Rajasthan High Court - Jaipur
Shir Kumkum Sharma vs Manager Raj Patrika Pvt Ltd on 20 December, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 12832 / 2016
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_____________________________________________________
For Petitioner(s) : Mr. Dharmendra Jain
Mr. A.K. Aroara
For Respondent(s) : Mr. Rupin Kala
_____________________________________________________ HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Judgment / Order Reserved on 31/10/2017 Pronounced on 20/12/2017
1. The judgment in the instant case was reserved on 31/10/2017. An application recalling the order dated 24/10/2017 had been filed by the respondent wherein it was prayed that as the counsel was having bad throat, he could not appear on that day as he had left the Court premises on account of illness. Certain observations, which have been made in the order dated 24/10/2017, have been prayed to be deleted. An oral prayer was also made on 31/10/2017 in this regard.
2. Taking into consideration the aforesaid, the observations made in the order dated 24/10/2017 are directed to be ignored.
(2 of 29) [CW-12832/2016]
3. The present writ petition has been filed assailing the order dated 24/03/2015 passed by the Labour Court No.2, Jaipur whereby the Labour Court has upheld the departmental enquiry conducted against the petitioner and also challenging the award dated 31/05/2016 whereby claim of the petitioner was rejected.
4. Vide reference dated 30/07/2009, the State Government referred the dispute to the Labour Court in the following terms:-
"Whether removal of the petitioner Ms. Kumkum Sharma vide order dated 27/02/2009 by the Management of the Rajasthan Patrika Pvt. Ltd., Keshargarh, Jawahar Lal Nehru Marg, Jaipur was legal and justified and if not, to what relief and amount she is entitled ?"
5. The case set up by the petitioner was that she was appointed for the first time as an Artist in the year 1993 after having been selected through a competitive examination/selection process. It is stated that at the time of initial appointment, no appointment letter was issued. In the year 2003, she was transferred to Udaipur but after having transferred, the work different than she was appointed i.e. Artist was taken from her. She, therefore, submitted representations on 27/09/2004, 10/11/2004, 17/03/2006 and 01/10/2007 to the Management pointing out that she was not being given the work for which she was appointed. It is stated that at Udaipur she was asked to prepare news notifications, news relating to Mandi, work of Hindi typing and graphics was being asked from her to be done which she performed while submitting her representations and objections. Till 2006, the petitioner was transferred to Jaipur and was allotted (3 of 29) [CW-12832/2016] the work of preparing summaries of the various editions for which she had not been trained. She again requested that she should be allotted work of Artist as she was a trained Artist and had learnt painting from Padam Shri Ram Gopal Ji Vijayvargiya. She had earlier also worked as an Artist with Navodaya Vidhlaya and had participated in various places as an Artist. It is her case that on her making such representations, the Management was angered and a charge-sheet was served upon her on 03/10/2007 wherein six charges were levelled against her which read as under:-
1- ;g fd vki jktLFkku if=dk ds lEikndh; foHkkx] esa dk;Zjr gSa] vkids i= fnukad 29-08-2007 esa of.kZr rF;ksa ds lEcU/k esa lgk;d lEiknd Jh pUnzHkku flag ls vkids le{k ppkZ dh xbZ] ftlesa mUgksua crk;k fd vkius vius i= esa tks leL;k n'kkZbZ gS] ,slh dksbZ leL;k ;k xnaxh vkids dk;Z Lfky ij ugha gSA vkidks LoPN ,oa lqjf{kr dk;Z Lfky miyC/k dj;k;k x;k gS ds lEcU/k esa lgk;d egkizcU/kd dk i= Øekad : jki/iz/2007/fnukad 30 vxLr] 2007 dk Jh ih0 ds0 xqIrk dkfeZd vf/kdkjh ds }kjk fn;k x;k Fkk] ijUrq vkius i= i<+ dj ysus ls euk dj fn;kA ;gh ugha fnukad 10 flrEcj] 2004 dks ,oa 08 flrEcj] 2007 dks Hkh laLFkku ds mPp vf/kdkjh }kjk fn;k x;k i= vkius i<+ dj ysus ls euk dj fn;k vki }kjk mDr i= u ysuk vius mPp vf/kdkfj;ksa ds vkns'kkksa dh vogsyuk ,oa xaHkhj nqjkpj.k dk dk;Z gS ;|fi mDr i= dh ,d izfr uksfVl cksMZ ij pLik ds lkFk lkFk Mkd }kjk vids Lfkk;h irs ij Hksth xbZ tks ysus ls budkj ds fjekZd ds lkFk okfil vk xbZA vkidk mDr i= u ysus dk dk;Z izekf.kr LfkkbZ vkns'k dh /kkjk 20¼2½ dh mi/kkjk 1] 22 ,oa 25 ds vUrxZr xaHkhj nqjkpj.k dh Js.kh esa vkrk gSA 2- ;g fd fnukad 06 flrEcj] 2007 dks vkids i= fnukad 29-08-2007 dk Jh ih0 ds0 xqIrk] }kjk fn;k x;k Fkk] vki mDr i= i<us i'pkr tksj&tksj ls fpYykus yx xbZ] ftlds dkj.k laLFkku esa vuq'kklu Hkax gqvk rFkk ,d vthc g";
