      ALL ARE R/O CHANDAPUR, TQ. CHINCHOLI,
      DIST. KALABURAGI-585103.
                                           ... RESPONDENTS
(BY SRI P.VILASKUMAR, SENOR COUNSEL FOR
SRI NITESH PADIYAL, ADVOCATE FOR R1 TO R3)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT
OR CERTIORARI QUASHING AWARD DATED 18.08.2016 PASSED
IN REF.NO.27/2012 VIDE ANNEXURE-A AND DATED 29.07.2016
PASSED IN REF.NO.27/2012 VIDE ANNEURE-A1, PASSED BY THE
DISTRICT JUDGE AND PRESIDING OFFICER LABOUR COURT AT
KALABURAGI AND ETC.

     THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 14.06.2022 AND COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

                         ORDER

The instant writ petition has been filed with a

prayer to quash the award dated 18.08.2016 passed in

Reference No.27/2012 by the District Judge and

Presiding Officer, Labour Court, Kalaburagi, vide

Annexure-A and the order dated 29.07.2016 passed in

Reference No.27/2012 by the District Judge and

Presiding Officer, Labour Court, Kalaburagi, vide

Annexure-A1.

2. Heard the learned counsel for the petitioners as

well as the learned counsel appearing for the

respondents.

3. Brief facts of the case that would be relevant for

the purpose of disposal of this writ petition are:

Deceased respondent Sri.Mohammed Zakir Hussain

was working as Junior Assistant in the office of the

petitioners at Sedam. On the basis of several

complaints from consumers, internal audit report was

called for and it was found in the audit report that late

Mohammed Zakir Hussain had misappropriated cash

amount of Rs.3,70,300/- and based on such audit

report, a charge memo dated 28.01.2008 was issued to

Mohammed Zakir Hussain and other staff members. No

reply was filed to the charge memo. The Disciplinary

Authority had appointed the Enquiry Officer to conduct

departmental enquiry against the aforesaid Mohammed

Zakir Hussain and though the Enquiry Officer had issued

notices, Mohammed Zakir Hussain had failed to reply for

the same and he had not participated in the enquiry

proceedings. The Enquiry Officer completed the enquiry

and submitted a report dated 03.03.2010 and based on

the same, the Disciplinary Authority had issued a final

show cause notice to the aforesaid Mohammed Zakir

Hussain, who failed to reply to the same.

Thereafterwards, the Disciplinary Authority had issued

the order dated 18.06.2010 dismissing the aforesaid

Mohammed Zakir Hussain from service.

4. The said order was confirmed in appeal by the

Appellate Authority vide its order dated 28.02.2011.

During the pendency of the appeal, Mohammed Zakir

Hussain had expired and therefore, his legal heirs had

raised a dispute before the Labour Court under the

Industrial Disputes Act and the said proceedings was

numbered as Reference No.27/2012. Initially the

Labour Court had dismissed the reference and confirmed

the order of termination and being aggrieved by the

same, the respondents herein had filed

W.P.No.100774/2013, which was allowed and the matter

was remitted to the Labour Court to re-consider issue

No.1 by providing an opportunity to the Management to

examine the witnesses in support of its case and

proceed thereafterwards in accordance with law.

5. The Labour Court after remand passed an order

dated 29.07.2016 answering issue No.1 in the negative

and held that domestic enquiry conducted against

deceased Mohammed Zakir Hussain was not fair and

proper. Thereafterwards, an opportunity was given to

the Management to examine their witnesses and the

matter was heard and vide the order dated 18.08.2016

partly allowed the claim petition and the order of

termination passed against Mohammed Zakir Hussain

was set aside and the Management was directed to give

all the terminal benefits to the legal representatives of

the deceased Mohammed Zakir Hussain by treating the

deceased Mohammed Zakir Hussain in service as on the

date of death. The Labour Court also directed to pay

50% backwages to the legal heirs of the deceased

Mohammed Zakir Hussain from the date of the order of

dismissal. Challenging the order dated 18.08.2016 and

29.07.2016 passed by the Labour Court in Reference

No.27/2012, the present writ petition is filed.

6. Learned counsel appearing for the

petitioner/Management submits that the Labour Court

had erred in interfering with the concurrent finding

recorded by two authorities. He submits that the claim

petition was allowed and the order of dismissal was set

aside by the Labour Court only on the ground that the

Management has failed to examine the Auditor. He

submits that the Labour Court has failed to appreciate

the serious charges that were leveled against the

workman and therefore, the Labour Court was not

justified in setting aside the order of dismissal. He

further submits that the jurisdiction of the Labour Court

was very limited to interfere as against the concurrent

findings and in support of his contentions, he has relied

upon the following judgments:

(i) AIR 2005 SC 2769 - Bharat Heavy Electricals Ltd. -vs- M.Chandrasekhar Reddy and Others;

(ii) (2000) 9 SCC 521 - U.P.State Road Transport Corporation -vs- Mohan Lal Gupta and Others;

(iii) (2020) 3 SCC 423 - State of Karnataka and Another -vs- N.Gangaraj.

