{"id":22087,"date":"2009-09-09T00:00:00","date_gmt":"2009-09-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-santosh-kumar-vs-the-sub-area-manager-on-9-september-2009"},"modified":"2019-02-24T13:25:33","modified_gmt":"2019-02-24T07:55:33","slug":"shri-santosh-kumar-vs-the-sub-area-manager-on-9-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-santosh-kumar-vs-the-sub-area-manager-on-9-september-2009","title":{"rendered":"Shri Santosh Kumar vs The Sub-Area Manager on 9 September, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shri Santosh Kumar vs The Sub-Area Manager on 9 September, 2009<\/div>\n
Bench: A. B. Chaudhari<\/div>\n
                                                     1\n\n                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                    APPELLATE SIDE, NAGPUR BENCH, NAGPUR\n\n\n\n\n                                                                                                 \n                              WRIT PETITION NO. 3618\/2008\n\n\n\n\n                                                                         \n    Shri Santosh Kumar s\/o Babulal Gupta,\n    aged about 45 years,\n    Occupation - Unemployed,\n\n\n\n\n                                                                        \n    R\/o C\/o Shri Babulal Gupta ( Nema),\n    Near Utpadan Van Mandal Bara Parattar,\n    Mohala, Sheoni, Tahsil and District Sheoni,\n    Madhya Pradesh.                          -                              PETITIONER\n\n\n\n\n                                                         \n                  VERSUS\n\n    1. The Sub-Area Manager,\n       M\/s Western Coalfields Ltd.,\n       Rajur Sub-Area, PO Rajur Wani,\n                                       \n       District Yeotmal, Maharashtra,\n                                      \n    2. Presiding Officer,\n       Central Government Industrial Court-\n       cum-Labour Court, Nagpur.            -                               RESPONDENTS\n             \n\n\n    ----------------------------------------------------------------------------------------------------\n    Mr. D.N. Kukday, Advocate for petitioner.\n          \n\n\n\n    Mr. Ashish Mehadia, Advocate for respondent No.1.\n    Mr. Shyam Ahirkar, A.G.P. for respondent No.2.\n    ----------------------------------------------------------------------------------------------------\n\n\n\n\n\n                                                CORAM:- A.B. CHAUDHARI, J.\n\n    Date of reserving the judgment :-   31.08.2009\n    Date of pronouncing the judgment :- 09.09.2009\n\n    JUDGMENT\n<\/pre>\n
    1.            This Writ Petition is directed against the Judgment and<\/p>\n
    award dated 21-05-2008 passed by the Presiding Officer, Central<\/p>\n
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\n                                        2<\/span><\/p>\n
    Government Industrial Court-Cum-Labour Court, Nagpur in reference<\/p>\n
    No. CGIT\/NGP\/72\/2001 at the instance of dismissed employee –\n<\/p>\n
    Santosh Kumar Gupta.\n<\/p>\n
              On 8th April, 2009 this Court directed listing of this Writ<\/p>\n
    Petition for final hearing on 24-08-2009. On 28-08-2009 this Writ<\/p>\n
    Petition appeared before me for final disposal in order matters, when<\/p>\n
    learned Counsel for petitioner Mr. D.N. Kukday, appointed by Legal Aid<\/p>\n
    Committee mentioned that the petitioner who remained present on<\/p>\n
    certain dates previously indulged in disturbing one and all including<\/p>\n
    the Court and that is why earlier two Counsels who were appearing for<\/p>\n
    him through legal aid had left the matter and now it is he who is<\/p>\n
    appearing for the petitioner. He submitted that petitioner was<\/p>\n
    dismissed from service in the year 1984 and since then he has been<\/p>\n
    litigating. He therefore urged me to take up his case for final disposal.\n<\/p>\n
    During the course of discussion, petitioner made his appearance<\/p>\n
    before me and started showing some papers to me with a raised loud<\/p>\n
    voice but then I asked him to instruct his Counsel Mr. D.N. Kukday<\/p>\n
    rather than addressing the Court. However, he persisted in doing the<\/p>\n
    same and therefore he was taken out of the Court room by Security<\/p>\n
    Guards.   In view of this peculiar situation, I asked the consent of<\/p>\n
    Counsel for both parties for deciding the Writ Petition finally in order<\/p>\n
    matters so that the lis would end at least before the Single Judge of<\/p>\n
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\n                                        3<\/span><\/p>\n
    this Court.   Mr. Ashish Mehadia, learned Counsel appearing for<\/p>\n
    respondents agreed with the proposal and accordingly Mr. D.N. Kukday<\/p>\n
    commenced his argument. After arguments were heard for sometime;\n<\/p>\n
    with the assistance of Mr. Ashish Mehadia, I went through the<\/p>\n
    documents on the record of the Labour Court and at that stage Mr.<\/p>\n
    Ashish Mehadia sought some time to take instructions from his client.\n<\/p>\n
    Since the respondents’ office is at Wani and in order to give full<\/p>\n
    opportunity to respondents reluctantly, I adjourned the proceedings to<\/p>\n
    31-08-2009 with the consent of Counsel for the rival parties.\n<\/p>\n
    FACTS<\/p>\n
    2.        It is not in dispute that the petitioner was appointed by order<\/p>\n
    No. WCL:SAI:PER:3981 dated 21\/22 November, 1982                   (Exh.5) by<\/p>\n
    respondents as General Majdoor Category-I on purely temporary basis<\/p>\n
    for a period of one year and was asked to report for duty to the Project<\/p>\n
    Officer, Rajur Colliery. A charge dated 7-2-1984 (Exh.6) was issued to<\/p>\n
    him by the Manager in which it was stated that on 6th February, 1984<\/p>\n
    he entered the office of Project Officer at about 11-00 a.m. and made a<\/p>\n
