JUDGMENT
R.A. Sharma, J.
1. The petitioner, who was a workman of M/s. Bharat Coking Coal Limited (hereinafter referred to as the management) has filed this writ petition challenging the order of termination of his service by the management after holding domestic enquiry.
2. A Full Bench of this Court in Dinesh Prasad and Ors. v. State of Bihar and Ors., (1985-I-LLJ-343) has held that the statutory reference of an industrial dispute under the Industrial Disputes Act (hereinafter referred to as the Act) is an adequate and efficacious legal remedy for the enforcement of the rights/obligation created under the Act and the person aggrieved must exhaust the remedies available under the Act before seeking relief in the writ jurisdiction unless there are exceptional circumstances warranting interference by this Court under Article 226 of the Constitution of India at the threshold.
3. The Supreme Court in the Rajasthan State Road Transport Corporation and Anr. etc. v. Krishna Kant etc., (1995-II-LLJ-728) (SC), has in this connection laid down as under–
“……….
Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act…………………………
The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revision applicable to civil Courts. Indeed, the powers of the Courts and Tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute.”
In the instant case admittedly the petitioner is a workman and he has been dismissed from service by the management after holding domestic enquiry. Therefore, the proper forum for him for raising grievance of the nature as has been raised in this petition, was by way of reference under Section 10 of the Act before the Labour Court. There is no exceptional circumstance warranting interference by this Court straightaway at the threshold.
4. Learned counsel for the petitioner, however, in this connection submitted that as the petitioner has filed this writ petition in 1991 and the same was admitted and entertained by this Court, it will not be appropriate now to relegate him to the alternative forum. This submission of the learned counsel has substance. It is, therefore, not proper to dismiss this writ petition now on the ground of alternative remedy.
5. The management and the petitioner’s father, namely, Shri Janardan Pandey, entered into an agreement on June 18, 1987, wherein the latter agreed to transfer his land to the former subject to certain conditions, one of which was condition No. 1, which is reproduced below–
“That, the said vendor shall sell and the said purchaser shall purchase the plot(s) of the land described in the schedule below in consideration of the terms that one employment of temporary minors leader as per norms in service conditions of the purchaser, shall be given the vendor or one of his dependents duly selected at the test held by the purchaser.”
The management’s case is that pursuant to the said agreement the petitioner was initially given temporary appointment for a period of three months, vide order dated October 23, 1987, and, thereafter, he was appointed as Clerk (Trainee), but even then the land was not transferred by the petitioner and his father. The management vide notice dated November 13, 1989 informed the petitioner’s father that he has not transferred the land in question pursuant to the agreement and, therefore, it will have no alternative but to terminate the services of his dependent (son). The management further informed him that if no remedial action is taken within fifteen days by him, suitable action will be taken by them. The petitioner’s father sent a letter/explanation expressing his willingness to transfer the land, which was received on December 2, 1989 by the management.
6. The management issued a charge-sheet dated May 23, 1990 to the petitioner containing charge of not handing over the vacant possession of the land over which the hutment/house has been constructed by him inspite of the agreement. The petitioner submitted a reply/explanation, in paragraph 4 of which, while admitting that he was appointed pursuant to the agreement, mentioned before, expressed his readiness to transfer the land at any time to the management. The management after holding a domestic enquiry passed the impugned order dated July 21, 1991 terminating the services of the petitioner.
7. The learned counsel for the petitioner has stated that the respondent BCCL is the State within the meaning of Article 12 of the Constitution and its action can be challenged under Article 226 of the Constitution. In support of the writ petition he has made three submissions, namely, (i) the domestic enquiry was held in violation of the principles of natural justice, inasmuch as the petitioner was not given an opportunity to cross examine the witnesses produced against him: (ii) the copy of the enquiry report was not given to him: and (iii) the petitioner was willing and is still ready to transfer the land in question and handover the vacant possession of the hutment/house constructed by him to the management.
The learned counsel for the respondents has disputed the above submissions, although it has been admitted by him that the BCCL is the State within the meaning of Article 12 of the Constitution and its order can be challenged under Article 226 of the Constitution.
8. In paragraph No. 14 of the writ petition it has been stated that the petitioner was not allowed to put question to Shri K. Prasad, the first witness examined on behalf of the management. In paragraph 19 of the counter-affidavit of the management, it has been stated that Sri K. Prasad was the presenting officer on behalf of the management and was not a witness. Hence the question of his cross-examination does not arise. Reliance was placed in the enquiry report and two witnesses, mentioned therein, namely, S/s R.S. Giri and I.P. Bhadani. There are no allegations by the petitioner that they were not allowed to be cross-examined by him. The first submission, therefore, has to be rejected.
9. As regards, the second submission reliance has been placed on Managing Director, E.C.I.L, and Ors. v. B. Karunakar and Ors., (1994-I-LLJ-162). The Apex Court in the above case has laid down that the enquiry report should be supplied to the servant before any punishment is awarded to him, but it was also laid down therein that this rule will be applicable prospectively from November 20, 1990, i.e., the date of judgment in the case of Union of India v. Mohd. Ramzan Khan, (1991-I-LLJ-29) (SC). In the instant case the enquiry was held subsequent to November 20, 1990. Therefore, the enquiry report should have been given by the management to the petitioner. It is admitted by the learned counsel for the management that a copy of the enquiry report was not given to the petitioner. Learned counsel for the respondents has, however, submitted that unless there is a prejudice caused to the petitioner on account of non-supply of the enquiry report, this Court should not interfere’ and in this connection, reliance has been placed on paragraph No. 31 of the judgment of the Supreme Court in the case of Managing Director, E.C.I.L. (supra). In the instant case, both the petitioner and his father in their reply stated that they are willing to transfer the land in question. In the enquiry report a finding has been recorded that the petitioner and his father are not willing to transfer the land, specially the land over which they have constructed their hutment/house. Had a copy of the enquiry report been given to the petitioner he could have taken effective steps to remove the grievance of the management by transferring the land forthwith in order to save his service.
10. The prejudice on account of non-supply of enquiry report is, therefore, obvious. The impugned order cannot be sustained and the matter has to be sent back to the management to decide the controversy afresh in accordance with law. But the petitioner is not entitled to be reinstated on this account at this stage. The fate of this question will depend on the ultimate order/decision, which will be passed by the management pursuant to this order.
11. This writ petition is, accordingly, allowed, partly. The impugned order dated July 21, 1991, as contained in Annexure-9 to the writ petition, is hereby quashed. As the petitioner has now seen the inquiry report, a copy of which has been filed alongwith the counter-affidavit as Annexure-B, he will file his reply/show cause before the Project Officer/Agent Block II Open Cast Project, Bharat Coking Coal Ltd., Dhanbad (Respondent No. 7), who according to the learned counsel for the management is the disciplinary authority, within a period of two months. It will be open to the petitioner to file such other evidence/papers which he deems fit and proper in support of his case within the same period of two months. Respondent No. 7 will, thereafter, decide the matter in accordance with law and pass appropriate order within a month from the date of receipt of the representation/show cause of the petitioner, alongwith the certified copy of this judgment. The order, which may be passed in this connection shall be communicated to the petitioner within a month of the decision.