Bombay High Court
Volkswagen India Pvt. Ltd. Thr Its ... vs Deepak Nanasaheb Nagtilak on 5 July, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:26970
Gayatri Shimpi 13-WP-11761-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11761 OF 2023
Volkswagen India Pvt. Ltd .. Petitioner
Versus
Deepak Nanasaheb Nagtilak .. Respondent
...
Mr. Kiran Bapat, Senior Advocate with Mr. Varun Rajiv Joshi & Mr. Chetan A. Alai, Advocate for Petitioner.
Mr. Sanjay Singhvi, Senior Advocate i/b Mr. Ghanshyam Thombare, Advocate for Respondent.
...
CORAM : SANDEEP V. MARNE J.
DATE: : 5 JULY 2024.
P.C. :-
1) Petitioner - employer has filed this Petition challenging Part - 1 Award
dated 11 May 2023 passed by Presiding Officer Labour Court No.4, Pune in Reference (IDA) 96 of 2019 holding that the enquiry conducted against the Respondent is not legal, fair, proper and in accordance with principles of natural justice and that the findings recorded by the Enquiry Officer are perverse.
2) Petitioner is a private limited company engaged in manufacturing and assembling of automotive vehicles, parts and components. The Petitioner has a factory at Pune and it employs 2072 permanent workmen, whose terms and 1/16 ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 16:26:11 ::: Gayatri Shimpi 13-WP-11761-2023.doc conditions of service are governed by the contract of employment (appointment order), Certified Standing Orders dated 15 March 2011 formulated under the provisions of the Industrial Employment (Standing Orders) Act, 1946 and settlements signed with the recognized union from time to time.
3) Respondent was employed with the Petitioner as a Team Member with effect from 30 June 2008. A Disciplinary Inquiry was initiated against the Respondent by the issuance of charge-sheet dated 18 April 2018 alleging several charges. Respondent denied the charges vide reply dated 20 April 2018. It was decided to conduct enquiry into the charges and Adv. Atul Dixit was appointed as the Enquiry Officer. Enquiry was conducted into the charges on various dates. At the end of the enquiry, Enquiry Officer submitted a report and findings dated 14 September 2018 in which, he found Respondent to be guilty of charges leveled against him. The report of the Enquiry Officer was dispatched to the Respondent by letter dated 11 October 2018. The same was apparently served on the Respondent on 13 October 2018. Apparently, the Enquiry Officers report was also served on Respondent by e-mail dated 12 October 2018. Respondent sought time of 15 days to submit his reply to the report of the Enquiry Officer. The Petitioner, however, issued order dated 15 October 2018 dismissing the Respondent from service.
4) Respondent raised dispute before the Deputy Commissioner of Labour Pune. Since conciliation proceedings resulted in failure, reference was made for adjudication to the Labour Court, Pune. Respondent filed his Statement of Claim, which was resisted by the Petitioner by filing the written statement. The Labour Court framed preliminary issues on 2 March 2021 about fairness in the enquiry and perversity in the findings of Enquiry Officer. By Part - 1 Award dated 11 May 2023, the Labour Court has answered both the preliminary issues in favour of the Respondent holding that the enquiry conducted against him is not legal, fair, 2/16 ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 16:26:11 ::: Gayatri Shimpi 13-WP-11761-2023.doc proper or in accordance with the principles of natural justice. It is further held that the findings recorded by the Enquiry Officer are perverse. Aggrieved by the Part - 1 Award dated 11 May 2023, Petitioner has filed the present Petition.
5) Mr. Bapat the learned senior advocate would appear on behalf of the Petitioner - employer and submit that the Labour Court has erred in answering the preliminary issue of fairness in the enquiry against the Petitioner. He would submit that the issue relating to fairness in the enquiry has been answered against Petitioner only on two grounds of (i) non-grant of adequate opportunity of making representation against report of Enquiry Officer and (ii) delay in that initiation of enquiry proceedings. So far as the first ground of opportunity of making representation against report of the Enquiry Officer is concerned, Mr. Bapat would submit that the report was served on the Respondent on 12 October 2018 by way of e-mail. Additionally physical come to the report was also dispatched took the Respondent by letter dated 11 October 2018, which is admittedly received by him. On 13 October 2018, instead of filing reply to the referred to the Enquiry Officer, Respondent casually sought time of 15 days by his letter dated 15 October 2018. That thus, Respondent failed to avail the opportunity of filing reply to report of the Enquiry Officer and, therefore, it cannot be stated that there is an infraction of principles of natural justice on the part of the Petitioner.
