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TMI Blog2008 (9) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... . This is a fit case to remand the matter to the Labour Court to decide whether the back wages and consequential benefits are payable to the workman from 29.4.1988 i.e. the date of termination to the date of reinstatement in service. - WRIT PETITION NO. 3513 OF 1997 - - - Dated:- 24-9-2008 - Nishita Mhatre, J. JUDGMENT 1. Awards Part I and II in Reference (IDA) CGIT/2/35 of 1990 have been challenged in the present petition. 2. The petitioner was recruited with the 1st respondent as an Operator in the year 1982. He was indisposed from 12.1.1988 and, therefore, did not attend his duty from that date upto 4.5.1988. The petitioner's name was struck off from the muster roll w.e.f. 12.1.1988 by the 1st respondent on 29.4.1988. An industrial dispute was raised by the petitioner in respect of his termination from service. A reference was made to the Central Government Industrial Tribunal for adjudication of the dispute. On 27.4.1995, by Award Part-I, the Tribunal held that the services of the petitioner had been illegally terminated. No enquiry had been held against the petitioner prior to termination of his services and, therefore, the Tribunal permitted the respondent employe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, this evidence cannot be relied on by the Tribunal to hold that the action taken against the petitioner was justified as it was necessary for the 1st respondent to lead fresh evidence after having been permitted to do so by the Tribunal. He also relies on the judgment of the learned Single Judge of this Court in Theatre Employees' Union ors. v/s S.V.Kotnis ors. delivered in Writ Petition No.2013 of 1983 on 3.12.1991, to contend that since no charge-sheet had been issued to the petitioner, the Labour Court had erred in permitting the employer to lead evidence to establish the alleged misconduct committed by the petitioner for the first time in the Court. He submits that admittedly no charge-sheet was ever issued to the workman and, therefore, the Tribunal had erred in allowing the respondent to lead evidence in Court to justify its action. He then relies on the judgment in the case of Neeta Kaplish v/s Presiding Officer, Labour Court anr., reported in (1999) I SCC 517, to buttress his submission that if the respondent No.1 has not led any evidence by availing of an opportunity given by the Tribunal, the Tribunal could not have relied on the material already on record to uph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had not been published in the official gazette. He submits that the question whether the regulations amount to administrative instructions is no longer res integra and further submits that the principles of res judicata apply equally to labour disputes as held by the Supreme Court in the case of Burn Co. Ltd. v/s Their Employees reported in 1957 I L.L.J. SC 226. He then submits that in any event, the workman is not entitled to reinstatement even assuming that there was no voluntary abandonment of service because he had committed a misconduct. He also relies on the judgments in the case of Municipal Corporation of Greater Mumbai v/s P.S.Malwankar ors., reported in 1978 Lab.I.C. 1096; Niranjan Cinema v/s P.C.Dubey anr., reported in 2008 I C.L.R. 429; Sarabhai Y.P. v/s Union Bank of India anr., reported in 2006 II L.L.J. SC 1122; and of the Patna High Court in the case of The Tata Engineering and Locomotive Co. Ltd., Jamshedpur v/s the Presiding Officer, Industrial Tribunal, Ranchi and anr., reported in 1980 I L.L.J. 403. 6. Before considering any other issue, in my opinion, it would be appropriate to consider the effect of the termination of service under Regulation 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "The Tribunal and the learned Single Judge have both dealt with this aspect in detail and there is really nothing we can usefully add. The reliance placed upon Regulation 31(2)(vi) in support of the submission that it was not necessary to hold an enquiry before ordering terminating is not justified. Section 37 of the International Airport Authority Act, 1971 empowers the appellants to make regulations not inconsistent with the Act and the Rules made thereunder to provide necessary or expedient for the purpose of giving effect to the provisions of the said Act. Without prejudice to the generality of the powers accordingly conferred, such regulations may provide for the conditions of service and the remuneration of officers and other employees appointed by the appellants. Section 38 enacts as follows:- (1) Any regulation which may be made by the Authority under the Act may be made by the Central Government by notification in the official Gazette within one year of the constitution of the Authority and any regulation so made may be altered or rescinded by the Authority by means of a regulation made by it under this Act. (2) No regulation made by the Authority under this Act sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve considered this material on record without the management leading cogent evidence to justify its action. The learned advocate has sought to draw an analogy between the evidence led at a defective enquiry and the evidence led before the Labour Court prior to Award Part-I. He submits that just as in a case where the material on record in respect of a defective enquiry cannot be considered by the Court, once evidence is permitted to be led before it, the Labour Court could not have, in the present case, considered the evidence led before it prior to the Award Part-I, after giving the management an opportunity to lead evidence to justify its action. 9. A perusal of the evidence on record which, according to the Labour Court, indicates that the workman had committed a misconduct, does not in any manner support this finding. An affidavit of the Personnel Manager was filed in lieu of the examination-in-chief on behalf of the respondent. He has joined service in 1991. The services of the workman were terminated in 1988. Thus, this witness had no personal knowledge of the incident leading to the termination of the services of the petitioner. In para 6 of the affidavit filed in lieu of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices. Once it had held by Award Part-I that the services had been illegally terminated, there was no need to frame the issue as to whether the workman had abandoned his services. The Labour Court ought to have framed issues regarding the nature of the misconduct allegedly committed by the petitioner and whether the management had proved the same. 10. It is not possible to subscribe the view that the evidence led prior to the rendering of Award Part-I would stand on the same footing as the evidence led in a defective enquiry as submitted by the learned advocate for the workman. However, the evidence in the present case does not in any manner indicate that the workman had committed any misconduct. As aforesaid, the witnesses for the respondent had, in fact, admitted that there was no misconduct on the part of the workman and that, therefore, there was no need of either charge-sheeting him or holding an enquiry against the workman. In these circumstances, in my opinion, the Award Part-II of the Labour Court is unsustainable and must be set aside. 11. It is not necessary for me to consider the question as to whether the Labour Court ought to have granted permission to the managemen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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