    demand for advance of Rs.2,000\/-(Rs. Two thousand) and upon failure<\/p>\n
    to pay he said that he would publish some objectionable matters<\/p>\n
    against the management in some newspaper or would handover the<\/p>\n
    same to Police Department. When the Project Officer refused to give<\/p>\n
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\n                                              4<\/span><\/p>\n
    him advance amount, he lost his temper and threatened him with dire<\/p>\n
    consequences. He was then removed from office by Security Guard on<\/p>\n
    duty and other witnesses. It was stated that as per Model Standing<\/p>\n
    Order No. 16 (i) (r) & (g), he committed misconduct and he was asked<\/p>\n
    to reply. It was stated that pending enquiry, he was suspended<\/p>\n
    immediately and that he would be paid subsistence allowance as per<\/p>\n
    rules.     It appears that on 25-2-1984 Shri P.G. Jahagirdar who was<\/p>\n
    appointed as enquiry Officer, informed the petitioner that a domestic<\/p>\n
    enquiry will be held on 28-02-1984 at 4.00 p.m. and he should appear.\n<\/p>\n
    It appears that on 28-2-1984 due to some inauguration function, the<\/p>\n
    enquiry was not held and therefore, by letter dated 3rd March, 1984 he<\/p>\n
    was informed that the enquiry would be held on 5-3-1984 at 5.00 p.m.<\/p>\n
    There is nothing to show that this notice was actually served on him. It<\/p>\n
    appears that on 5-3-1984 petitioner did not appear and had already<\/p>\n
    left head-quarter after obtaining permission for 8 to 10 days, but then<\/p>\n
    he did not turn up. On 10th May, 1984 he was given Registered A.D.<\/p>\n
    notice at his permanent address asking him to appear on 30 th May,<\/p>\n
    1984 at 4.00 p.m. It is not clear as to whether enquiry was held on<\/p>\n
    30th May, 1984 or at any point of time thereafter. Hence Labour Court<\/p>\n
    has      also   categorically   held   that   despite   several      opportunities;\n<\/p>\n
    respondents-management failed to file any papers or evidence that<\/p>\n
    any such domestic enquiry was held on 30-5-1984 or at any point<\/p>\n
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\n                                           5<\/span><\/p>\n
    thereafter.   It appears that thereafter a dismissal order was made<\/p>\n
    dismissing the petitioner from service with effect from 11-7-1984. The<\/p>\n
    petitioner claims that he was never made aware about the said order<\/p>\n
    of dismissal from service and in absence of knowledge to him, he went<\/p>\n
    on making representation after representations and having found no<\/p>\n
    response, he made representations even to the Legal Aid Committee<\/p>\n
    at Sheoni (Madhya Pradesh). He repeatedly made a grievance that he<\/p>\n
    did not know about the order of dismissal from service.               With these<\/p>\n
    state of affairs, somehow with the advice of somebody, perhaps Legal<\/p>\n
    Aid Committee, he approached the Conciliation Officer on 21-7-1997.\n<\/p>\n
    It appears that appropriate Government declined to make reference on<\/p>\n
    the grievance made by him vide memorandum dated 31-8-1998<\/p>\n
    recording following reasons.\n<\/p>\n
              “The    workman       was       suspended     by      the<\/p>\n
              management       on     7-2-1984      whereas          he
\n              approached the ALC (C), Chandrapur only in the
\n              month of July 1997 after a lapse of 12 years<\/p>\n
              without any explanation for raising the dispute
\n              belatedly. As it is a belated case. There is no
\n              merit for any reference to the tribunal for<\/p>\n
              adjudication.”\n<\/p>\n
    3.        It then appears that a letter dated 20\/21-9-2000 was issued<\/p>\n
    by General Manager of the respondents to Shri R.C. Manocha, Section<\/p>\n
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\n                                        6<\/span><\/p>\n
    Officer of Ministry of Coal, New Delhi in which the facts about the<\/p>\n
    petitioner were disclosed and it was stated that by letter No. 1791<\/p>\n
    dated 11-7-1984 petitioner was dismissed from service.                It then<\/p>\n
    appears that thereafter the appropriate Government on 1-10-2001<\/p>\n
    made a reference to the Labour Court in the matter of termination of<\/p>\n
    services of the petitioner and therefore, the proceedings before the<\/p>\n
    Labour Court were initiated. The petitioner filed his statement of claim<\/p>\n
    dt. 6-1-2002 through his Advocate Shri R.E. Moharir and it appears that<\/p>\n
    copy thereof was received by respondents on 15-12-2006 and for this<\/p>\n
    delay no reasons are forthcoming. It appears that on 30 th July, 2002<\/p>\n
    Labour Court proceeded ex-parte against respondents for want of<\/p>\n
    written statement and it appears that on 21-12-2006 application for<\/p>\n
    permission to file written statement along with written statement was<\/p>\n
    made by respondents before the Labour Court and though opposed the<\/p>\n
    same was allowed and consequently written statement was taken on<\/p>\n
    record. It appears that thereafter the proceedings continued and by<\/p>\n
    application dated 9-3-2007 respondents sought time of one month to<\/p>\n
    file original departmental enquiry papers. The Labour Court granted<\/p>\n
    that application as last chance subject to payment of cost of Rs.200\/-\n<\/p>\n
    (Rs. Two hundred) vide order dated 9-3-2007.        It appears that on<\/p>\n
    23-4-2007 petitioner filed about 14 documents with the permission of<\/p>\n
    the Court vide List dated 23-4-2007. It appears that the case was then<\/p>\n
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\n                                        7<\/span><\/p>\n
    fixed for submissions on validity of the departmental enquiry.             After<\/p>\n