mRiUu dj fn;kA vki }kjk laLFkku esa vuq'kklu Hkax djus dk d`R; laLFkku ds izekf.kr LfkkbZ vkns'k dh /kkjk 20 ¼20½ dh (4 of 29) [CW-12832/2016] mi/kkjk 1 ,oa 22 ds vUrxZr xaHkh nqjkpj.k dh Js.kh esa vkrk gSA 3- ;g fd fnukad 06 flrEcj 2007 dks vkids i= fnukad 29-08-2007 dk mÙkj] lgk;d egkizcU/kd dk gLrk{kfjr Jh ih0 ds0 xqIrk] dkfeZd vf/kdkjh }kjk fn;k x;k Fkk] vkius i= i<+ dj yksVk fn;k o ysus ls euk dj fn;k rks vkidks crk;k fd laLFkku }kjk fn;k x;k i= u ysuk xaHkhj nqjkpj.k dk dk;Z gS] rks vkius dgk fd vki esajk D;k fcxkM+ yksxsA vkidk d`R;k laLFkku ds vf/kdkjh ls vHknz O;ogkj djuk laLFkku ds izekf.kr LfkbZ vkns'k dh /kkjk 20 ¼2½ dh mi/kkjk 28 ,oa 30 ds vUrxZr xaHkhj nqjkpj.k dh Js.kh esa vkrk gSA 4- ;g fd jktLFkku if=dk ds laLdj.kksa dh Js"Brk cuk, j[kus vkSj xyfr;ksa dk ifjektZu djus ds mn~ns'; ls 30 vxLr] 2007 dks vkidks fuEugLrk{kjdrkZ }kjk ;g funsZ'k fn;s x;s Fks fd vki izfrfnu nSfud HkkLdj ,oa jktLFkku if=dk ds fdUgha nks laLdj.kks dh leh{kk djds Hksts] fdUrq vkius mDr funsZ'kksa dh vosgyuk djrs gq;a 1 flrEcj] 2007 ds Lfkku ij izFke leh{kk fjiksZV vtesj laLDj.k fnukad 11 flrEcj] 2007 dh 14 flrEcj] 2007 dks HksthA bl izdkj chdkus laLdj.k fnukad 14 flrEcj] 2007 dh 15 flrEcj] 2007 dks vyoj laldj.k fnukad 17 flrEcj 2007 dh 18 flrEcj] 2007 dks chdkus laLdj.k fnukad 18 flrEcj] 2007 dh 19 flrEcj] 2007 dks Jhxaxkuxj lalfdj.k fnukad 20 flrEcj] 2007 dh 22 flrEcj] 2007 dks HkhyokMk laLdj.k fnukad 23 flrEcj] 2007 dh 24 flrEcj] 2007 dks tks/kiqj laLdj.k fnukad 24 flrEcj] 2007 dh 25 flrEcj] 2007 dks vyoj laLdj.k fnukad 25 flrEcj] 2007 dh 26 flrEcj] 2007 dks dksVk laLDj.k fnukad 27 flrEcj] 2007 dh 28 flrEcj] 2007 rFkk lhdj laLdj.k fnukad 15 flrEcj] 2007 dh 27 flrEcj] 2007 tks fdk 14 fnu nsjh ls Hksth xbZ tc fd leh{kk izfrfnu Hkstus ds funsZ'k gksus ij Hkh leh{kk fu;fer :i ls u Hkst dj ,d o nks fnuk dk vUrjky ls Hksth xbZ ,oa nks laldj.kksa ds LFkku ij dsoy ,d gh laLdj.k dh Hksth gS ftlesa esa Hkh lekpkjksa dh ctk; Hkk"kk Kku ds ckjs esa vf/kd ppkZ dh gS ftldk dh dksbZ egÙko ugha gSA vkidk mDr d`R; vius foHkkx/;{k ds funsZ'k dh voKk djus dk dk;Z gS tks laLFkku ds izekf.kr LfkkbZ vkns'k dh /kkjk 20 ¼2½ dh mi/kkjk 1 ,oa 23 ds vUrxZr xaHkhj nqjkpj.k dh Js.kh esa vkrk gSA (5 of 29) [CW-12832/2016] 5- ;g fd vki izfrfnu nks lLdj.kksa dh leh{kk u Hkst dj dsoy ,d gh laLdj.k dh vUrjky ls leh{kk Hkst jgh gS] ftlesa esa Hkh ,d o nks fnu dk vUrjky ds lkFk& lkFk lekpkjksa dh leh{kk ds ctk; Hkk"kk Kku ds ckjs esa vf/dk gS ds lEcU/k esa vkidks fnukad 25 flrEcj] 2007 dk ,d i= Jh jkts'k 'kekZ }kjk fn;k x;k tks vkius mDr i= rks ys fy;k fdUrq ;g dgrs gq;s ikofr nsus ls euk dj fn;k fd ,sls i= cgqr ns[ks gS tks djuk gS dj ysuk eSa rks blh rjg dk;Z d:xhaA vkidk mDr d`R; laLFkku ds izekf.kr LFkkbZ vkns'k dh /kkjk 20 ¼2½ dh mi/kkjk 1] 22 ,oa 30 ds vUrxZr xaHkhj nqjkpj.k dh Js.kh esa vkrk gSA 6- ;g fd vkids izR;sd o"kZ dh dk;Z dq'kyrk larks"ktud ugha gksus ds dkj.k vkidks fnukad 25 vxLr] 2006 ,oa 21 vxLr] 2007 ds psrkouh i= }kjk funsZf'kr fd;k x;k Fkk fd vki Hkfo"; esa vius dk;Z esa :fp ysrs gq;s iw.kZ n{krk ,oa {kerk ls dk;Z djsxha] mlds mijkUr Hkh vkids dk;Z esa dksbZ lq/kkj ugha gks jgk gS tks fd fu;eksa dk vknru mYya?ku dk dk;Z gS tks laLFkku ds izekf.kr LFkkbZ vkns'k dh /kkjk 20 ¼2½ dh mi/kkjk] 22 ,oa 26 ds vUrxZr xaHkhj nqjkpj.k dh Js.kh esa vkrk gSA"
6. Having referred to the said six charges, it was further stated that an additional charge-sheet was served upon her on 04/12/2007 wherein two further charges were also levelled against her. However, before she could reply to the charges, vide order dated 20/11/2007 Mr. Rupin Kala, Advocate was appointed as Enquiry Officer to conduct enquiry who started the enquiry from 08/12/2007 relating to both the charge-sheets. One Mr. PK Gupta was appointed as the Presenting Officer who was also in the Personnel Department. It is her case that the statements of Mr. PK Gupta were recorded for the purpose of holding the charges proved against the petitioner and while he was the Presenting Officer, he was also one of the witnesses. It is submitted that the (6 of 29) [CW-12832/2016] petitioner had submitted her reply to the charge-sheet on 08/12/2007 and an additional reply to the subsequent charge- sheet on 22/12/2007. It