6) Mr. Bapat would further submit that in any case, no prejudice is caused to Respondent on account of grant of lesser time to submit reply to the report of the Enquiry Officer. Taking me through the Statement of Claim filed by Respondent, Mr. Bapat would submit that there is no pleading about cause of any prejudice to the Respondent. That even if the report of the Enquiry Officer was not to be served on Respondent, still it is necessary for him to establish that the same caused any prejudice to him. He would submit that in Managing Director, ECIL Vs. B. 3/16 ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 16:26:11 ::: Gayatri Shimpi 13-WP-11761-2023.doc Karunakar, (1993) 4 SCC 727 the Apex Court has held that mere non supply of report of the Enquiry Officer cannot ipso facto vitiate the enquiry and that it is necessary for the delinquent employee to prove cause of any prejudice by non supply of Enquiry Officer Report. He would also relied upon Judgment of the Apex Court in State of U.P. Vs. Harendra Arora and Anr. (2001) 6 SCC 392.
7) So far as the second ground of alleged delay in initiation of disciplinary proceedings, Mr. Bapat would submit that the Labour Court has erred in expecting that separate charge-sheets ought to have been issued in respect of each of the incidents occurring on 16 July 2017, 15 June 2017, 15 January 2018 and 17 November 2017. That the finding with regard to the delay in initiation of proceedings recorded by the Labour Court are ex-facie illegal and are liable to be set aside. That the Labour Court has erred in holding the findings of the Enquiry Officer to be perverse only on account of answer to Issue No. 1 against the Petitioner. He would submit that full opportunity has been given to Respondent who has participated in the enquiry. He would therefore pray for setting aside the Part - 1 Award dated 11 May 2023.
8) Mr. Singhvi, the learned senior advocate appearing for the Respondent would oppose the Petition and support the Part - 1 Award passed by the Labour Court. He would submit that the entire enquiry has been conducted against the Respondent in gross violation of principles of natural justice. He would submit that the report of the Enquiry Officer was received by Respondent at 19.58 hours on 13 October 2018. That time of only two days was granted to respond to voluminous report of Enquiry Officer. That before completion of period of two days from the date of service of report of the Enquiry Officer, Petitioner illegally passed termination order on 15 October 2018 which was sought to be served on Respondent at 9.45 a.m. on 15 October 2018. That specific request was made by Respondent by letter dated 15 October 2018 seeking extension of time by 15 days for filing reply, of 4/16 ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 16:26:11 ::: Gayatri Shimpi 13-WP-11761-2023.doc which no cognizance was taken. He would therefore submit that Respondent has been denied due and proper opportunity to file his reply to the report of the Enquiry Officer. That the test of cause of prejudice need not be satisfied when there is an infraction of substantive provision relating to grant of opportunity to represent against report of Enquiry Officer, which is a valuable right created in favour of the employee and the same cannot be denied under the garb of none cause of prejudice. That the pleading in the Statement of Claim relating to violation of principles of natural justice includes the ground of non-grant of adequate opportunity to respond to the report of the Enquiry Officer. He would submit that Part - 1 Award does not cause any prejudice to the Petitioner, who has opportunity of leading evidence before the Labour Court to prove charges. He would pray for dismissal of the Petition.
9) Rival contentions of the parties now fall for my consideration.
