Madhya Pradesh Housing And ... vs Pankaj Betheda
2022 Latest Caselaw 8527 MP

1                                    MISC. PETITION No. 2336 of 2019




        IN THE HIGH COURT OF MADHYA PRADESH
                            AT INDORE
                             BEFORE
                HON'BLE SHRI JUSTICE ANIL VERMA



                    MISC. PETITION No. 2336 of 2019

    Between:-
    MADHYA PRADESH HOUSING AND INFRASTRUCTURE
    DEVELOPMENT BOARD EXECUTIVE ENGINEER (ELECTRICAL
    DIVISION) CIRCLE OFFICE AT INDORE, A B ROAD, INDORE
    (MADHYA PRADESH)
                                                      .....PETITIONER
    (SENIOR ADVOCATE SHRI SUNIL JAIN APPEARED FOR THE
    PETITIONER WITH SHRI KUSHAGRA JAIN, LEARNED COUNSEL )

    AND

    PANKAJ BETHEDA S/O SHRI GANGARAM BETHEDA
    OCCUPATION: EX GOVT. SERVANT 787, PANCHAM KI PHEL,
    INDORE (MADHYA PRADESH)
                                                 .....RESPONDENTS
    (RAVINDRA PRAKASH JOSHI, LEARNED COUNSEL FOR THE
    RESPONDENT [R-1].
      This petition coming for hearing, the court passed the
following:
                              ORDER

(Delivered on 28/6/2022)

The petitioner/employer has filed this present petition under Article 227 of the Constitution of India being aggrieved by order

dated 7.7.2018 passed by Presiding Officer under the Industrial Disputes Act (in short ID Act) in case No. 86/Ref.ID/12 by which the Labour court had allowed the reference of respondent/employee under the ID Act and directed the petitioner/employer to reinstate the services of respondent. He has also challenged the order dated 29.7.2016 passed by the Labour court whereby it has been held that the domestic enquiry conducted against the respondent/employee was illegal and invalid and opportunity was granted to petitioner/employer by the Labour court to prove the allegation of misconduct as against the respondent/employee. 2/ The facts in brief are that the respondent was appointed as Assistant Clerk in the petitioner department vide order dated 19.9.1996. During the course of his employment, he took a loan from Indore Premier Cooperative Bank. On 2.11.2006, Dy. Commissioner issued a charge sheet to the respondent/employee alleging that respondent had obtained loan from the bank by submitting false and fabricated documents. The respondent denied the charges. Thereafter departmental enquiry was conducted against the respondent and vide order dated 12.5.2010 the respondents was punished with the order of compulsory retirement. The petitioner preferred an appeal against the said order before the appellate authority which was rejected. Thereafter petitioner raised a reference before the Labour Court. The respondent filed his statement of claim and pleaded that the charge sheet issued to him

was based on misconceived, contradictory and irrelevant facts. He also pleaded that no document based upon which the charge sheet was issued was ever provided to the petitioner. No opportunity of cross-examining the witness was provided to him. The enquiry officer has also not followed the principle of natural justice. 3/ The petitioner/employer by filing a detailed reply in the court below opposed the claim of the respondent and prayed for its dismissal. It has been pleaded by the petitioner that the respondent had prepared false and fabricated document on the basis of which he had obtained the loan from the bank and further defaulted the repayment of the same which resulted into diminish the goodwill of the department. The petitioner also raised a plea that the appeal preferred by the respondent has rightly been rejected by the appellate authority and respondent deliberately filed the statement of claim.

4/ After hearing both the parties, the Labour court had allowed the reference of the respondent and directed the petitioner to reinstate the respondent in service but disallowed the claim of back wages on the principle of no work no pay. Being aggrieved by the said order, employer has preferred this petition before this court. 5/ Learned counsel for the petitioner submits that the Industrial court has committed an error of law while allowing the reference application filed by the respondent for reinstatement and declaration of departmental enquiry as illegal whereas the entire

evidence and documents available on record clearly reflects the misconduct of the respondent. The court below has committed a grave error of law in placing wrong burden of proof upon the petitioner. The Labour Court erred in not considering the fact that the respondent is not covered under the definition of the term workman as he is drawing salary more than the amount prescribed under section 2(s)(iv) of the ID Act. He further submitted that the sufficient material evidence is on record to justify punishment awarded to the delinquent in the departmental enquiry. Hence he prays that this petition be allowed and impugned orders be set aside.