    hearing Counsel for parties, the Labour Court made an order on<\/p>\n
    27-7-2007 recording a finding that the management after taking time<\/p>\n
    informed the Court its inability to file documents of enquiry and<\/p>\n
    therefore, it held that enquiry was vitiated and consequently was not<\/p>\n
    fair and proper and the same was set aside. The Court accepted the<\/p>\n
    alternate prayer to allow the management to prove charges before the<\/p>\n
    Court. It appears that thereafter respondents filed affidavit-evidence of<\/p>\n
    Shri Kishor Barve, Project Officer; Shri Chandu Khond, Clerk in his<\/p>\n
    office; Shri Pratap Kashyap, Clerk working in Despatch Section of his<\/p>\n
    office on 21-9-2007.   There is a remark perhaps by respondents on<\/p>\n
    these affidavits dated 20-9-2007 of Shri Chandu Khond and Shri Pratap<\/p>\n
    Kashyap that those affidavits were not pressed vide remark dated<\/p>\n
    16-11-2007 and it appears that in place of those affidavits fresh<\/p>\n
    affidavits of these two persons dated 15-11-2007 were filed.                 The<\/p>\n
    difference in these affidavits is that in the earlier affidavits of Shri<\/p>\n
    Chandu Khond and Shri Pratap Kashyap there are no abuses or filthy<\/p>\n
    language (abuses) as stated in affidavit-evidence of Shri Kishor Barve.\n<\/p>\n
    But they have been mentioned in these subsequent affidavits dt.\n<\/p>\n
    15-11-2007.    It then appears that these witnesses were cross-\n<\/p>\n
    examined on 7-12-2007 and 14-12-2007.         It appears that petitioner<\/p>\n
    filed his affidavit-evidence dated 19-10-2006 and dated 3-1-2008. The<\/p>\n
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\n                                             8<\/span><\/p>\n
    petitioner was cross-examined on 14-3-2008.              It appears that on<\/p>\n
    14-3-2008 during the course of his evidence petitioner’s Counsel filed<\/p>\n
    application for leading secondary evidence.        But it does not appear<\/p>\n
    that any order has been passed on that application. It appears that<\/p>\n
    said application was on affidavit and was not seriously objected.\n<\/p>\n
    Thereafter the parties filed written notes of argument with citations<\/p>\n
    and finally the impugned award came to be made.\n<\/p>\n
    SUBMISSIONS ON BEHALF OF PETIIONER<\/p>\n
    4.         Mr. D.N. Kukday the learned Counsel for plaintiff made the<\/p>\n
    following submissions.\n<\/p>\n
    i)         The Labour Court has recorded a finding that enquiry held<\/p>\n
    was not fair and proper. But in the absence of any evidence to show<\/p>\n
    that enquiry was really held, it ought to have held that no enquiry was<\/p>\n
    at all held.\n<\/p>\n
    ii)        Having held that respondent management was entitled to<\/p>\n
    prove misconduct before Labour Court, it ought to have ordered<\/p>\n
    reinstatement forthwith leaving the questions of back wages in the<\/p>\n
    light of various decisions.\n<\/p>\n
    iii)       Labour   Court     ignored   the   evidence    about     making        of<\/p>\n
    representations by petitioner on regular basis which documents were<\/p>\n
    exhibited subject to objection which was not decided. Petitioner was<\/p>\n
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\n                                         9<\/span><\/p>\n
    pursuing his cause and there was no delay on his part.                  In fact<\/p>\n
    petitioner filed statement of claim on 6-1-2002 and respondent filed<\/p>\n
    written statement on 21-12-2006 when it was already proceeded ex-\n<\/p>\n
    parte. Respondent thus delayed the matter.\n<\/p>\n
    iv)         About alleged misconduct of 6-2-1984 witnesses deposed in<\/p>\n
    the year 2007 for the first time. Their evidence is liable to be rejected<\/p>\n
    being delayed. Even otherwise this is a case of ‘no evidence’.\n<\/p>\n
    v)          Alternatively, in the absence of any bad past record, merely<\/p>\n
    for threatening, penalty of dismissal from service could not be<\/p>\n
    awarded. Now petitioner has suffered enough and that itself should be<\/p>\n
    treated as punishment and he be reinstated with continuity of service<\/p>\n
    and full back wages.\n<\/p>\n
    SUBMISSIONS ON BEHALF OF RESPONDENTS<\/p>\n
    5.          Per-contra Mr. Ashish Mehadia, the learned Counsel for<\/p>\n
    respondents made the following submissions.\n<\/p>\n
    i)          This Court in its extraordinary writ jurisdiction should not<\/p>\n
    interfere with the findings of facts recorded by the Labour Court on<\/p>\n
    evidence.\n<\/p>\n
    ii)         First reference made by petitioner having been rejected by<\/p>\n
    the appropriate Government, making second reference was illegal and<\/p>\n
    hence Labour Court rightly rejected it on that ground.\n<\/p>\n
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\n                                          10<\/span><\/p>\n
    iii)      Admittedly the petitioner approached Conciliation Officer for<\/p>\n
    the first time in the year 1997 i.e. after 12-13 years and the<\/p>\n
    explanation for delay through alleged representations made by<\/p>\n
    petitioner has been found to be false by Labour Court for want of<\/p>\n
    acknowledgments. For delay, reference was liable to be rejected. He<\/p>\n
    relied on the following decisions.\n<\/p>\n
              1) 2005(5) SCC 91, Haryana State Coop. Land Development
\n    Bank v. Neelam.<\/a>\n<\/p>\n
              2) 2006(6) SCC 221, Reserve Bank of India v. Gopinath
\n    Sharma and another.\n<\/p>\n
              3) 2004(2) LLJ 460 (Karnataka High Court), Chandrappagol
\n    A.G. and Assistant Executive Engineer, Ghataprabha Right Bank Canal
\n    Construction, Sub-division 1, Belgaum District.\n<\/p>\n
              4) AIR 2000 SC 839, The Nedungadi Bank Ltd. v. K.P.