10) Perusal of the impugned Part - 1 Award would indicate that the Labour Court has rejected most of grounds relating to unfair enquiry raised by the Respondent - workman. The Labour Court has held that Respondent has been given opportunity to cross-examine the four witnesses examined by the Petitioner. He has also been given opportunity to lead his own evidence and that he has examined three witnesses. The objection with regard to the production of pre-recorded statements before the Enquiry Officer is also repelled by the Labour Court holding that there is no illegally in the same, as even the Respondent filed pre-recorded statements of his own witnesses in the inquiry. The Labour Court has further held that the Respondent was given opportunity to produce documents as well as compact disk by the Enquiry Officer. He was also given opportunity of filing final defence statement. This is how most of the objections raised by the Respondent with regard to conduct of enquiry are rejected by the Labour Court.
5/16 ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 16:26:11 :::Gayatri Shimpi 13-WP-11761-2023.doc 11) The Labour Court has however held that Respondent has not been
given adequate opportunity of making representation again the report of the Enquiry Officer, which amounts violation of principles of natural justice. The relevant findings recorded by the Labour Court in this regard are to be found in paragraph 25 to 27 which read thus:-
"25. The letter dated 11/10/2018 issued by the first party to the second party shows that the enquiry report was sent to him for his comments within two days. The letter dated 15/10/2018 issued by him to the first party shows that he sought 15 days time to comment on the enquiry report as he was hospitalized. The medical certificate is seen to be annexed to the said letter. It is mentioned in the said letter that he received the enquiry report on 13/10/2018. However, his services came to be dismissed on 15/10/2018.
26. In connection with furnishing enquiry report to the delinquent employee, there is decision of Hon'ble Supreme Court of India in the case of Union of India and Ors. V/S. Mohd. Ramzan Khan, reported in MANU/SC/0124/1990. Wherein it has been held as under -
17. We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non- furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter.
27. In view of ratio laid down in Mohd. Ramzan Khan's case (supra), it is part of the enquiry to give the report of the Enquiry Officer to workmen and non-furnishing of the report would amount to violation of rules of natural justice. Though the first party served on the second party the enquiry report on 11/10/2011, but he was not given an opportunity to comment thereon. The report of the Enquiry Officer is 6/16 ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 16:26:11 ::: Gayatri Shimpi 13-WP-11761-2023.doc required to be served on delinquent employee before serving him dismissal letter so as to enable him to make a representation against it, if he so desires. But in the present case, the second party was not given an opportunity to make a representation against the enquiry report. Hence, it amounts to violation of rules of natural justice."
12) In the present case, it is an undisputed position that the report of the Enquiry Officer has been served on the Respondent. The only issue is whether he was given adequate opportunity of making representation against the said report. The report was apparently prepared by the Enquiry Officer on 14 September 2018. However, the Petitioner took almost one month to dispatch the said report to Respondent by letter dated 11 October 2018. Letter dated 11 October 2018 reads thus:-
"11th October, 2018 Mr. Dipak Nagtilak Employee no. 35056 Team Member Paint Shop.
Dear Sir,
Re: Enquiry report dated 14.9.2018.
As you are aware a charge sheet was served upon you vide our letter dated 18.04.2018 for various misconduct relating to stoppage of work in Under Body Shop and also in Assembly Shop, Shouting and abusing Group Leader/Manager in respective Shops, Misusing company provided car facility, threatening Head of Security and staff, coordinating with media by providing video/photograph of interior portion of company without permission of management and tarnishing the image of company by making false allegations against management.7/16 ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 16:26:11 :::
Gayatri Shimpi 13-WP-11761-2023.doc The reply received from you in response to the Charge sheet was considered and found unsatisfactory. To investigate the misconduct a domestic enquiry was conducted through an independent Advocate viz. Mr. Atul K. Dixit. You participated in the said enquiry proceedings during which you were given full opportunity to defend the charges levelled against you.
After conducting the enquiry, the Enquiry Officer has submitted his report dated 14.9.2018. A copy of the above Enquiry report dated
14.09.18 is enclosed herewith for your comments, if any, within 2 days from the date of receipt of this report.
Thanking you, Yours faithfully, For Volkswagen India Pvt. Ltd.
Sd/- Sd/-
K. Takavale P. Masson
Vice President - HR & Admin. Executive Director - HR
& Admin.
Encl: Enquiry report dated 14.9.18 of Mr. Atul K. Dixit".