is her case that she moved an application for for appointing a person other than the person from the Management as her Defence Assistant but her request was not accepted. She asked for copies of the documents relating to the summaries done by Mr. Chandra Bhan Singh but her request was not allowed and she was not made available the documents and her application was dismissed although such documents were required to put up her defence. It is her case that the Enquiry Officer rejected her request wrongfully and with malafide intention. It is stated that the said Mr. Rupin Kala, Advocate was the standing Enquiry Officer of the respondent- Rajasthan Patrika and the petitioner had no knowledge about the departmental enquiry proceedings and the Enquiry Officer, being a senior experienced Advocate of the Rajasthan High Court, it was necessary for her to have a competent Defence Assistant so that she may be able to put up her case but her application for appointing Defence Assistant was rejected wrongfully. It was also her case that she could not expect justice at hands of an Advocate who was also the Advocate for the respondent-Rajasthan Patrika and was dealing with all the cases of Rajasthan Patrika in the High Court. It is her case that she was afraid of the respondents and was not in a capacity to defend herself and could not, therefore, defend her case and the entire enquiry proceedings were conducted in terms of the directions issued by the Management of Rajasthan Patrika. The petitioner claimed before the Labour Court (7 of 29) [CW-12832/2016] that her removal from service was illegal, unjustified and her removal had lost her chance of getting appointment anywhere- else at the age of 47 years.
7. Reply was filed by the respondent-Rajasthan Patrika and it was stated that the enquiry was conducted in accordance with the provisions and standing orders. The enquiry was conducted fairly and in accordance with law.
8. The petitioner has challenged the first order dated 24/03/2015. it is submitted that the Labour Court has erred in holding the enquiry to be fair and in accordance with principles of natural justice. It is submitted that the enquiry was wholly defective and the order passed by the Labour Court holding it otherwise, was illegal. Against the order dated 24/03/2015, the petitioner had filed SB Civil Writ Petition No.11054/2015 which was disposed of vide order dated 12/01/2016 holding that the writ petition is not maintainable against an interim order and it was observed that the order could be challenged after passing of the award if it goes against her.
9. Counsel for the petitioner has submitted that the duties prescribed for the post of Artist were different from what was asked from the petitioner to perform and after having been transferred from Udaipur to Jaipur, she was asked to assist the Assistant Director Mr. Chandra Bhan Singh. On the other hand, the charge is that the petitioner did not perform the duty to analyze the news and the work done by the petitioner was compared with that of Mr. Chandra Bhan Singh and thus, the charge-sheet itself was misconstrued. It is submitted that the petitioner cannot be (8 of 29) [CW-12832/2016] said to have committed any fault as she was not required to perform the work which was asked to be done by her and was not trained for the same and as an Artist the petitioner could not be said to have been trained for analyzing news and for such a charge, the petitioner could not have been made to face departmental enquiry. Learned counsel relies on the law laid down by the Supreme Court (Three Judges' Bench) in the case of Reserve Bank of India and another Vs. C.L.Toora and others: 2004 SCC (L&S) 676. Learned counsel also relies on the law laid down by the Supreme Court in the case of Glaxo Laboratories Vs. The Presiding Officer, Labour Court, Meerut & others: AIR 1984 (SC) 505 wherein it has been held by the Supreme Court in Para No.23 as under:-
"It was next contended that while misconduct is enumerated in S.O. 22, the punishment is prescribed in S.P. 23 and the expression 'misconduct' in S.O. 23 would comprehend any misconduct irrespective of the fact whether it is enumerated in S.O. 22 or not. The preamble of S.O. 23 reads as under:
"23 (a) Any workman who is adjudged by the manager on examination of the workman, if present, and of the facts to be guilty of misconduct is liable to be......"