\n    Madhavankutty and others<\/a>.\n<\/p>\n
              5) 1998 LAB.IC 1702 (Allahabad High Court), U.P. State
\n    Electricity Board and another, Petitioners v. Presiding Officer, Labour
\n    Court, I, U.P., Kanpur and others.\n<\/p>\n
    iv)       In cross-examination petitioner admitted to have received<\/p>\n
    termination order on 11-7-1984 itself and thus his plea of knowledge in<\/p>\n
    the year 1989 is false.\n<\/p>\n
    v)        He was a temporary employee and no enquiry even was<\/p>\n
    necessary.\n<\/p>\n
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\n                                        11<\/span><\/p>\n
    vi)       Evidence of witnesses of respondent has not been shaken<\/p>\n
    but evidence of petitioner is shaken.      Misconduct has been proved<\/p>\n
    before Labour Court, which is of serious nature warranting punishment<\/p>\n
    of dismissal only.\n<\/p>\n
    vii)      Alternatively, considering ‘no work no pay’ doctrine, no<\/p>\n
    interference could be made on back wages. He relied on 2006(6) SCC<\/p>\n
    221, Reserve Bank of India v. Gopinath Sharma and another.                    He<\/p>\n
    prayed for dismissal of petition with costs.\n<\/p>\n
    CONSIDERATION<\/p>\n
    6.        I have carefully gone through the entire record and<\/p>\n
    proceedings of the trial Court. I have heard learned Counsels for the<\/p>\n
    rival parties at length. Perusal of the impugned judgment shows that<\/p>\n
    in paragraph 6 the trial Court has dismissed the reference only on the<\/p>\n
    ground that earlier reference having been refused by the appropriate<\/p>\n
    Government, second reference could not have been made.                        He<\/p>\n
    however also decided the case on merits. Dealing with this first aspect<\/p>\n
    I find that the Hon’ble Supreme Court in AIR 2000 SC 915, Secretary,<\/p>\n
    Indian Tea Association v. Ajit Kumar Barat and others<\/a> has held that<\/p>\n
    order made by appropriate Government making reference is an<\/p>\n
    administrative Order and it is a well settled legal position that<\/p>\n
    administrative action or the administrative orders can be made by the<\/p>\n
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\n                                             12<\/span><\/p>\n
    appropriate Government from time to time. There is no bar anywhere<\/p>\n
    that if at one point of time reference is rejected, the same cannot be<\/p>\n
    again made by an administrative authority.              Therefore, the finding<\/p>\n
    given by the tribunal in paragraph 6 is illegal.        That apart this second<\/p>\n
    order    of reference    dated   1-10-2001       made       by the appropriate<\/p>\n
    Government was never put to challenge before the appropriate Court<\/p>\n
    at any point of time and it was therefore, not within the powers of the<\/p>\n
    Labour Court to hold that the second order making reference was<\/p>\n
    wrong.\n<\/p>\n
    7.         The trial Court had made an order on validity of enquiry<\/p>\n
    (VDE) on 27-7-2007 relevant portion of which reads thus ;-\n<\/p>\n
               “Since the papers are insufficient to conclude<\/p>\n
               whether      the   enquiry    was     proper      and      in<\/p>\n
               accordance with the principles of natural justice,
\n               management was directed to file original enquiry
\n               papers as the management after taking time<\/p>\n
               informed its inability to file the documents of
\n               enquiry.     Secondly there is nothing on record
\n               except copy of chargesheet to consider the
\n               fairness     of    enquiry.       Under    the      above<\/p>\n
               circumstances, there is no other way than to
\n               vitiate the enquiry with findings that it was in
\n               accordance with the principles of natural justice
\n               giving opportunity to petitioner.         Accordingly, I<\/p>\n
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\n                                           13<\/span><\/p>\n
             hold that enquiry was unfair and set it aside.”\n<\/p><\/blockquote>\n
             “The   management’s          Counsel   after     pointing<\/p>\n
             paragraph 16 submitted that he had made an<\/p>\n
             alternate prayer to allow it to prove the charges
\n             before the Court in case the enquiry has been
\n             vitiated.   It   is   well   settled   principle       that<\/p>\n
             management is entitled to prove charges even
\n             before the Labour Court in case the enquiry is
\n             found as unfair and improper.          Accordingly the
\n             management will have to be permitted to prove<\/p>\n
             the charges before the Court. Hence liberty of<\/p>\n
             proving the charges before this Court is given to
\n             the management.”<\/p><\/blockquote>\n
             Perusal of the record shows that no evidence was at all<\/p>\n
    adduced to show that enquiry papers and termination order were<\/p>\n
    destroyed under any extant rules or that they were not traceable<\/p>\n