13) Respondent was given time of only two days to respond to the report of the Enquiry Officer from the date of receipt thereof. It must be observed here that the domestic enquiry was initiated on 18 April 2018 by issuance of charge-sheet, and the enquiry was held from 8 May 2018 to 28 August 2018. The Enquiry Officer thereafter took some time to prepare his report and submitted the same to the Petitioner on 14 September 2018. The Petitioner thereafter took some time to dispatch the same to Respondent and after almost one month, the report was dispatched by letter dated 11 October 2018. If the Enquiry Officer had taken time from 28 August 2018 to 14 September 2018 to prepare report and if Petitioner management took time from 14 September 2018 to 11 October 2018 to merely forward the same to the Respondent, it is incomprehensible as to why time of only two days was given to the Respondent to file his representation against the Enquiry 8/16 ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 16:26:11 ::: Gayatri Shimpi 13-WP-11761-2023.doc Report. This undue haste on Petitioner's part in my view, would be the first infraction of principles of natural justice.
14) It is undisputed position that letter 11 October 2018 was served on Respondent by speed post on 13 October 2018 at 19:58 hours. This is apparent from "post track consignment report". Since letter dated 11 October 2018 alongwith report of the Enquiry Officer was received by Respondent in the late evening of 13 October 2018, he had two clear days of 14 and 15 October 2018 to submit his reply even going by short time of two days allotted in the letter dated 11 October 2018. However, before completion of time of two days, Petitioner not only passed termination order dated 15 October 2018, but attempted to serve the same on the Respondent at 9.45 a.m. This is clear from the endorsement made by the concerned official of the Petitioner on the termination letter "denied to accept termination letter". The fact that the termination letter was made available to the concerned official after signing the same by the Vice President - HR & Admin and by Executive Director - HR & Admin at 9.45 a.m. would indicate that the same was prepared either at very early hours of 15 October 2018 or was kept ready on the previous day. Upon being querried as to the exact opening hours of Petitioner - Company when senior officials such as Vice President - HR & Admin and Executive Director, HR & Admin arrive at office for drafting the termination letter signing the same and keeping it ready for service on the Respondent at 9.45 a.m., no satisfactory answer is forthcoming. It must be borne in mind that what the signatories to the termination letter were taking was a "decision" in domestic enquiry of holding Respondent guilty of charges and punishing him. It therefore, becomes highly questionable as to whether the said to senior level officials would assemble at wee hours on 15 October 2018, discuss the findings of Enquiry Officer and, arrive at a conclusion that Respondent needed to be terminated from service, draft the termination letter, sign the same and hand over the same to the concerned official for service on the 9/16 ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 16:26:11 ::: Gayatri Shimpi 13-WP-11761-2023.doc Respondent. Therefore, there is every room to suspect that the termination letter dated 15 October 2018 might have been kept ready on the previous day itself. Even if it is assumed that the officials of Petitioner showed extraordinary efficiency by assembling during early hours of 15 October 2018 prepared and signed the termination letter, still the same was before completion of two days from the date of service of the report of the Enquiry Officer.
15) Mr. Bapat has relied upon e-mail dated 12 October 2018 in support of his contention that the report of Enquiry Officer was received by Respondent on 12 October 2018 itself. However, perusal of the e-mail dated 12 October 2018 would indicate that no specific period was indicated therein for responding to the enquiry officer report. The e-mail dated 12 October 2018 reads thus :-
"Dear Deepak, Enclosed please find a copy of Enquiry Report dated 14.9.18 which was couriered to you on 11.10.2018 and also sent by Speed post-AD on same day for your comments, if any.
Regard, Santosh Bade"
16) Thus, the fact that the reply was to be submitted within two days was made known to Respondent only after he received physical copy of the report along with letter dated 11 October 2018 at 19:58 hours on 13 October 2018. Reliance of Mr. Bapat on the e-mail dated 12 October 2018, therefore, does not cut any ice.
