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TMI Blog2016 (12) TMI 1905X X X X Extracts X X X X X X X X Extracts X X X X ..... e part of the management before the Labour Court to establish otherwise - It appears that the High Court itself has granted compensation since the Court felt that the termination was unjustified and since reinstatement was not possible on account of superannuation. In case, the High Court was of the view that termination was justified, it could not have ordered for payment of any compensation. In order to deny gratuity to an employee, it is not enough that the alleged misconduct of the employee constitutes an offence involving moral turpitude as per the report of the domestic inquiry. There must be termination on account of the alleged misconduct, which constitutes an offence involving moral turpitude. The judgment of the High Court cannot be sustained - Appeal allowed. - Kurian Joseph And Rohinton Fali Nariman, JJ. For the Appellant : Uday B. Dube, Adv For the Respondent: R.S. Hegde, Farhat Jahan Rehmani, Chandra Prakash and Rajeev Singh, Advs. JUDGMENT 1. Leave granted. 2. The Appellant, aggrieved by the termination from service, raised an industrial dispute leading to the award in Reference IDA No. 42 of 2007 dated 20.06.2013 of the Labour Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des this, the reporter has not stated before the Enquiry Officer in terms of his report. Accordingly, the enquiry officer has recorded his findings on the basis of no evidence and therefore, the findings recorded by the Enquiry Officer appears to be perverse one.... 7. On issue No. 2, it was noted that: ..in the light of findings on issue No. 1 that, the enquiry held against the Complainant was fair, proper and legal and the findings of enquiry officer are perverse, then it is for first party to prove the alleged charges of misconduct before this Court. It is pertinent to note that, in their written statement the first party has not made prayer that, if the court arrived at the conclusion that the enquiry held against the Complainant was not fair, proper and legal and the findings of enquiry officer are perverse, then they may be permitted to prove the misconduct of second party before this Court by leading evidence. But, they failed to do so. No witness is examined by the first party. Hence, the alleged misconduct of second party has not been proved before this Court. 8. Still further, the Labour Court proceeded further and found that: 14. In a case before me, testifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y has not been shattered during cross examination. 15. After cross-examining the second party, the Respondent has an opportunity to lead evidence in support of the chargers levelled against the Complainant. Once, findings of the enquiry officer are held perverse by this Court, then burden lies on Respondent to prove the misconduct by leading evidence before this Court. But, instead of leading evidence in support of alleged misconduct of the second party, first party did not lead any oral evidence before this Court, on the contrary filed pursis of closing their evidence at Exh. C-20. Therefore, it is crystal clear that, the misconduct of the second party is not proved before this Court by the first party. Therefore, it can safely be inferred that, the charges levelled against the second party are false and the said charge sheet was issued with an intention to victimize him . As the charges levelled against the second party are not proved either in the departmental enquiry or before this Court, hence, the dismissal order issued by the first party is nothing but in colourable exercise of employer's right, by falsely implicating the Complainant in a criminal case on false evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e benefits were granted. 11. The High Court, in the impugned order, took the view that the Labour Court went wrong in deciding the preliminary issue concerning the fairness of the inquiry and deciding all further issues in one stroke. To quote the relevant consideration which appears at paragraph-12 of the impugned judgment: 12. It is apparent that the Labour Court has erred in deciding the preliminary issues concerning the fairness of the enquiry and the findings of the enquiry officer along with all the issues while delivering the impugned judgment. The procedure laid down in law, which has been considered by this Court and followed in the case of Maharashtra State Roadways Transport Corporation, Beed v. Syed Saheblal Syed Nijam 2014 III CLR 547, has not been followed by the Labour Court. It could not have decided the preliminary issues along with all the rest of the issues in one stroke while delivering the impugned award. For this reason alone, the impugned award is rendered unsustainable. 12. In that view of the matter, it was held that the Appellant would not be entitled to the gratuity but a one-time compensation of an amount equivalent to 50 per cent of the back wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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