    despite attempts to search them and what attempts were made to<\/p>\n
    search. Thus it is not in dispute that respondent-management did not<\/p>\n
    also produce any evidence as to whether on or after 30-5-1984 any<\/p>\n
    enquiry was conducted by the enquiry Officer.                  The respondent-\n<\/p>\n
    management did not examine Shri P.A. Jahagirdar or any witness<\/p>\n
    before the Labour Court to support their stand that enquiry was held<\/p>\n
    after service of chargesheet as two adjournments were granted at the<\/p>\n
    instance of respondent-management.          Though three witnesses Shri<\/p>\n
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\n                                       14<\/span><\/p>\n
    Kishor Barve, Chandu Khond and Pratap Kashyap were examined<\/p>\n
    before the tribunal; none of them have even whispered before the<\/p>\n
    tribunal that any enquiry was held in which they deposed as witnesses<\/p>\n
    nor any one of them or any witness or Mr. P.A. Jahagirdar was<\/p>\n
    examined to prove that witnesses were examined in the so called<\/p>\n
    departmental enquiry allegedly held on or after 30th May, 1984.\n<\/p>\n
    Merely issuing chargesheet and issuing two notices of dates on which<\/p>\n
    no proceedings at all took place does not lead to any inference that<\/p>\n
    enquiry was at all held. I hold that trial Court ought to have held that<\/p>\n
    ‘no enquiry’ was held and petitioner was thus dismissed ‘without<\/p>\n
    enquiry’.   This finding may not have any impact on the power of<\/p>\n
    Labour Court to allow proof of misconduct before it, though impact on<\/p>\n
    the question of award of back wages may be applied.           Hence, I hold<\/p>\n
    that there was no enquiry before dismissal of petitioner.\n<\/p>\n
    8.          In the statement of claim filed by petitioner in para 2,<\/p>\n
    specific stand was taken by him that the dismissal order was never<\/p>\n
    served on him.    Early representations made by him also show that he<\/p>\n
    did not have the knowledge about his termination till 1989. Perusal of<\/p>\n
    written statement and particularly parawise reply to para 2 shows that<\/p>\n
    there is assertion about dismissal with effect from 11-7-1984 but no<\/p>\n
    specific denial is made about non-service of dismissal order on him but<\/p>\n
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\n                                       15<\/span><\/p>\n
    only surprise is expressed as to how he came to know about it in 1989.\n<\/p>\n
    There is no assertion in the pleading even or oral evidence that the<\/p>\n
    same was served on him either on 11-7-1984 or at any time thereafter<\/p>\n
    and by whom and at which place as he must be at Sheoni (Madhya<\/p>\n
    Pradesh) on 11-7-1984 as nothing is shown that he was specifically<\/p>\n
    called on 11-7-1984 at Rajur where dismissal order is said to have<\/p>\n
    been passed on 11-7-1984.     There is no evidence showing that he<\/p>\n
    continued to reside at Rajur without receiving any subsistence<\/p>\n
    allowance from 1st May, 1984; and who served it on him. The alleged<\/p>\n
    admission in the evidence in cross-examination of petitioner shown to<\/p>\n
    me by Mr. Ashish Mehadia, Advocate i.e. “I was served with<\/p>\n
    termination order, on 11-7-1984. The order was taken back through<\/p>\n
    security guard” will have to be carefully scanned in the light of above<\/p>\n
    overwhelming circumstances. In my opinion, the so-called admission is<\/p>\n
    nothing but ‘stray’ and having been obtained after he entered the<\/p>\n
    witness-box after 22 years with completely ‘shaken’ mentally and<\/p>\n
    caught in legal tangle with no means. I therefore refuse to treat this<\/p>\n
    as admission and also hold that in the absence of pleading in written<\/p>\n
    statement, even this question could have not been allowed to be<\/p>\n
    asked.   No acknowledgment of service of dismissal order on the<\/p>\n
    petitioner has at all been produced by respondent anywhere nor any<\/p>\n
    oral evidence of service nor any reason for not producing the same is<\/p>\n
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\n                                          16<\/span><\/p>\n
    placed. It has to be therefore held that petitioner was not served with<\/p>\n
    the order of termination of his service. The Hon’ble Supreme Court in<\/p>\n
    the case of State of Punjab Vs. Amar Singh Harika, AIR 1966 SC 1313<\/p>\n
    held in Para 11 as under;\n<\/p>\n
              “The first question which has been raised before<\/p>\n
              us by Mr. Bishan Narain is that though the
\n              respondent came to know about the order of his
\n              dismissal for the first time on the 28th May 1951,<\/p>\n
              the said order must be deemed to have taken
\n              effect as from the 3rd June 1949 when it was<\/p>\n
              actually passed.    The High Court has rejected
\n              this contention, but Mr. Bishan Narain contends<\/p>\n
              that the view taken by the High Court is
\n              erroneous in law. We are not impressed by Mr.
