P.K.Ray, J. - (1.) In this writ application the writ petitioner, a company, being an undertaking of Government of West Bengal has challenged the award dated 28.4.2000 passed by the Presiding Officer, 9th Industrial Tribunal at Durgapur, in Case No. X-6/88 as arose under reference being No. 479-I.R/11L-81(A)/84 dated 9.3.88, whereby and whereunder the learned Tribunal only on the basis of judgment passed by the learned Additional Sessions Judge, 3rd Court, Burdwan, dated 3.10.80 answered the reference by holding that the order of dismissal of the workman Sri Pradip Kumar Roy, who is respondent No. 3 herein was unjustified and thereby passed necessary order of reinstatement in service and payment of back wages from the date of suspension till reinstatement.
(2.) The writ petitioner herein has submitted that the learned Tribunal did not consider the legal aspect of the matter and thereby came to an illegal finding relying solely on the basis of a judgment of the criminal appellate Court. It has been further submitted that though the learned Tribunal held that the domestic enquiry was fair and natural justice principle was followed, but only on the basis of judgment of the criminal Court, reference has been answered and thereby the impugned award is attracted for judicial review of this Court on settled principle of law. It has been further asserted by the learned Advocate for the writ petitioner that when in the domestic enquiry the delinquent workman got all the opportunities to contest the matter and availed that and when there is a categorical finding of the learned Tribunal that such domestic enquiry was held properly and fairly, there was no scope before the learned Tribunal to pass an award in favour of the workman directing reinstatement in service upon setting aside the order of dismissal as passed by a valid domestic enquiry following the standing order of the company. It is further asserted that the apex Court judgment as relied upon by the learned Tribunal, namely, M. Paul Anthony v. Bharat Gold Mines Limited & Anr., reported in 1999 0 LabIC 1565 has no applicability in the instant case, by distinguishing the said judgment on the point that therein the apex Court considered the matter relating to a domestic enquiry as reached its finality exparte. It is further asserted that even in Anthony's case (supra), the apex Court did not shift the said legal position, namely, the jurisdiction of employer to complete the domestic enquiry following the procedures even during pendency of a criminal case on the self-same subject matter, but on the special fact situation of that particular case, the apex Court decided the issue in favour of the workman. It is further submitted by the petitioner company that the question of state claim and/or dispute also was not at all considered by the learned Tribunal although a specific point was taken to that effect relying upon the judgment of the apex Court. It is submitted that the workman concerned was dismissed from service on 9.5.77, but reference under section 10 for adjudicating the same as an industrial dispute as passed by the Labour Department, Government of West Bengal, being the order dated 9.3.88 which clearly ex facie proves long delay of 11 years when in terms of the said judgment of the apex Court there was no scope for any dispute as has been adjudicated by the learned Tribunal.
(3.) Learned Advocate of the respondent-workman submitted that since in a criminal proceedings on the identical fact the criminal appellate Court upon quashing the impugned judgment of the learned Judicial Magistrate holding the workman concerned as not guilty of the charges under section 411 of the Indian Penal Code, discharged the accused, adjudication as made in the domestic enquiry even if following the procedure, cannot legally sustain and in that view of the matter, the impugned award is justified and legal. Hence, in adjudicating this matter the cardinal question which centres round in the pivotal contour of the entire issue in question is based on the principle, namely, whether under this fact situation, the aforesaid case of the apex Court in M. Paul Anthony's case (supra) has any applicability, and furthermore on the basis of the findings of the domestic enquiry vis-a-vis following the procedural law, the impugned award can be sustained.;