In Chamoli District Co-operative Bank Ltd. v. Raghunath Singh Rana, (2016) 12 SCC 204, it was held as under:
“(i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
(ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.”
The principal of law that emanates is that initial burden is on the department to prove the charges. In case where enquiry is initiated with a view to inflict major penalty, department must prove charges by adducing evidence by holding oral enquiry. State of U.P. v. Aditya Prasad Srivastava, (2017) 2 UPLBEC 901.
Tag Archives: employer
When the termination order is superseded by a less severe punishment, the said punishment should come into effect from the date of original order of termination. As held by the Hon’ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and others, (2013) 10 SCC 324, ‘reinstatement’ would mean putting the workman back to the stage when he was terminated. On such reinstatement, the punishment of removal gets substituted by the punishment of withholding of three annual increments for three years with cumulative effect.
As per shorter Oxford English Dictionary, Vol. 2, 3rd Edition, the word reinstate means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word “reinstatement” means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edition, the word “reinstate” means to reinstall; to re-establish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word “reinstatement” means establishing in a former condition, position or authority (as) reinstatement of a deposed prince. As per Merriam-Webster Dictionary, the word “reinstate” means to place again (as in possession or in a former position), to restore to a previous effective state.
As per Black’s Law Dictionary, 6th Edition, “reinstatement” means: “The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer”. B.S. Raju v. A.P.S.R.T.C., 2017 (152) FLR 832.
Words “reasonably practicable” does not mean “impracticable”. Practicable means “capable of being put into practice, carried out in action, effected, accomplished, or done, feasible”. Whether it was practicable to hold enquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b) of Article 311(2), proviso. It should be looked into point of view, by an ordinary concerned, as he would have thought or opined and take a reasonable view of prevailing situations. The reasonable practicability of holding an enquiry is a matter of assessment to be made by the disciplinary authority who is competent to do so at present and available on the spot knowing each and every aspect of the facts and circumstances necessary for knowing whether an enquiry is reasonably practicable or not. A disciplinary authority however is not expected to dispense with a disciplinary enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an enquiry since the case of Department is weak or must fail if conducted. The statutory provisions also require the disciplinary authority to record its reasons for arriving at the satisfaction that the enquiry is not reasonably practicable. Ram Gopal v. Union of India, 2017 (152) FLR 822.
The three necessary ingredients for the application of Section 17-B of the Industrial Disputes Act, 1947 are (i) the Labour Court should have directed reinstatement of the workman, (ii) the employer should have preferred proceedings against such award in the High Court or in the Supreme Court; and (iii) the workman should not have been employed in any establishment during such period.
It is apparent that Section 17-B of the Industrial Disputes Act was introduced for the purposes of mitigating hardship faced by the workman who had been reinstated but the reinstatement had been delayed on account of the contest laid by the employer before the High Court or the Supreme Court. It is also clear that Section 17-B of the Act, 1947 proposed to provide “payment of wages last drawn”. The object of introducing Section 17-B of the Act appears to ensure that a workman, in whose favour an award for reinstatement has been passed, is at least paid his last drawn wages. The purpose of introducing Section 17-B of the Act appears to be not to provide for a punitive measure or a disincentive for the employers to challenge the award passed by the Labour Court, but to mitigate the hardship faced by the workman on account of delays occasioned because of pendency of litigation before the High Courts and the Supreme Court. The Parliament in its wisdom, obviously thought it fit that the workman having succeeded in obtaining an award of reinstatement ought to be paid at least last wages that were drawn by him. It is also made a condition that for purposes of obtaining wages under Section 17-B of the Act, the employee should not be gainfully employed elsewhere. This object appears to be not to discourage an employer from assailing the award but to ensure that the workman who has prevailed before the Labour Court does not suffer for want of subsistence allowance for his sustenance. Management Committee v. Presiding Officer, 2016 (150) FLR 518.
The term “industrial dispute” connotes a real and substantial difference having some element of persistency, and likely, if not adjusted, to endanger the industrial peace of the community. The expression “dispute or difference” as used in the definition given under section 2(k) of the Industrial Disputes Act, 1947, therefore, means a controversy fairly definite and of real substance, connected with the terms of employment or the conditions of labour of any person, and is one in which the contesting parties are directly interested in maintaining the respective contentions.
To understand the meaning of the word “dispute”, it would be appropriate to start with the grammatical or dictionary meaning of the term:
“Dispute.—to argue about, to contend for, to oppose by argument, to call in question—to argue or debate (with, about or over)—a contest with words; an argument; a debate; a quarrel;”
Black’s Law Dictionary, 5th Edition, P. 424 defines “dispute” as under:
“Dispute.—A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other. The subject of litigation; the matter for which a suit is brought and upon which issue is joined and in relation to which jurors are called and witness examined.”
Thus, a dispute or difference arises when demand is made by one side (i.e. workmen) and rejected by the other side (i.e. the employer) and vice versa. Henc an “industrial dispute” cannot be said to exist until and unless the demand is made by the workman and it has been rejected by the employer. How such demand should be raised and at what stage may also be relevant. Prabhakar v. Joint Director, Sericulture Department, (2015) 15 SCC 1.
The provisions of the Civil Procedure Code are not applicable to Industrial Disputes Act. It does not mean that the principle of res judicata will not be applicable to cases involving industrial dispute. On the principle of res judicata, the Apex Court in the case of Bharat Barrel and Drum Manufcaturing Company Pvt. Ltd. v. Bharat Barrel Employees Union, (1987) 2 SCC 591 has held that a question which is once decided can never be re-agitated and the exceptions are classes of cases like disputes regarding wage structure, service conditions etc. which arise as circumstances change and new situations arise which may not be barred by the rule of res judicata. The principle object of the Labour Legislation is to bring a quietus to the dispute. The question as to whether a person was or was not an employee of the Management on the particular date is one which cannot be re-agitated in a subsequent case, if it has already been decided by the Industrial Tribunal of competent jurisdiction in an earlier case. Rajiv Gandhi ONGC (CON) Workers Welfare Association v. Government of India, 2016 (150) FLR 499.
In cases where there is no oral evidence adduced and documentary evidence is not proved or exhibited by witnesses, it cannot be read into evidence for proving guilt of the employee. It is for this reason that many unscrupulous employer/establishment/department fabricate documents for proving charge against innocent employee and punish him without proving the same, thus denying a reasonable opportunity to him to defend himself. Sita Ram v. State of U.P., 2015 (1) ESC 178.