7. Per contra, learned senior counsel appearing for

the respondents submits that this court while allowing

W.P.No.100774/2013 having taken note of the fact that

the workman allegedly had not appeared before the

Enquiry Officer and such workman was not alive to

tender his evidence to rebut such allegation, the burden

was heavy on the Management to examine the Enquiry

Officer to prove that he had held a fair and proper

enquiry. He submits that this court had held that the

Management had not examined appropriate witnesses to

establish the validity of enquiry and therefore had

remitted the matter to the Labour court to re-consider

issue No.1 by providing an opportunity to the

Management to examine appropriate witnesses. He

refers to the evidence of Enquiry Officer, who was

examined as MW-2 and submits that a perusal of the

same makes it clear that no fair and proper enquiry was

held and sufficient opportunity was denied to the

workman. He further submits that since issue No.1 was

answered against the Management, the burden was

heavy on the Management to prove the charges against

the workman by leading evidence before the Labour

Court and since the Management had failed to discharge

such burden by examining material witnesses, the

Labour Court was justified in allowing the claim petition

and setting aside the dismissal order.

In support of his contentions, he has relied upon

the following judgments of the Hon'ble Supreme Court:

(i) Neeta Kaplish -vs- Presiding Officer, Labour

Court and Another - (1999) 1 SCC 517;

(ii) Hardwari Lal -vs- State of U.P. and Others -

(1999) 8 SCC 582.

8. I have given my anxious consideration to the

arguments addressed on both sides and also perused

the material available on record.

     9.   It   is   the   specific     contention   of    the

petitioner/Management     that   the    workman     had   not

appeared before the Enquiry Officer inspite of repeated

notice to him and he had also failed to give reply to the

final show cause notice issued to him after submission of

the enquiry report. This Court in Writ Petition

No.100774/2013 which was disposed of on 17.11.2015

at paragraphs-7 and 8 had observed as follows:

"7. When in a circumstance where it is alleged that the workman concerned had not appeared before the Enquiry Officer despite opportunity being provided and further when such workman was not alive to tender his evidence to rebut such contention, the burden was heavy on the management to examine the Enquiry Officer himself to state with regard to the opportunities that had been provided to the workman and the workman not having utilized such opportunities. Such evidence was required to be tendered by the Enquiry Officer with reference to the proceedings sheet maintained by him and the recording made therein so as to establish before the Labour Court that opportunity which was required to be granted to the workman was granted in the enquiry and therefore the procedure adopted is to be held as fair and proper.

8. Hence, essentially the requirement while answering issue No.1 was to concentrate on the procedure that had been followed and the opportunity that was granted. The very fact that the Labour Court has thereafter proceeded in the matter for evidence of the claimant on the other issues would disclose all that was to be considered thereafter was with regard to the perversity of

the finding and as to whether there was unfair labour practice. When such heavy burden was there on the management with regard to issue No.1 and the appropriate witness required to be examined had not been examined before the Labour Court to establish the validity of the enquiry, the documents that had been relied on by MW-1 at Exs.M1 to M10 if made use for rendering the finding on issue No.2 certainly prejudice would be caused to the workman when a valuable right with regard to the validity or otherwise of the domestic enquiry available to the workman was very lightly dealt with by the Labour Court. Therefore in a circumstance when the appropriate witness was not examined, the Labour Court was required to set aside the validity of the enquiry and an opportunity ought to have been granted to the management to establish the charges afresh before the Labour Court."

This Court having observed as hereinabove had set aside

the award passed by the Labour Court and remitted the

matter afresh with a direction to re-consider issue No.1

by providing an opportunity to the Management to

examine appropriate witnesses.

10. In support of its case, the Management had

examined the Enquiry Officer as MW-2, who has

admitted in the cross-examination that he had not

produced any material before the Labour Court to

establish issuance of a notice to the workman during the

course of enquiry. He had also admitted that he had not

noted in his order sheet about furnishing the list of

witnesses and documents to the workman. He had also

admitted that there was a specific direction to him to

complete the enquiry within a period of one month. The

Labour Court after appreciating the order sheet

maintained by the Enquiry Officer has given a categorical

finding that the signatures of Mohammed Zakir Hussain

were not taken in the order sheet at any point of time.

The Labour Court has taken note of the order sheet and

has given a categorical finding that there was no proper

notice issued to the workman and in the background of

this material available on record, the Labour Court has

given a finding that the enquiry held as against

Mohammed Zakir Hussain was not fair and proper.

11. Once the Labour Court has given a finding on

issue No.1 against the Management, the burden was

heavy on the Management to examine appropriate

witnesses in support of its case to prove the allegations

against the workman. Since the Labour Court had

already held that the enquiry was not fair and proper,

the Labour Court had derived jurisdiction to deal with the

merits of the dispute and in such a case, the Labour

Court is required to appreciate the evidence adduced

before it by the Management and decide the matter on

the basis of such evidence. Therefore, the contention of

the learned counsel for the petitioner that the Labour

Court had exceeded its jurisdiction in interfering with the

concurrent finding is required to be rejected.