\n              Bishan Narain’s argument.       It is plain that the<\/p>\n
              mere passing of an order of dismissal would not
\n              be   effective    unless   it   is   published     and<\/p>\n
              communicated to the officer concerned.           If the
\n              appointing   authority     passed    an   order       of
\n              dismissal, but does not communicate it to the<\/p>\n
              officer concerned, theoretically it is possible that
\n              unlike in the case of a judicial order pronounced
\n              in Court, the authority may change its mind and<\/p>\n
              decide to modify its order.      It may be that in
\n              some cases, the authority may feel that the ends
\n              of justice would be met by demoting the officer
\n              concerned rather than dismissing him. An order
\n              of dismissal passed by the appropriate authority<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:59:36 :::<\/span>
\n                              17<\/span><\/p>\n
     and kept with itself, cannot be said to take effect
\n     unless the officer concerned knows about the<\/p>\n
     said order and it is otherwise communicated to<\/p>\n
     all the parties concerned.       If it is held that the
\n     mere passing of the order of dismissal has the
\n     effect of terminating the services of the officer<\/p>\n
     concerned, various complications may arise.              If
\n     before receiving the order of dismissal, the
\n     officer has exercised his power and jurisdiction
\n     to take decisions or do acts within his authority<\/p>\n
     and power, would those acts and decisions be<\/p>\n
     rendered invalid after it is known that an order of
\n     dismissal had already been passed against him ?\n<\/p><\/blockquote>\n
     Would the officer concerned be entitled to his
\n     salary for the period between the date when the
\n     order was passed and the date when it was
\n     communicated     to   him    ?    These    and     other<\/p>\n
     complications would inevitably arise if it is held<\/p>\n
     that the order of dismissal takes effect as soon
\n     as it is passed, though it may be communicated
\n     to the officer concerned several days thereafter.\n<\/p>\n
     It is true that in the present case, the respondent
\n     had been suspended during the material period;\n<\/p>\n
     but that does not change the position that if the
\n     officer concerned is not suspended during the<\/p>\n
     period of enquiry, complications of the kind
\n     already indicated would definitely arise. We are,
\n     therefore, reluctant to hold that an order of
\n     dismissal passed by an appropriate authority and<\/p>\n
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\n                                       18<\/span><\/p>\n
             kept on its file without communicating it to the
\n             officer concerned or otherwise publishing it will<\/p>\n
             take effect as from the date on which the order<\/p>\n
             is actually written out by the said authority; such
\n             an order can only be effective after it is
\n             communicated to the officer concerned or is<\/p>\n
             otherwise published.    When a public officer is
\n             removed from service, his successor would have
\n             to take charge of the said office; and except in
\n             cases where the officer concerned has already<\/p>\n
             been suspended, difficulties would arise if it is<\/p>\n
             held that an officer who is actually working and
\n             holding charge of his office, can be said to be<\/p>\n
             effectively removed from his office by the mere
\n             passing of an order by the appropriate authority.
\n             In our opinion, therefore, the High Court was
\n             plainly right in holding that the order of dismissal<\/p>\n
             passed against the respondent on the 3rd June<\/p>\n
             1949 could not be said to have taken effect until
\n             the respondent came to know about it on the 28 th
\n             May 1951.”\n<\/p>\n
             Thus termination of service takes place only after order of<\/p>\n
    dismissal served on the concerned person and not otherwise.\n<\/p>\n
    Consequently, it will have to be held that in the absence of proof of<\/p>\n
    service of termination order on the petitioner and in the light of<\/p>\n
    assertion of claim in statement of claim in para 2 and para 6 of his<\/p>\n
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\n                                        19<\/span><\/p>\n
    affidavit-evidence dated 19-10-2006 and for the reasons stated by me<\/p>\n
    earlier, the only conclusion that can be drawn is that petitioner was<\/p>\n
    never served with any dismissal order No.1791 dated 11-7-1984 and<\/p>\n
    consequently in law no termination of petitioner at all took place and<\/p>\n
    therefore, he will have to be held in the employment of respondents<\/p>\n
    ignoring the said termination order dated 11-7-1984.\n<\/p>\n
    9.        The trial Court was much impressed with the defence taken<\/p>\n
    by respondent-management that petitioner kept quiet for 12-13 years<\/p>\n
    and thereafter approached the Conciliation Officer for the first time<\/p>\n
    and that therefore, there was a delay on his part in approaching the<\/p>\n
    Conciliation Officer. The trial Court has in this connection rejected the<\/p>\n
    contention of petitioner outright, that he was repeatedly making<\/p>\n
    representations right from the beginning to the authorities, for want of<\/p>\n
    acknowledgments of service of those representations. To my mind this<\/p>\n
    approach of the trial Court is not pragmatic and has resulted into<\/p>\n
    miscarriage of justice which would be evident from the following facts.\n<\/p>\n
              Along with List of document dated 8-2-2008 (record Page<\/p>\n
    128) petitioner produced eight documents out of which 1 to 7 office<\/p>\n
    copies were in his handwriting while the last document dated<\/p>\n
    14-5-2001 (Exh. W-14) is a letter issued by District Legal Aid Officer,<\/p>\n
    Sheoni (Madhya Pradesh) addressed to Secretary, Labour Ministry,<\/p>\n
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\n                                        20<\/span><\/p>\n
    Government of India, New Delhi.         These letters 1 to 7 have been<\/p>\n
    exhibited as Exh. W-7 to Exh. W-13.         It is true that there is no<\/p>\n