The submission is that the expression 'misconduct' under S.O. 23 is not qualified as the one set out in S.O. 22 and therefore, any other act of omission or commission which would per se be misconduct would be punishable under S.O. 23 irrespective of the fact whether it finds its enumeration in S.O. 22. The Act makes it obligatory to frame standing orders and get them certified. Sec. 3 (2) requires the employers in an industrial establishment while preparing draft standing orders to make provision in such draft for every matter set out in the Schedule which may be applicable to the industrial establishment, and where model standing orders have been prescribed, shall be, so far as is practicable, in conformity with such model. Item 9 of (9 of 29) [CW-12832/2016] the Schedule provides 'suspension or dismissal for misconduct, and acts or omissions which constitute misconduct'. It is therefore, obligatory upon the employer to draw up with precision those acts of omission and commission which in his industrial establishment would constitute misconduct. Penalty is imposed for misconduct. The workmen must therefore, know in advance which act or omission would constitute misconduct as to be visited with penalty. The statutory obligation is to prescribe with precision in the standing order all those acts of omission or commission which would constitute misconduct. In the fact of the statutory provision it would be difficult to entertain the submission that some other act or omission which may be misconduct though not provided for in the standing order would be punishable under standing order 23. Upon a harmonious construction, the expression 'misconduct' in S.O. 23 must refer to those acts of omission or commission which constitute misconduct as enumerated in standing order 22 and none else. However, in this connection, Mr. Shanti Bhushan drew our attention to Mahendra Singh Dhantwal v. Hindustan Motors Ltd. & Ors. In that case in a second round of litigation between the parties the Industrial Tribunal set aside the order of dismissal of the workmen and ordered reinstatement with full back wages. In a writ petition filed by the Company under Art. 226 of the Constitution, a learned Single Judge of the High Court declined to interfere with the award holding that 'the reason might have been the old reason of dismissal' and that the "circumstances relied on by the Tribunal cannot be characterised as unreasonable." The Company carried the matter to the Division Bench of the High Court which accepted the appeal observing that unless contravention of Sec. 33 of the Industrial Disputes Act is established, the Industrial Tribunal would have no jurisdiction to entertain an application under Sec. 33A. In terms it was held that unless it is established that there has been discharge for misconduct, the Industrial Tribunal had no jurisdiction to set aside the order of termination in an application under Sec. 33A. In the appeal by certificate granted by the High Court, the workman contended that Sec. 33 may be contravened in varieties of ways and the only question that needs to be examined is whether there was a contravention by the employer in that it did not (10 of 29) [CW-12832/2016] make any application to the Tribunal for the approval of the order of termination of service of the workman. It is in this context that while allowing the appeal of the workman this Court observed as under:
"Standing orders of a company only describe certain cases of misconduct and the same cannot be exhaustive of all the species of misconduct which a workman may commit. Even though a given conduct may not come within the specific terms of misconduct described in the standing orders, it may still be a misconduct, in the special facts of a case, which it may not be possible to condone and for which the employer may take appropriate action. Ordinarily, the standing orders may limit the concept but not invariably so."
Relying on these observations, Mr. Shanti Bhushan urged that this Court has in terms held that there can be some other misconduct not enumerated in the standing order and for which the employer may take appropriate action This observation cannot be viewed divorced from the facts of the case. What stared in the face of the court in that case was that the employer had raised a technical objection ignoring the past history of litigation between the parties that application under Sec. 33A was not maintainable. It is in this context that this Court observed that the previous action might have been the outcome of some misconduct not enumerated in the standing order. But the extracted observation cannot be elevated to a proposition of law that some misconduct neither defined nor enumerated and which may be believed by the employer to be misconduct ex post facto would expose the workman to a penalty. The law will have to move two centuries backward to accept such a construction. But it is not necessary to go so far because in Salem Erode Electricity Distribution Co. Ltd. vs. Salem Erode Electricity Distribution Co. Ltd. Employees Union this Court in terms held that the object underlying the Act was to introduce uniformity of terms and conditions of employment in respect of workmen belonging to the same category and discharging the same or similar work under an industrial establishment, and that these terms and conditions of industrial employment should be well- established and should be known to employees before they accept the employment. If such is the object, no (11 of 29) [CW-12832/2016] vague undefined notion about any act, may be innocuous, which from the employer's point of view may be misconduct but not provided for in the standing order for which a penalty can be imposed, cannot be incorporated in the standing orders. From certainty of conditions of employment, we would have to return to the days of hire and fire in which reverse movement is hardly justified. In this connection, we may also refer to Western India Match Company Ltd. v. Workmen in which this Court held that any condition of service if inconsistent with certified standing orders, the same would not prevail and the certified standing orders would have precedence over all such agreements. There is really one interesting observation in this which deserves noticing. Says the Court:
"In the sunny days of the market economy theory people sincerely believed that the economic law of demand and supply in the labour market would settle a mutually beneficial bargain between the employer and the workman. Such a bargain, they took it for granted, would secure fair terms and conditions of employment to the workman. This law they venerated as natural law. They had an abiding faith in the verity of this law. But the experience of the working of this law over a long period has belied their faith."
Lastly we may refer to Workmen of Lakheri Cement Works Ltd. v. Associated Cement Companies Ltd. This Court repelled the contention that the Act must prescribe the minimum which has to be prescribed in an industrial establishment, but it does not exclude the extension otherwise. Relying upon the earlier decision of this Court in Rohtak Hissar District Electricity Supply Co. Ltd. v. State of Uttar Pradesh & ors.the Court held that everything which is required to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed. In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty. Accordingly, the contention of Mr. (12 of 29) [CW-12832/2016] Shanti Bushan that some other act of misconduct which would per se be an act of misconduct though not enumerated in S.O. 22 can be punished under S.O. 23 must be rejected."
10. Counsel for the petitioner also relies on the judgment passed by Karnataka High Court in the case of Amalgamated Electricity Company Limited Vs. The Workmen of M/s Amalgamated Electricity Co. Ltd. & Ors.: 1990 (1) CLR 693 wherein the action of the workmen in not doing the work of reading motive power meters as they were not qualified and eligible to do so, was held to be not an act of misconduct.
11. Counsel for the petitioner also relies on the judgment passed by Bombay High Court in the case of Assocn. Chemical Workers & ors. Vs. B.D. Borude & ors. : 1993 (I) LLJ1196 wherein it was held that the workman cannot be held to have committed misconduct for refusing to work on a machine for want of training and skill. In the circumstances, it is submitted that the entire departmental enquiries conducted against the petitioner-workman was unfair and unjustified.
12. Learned counsel for the petitioner further submits that the Labour Court has erred in not holding the enquiry to be unfair although there was a objection that the charge-sheet was not issued by competent authority nor the Enquiry Officer was appointed by the competent authority. The Managing Director was the Disciplinary Authority of the petitioner and the same has been admitted by the respondents in their arguments while the Deputy (13 of 29) [CW-12832/2016] Editor has issued charge-sheet to the petitioner and had appointed Enquiry Officer.
13. Learned counsel for the petitioner also submits that the Labour Court has erred in holding the enquiry to be fair while the charges mentioned in the charge-sheet were absolutely vague and indefinite. He also relies upon the law laid down by the Supreme Court in the case reported in AIR 1982 (SC) 937, 2011 (131) FLR 369 and 2007(1) SCC 338.