12. The Hon'ble Supreme Court in the case of

Neeta Kaplish (supra) has observed as follows:

"In view of the above, the legal position as emerges out is that in all cases where enquiry has not been held or the enquiry has been found to be defective, the Tribunal can call upon the Management or the employer to justify the action taken against the workman and to show by fresh evidence, that the termination or dismissal order was proper. If the Management does not lead any evidence by availing of this opportunity, it cannot raise any ground at any subsequent stage that it should have been given that opportunity, as the Tribunal, in those circumstances, would be justified in passing an award in favour of the workman. If, however, the opportunity is availed of and the evidence is adduced by the Management, the validity of the action taken by it has to be scrutinised and adjudicated upon on the basis of such fresh evidence."

13. In the case of Hardwari Lal (supra), the

Hon'ble Supreme Court has observed as follows:

"Before us the sole ground urged is as to the non-observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or

not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant."

14. From the aforesaid pronouncements made by

the Hon'ble Apex Court, it is very clear that after the

Labour Court had given a finding in the negative on

issue No.1, the burden was completely on the

Management to prove its allegation as per the charges

leveled against the workman by adducing sufficient

material before the Labour Court. It is the specific case

of the respondents that the Management has failed to

examine the material witnesses before the Labour Court.

The Management has made allegation against the

workman that he had misappropriated the amount to

the tune of Rs.3,70,300/- and this allegation was made

on the basis of the audit report. Therefore, the internal

auditor would have been the competent witness to

speak about his report on the basis of which the charge

memo was issued to the workman. The Labour Court

appreciating this aspect of the matter has held that the

Management had failed to prove the misconduct of the

workman.

15. The judgments relied upon by the learned

counsel for the petitioner are all rendered in cases

where the enquiry against a delinquent employee was

held to be fair and proper and it has been held in the

said cases that in such an event the punishment

imposed on the employee especially where the

allegations are grave, the same should not be interfered

by the courts. The said judgments would not be

applicable to the facts and circumstances of the present

case, as the Labour Court in the present case has

answered issue no.1 against the Management and held

that the enquiry was not fair and proper and this finding

given by the Labour Court is based on the material

available on record, more so, the deposition of the

Enquiry Officer and therefore, said finding cannot be

found fault with. Once the enquiry is held to be not fair

and proper, the consequent order passed by the

Disciplinary Authority based on such enquiry report loses

its relevance and in order to establish its case the

Management is required to adduce evidence of the

appropriate witnesses before the Labour Court to prove

its allegation/charges against the workman.

16. It is not in dispute that when the matter had

reached the Labour Court, the workman had expired and

he was not available to lead rebuttal evidence as against

the allegations made against him. It is in this

background, this Court while disposing of

W.P.No.100774/2013 had specifically observed that the

burden to establish the issues was on the Management

and the Management had failed to discharge such

burden by examining the material witnesses.

17. Under the circumstances, I find no illegality or

irregularity in the order dated 29th July 2016 passed by

the District Judge and Presiding Officer, Labour Court,

Kalaburagi in Reference No.27/2012 vide Annexure-A1

while answering issue No.1 against the Management.

The Labour Court having held that the Management had

failed to prove its allegation against the workman by

examining the material witnesses to establish the

charges leveled against him, has set aside the order of

dismissal and has directed to grant all terminal benefits

to the legal heirs of the workman by treating the

deceased workman that he had died while in service.

The Labour Court had also directed the Management to

pay 50% of backwages from the date of dismissal of the

workman till his death.

18. In my considered view, though the Labour

Court was justified in setting aside the order of dismissal

and directing the Management to grant all terminal

benefits to the legal heirs of the workman by treating

the workman that he had died while he was in service,

the Labour Court was not justified in directing the

Management to pay backwages from the date of

dismissal till the date of death of workman since

admittedly the deceased workman had not worked for

the said period. To the said extent, the order passed by

the Labour Court in Reference No.27/2012 dated 18 th

August 2016 vide Annexure-A is required to be modified.

Accordingly, the following order:

The Writ Petition is partly allowed. The order

dated 29th July 2016 passed by the District Judge and

Presiding Officer, Kalaburagi in Reference No.27/2012

vide Annexure-A1 is confirmed and the order dated 18 th

August 2016 made in Reference No.27/2012 by the

court of District Judge and Presiding Officer, Labour

Court, Kalaburagi vide Annexure-A is modified to the

extent it relates to directing the Management to pay

backwages to the legal heirs of the workman/

Mohammed Zakir Hussain from the date of dismissal of

the workman till his death.

The order passed by the Labour Court insofar as it

relates to setting aside the order of dismissal of the

workman and directing the Management to grant all the

terminal benefits to the respondents by treating that the

workman/Mohammed Zakir Hussain had died while in

service, remains unaltered.

Sd/-

JUDGE

KNM/-

CT-SMP