Dilip Gupta - (1.) THIS petition seeks the quashing of the order dated 9th June, 2010 passed by the Presiding Officer of the Central Government Industrial Tribunal-cum-Labour Court, Kanpur (hereinafter referred to as the "Tribunal') in Industrial Dispute No. 25 of 2009 (Shri Harish Chandra Gupta v. Indian Oil Corporation Ltd.) deciding the preliminary issue as to whether the enquiry against the respondent-workman Harish Chandra Gupta conducted by the Management was just, fair and legal.
(2.) IT transpires from the record that by the order dated 31st July, 2008, the respondent-workman who was working as a Pharmacist in the Refinery Hospital was dismissed from service for the charge that he had assaulted and abused senior officers and caused loss to the hospital since it had to be closed thereafter for some time. Reference was made by the Central Government to the Tribunal whether the action of the Management in dismissing the respondent-workman from the services of the Corporation with effect from 31st July, 2008 on the basis of the findings of the Enquiry Officer was legal and justified and to what relief the workman was entitled to. The workman and the petitioner filed written statement. In the written statement, the petitioner-employer pleaded that in case the domestic enquiry conducted against the workman was found to be defective, then liberty may be given to it to prove the charges against the workman by adducing evidence before the Tribunal itself. A preliminary issue was, therefore, framed by the Tribunal as to whether the enquiry against the respondent-workman conducted by the Management was just, fair and legal. During the hearing on this preliminary issue, the Authorised Representative of the workman mainly stressed upon the legal flaws committed by the petitioner, as is clear from the order passed by the Tribunal, and in this connection it was submitted that as the Chief Medical Officer was the Head of the Department, he should have been the disciplinary authority for the workman and not the Deputy General Manager (HR). IT was also submitted that in any case, the decision to dismiss the workman from service could not have been taken by the Executive Director as he was not the disciplinary authority. The Tribunal in its order dated 9th June, 2010 has observed as follows : "12. IT is an admitted case of both the parties that as per standing orders and the Annexure -1, annexed to the Standing Order regarding the Medical Staff, Chief Medical Officer is Head of Department. Therefore, as per statutory requirement Chief Medical Officer should have been disciplinary authority for the concerned employee. 13. Now it is argued by the learned Authorised Representative for the opposite party that as Chief Medical Officer was himself involved in the incident, he being the witness so he himself did not take the matter in his own hand and next rank to him was Deputy General Manager (HR), who is Lee Be Sen took over as Head of the Department. On this point the arguments of the opposite party is tenable. 17. Now it is the contention of the representative for the claimant that as per statutory requirement CMO is the competent person as disciplinary authority. For a moment if he was involved in the incident, the DGM HR Lee Bee Sen took over as head of department or disciplinary authority. Up to this stage, the contention of the opposite party was O.K., but one argument was placed before me by the opposite party that as the Chief Medical Officer was promoted to Deputy General Manager, so it was considered that some senior officer to the rank of DGM HR should have passed the final order. I think this type of arguments is not tenable in the eye of law. Chief Medical Officer had been promoted and not the post of Head of Department was upgraded. What was the hitch for the DGM (HR) Lee Bee Sen, whereas the post was still in existence. 24. Therefore, the same thing is not being followed again by the opposite party department. Order of dismissal of the Sri Gupta i.e. CSE is not being passed by the DGM HR but by a very higher authority i.e. Executive Director who is above General Manager also. 25. Therefore, in my view if any order is not passed according to law or according to the statutory provisions or if any proceedings are not conducted according to the procedure laid down in the statute, then those order and proceedings will be termed as unfair and nor according to law, which goes to the root of the proceedings. If any foundation is not proper story cannot be built upon it. If bail is to be heard by a Magistrate then it could not be heard by any higher Court. 26. Therefore, considering the all the circumstances of the case, legal position and record of the case, it is held that the inquiry conducted by the opposite party is neither fair nor just in the case of CSE." It is the submission of Sri A.K. Mishra, learned counsel appearing for the petitioner that instead of recording any finding as to whether the enquiry conducted against the respondent-workman was just, fair and legal, the Tribunal examined whether the punishment order was passed by the competent authority which issue was not required to be decided in view of the limited scope of the enquiry to be done by the Tribunal while deciding the preliminary issue. In this connection he has placed reliance upon the decision of the Supreme Court in Karnataka State Road Transport Corporation v. Lakshmidevamma (Smt.) and another, (2001) 5 SCC 433. It is also the submission of Sri A.K. Mishra that even otherwise the order passed by the Executive Director is justified and the Tribunal committed an illegality in holding that the order passed by the Executive Director was without jurisdiction. Sri Ashok Bhatnagar, learned counsel appearing for the respondent workman, however, submitted that there is no infirmity in the impugned order passed by the Tribunal which may call for any interference by the Court at this stage. It is also his submission that this petition has been filed against an interlocutory order and should not be entertained.
(3.) I have considered the submissions advanced by the learned counsel for the parties. The Supreme Court in Karnataka State Road Transport Corporation (supra) examined the right of the Management to lead evidence before the Industrial Tribunal for justifying the decision. It observed that this is not a statutory right but a procedure laid down by the Court to avoid delay and multiplicity of the proceedings in the disposal of the dispute between the Management and the workman and in this connection reliance was placed upon the earlier judgment of the Supreme Court in Workmen v. Motipur Sugar Factory (P) Ltd., AlR 1965 SC 1803, in which it was observed : "If it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must be set aside by the industrial tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again. In that case, another industrial dispute would arise and the employer would be entitled to rely upon the enquiry which he had held in the mean-time. This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic enquiry given. On the other hand, if in such cases the employer is given an opportunity to justify the impugned dismissal on the merits of his case being considered by the tribunal for itself and that clearly would be to the benefit of the employee. That is why this Court has consistently held that if the domestic enquiry is irregular, invalid or improper, the tribunal may give an opportunity to the employer to prove his case and in doing so the tribunal tries the merits itself." ;