6/ On the other hand learned counsel for respondent/employee has opposed the Misc petition and supports the impugned orders. He submits that the learned labour court after proper appreciation of evidence has held that the domestic enquiry conducted against the respondent is not fair and biased and appropriate opportunity is not granted to the respondent to lay down his defense. The Labour court rightly held that the departmental enquiry conducted against the petitioner was illegal and unjust. He submits that the respondent is also entitled for back wages. Hence he prays that this petition be dismissed with costs.

7/ I have heard the learned counsel for the parties and perused the record.

8/ The question whether Assistant Clerk could be "workman" within section 2(s)(iv) of Industrial Disputes Act, 1947 or not, is a question of fact.

9/ In the matter of Indian Iron and Steel Company Ltd Vs. Their workmen reported in AIR 1958 SC 130 and Bihar State Road Transport Vs. State of Bihar reported in AIR 1970 SC 1217 it has been held by the Hon'ble Apex court that a person doing clerical work in an industry was treated as a workman. It is also argued that respondent employee is drawing salary of more than the amount prescribed under section 2(s)(iv) of ID Act, therefore, he cannot be considered as workman. But from perusal of the salary certificates (Exs.P-10 & P-11) of the respondent, it appears that his net salary was Rs. 8,145/- for the month of November and December 2005. Therefore, it is rightly held that respondent is a workman under the provisions of ID Act. The Chief Administrative Officer MP Housing Board Bhopal in its official letter (Ex.P-2) also held that respondent was getting Rs. 6,000. Therefore, it is rightly held that respondent is a workman under the provisions of ID Act.

10/ The record of departmental inquiry reflects that C.P. Joshi and Smt. Alimma Clerk were examined by enquiry officer but they have not been cross-examined by respondent. Therefore, it appears that principle of natural justice has not been followed by the enquiry officer during the conduction of domestic enquiry and no

sufficient opportunity was given to the respondent to produce the defense witness in rebuttal of evidence produced by opponent side. 11/ It is settled in law that labour courtcan examine the leagality and validity of departmental enquiry. The Apex court in the case of Indu Bhushan Dwivedi Vs. State of Jharkhand and another reported in (2010) 11 SCC 278 opined that when it comes to taking of disciplinary action against a delinquent employee, the employer is not only required to make the employee aware of the specific imputations of misconduct but also disclose the material sought to be used against him and give him a reasonable opportunity of explaining his position or defending himself. In the matter of Anil Gilurker Vs. Bilaspur Raipur Kshetria Gramin Bank and another reported in 2011 AIR SCW 5237, the Apex court interfered with in a case of domestic enquiry because the allegations are vague and unspecified. In the instant case allegation against the employee/respondent are also vague and unspecified and reasonable opportunity of explaining his position or defending himself has not given to the respondent.

12/ The learned Labour court recorded the statement of both the side and properly appreciated the oral as well as documentary evidence available on record. The learned labour court had found it proved that the salary certificate Ex. D-16 and Adhikar Patra showing salary deduction and other documents are trustworthy.

13/ Having regard to the aforesaid, I am of the opinion that the workman/respondent has admittedly worked for more than three years. The award of reinstatement passed by learned labour court does not suffer from any error, the findings which have been recorded by learned labour court are duly supported by evidence available on record and these findings are neither erroneous nor perverse.

14/ Although learned counsel for respondent contended that reinstatement entitles workman/respondent to claim full back wages, denial of back wages would amount to indirectly punishing the employee. The workman is required to file an affidavit to show that he is not in any gainful employment, but in the instant case respondent failed to produce aforesaid affidavit. It is also noteworthy that the respondent did not assail the impugned order in respect of refusal of back wages before this court, therefore, he is not entitled for aforesaid relief. This is more so that on the logic of no work no pay, the respondent is not entitled for back wages for the aforesaid period.

15/ Even otherwise, the Supreme Court in the matter of Jai Singh and others Vs. Municipal Corporation of Delhi and Another reported in 2010(9) SCC 385 while considering the scope of interference under Article 227 of the Constitution, has held that the jurisdiction under Article 227 cannot be exercised to correct all errors of judgment of a court, or tribunal acting within the limits of

its jurisdiction. Correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 16/ Resultantly no case for interference in the impugned order/award of the Labour Court is made out. Hence this Misc. Petition is hereby dismissed.

No order as to costs.

(ANIL VERMA) JUDGE BDJ

Digitally signed by BHUVNESHWAR DATT JOSHI Date: 2022.06.28 18:27:44 +05'30'