K.KANNAN J. - (1.) BOTH the writ petitions are connected. The former is at the instance of the workman and the latter is at the instance of the Haryana State Co -operative Supply and Marketing Federation Ltd (hereinafter referred to as HAFED). The challenge contained in the two writ petitions is in relation to the award passed by the Labour Court directing reinstatement with 70% back wages. The management is aggrieved about the direction for reinstatement and 70% back wages while the workman is aggrieved for not availing to him 100% back wages in the manner that he had claimed.
(2.) THE point of reference before the Labour Court was an order of termination from service of the workman Prem Singh, who had been serving as a Field Inspector during the time ending upto 17.09.1980. The charge against him was that he had during his service made some forgeries of signature on cash memos that he had been issued in the name of yet another Field Worker and utilized those memos for issue of several bags of urea and collected the money from the purchasers and pocketing the same. The alleged attempt on the part of the employee was to make his colleague responsible for the cost of urea supplied by committing forgeries. This was said to have been immediately found and all the bags, which had been issued were brought back from the purchasers. There had been ultimately no financial loss to the society when all the goods, which had been supplied and for which monies had been accounted, had been recovered back by the HAFED. The petitioner himself was said to have admitted to his guilt and given it in writing in the presence of one H.S. Sehrawat, District Manager, who had given evidence as MW -1 but ultimately he was himself appointed as Enquiry Officer to proceed with the charges against him. The Labour Court found that the Enquiry Officer could not have been also a witness against the employee and found this to be a fundamental violation of the principles of natural justice, set aside the order of termination. The decision of the Labour Court was perfectly justified and I find no reason to differ with the same. Learned Senior Counsel appearing for the management refers to the decision in The Management of Messrs K.G. Khosla & Co. Vs. Raj Bhalla and others 1972 LAB. I.C. 1475 to state that a workman, who had not taken the particular objection before the Enquiry Officer cannot be permitted to take the objection for the first time before the Labour Court. The said judgment was in the context of want of plea by a workman that the person conducting the enquiry and signing the charge -sheet was not competent to do so before the Labour Court. It was urged for the first time in the writ petition. The objection was rejected by the High Court. In this case, it is not as if the issue relating to the validity of the enquiry was not urged before the Labour Court. On the other hand, that was the precise issue on the basis of which the Labour Court itself has chosen to find that the order of termination was vitiated. Unlike a challenge to the competence of the Enquiry Officer, which was not taken before the Labour Court and taken only before the High Court for the first time, here the challenge had been made before the Labour Court itself. That in my view, would make all the difference. Learned Senior Counsel also relies upon a judgment of the Hon'ble Supreme Court in Dr. G. Sarana Vs. University of Lucknow and others AIR 1976 SC 2428 that held that the principles of natural justice were made to prevent miscarriage of justice and the issue of bias relating to person, who is the Enquiry Officer could not be taken up for the first time in the writ petition under Article 226. Again this decision will have no applicability to our case where the vitiating circumstance as found by the Labour Court was that the Enquiry Officer himself was a witness against the petitioner. A bias in the subject matter of the adjudication was brought before the Labour Court itself and not before this Court for the first time. The Hon'ble Supreme Court was considering the issue of Selection Board where there are several persons and in a group deliberation and decision like that of Selection Board, the members do not function as computers and each member of the group or board was bound to influence the others. In such a situation, when a person appeared before a Selection Board for interview without raising any form of objection and took also a chance of favourable recommendation in his favour, he could not turn round and say that the constitution of Selection Board was bad when the decision ultimately became unfavourable to him. In fact, in that case there had been a procedure open to challenge the recommendation of the Selection Board but that was not availed by the petitioner. The recommendation of the Selection Committee was still to be scrutinized by an Executive Council of the University which could otherwise accept or reject the recommendations of the Selection Committee. A reference could be made against the decision of the Executive Council to the Vice Chancellor under the UP Universities (Re -enactment and Amendment) Act, 1974. The petitioner had other ways to assail the decision of the Selection Committee. Without resort to such remedies, a challenge in a writ petition found by the Hon'ble Supreme Court to be inappropriate. I do not think that in such a situation any alternative remedy is available to the petitioner exists in this case. A similar issue of prejudice was also considered by the Madhya Pradesh High Court in Balkishan Chaturvedi Vs. The Chief Secretary Govt. of Bhopal and another AIR 1963 MP 216. The Court held that objection on the ground of prejudice to the holding of the departmental enquiry by an officer who first detected the alleged misconduct or irregularity ought to have been taken at the earliest time. It is not merely a case of a person, who had detected first also acting as an Enquiry Officer. On the other hand, the Enquiry Officer was relying on a statement of the petitioner alleged to have been made in his presence that he committed the misconduct and forgery. He had turned himself as a witness and the Enquiry Officer's statement itself was relied on as MW -1. That in my view, would still make all the difference where a witness was also an adjudicator. A Division Bench of the Madras High Court in P. Raman (died) and others Vs. State of Tamil Nadu and others 1999(6) SLR 334 rejected the plea of bias when the delinquent examined and cross -examined witnesses without raising the objection of bias during the enquiry, holding that the genuineness of the enquiry could not be questioned later on. This is not again connected to the fact situation where there were several witnesses, who had spoken about the misconduct attributed to the petitioner. In this case, whole report hinged on an alleged statement of the employee himself, who had later resiled and evidence of the management witness was that of the Enquiry Officer himself. The decision of the Madras High Court cited also cannot avail to the management to contend that no prejudice had been caused to the petitioner.
(3.) HOWEVER , in the manner of grant of relief, the Labour Court took note of the fact that the petitioner had been suspended from service on 09.02.1978 and ultimately terminated from service on 17.09.1980 after the enquiry. The Labour Court found that since the petitioner had succeeded on technical plea, he was entitled to be paid 70% of the back wages. If the constitution of enquiry through Mr. Sehrawat, Manager was wrong as violative of principles of natural justice in relying upon the statement made by the employee himself in the presence of the Enquiry Officer and that statement when it was resiled by the employee was sought to be proved by the Enquiry Officer himself then it could have possible for the management to have pressed for constitution of fresh enquiry with yet another Enquiry Officer. Such an enquiry is not possible at this length of time. If the whole case has to be reappraised only on the basis of whether the management could have persisted with the right of termination on the basis of report by an Enquiry Officer who was also a witness against the employee, the answer has to be in the clear negative against the management. If the termination was bad, the Labour Court would have been perfectly justified in directing reinstatement and in the manner of back wages, it had definitely a discretion to decide on whether he should be granted full back wages or not. In this case, it had granted 70% back wages and denied to the petitioner 30% only because the employee was able to succeed on a technical point. I do not find any reason to interfere with the same as well.;