14. Learned counsel for the petitioner also assails the order on the ground of malice in law and malice on facts by appointing Mr. Rupin Kala, Advocate as an Enquiry Officer who was the standing counsel for the employer and appearing for the employer Rajasthan Patrika. It is his submission that Mr. Rupin Kala is even appearing in the present case to defend the respondent- Rajasthan Patrika and against the enquiry conducted by him, he also appeared before the Labour Court and thus, there has been an inherent violation of the principles of natural justice and fairness. The Advocate and the Management cannot be treated as two different personalities and the enquiry, therefore, could not have been said to be impartial & fair and there was absolutely no change for the enquiry to have proceeded in favour of the petitioner. It is submitted that the enquiry was thus an eye-wash and farcical The complete enquiry proceedings were conducted in a manner not to given petitioner the chance to defend herself. The documents, which were asked upon, were not made available. The counsel relies on the judgment passed by the Delhi High Court in the case reported in 2006 LLJ 1103. It is stated that the judgment (14 of 29) [CW-12832/2016] passed by the Delhi High Court was upheld by the Supreme Court vide order dated 12/02/2017. It is further submitted that while the Enquiry Officer has noted that the evidence of employer was completed on 17/05/2008,. no material was placed on record that any chance was provided to the petitioner to produce the witnesses on her behalf and submits that the enquiry was, therefore, defective in view of the law laid down by this Court in the case reported in 2005(4) WLC 143 (Raj.) and JT 1998 (1) SC
319. It is also submitted that the settlement produced before the enquiry officer remained unsigned by the Enquiry Officer and the affidavit, which was neither attested by any Oath Commissioner or Notary or signed by the Presiding Officer i.e. Enquiry Officer, could have been taken on record as affidavits of the witnesses and was not a valid piece of evidence and therefore, the evidence was inadmissible in the enquiry. It is submitted that there was no standing orders of Rajasthan Patrika Pvt. Ltd. and only model standing orders of the State Government were made as a basis for conducting enquiry but the Labour Court has failed to take notice of the same and the order dated 24/03/2015 was therefore, required to be set aside. Learned counsel further submits that the petitioner was an Artist having qualification of MA in Drawing and Painting but a different type of job was assigned to her without any authentic order of the employer. No training whatsoever was given to her for the work which was subsequently assigned. The punishment order was therefore, unjustified and amounted to unfair Labour Practice according to the 5 th Item of Schedule 5 of the Act of 1947. Learned counsel further submits that even (15 of 29) [CW-12832/2016] otherwise while the entire enquiry was conducted ex-parte, the Labour Court erred in not taking into consideration the submissions made by it before the Labour Court and the award passed by the Labour Court, therefore, also deserves to be set aside.
15. Per-contra, learned counsel for the respondents submits that the enquiry was held from 08/12/2007 to 17/05/2008. The gist of the enquiry has been placed before this Court in the written submissions to prove that the Enquiry Officer namely; Mr. Rupin Kala, Advocate, who is arguing the present matter, had conducted the enquiry fairly. It is stated that the Enquiry Officer had dealt with all the submissions raised by the petitioner at length. It is stated that the petitioner did not cooperate during enquiry and did not cross-examine the witnesses in-spite of having given opportunity to do so. Since the management concluded its evidence, the charged employee remained absent, there remained nothing in the enquiry further except to conclude it. It is stated that the petitioner had nowhere made any complaint against appointment of Mr. Rupin Kala, Advocate as an Enquiry Officer. With regard to the submission of the petitioner being an Artist but allotted another work, it is stated that the petitioner had admitted that she was assigned different works which she accepted to do as a challenge. She had mentioned of having worked at different places in Udaipur. Thus, it is not the case that she had no experience of working at Jaipur for analyzing the news published in different newspapers. Counsel has stated that Mr. Chandra Bhan Singh, Deputy News Editor had given her training for doing the (16 of 29) [CW-12832/2016] said analysis but she disobeyed his orders and did not follow the directions of her senior. Once she accepted the job on being transferred from Udaipur to Jaipur, it was her duty to perform the said work. The charges related to in-subordination, misbehaviour and declining to take orders of seniors were all found to be proved. There was no vagueness or ambiguity of charges and she admitted to have understood the same before the Enquiry Officer. The allegation of the signatures of the Enquiry Officer not being there on the proceedings is denied. The action of proceeding ex- parte against the petitioner cannot be said to be unlawful as she was not presenting herself. However, counsel submits that merely if the signatures of the Enquiry Officer are not available on the affidavits or RO&AC has not been made on the affidavit, it would not mean that the concerned witnesses had not appeared before the Enquiry Officer and therefore, the order passed by the Labour Court of holding the enquiry fair is not liable to be interfered with.
16. Learned counsel relies on the judgments passed by the Supreme Court in the case of Cholan Roadways Ltd. Vs. G. Thirugnanasambandam: 2005(104) FLR 440 (SC); K.L. Shinde Vs. State of Mysore: 1976(3) SCC 76; State of Haryana and another Vs. Rattan Singh: 1982(1) LLJ 46 (SC); N. Rajarathinam Vs. State of Tamil Nadu: 1997(1) LLJ 224 and B. C. Chaturvedi Vs. Union of India and others: 1996 (72) FLR 316 (SC).
17. As regards the standing orders, it is submitted that Rajasthan Patrika was a limited company which was converted to private limited company subsequently. The rules and regulations which were applicable to the employees of the limited company (17 of 29) [CW-12832/2016] were followed and were applicable to all the employees. Copy of the certified standing orders was made available to the petitioner and receipt of the petitioner dated 04/12/2007 is on record and the enquiry was conducted in accordance with the certified standing orders.