    acknowledgment produced by petitioner about service on addressee.\n<\/p>\n
    But looking to the stature of workman who was appointed as General<\/p>\n
    Majdoor and who has given a firm explanation in his cross-examination<\/p>\n
    in respect of the said representations that acknowledgments were<\/p>\n
    never given to him coupled with his assertion in para 5 of his affidavit-\n<\/p>\n
    evidence dated 19-10-2006 and in absence of any challenge to the<\/p>\n
    same and his explanation for not obtaining receipt coupled with letters<\/p>\n
    issued by him on 11-6-1984, 13-6-1984, 17-6-1984, 13-6-1987 and<\/p>\n
    20-6-1988 for mere want of acknowledgments, his explanation could<\/p>\n
    not be rejected. Further the petitioner produced 14 letters with list of<\/p>\n
    document dated 23-04-2007 of which 1 to 5 were already produced on<\/p>\n
    record along with other list. Then the letters from Sr. Nos. 6 to 14 are<\/p>\n
    for the period from 13-5-1989, 16-5-1989, 13-9-90, 16-6-90, 20-12-96,<\/p>\n
    15-9-90, 21-7-97, 20-8-98,     21-12-98.    All these letter have been<\/p>\n
    proved by him in his evidence though subject to objection, but then<\/p>\n
    objection appears to be that they were not original therefore<\/p>\n
    application dated 14-3-2008 for adducing secondary evidence was<\/p>\n
    filed. This application is on affidavit and except saying ‘objected’ there<\/p>\n
    is no opposition to it.   I am satisfied with the reasons given in the<\/p>\n
    application for adducing secondary evidence.       I herewith allow the<\/p>\n
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\n                                           21<\/span><\/p>\n
    same since no orders were passed by the trial court on this application.\n<\/p>\n
    The objection is therefore overruled. From the above correspondence<\/p>\n
    it clearly appears to me that poor and illiterate petitioner was<\/p>\n
    repeatedly   making       correspondence        here      and      there       without<\/p>\n
    understanding the exact authority and place where he should address<\/p>\n
    his industrial dispute.     It appear that as early as on 16-5-1988<\/p>\n
    (Exh. W-12) he approached the Legal Aid Authority at Sheoni (Madhya<\/p>\n
    Pradesh) which vide letter dated 20-12-1989 (Doc. No.10, Record page<\/p>\n
    95), had sent a reminder to respondent seeking information about the<\/p>\n
    petitioner with reference to letter No.1242 dated 16\/24-7-1989; but his<\/p>\n
    grievance was for the first time taken up by Legal Aid Committee on<\/p>\n
    14-5-2001 (Exh.W-14) with Ministry of Labour, Government of India.\n<\/p>\n
    This letter (Exh.W-14) shows that from 1989 till 1999, District Legal Aid<\/p>\n
    Committee, Sheoni (Madhya Pradesh) had made correspondence about<\/p>\n
    the case of the petitioner and District Judge, Chandrapur was also<\/p>\n
    informed about it. It appears that on 20\/21-9-2000 respondent-W.C.L.\n<\/p>\n
    wrote a letter to Shri R.C. Manocha, Section Officer, Ministry of Coal,<\/p>\n
    New Delhi informing about status of petitioner. This letter dt.\n<\/p>\n
    20\/21-9-2000 issued by respondent itself to Ministry of Coal about the<\/p>\n
    petitioner clearly shows that the issue was pending consideration with<\/p>\n
    the   Government     and    that     was    only     so     due      to    persistent<\/p>\n
    correspondence     made     by     petitioner   on     11-6-1984,         13-6-1984,<\/p>\n
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\n                                        22<\/span><\/p>\n
    17-6-1984, 13-6-1987, 20-6-1988, 13-5-1989, 16-5-1989, 16-6-1990,<\/p>\n
    13-9-1990, 15-9-1990, 20-12-1996, 21-7-1997, 20-8-1998, 21-12-1998.\n<\/p>\n
    In the light of correspondence by District Legal Committee, Sheoni<\/p>\n
    (Madhya Pradesh) and dated 20\/21-9-2000 by respondent, I reject the<\/p>\n
    contention that petitioner did not approach the authority for 12-13<\/p>\n
    years merely because he did not have the acknowledgments. On<\/p>\n
    13-9-1989 also petitioner had written to the Legal Aid Committee,<\/p>\n
    Sheoni (Madhya Pradesh) vide Page 92 of the record (D-8). It clearly<\/p>\n
    proves that he was searching for legal aid because he did not know<\/p>\n
    which was the proper authority and it was for the first time in 1997 he<\/p>\n
    knew about the proper authority to be approached. He was not a<\/p>\n
    member of any union and when he approached some union, none<\/p>\n
    helped him. He filed application for Conciliation vide dated 21-7-1997<\/p>\n
    by visiting the office A.L.C. (Central), Chandrapur. It is note worthy that<\/p>\n
    respondents in the light of above pleadings, documents and evidence<\/p>\n
    on the question of delay, did not adduce any evidence to show that not<\/p>\n
    a single representation was made to them or received by them and<\/p>\n
    though Mr. Kishor Barve and other witness were examined none of<\/p>\n
    them stated anything on that aspect. In the absence of evidence in<\/p>\n
    rebuttal, from the side of respondent-management it will have to be<\/p>\n
    held that petitioner could not be blamed for the alleged delay of 12<\/p>\n
    years in approaching the Conciliation Officer. The only reason for<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:59:36 :::<\/span>
\n                                       23<\/span><\/p>\n
    confusion carried by petitioner was that he was not served with the<\/p>\n
    termination order and therefore, did not know what to do and further<\/p>\n
    that he did not understand which authority is to be approached for his<\/p>\n
    grievances since he was all the while in the belief which is clear from<\/p>\n
    the perusal of various letters that he was in employment. After all this<\/p>\n
    Court cannot be ignore the ground reality about education and<\/p>\n
    background and the place from where the petitioner comes namely a<\/p>\n
    small village in Sheoni Tahsil of Madhya Pradesh. Hence, I hold that<\/p>\n
    there was no delay on the part of petitioner in approaching the<\/p>\n
    authority for making reference about the           industrial dispute. The<\/p>\n
    decisions cited by Mr. Ashish Mehadia on this point are not applicable<\/p>\n
    on facts.\n<\/p>\n
    10.         Coming to the merits of the evidence that was adduced<\/p>\n
    before the tribunal. I am aware that it would not be possible for me to<\/p>\n
    re-appreciate   the   evidence   or   substitute    my    opinion       on     the<\/p>\n
    appreciation of evidence made by Labour Court. But then in the wake<\/p>\n