17) What is more shocking is the fact that, the Respondent had submitted letter dated 15 October 2018 seeking time of 15 days for for submission of his reply to the enquiry officer report. In his letter, Respondent stated that his son was admitted in hospital on 11 October 2018. There is nothing on record to indicate that Respondent's request for extension of time was rejected by Petitioner. Furthermore, termination letter dated 15 October 2018 indicates that the same does not even make 10/16 ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 16:26:11 ::: Gayatri Shimpi 13-WP-11761-2023.doc any reference to either non-filing of reply by Respondent or seeking extension of time for filing reply.
18) In my view, therefore, Petitioners have acted in undue haste in issuing the termination letter without grant of adequate opportunity to the Respondent to submit his reply.
19) Mr. Bapat, has contended that even if the Petitioner was not to supply report of Enquiry Officer to Respondent, the termination order would still not be vitiated on account of non cause any prejudice to Respondent. He has relied of Judgment Apex Court in ECIL Vs. B. Karunakar, in which it is held by the Constitution Bench as under :-
"The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an 'unnatural expansion of natural justice' which in itself is antithetical to justice. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and tribunals should cause the copy of the report to be furnished to the aggrieved employee if 11/16 ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 16:26:11 ::: Gayatri Shimpi 13-WP-11761-2023.doc he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the court/tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the court/tribunal should not interfere with the order of punishment. The court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the courts/tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal Appellate or Revisional Authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the court/tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment."
20) Mr. Bapat has also relied upon Judgment of the Apex Court in State of U.P. Vs. Harendra Arora and Anr. (supra) in which reliance is made on the Judgment in ECIL Vs. B. Karunakar and the Apex Court as held in paragraph Nos. 12 and 23 as under:-
"12. Thus, from the case of ECIL, it would be plain that in cases covered by the constitutional mandate i.e. Article 311(2), non- furnishing of enquiry report would not be fatal to the order of punishment unless prejudice is shown. If for infraction of a constitutional provision an order would not be invalid unless prejudice is shown, we fail to understand how requirement in the statutory rules of furnishing copy of enquiry report would stand on a higher footing by laying down that question of prejudice is not material therein.
13. The matter may be examined from another viewpoint. There may be cases where there are infractions of statutory provisions, rules and regulations. Can it be said that every such infraction would make the consequent action void and/or invalid? The statute may contain certain substantive provisions, e.g., who is the competent authority to impose a particular punishment on a particular employee. Such provision must be strictly complied with as in these cases the theory of substantial compliance may not be available. For example, where a rule specifically provides that the delinquent officer shall be given an opportunity to produce evidence in support of his case after the close of the evidence of the other side and if no such opportunity is given, it would not be possible to say that the inquiry was not vitiated. But in respect of many procedural provisions, it would be possible to apply the theory of substantial compliance or the test of prejudice, as the case may be. Even amongst procedural provisions, there may be some provisions of a fundamental nature 12/16 ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 16:26:11 ::: Gayatri Shimpi 13-WP-11761-2023.doc which have to be complied with and in whose case the theory of substantial compliance may not be available, but the question of prejudice may be material. In respect of procedural provisions other than of a fundamental nature, the theory of substantial compliance would be available and in such cases objections on this score have to be judged on the touchstone of prejudice. The test would be, whether the delinquent officer had or did not have a fair hearing. In the case of Russel vs. Duke of Norfolk, it was laid down by the Court of Appeal that the principle of natural justice cannot be reduced to any hard-and-fast formulae and the same cannot be put in a straitjacket as its applicability depends upon the context and the facts and circumstances of each case."
21) No doubt the Apex Court has held that mere none supply of report of Enquiry Officer ipso facto would not vitiate the enquiry unless the delinquent employee establishes prejudice caused to him.
22) Mr. Bapat has contended that Respondent has not even pleaded cause of any prejudice. However, in the statement of claim it is pleaded by the Respondent that "The Second Party says and submits that, at the outset the enquiry which is held against the Second Party is not fair and proper and is required to be vitiated for violation of the principles of natural justice."
