- (1.) HEARD learned counsel for the parties. Learned counsel for the petitioner is allowed to carry out the correction in the main writ petition as per the order dated 10.07.2012 passed in I. A. No. 2080 of 2012.
(2.) THE award dated 22.05.2003 published on 31.12.2003 (i.e. Annexure-2) delivered by the learned Presiding Officer, Labour Court, Deoghar in Reference Case No. 02 of 1996 is under challenge whereby the reference in question has been answered in favour of the workmen by directing the Management to reinstate the conductor/workman immediately after the publication of the award and to pay the entire back wages from the date of termination of his service within three months of the award publication failing which the same shall be realized through the process of the Court. The short facts of the case are that the private respondent was a conductor at Dumka Depot of the Bihar State Road Transport Corporation (in short BSRTC) which is now substituted by the State of Jharkhand pursuant to the bifurcation of the erstwhile BSRTC in the category of the petitioner. It is alleged that on 01.11.1990, the private respondent was on duty as a conductor of the express bus bearing no. BHL 2692, which was going from Dumka to Bhagalpur and was inspected by the Central Flying Squad, which found that nine passengers were traveling with ticket and twelve passengers were traveling without ticket. The private respondent/workman was charge sheeted with the charges contained at Annexure-12 alleging that these twelve passengers were traveling without tickets and they had already covered a distance of 2 KM, but no tickets were issued to them. The workman was conveying these passengers without tickets dishonestly for his wrongful gain, although, he had realised fares from those passengers, but did not issue tickets. It was alleged that on account of this timely checking the Corporation was saved from loss of revenue due to detection by flying squad. The workman was proceeded against in the enquiry proceeding and he was terminated and whereafter on raising an Industrial Dispute by the workman, the matter was referred to the Labour Court, Deoghar under Section 10 (1)(C) of the Industrial Dispute Act for adjudication in the aforesaid terms, which is quoted hereinabove:- "Whether the termination of services of Sri Ram Swarath Pd Singh conductor Bihar State Road Transport Corporation Dumka by the management is proper ! If not what relief the workman is entitled to !" Learned counsel for the petitioner submits that the employee was given adequate opportunity to file show cause during the course of the enquiry proceeding which he failed to answer, but the learned Tribunal has proceeded to quash the termination order directing the reinstatement of the workman with entire back wages, which is wholly illegal and perverse. On the other hand, learned counsel for the private respondent submits that the termination order was passed without following the mandate of law as provided under Article 311 of the Constitution of India and the defence of the employee was not considered by him and whereafter industrial reference was made. Learned counsel for the respondents further submits that the respondents workman had furnished adequate explanation before the Enquiry Officer which was not considered by him and whereafter the impugned order of termination was passed. It is further submitted that neither a copy of the enquiry report was furnished to the workman nor the second show cause notice was issued by the disciplinary authority before imposing the harsh punishment of termination of services. It is further submitted that furnishing of the enquiry report and of the second show cause notice, is mandatory in view of the settled legal position of law by the Hon'ble Supreme Court of India in a series of case including that of Union of India and Others Vs. Mohd, Ramzan Khan reported in AIR 1991 SC 471. It is submitted that the failure to comply the above requirements has vitiated the entire departmental proceedings against him. Moreover, learned Presiding Officer has considered the evidence and recorded in the impugned award in categorical terms that neither the copy of the enquiry report was furnished to the conductor/workman nor the second show cause was issued to him before imposing punishment. Learned counsel for the petitioner, however, has not been able to refute the aforesaid findings recorded by learned Tribunal. I have heard learned counsel for the parties and after going through the impugned award, this Court is of the opinion that interference in industrial adjudication in exercise of certiorari jurisdiction is limited to find out whether the impugned award suffers from any error of fact or law which is apparent on the face of the record or on the ground of illegality or perversity. From perusal of the impugned award, it appears that the disciplinary proceedings conducted against the workman were not conducted in a manner required as per the law laid down by the Hon'ble Supreme Court in view of the safeguard provided under Article 311 of the Constitution of India. The finding of facts recorded by the learned Labour Court, Deoghar that neither the copy of the enquiry report was furnished to the workman nor the second show cause notice was issued to him before imposing the punishment of termination has not been disputed or refuted by any cogent evidence or by any material on record by the petitioner/ employer. In that view of the matter, the order of termination was rightly set aside by the learned Labour Court, Deoghar while answering the reference in favour of the workman. Reference may be made to the judgment of the Hon'ble Supreme Court of India in a case of Union of India and Others Vs. Mohd. Ramzan Khan reported in AIR 1991 SC 471. Para -13 and 14, which are quoted hereinbelow:- "13 Several pronouncements of this Court dealing with Art. 311(2) of the Constitution have laid down the test of natural justice in the matter of meeting the charges. This Court on one occasion has stated that two phases of the inquiry contemplated under Art. 311(2) prior to the 42nd amendment were judicial. That perhaps was a little stretching the position. Even if it does not become a judicial proceeding, there can be no dispute that it is a quasi-judicial one. There is a charge and a denial followed by an inquiry at which evidence is led and assessment of the material before conclusion is reached. These facets do make the matter quasi-judicial and attract the principles of natural justice. As this Court rightly pointed out in the Gujarat case (AIR 1969 SC 1294), the disciplinary authority is very often influenced by the conclusions of the Inquiry Officer and even by the recommendations relating to the nature of punishment to be inflicted. With the Forty-Second Amendment, the delinquent officer is not associated with the disciplinary inquiry beyond the recording of evidence and the submissions made on the basis of the material to assist the Inquiry Officer to come to his conclusions. In case his conclusions are kept away from the delinquent officer and the Inquiry Officer submits his conclusions with or without recommendation as to punishment, the delinquent is precluded from knowing the contents thereof although such material is used against him by the disciplinary authority. The report is an adverse material if the Inquiry Officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. In a quasi-judicial matter, if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching his conclusion, rules of natural justice would be affected. Prof. Wade has pointed out: The concept of natural justice has existed for many centuries and it has crystallised into two rules: that no man should be judge in his own cause; and that no man should suffer without first being given a fair hearing. They (the Courts) have been developing and extending the principles of natural justice so as to build up a kind of code of fair administrative procedure to be obeyed by authorities of all kinds. They have done this once again, by assuming that Parliament always intends powers to be exercised fairly." (Administrative Law) 14. This Court in Mazharul Islam Hashmi V. State of U.P. (1979) 4 SCC 537: (AIR 1979 SC 1237) pointed out: "Every person must know what he is to meet and he must have opportunity of meeting that case. The legislature, however, can exclude operation of these principles expressly or implicitly. But in the absence of any such exclusion, the principle of natural justice will have to be proved." In view of the aforesaid facts and circumstances and clear exposition of law, the Award passed by the learned Presiding Officer does not suffer from any infirmity or error of law so as to warrant interference in exercise of certiorari jurisdiction under Article 226 of the Constitution of India. Accordingly, this writ petition is without any merit and is dismissed.;