18. As regards disobedience, it is stated that there was no biasness and since the same was not raised at the time of enquiry, it cannot be raised now. Learned counsel relies on the judgment rendered in the case of UD Lama & Ors., Vs. State of Sikkam & ors.: 1997(1) SCC 111. It is further stated that the enquiry would not be held to be unfair merely because the Enquiry Officer is a Lawyer who had appeared in the case for management. Counsel relies on the judgment rendered in the case of M/s Dalmiya Dadari Cement Ltd. Vs. Murari lal Bikaneria : 1970 (21) FLR 201 (SC). The allegation of biasness is on the basis of apprehension and vague suspicion. The enquiry, therefore, cannot be said to be unfair. He also relies on the judgment passed by the AP High Court rendered in the case of T. Raja Reddy Vs. Labour Court, Hyderabad and another: 1992 LLR 618. Counsel further submits that the enquiry conducted by him was subject matter of scrutiny by the Labour Court Judge who has found the same to be in order and therefore, the enquiry cannot be said to be unfair. Learned counsel also relies on the order passed by the Labour Court dated 24/03/2015 as well as the law laid down by the Supreme Court in the case of Haryana Financial Corporation and another Vs. Kailash Chandra Ahuja : (2008) 9 SCC 31.
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19. In the written submissions, learned counsel for the respondent also placed several judgments to support his case and to support the enquiry conducted by him and as many as 16 judgments have been cited.
20. Heard learned counsel for both the parties and carefully examined the material available on record.
21. Adverting to the first issue raised by the petitioner regarding inherent bias of the Enquiry Officer where he also being a Lawyer representing case of the respondent-Rajasthan Patrika and also being their Legal Advisor as well as being the Lawyer who appeared in the present case and contested the matter before the Labour Court and before this Court, this Court finds that a presumption of bias cannot be sustained on the sole ground that the Officer was a part of the Management. In the case of Biecco Lawrie Ltd. and another Vs. State of West Bengal and another:
2009(4) L.L.N. 91, the fact that the Enquiry Officer was the Company Lawyer was not considered as being biased and partisan who favoured and was partial towards the Management of the Company. In the said case, the delinquent employee was denied right to engage Lawyer while the Management was represented by a person who was a Commerce Graduate but was not a Lawyer but was a legally trained person. The said action was also not held to be in violation of the principle of natural justice since the charges were specific and simple and not difficult to comprehend.
22. In the case of Saran Motors Private Ltd. New Delhi Vs. Vishwanath and another: FLR 1964(9) (SC) 7, it has been held by the Supreme Court as under:-
(19 of 29) [CW-12832/2016] "In our opinion, this view is completely erroneous and cannot be sustained. We have repeatedly pointed out that domestic enquiries in industrial relations must be fairly conducted and whenever we are satisfied that any enquiry was not fairly conducted or its conclusions were not supported by evidence, we have unhesitatingly ignored the findings recorded at such an enquiry and held that the Tribunals must deal with the merits of the dispute for themselves; but it is impossible to accept the argument that because a person is sometimes employed by the employer as a lawyer, he becomes incompetent to hold a domestic enquiry. It is wellknown that enquiries of this type are generally conducted by the officers of the employer and in the absence of any special individual as attributable to a particular officer, it has never been held that the enquiry is bad just because it is conducted by an officer of the employer. If that be so, it is obviously unsound to take the view that a lawyer who is not a paid officer of the employer, is incompetent to hold the enquiry, because he is the employer's lawyer and is paid remuneration for holding the enquiry. Therefore, the first reason given by the Tribunal for ignoring the findings of the domestic enquiry must be reversed. "
23. In the case of M/s. Dalmia Dadri Cement Ltd. Vs. Murari Lal Bikaneria: FLR 1970(21) (SC) 201, it was held as under:-
"We find ourselves unable to accept the conclusions arrived at by the Tribunal. The Tribunal seems to have been greatly impressed by the fact that instead of appointing someone in the appellant's factory itself as the Enquiry Officer the Works Manager had brought in an outsider who was no other than a junior advocate occasionally assisting Anand Prakash, their counsel in some matters. The Tribunal's view that this was wholly unwarranted and done with the purpose of loading the dice against the workmen appears to be unreasonable. Merely because the Enquiry Officer was a junior advocate and that he had on occasions been engaged by the appellant, it is not possible to take the view that he would necessarily be biased against the workmen. Evidently some of the workmen had behaved rudely to some members in the managerial (20 of 29) [CW-12832/2016] cadre and it would not have been at all difficult for the Works Manager to appoint as Enquiry Officer some person of the factory itself over whom he was likely to have greater influence than on an outsider. As he himself was going to be a witness in the enquiry he' entrusted the appointment of the Enquiry Officer to the Director of the Company. We find nothing unfair in this and are unable to take any exception to the course adopted."
24. The element of fairness in an enquiry and the apprehension of bias was aptly considered and quoted by the Apex Court in the case of State of Punjab Vs. V.K. Khanna and others: (2001) 2 SCC 330 where observations of the English Courts have been quoted as under:-
"7. Incidentally, Lord Thankerton in Franklin v. Minister of Town and Country Planning (1948 AC 87) opined that the word bias is to denote a departure from the standing of even-handed justice. Girja Shankars case (supra) further noted the different note sounded by the English Courts in the manner following:
"30.Recently however, the English Courts have sounded a different note, though may not be substantial but the automatic disqualification theory rule stands to some extent diluted. The affirmation of this dilution however is dependent upon the facts and circumstances of the matter in issue. The House of Lords in the case of Reg. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No.2) [2000 (1) A.C. 119] observed:
..In civil litigation the matters in issue will normally have an economic impact; therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judges decision will lead to the (21 of 29) [CW-12832/2016] promotion of a cause in which the judge is involved together with one of the parties.
