- (1.) Industrial reference No. 66 of 2006 has been answered in favour of the workman and against the management vide the impugned award dated 18.01.2012 passed by the Presiding Officer, Industrial Tribunal-cum-Labour Court, Hisar. The brief facts are that the respondent-workman was placed under suspension vide resolution dated 20.01.2001 passed by the petitioner-Cooperative Society that employed him as a Chowkidar in 1988. He was charge-sheeted following resolution dated 06.09.2001 for remaining absent from duty for 112 days and then to falsely mark his presence on those days in the attendance register. He was also charge-sheeted for absence from duty without intimation for the period 14.12.2000 to 20.01.2001. He was absent when he was suspended. The Deputy Registrar Cooperative Societies was appointed enquiry officer to conduct an enquiry who made his report Ex.R-1 and found the petitioner guilty of all the charges. Show cause notice followed. The workman was supplied a copy of the enquiry report vide resolution dated 26.02.2002. The reply to the show cause notice was not found satisfactory. Vide resolution dated 30.04.2002 the 2nd respondent was dismissed from service. Against the award of dismissal, the petitioner preferred an appeal before the Registrar Cooperative Societies, Hisar. The Deputy Registrar, Cooperative Societies vide order dated 13.05.2003 relegated the petitioner to the remedy before the Labour Court. Consequently, the workman raised a demand notice for justice dated 02.03.2006. Conciliation proceedings failed. The appropriate Government referred the industrial dispute under Section 10 (1) (c) read with Section 2A of the Industrial Disputes Act, 1947 (for short "the Act"). The Labour Court split the issue referred into five issues. Both the parties were called upon to adduce evidence in support of their respective claims. The workman appeared as his own witness as WW-1. The petitioner-Society examined the Sub Inspector Cooperative Societies, Hisar as MW-1 and its Clerk as MW-2. The Labour Court found that the services of the petitioner were governed by rules known as the Primary Co-op. Credit & Services Societies Staff Services Rules, 1992. Rule 17 defines misconduct. Rule 18(2) prescribes the procedure for imposition of penalties specified in Rule 17.1. The petitioner-management did not examine the enquiry officer nor were the enquiry proceedings placed on record so as to refute the allegations of the petitioner that no enquiry was conducted against him. In the circumstances, the Labour Court summoned the enquiry proceedings and on examination thereof discovered that the petitioner was not afforded an opportunity to seek assistence of a co-worker to defend himself nor was he afforded an opportunity to cross-examine the witnesses whose statements were recorded. Even the statement of the petitioner was not recorded in relation to the charges levelled. In short, the Labour Court found that the enquiry was sham. It was neither fair nor proper. The Labour Court found that dismissal was not the appropriate response in the facts of the case. The workman was held entitled to reinstatement but no back wages as he did not worked during the intervening period. In this manner, the reference has been answered.
(2.) I have heard Mr. Amit Singla, learned counsel for the petitioner at length. Though the charges levelled may have been serious but that does not obviate establishing misconduct on record in terms of the words "misconduct established" as used in Rule 18. Therefore, a misconduct specified in Rule 17 must be proved. Since the workman did not admit guilt and claimed trial it was all the more necessary in the absence of a co-worker for the Enquiry Officer to have himself examined the workman on the length and breadth of the charges levelled to elicit the truth. His job was not to prosecute or persecute but to find out the truth. He should have forged new tools to do so and doubled up as both representative of the worker and the presenting officer. In the absence of this, I do not find any infirmity in the award.
(3.) No ground for interference is made out. The writ petition is dismissed. The petitioner be now reinstated to service. This order will not operate as an approval of non-grant of back wages which issue is left open.;