23) It is common ground that parties are yet to lead evidence before the Labour Court. As of now, findings on preliminary issues are recorded merely on the basis of documents and pleadings. There is specific contention raised in the Statement of Claim about conduct of enquiry in violation of principles of natural justice. Also, it may not be always possible or necessary to plead the details of the exact prejudice caused to the delinquent employee by non grant of opportunity to file reply to IO report. It can always be established during the course of evidence or arguments as well. I am therefore not inclined to accept the objection of Mr. Bapat that non cause of prejudice is either not pleaded or that in absence of such pleadings, that the Labour Court could not have held the enquiry to be unfair or in violation of principles of natural justice.
13/16 ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 16:26:11 :::Gayatri Shimpi 13-WP-11761-2023.doc 24) Coming to the test of prejudice, it is seen that Respondent faced grave
charges relating to various incidents that allegedly took place on 16 June 2017, 15 June 2017, 05 January 2018 and 17 November 2017 etc. The charges relate to mis-behaviour, abusing, threatening and insubordination on the part of Respondent, the detailed enquiry has been conducted by examining four witnesses on behalf of Petitioner and three witnesses on behalf of Respondent.
25) The Enquiry Officer is a trained legal mind and a practicing Advocate. He has prepared a detailed report running into 19 pages. Petitioner, whose officials sat on the Enquiry Officer Report for over one month, expected Respondent to file reply to such detailed report within two days. Perusal of the termination order would indicate that no separate findings are recorded with regard to proof the charges by discussing evidence in the termination letter, and reliance is placed solely on the report of the Enquiry Officer. This is not a case of any minor misconduct or where the misconduct is of such a nature that there is no factual dispute about happenings of events. To illustrate, in a charge relating to un-authorized absence, the fact that the employee was absent from duty is often undisputed but there are different reasons for his absence. In such circumstance, non grant of opportunity to represent against IO report holding the charge of absence as proved may not cause any prejudice to the employee concerned. However, when the charges are of grave nature and relate to happening of actual events, which are not admitted by the employee, cause of prejudice on account of non supply of IO Report becomes writ large. This is exactly what has happened in the present case. In my view, therefore, considering the nature of charges, detailed enquiry conducted into them findings of Enquiry Officer running into 19 pages together with legal background of the Enquiry Officer, cause of prejudice to the Respondent on account of denial of adequate opportunity to represent against IO report is clearly established.
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26) In case of State of U.P. Vs. Harendra Arora, the Apex Court held that
though the Enquiry Report was not supplied to the employee therein, a show cause notice was issued to him before passing of order of dismissal and while responding to the show cause notice, the employee never complained about non receipt of Enquiry Report. In the present case, no show cause notice is issued to the Respondent after supply of the Enquiry Report and dismissal order is straightway passed. In my view, therefore, clear prejudice is caused to the Respondent by reason of non supply of Enquiry Report.
27) However, I am not in agreement with the findings of the Labour Court with regard to delay in initiation of disciplinary proceedings. It cannot be stated that there is any inordinate delay in initiation of domestic enquiry. The first incident alleged in the charge-sheet is dated 15 June 2017. Initiation of domestic enquiry was preceded with show cause notice dated 9 April 2018 and the charge-sheet was thereafter served on 18 April 2018. Therefore, the findings recorded by the Labour Court about delay initiation of enquiry are clearly unsustainable and this cannot be a factor for holding that the enquiry is not held in fair manner.
28) Coming to the aspect of the perversity, in my view, it is not necessary to go into the said aspect as the Petitioner will have to prove the charges before Labour Court, by leading evidence on account of Issue No.1 being answered against it.
29) I am therefore of the view that there is no reason to interfere in the Part - 1 Award dated 11 May 2023 passed by the Labour Court. Petitioner would have the opportunity to establish the charges before the Labour Court. If the charges are proved, which appear to be of grave nature, the Petitioner would be in a position to justify the penalty imposed on the Respondent. Therefore, no interference is 15/16 ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 16:26:11 ::: Gayatri Shimpi 13-WP-11761-2023.doc warranted in the Part - 1 Award passed by the Labour Court.
30) Writ Petition, being devoid of merits, is dismissed without any order as to costs.
[SANDEEP V. MARNE J.] Digitally signed by GAYATRI GAYATRI RAJENDRA RAJENDRA SHIMPI SHIMPI Date:
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