31. Lord Brown Wilkinson at page 136 of the report stated:
It is important not to overstate what is being decided. It was suggested in argument that a decision setting aside the order of 25 November 1998 would lead to a position where judges would be unable to sit on cases involving charities in whose work they are involved. It is suggested that, because of such involvement, a judge would be disqualified. That is not correct, The facts of this present case are exceptional, The critical elements are (1) that A.I. was a party to the appeal; (2) that A.I. was joined in order to argue for a particular result; (3) the judge was a director of a charity closely allied to A.I. and sharing, in this respect, A.I.'sobjects. Only in cases where a judge is taking an active role as trustee or director of a charity which is closely allied to and acting with a party to the litigation should a judge normally be concerned either to recuse himself or disclose the position to the parties. However, there may well be other exceptional cases in which the judge would be well advised to disclose a possible interest.
Lord Hutton also in Pinochets case (supra) observed: there could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation.
33. Incidentally in Locabail (Locabail (U.K.) Ltd. v. Bayfield Properties Ltd.: 2000 Q.B. 451), the Court of Appeal upon a detail analysis of the oft cited decision in Reg. v. Gough [(1993) A.C. 646] together with the Dimes case, (3 House of Lords Cases 759): Pinochet case (supra), Australian High Courts decision in the case of re J.R.L., Ex parte C.J.L.: (1986 (161) CLR
342) as also the Federal Court in re Ebner (1999 (161) A.L.R. 557) and on the decision of the Constitutional Court of Sourth Africa in President of the Republic of South Africa v. South African Rugby Football Union (1999 (4) S.A. 147) stated that it (22 of 29) [CW-12832/2016] would be rather dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. The Court of Appeal continued to the effect that everything will depend upon facts which may include the nature of the issue to be decided. It further observed:
By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such persons evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakuta v. Kelly (1989) 167 C.L.R. 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party witness , or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.
34. The Court of Appeal judgment in Locabail (supra) though apparently as noticed above sounded a different note but in fact, in more occasions than one (23 of 29) [CW-12832/2016] in the judgment itself, it has been clarified that conceptually the issue of bias ought to be decided on the facts and circumstances of the individual case a slight shift undoubtedly from the original thinking pertaining to the concept of bias to the effect that a mere apprehension of bias could otherwise be sufficient.
8. The test therefore, is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained: If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefor would not arise."
25. In the aforesaid case, the Supreme Court adverted to the facts of the case and observed as under:-
"25. Bias admittedly negates fairness and reasonableness by reason of which arbitrariness and malafide move creep in issuance of the two notifications assuming in hot haste but no particulars of any malafides move or action has been brought out on record on the part of Shri V.K. Khanna while it is true that the notings prepared for Advocate Generals opinion contain a definite remark about the malafide move on the part of Shri V.K. Khanna yet there is singular absence of any particulars without which the case of malafides cannot be sustained. The expression malafide has a definite significance in the legal phraseology and the same cannot possibly emanate out of fanciful imagination or even apprehensions but there must be existing definite evidence of bias and actions which cannot be attributed to be otherwise bonafide actions not otherwise bonafide, however, by themselves would not amount to be malafide unless the same is inaccompanymen with some other factors which would depict a bad motive or intent on the part of the doer of the act."
26. In the said case, it was further held as under:-
(24 of 29) [CW-12832/2016] "37. As noticed above malafide intent or biased attitude cannot be put on a straight jacket formula but depend upon facts and circumstances of each case and in that perspective judicial precedents would not be of any assistance and as such we refrain from further dealing with various decisions cited from the Bar since facts are otherwise different in each of the decisions. "
26. In the case of International Airports Authority of India Vs. K.D. Bali and another: (1988) 2 SCC 360, while examining an arbitration award, it was held by the Apex Court as under:-
"6.In the words of Lord O'Brien, LCJ there must be a real likelihood of bias. It is well settled that there must be a real likelihood of bias and not mere suspicion of bias before the proceedings can be quashed on the ground that the person conducting the proceedings is disqualified by interest. See in this connection Gullapalli Nageswara Rao v. The State of Andhra Pradesh, [1960] 1 SCR 580 and Mineral Development Ltd. v. State of Bihar, [1960] 2 SCR 609. Recently this Court in a slightly different context in Ranjit Thakur v. Union of India and others, A.I.R. 1987 S.C. 2386 had occasion to consider the test of bias of the Judge. But there must be reasonableness of the apprehension of bias in the mind of the party. The purity of administration requires that the party to the proceedings should not have apprehension that the authority is biased and is likely to decide against the party. But we agree with the learned Judge of the High Court that it is equally true that it is not every suspicion felt by a party which must lead to the conclusion that the authority hearing the proceedings is biased. The apprehension must be judged from a healthy, reasonable and average point of view and not on mere apprehension of any whimsical person. While on this point we reiterate that learned counsel appearing for the petitioner in his submissions made a strong plea that his client was hurt and had apprehension because the arbitrator being the appointee of his client was not acceding to the request of his client which the petitioner considered to be reasonable. We have heard this submission with (25 of 29) [CW-12832/2016] certain amount of discomfiture because it cannot be and we hope it should never be in a judicial or a quasi-judicial proceeding a party who is a party to the appointment could seek the removal of an appointed authority or arbitrator on the ground that appointee being his nominee had not acceded to his prayer about the conduct of the proceeding. It will be a sad day in the administration of justice if such be the state of law. Fortunately, it is not so. Vague suspicions of whimsical, capricious and unreasonable people are not our standard to regulate our vision. It is the reasonableness and the apprehension of an average honest man that must be taken note of. In the aforesaid light, if the alleged grounds of apprehension of bias are examined, we find no substance in them. It may be mentioned that the arbitrator was appointed by the Chief Engineer of the petitioner, who is in the service of the petitioner."
27. Thus, for arriving at a conclusion regarding bias and prejudice, facts of the case need to be examined. In the present case, the petitioner has alleged that she was an Artist appointed but her field of duties was different from the field of work for which she was served with the charge-sheet. It is her case that she has been continuously representing the authorities for allotting her the work for which she has been appointed. Mr. Rupin Kala, Advocate, who appeared for the respondent-Rajasthan Patrika in the present case, was appointed as an Enquiry Officer by the management even before she could file her reply to the charge-sheet. Mr. Rupin Kala, Enquiry Officer recorded evidence of Mr. PK Gupta, who was also the Presenting Officer of the Management. The petitioner was not given opportunity of placing her case through Defence Assistant of her choice. The Enquiry Officer did not allow her request for making available the (26 of 29) [CW-12832/2016] documents and her application was dismissed. She has apprehended of not getting an impartial verdict from the Enquiry Officer and the Enquiry Officer has given his verdict ex-parte.
28. Thus, this Court finds that there was a reasonable apprehension in the mind of the petitioner of inherent bias and prejudice of the Enquiry Officer. Although, in view of the law laid down by the Apex Court, as quoted above, mere appointment of Lawyer to conduct enquiry, who also appears for the Management in cases, may not be ipso-facto case for presumption of bias and prejudice and bald allegations of bias may not be made out but if the facts of the case are examined, it is found that there has been perversity in arriving at findings by the Enquiry Officer and the Enquiry Officer, who is supposed to have knowledge of law, being an Advocate, acts contrary to the provisions of law and denies the delinquent fair opportunity to defend, a likelihood of bias and prejudice as well as unfairness and partiality towards the Management can be inferred. In the present case, taking note of the submissions, which are found to be correct on record, specially with regard to the fact that the enquiry officer has allowed the Presenting Officer to be a witness in the enquiry and has also not allowed the Defence Assistant to the petitioner, an inference can be drawn of bias on his part. Further, he has argued on behalf of the Management also to support not only his enquiry report but also the decision taken by the Management of removing the petitioner from service. It is also seen that the Enquiry Officer did not give any opportunity to the petitioner to produce witnesses on her behalf after having closed evidence of the Management. Thus, (27 of 29) [CW-12832/2016] the apprehension of the petitioner of the Enquiry Officer having a role to pay in the entire enquiry proceedings upto the level of final decision being taken by the Management, is found to be correct and the circumstances, whereby the disciplinary action and supporting all the orders of the Labour Court by the same counsel do speak volumes a predetermined and prejudiced mind. It is a case where the prosecution, Management and the Enquiry Officer have joined hands to hold the petitioner guilty and the Labour Court, without adverting to these aspects, has held wrongfully the enquiry to be fair.
29. In view of the law laid down in the case of Glaxo Laboratories Vs. The Presiding Officer, Labour Court, Meerut & others (supra), this Court finds that the allegations levelled against the petitioner was that the petitioner did not perform the duties to analyze the news and the work done by the petitioner was compared with Mr. Chandra Bhan Singh, who was an Assistant Editor while the petitioner had been transferred from Udaipur to Jaipur with direction that she would assist the Assistant Editor Mr. Chandra Bhan Singh who was engaged in analyzing the news. Thus, the charge levelled against the petitioner was not in accordance with the spheres of duties allotted to her. She was not competent to analyze the news at her own level and being an Artist, she was required, as per the duties, to prepare publication of drawing, layout, map, graphs and other similar embellishment, illustrations of any kind or creative art. The Enquiry Officer, Disciplinary Authority as well as the Labour Court have failed to examine the basic contention raised by the petitioner of having (28 of 29) [CW-12832/2016] not committed any misconduct. Thus, the work of assisting the Assistant News Editor Mr. Chandra Bhan Singh was not within the sphere of duties. It is not the case of the Management that the petitioner had been trained for the said purpose.
30. The allegation of the petitioner regarding the Deputy Editor having no competence to issue charge-sheet or to appoint Enquiry Officer, however, is not made out in view of the submissions of the respondent that the Deputy Editor had been authorized to act as Disciplinary Authority on the basis of the resolution of the Board.
31. From the facts of the case, this Court is satisfied that dismissal of the petitioner is by way of victimization and the order dated 27/02/2009 was unjustified and contrary to law. The Management has relied on a defective enquiry and the said punishment based on defective enquiry and supported by the Enquiry Officer before the Labour Court as well as this Court, cannot be held as legal and justified. The findings of the Labour Court that the petitioner could have been allotted other work than that for which she was appointed is wholly perverse and for being not performed work for which she was not trained, she could not have been punished. A prayer made by an employee for requesting not to be allotted a work which she may not be able to perform would not come within the ambit of disobedience and if such an employee is forced to work by issuing warnings and later on charge sheeted for not performing the said work, in accordance with law itself amounts to victimization and harassment.
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32. In the circumstances, this Court finds that the petitioner has been subjected to wrongful departmental proceedings. She has been victimized and it is because of unfair harassment and exploitation. This Court, therefore, holds the entire enquiry proceedings against the petitioner as vitiated and bad in law and the same are set aside.
33. Consequently, the writ petition is allowed. The order impugned dated 27/02/2009 passed by the respondent-Rajasthan Patrika removing the petitioner from service as well as impugned order & award dated 24/03/2015 and 31/05/2018 passed by the learned Labour Court holding the enquiry fair and proper as well as removal of the petitioner proper and justified are hereby quashed & set aside and the respondent-Rajasthan Patrika is directed to reinstate the petitioner in service with all consequential benefits including continuity of service and back wages. Compliance of this order be made by the respondent within a period of three months from the date of submission of certified copy of this order in their office. No costs.
(SANJEEV PRAKASH SHARMA)J. Raghu/