    of perverse approach on the part of Labour Court or disregard to the<\/p>\n
    settled legal principles and also having regard to the fact that<\/p>\n
    witnesses deposed before the Court for the first time after 23 years in<\/p>\n
    the absence of any previous statements, I am entitled to interfere even<\/p>\n
    on the questions of fact and appreciation of evidence.                    In this<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:59:36 :::<\/span>
\n                                       24<\/span><\/p>\n
    background, I proceed to deal with the matter on merits. Perusal of<\/p>\n
    the chargesheet that was served on petitioner in English language<\/p>\n
    shows that factually the charge levelled against him was that he<\/p>\n
    entered the office of Project Officer and during talk with him he<\/p>\n
    demanded advance of Rs.2000\/- (Rs. Two thousand) else he would<\/p>\n
    publish some objectionable matters against the management of Rajur<\/p>\n
    Colliery in some newspaper or inform the police department.              When<\/p>\n
    the Project Officer refused to give him advance, he threatened him<\/p>\n
    with dire consequences.  igThis is the only charge factually levelled<\/p>\n
    against the petitioner. It is nowhere brought on record by respondent<\/p>\n
    that petitioner who was appointed as ‘General Majdoor’ knew English<\/p>\n
    language.   Even if Petitioner did not say about it, this Court cannot<\/p>\n
    ignore the ground reality, particularly when industrial dispute is by a<\/p>\n
    ‘Labourer’. There is absolutely no other charge particularly regarding<\/p>\n
    hurling of abuses or filthy abuses at the Project Officer in this<\/p>\n
    chargesheet.   This is specifically being mentioned because the trial<\/p>\n
    Court was much impressed with the evidence that filthy abuses were<\/p>\n
    hurled by the petitioner at the Project Officer, and therefore the<\/p>\n
    petitioner was not a fit person to be retained in service.          Now the<\/p>\n
    question is in the absence of any charge regarding filthy abuses in the<\/p>\n
    chargesheet can the petitioner be held guilty of that. In my opinion,<\/p>\n
    the answer has to be firm ‘no’. Therefore what only remains is threat<\/p>\n
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\n                                             25<\/span><\/p>\n
    with dire consequences to the Project Officer to publish or to inform<\/p>\n
    the police department if advance of Rs.2000\/- ( Rs. Two thousand ) was<\/p>\n
    not paid to the petitioner. The evidence of three witnesses Shri Kishor<\/p>\n
    Barve, Shri Chandu Khond and Shri Pratap Kashyap is required to be<\/p>\n
    scanned.     At the outset, it must be noted that in all these three<\/p>\n
    affidavit-evidence actual words of filthy language have been quoted<\/p>\n
    word to word same without a single word missing its place.                     In the<\/p>\n
    earlier affidavits Shri Chandu Khond and Shri Pratap Kashyap, which<\/p>\n
    were not present on 16-11-2007 there was no mention about filthy<\/p>\n
    abuses.    Now these abuses were said to have been given on<\/p>\n
    06-02-1984    and   this   affidavits    were   sworn     on    20-9-2007          and<\/p>\n
    15-11-2007     i.e. after 23 years which in my opinion is nothing but<\/p>\n
    exaggeration of the evidence any how to secure conviction from the<\/p>\n
    Labour Court. This is the evidence in the absence of any charge on<\/p>\n
    abuses or filthy abuses. It is also difficult to believe that Shri Chandu<\/p>\n
    Khond and Shri Pratap Kashyap, who were outside the Chamber at<\/p>\n
    some distance heard each and every word of the abuses in the same<\/p>\n
    sequence as has been described in their affidavits.                   It is in this<\/p>\n
    background the Court has to be on guard while appreciating the<\/p>\n
    evidence of these witnesses. I am required to do this exercise because<\/p>\n
    the learned Labour Court has not done it.\n<\/p>\n
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\n                                        26<\/span><\/p>\n
    11.       Coming to the first part of evidence of these witnesses the<\/p>\n
    story narrated by Shri Chandu Khond and Shri Pratap Kashyap is that<\/p>\n
    Shri Kishor Barve refused to sanction the loan and                  thereupon<\/p>\n
    petitioner threatened him with dire consequences. Shri Kishor Barve<\/p>\n
    has no where stated in his affidavit about loan or sanctioning of loan<\/p>\n
    but stated that he was demanding advance of Rs.2000\/-(Rs. Two<\/p>\n
    thousand).   There is thus a material variance in evidence of these<\/p>\n
    witnesses who deposed in 2007 in respect of incident of 6-2-1984. The<\/p>\n
    net result of above discussion is that while separating shaft from the<\/p>\n
    grain the only evidence of Shri Kishor Barve which could at best be<\/p>\n
    believable is that on 6-2-1984 petitioner entered the chamber of Shri<\/p>\n
    Kishor Barve and asked him to pay Rs.2000\/- (Rs. Two thousand ) as<\/p>\n
    advance and if not paid he would publish some objectionable matter<\/p>\n
    against the Rajur Colliery or inform the police department. This part of<\/p>\n
    evidence in my opinion amounts to a minor threat in sudden anger of a<\/p>\n
    ‘labourer’. Further evidence that Shri Kishor Barve refused to give<\/p>\n
    advance, he threatened him with dire consequences is difficult to<\/p>\n
    believe as no complaint was lodged with Police Station by him nor any<\/p>\n
    evidence has come on record that he immediately reported the<\/p>\n
    authorities about the said threats which shows he never took those<\/p>\n
    threats by General Majdoor seriously. But then looking to the above<\/p>\n
    evidence after 23 years for the first time in Court against the petitioner<\/p>\n
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\n                                       27<\/span><\/p>\n
    about threat in the background of his demand of Rs.2000\/- (Rs. Two<\/p>\n
    thousand) as advance else he would publish or inform the police<\/p>\n
    station, in my opinion, the punishment is certainly too disproportionate<\/p>\n
    since the serious charge regarding giving of filthy abuses has fallen to<\/p>\n
    the ground and therefore was it proper to put a workman to economic<\/p>\n
    death merely because he threatened his superior officer to publish or<\/p>\n
    report to police station for not making payment of advance of Rs.\n<\/p>\n
    2000\/- (Rs. Two thousand) to him and in the absence of any previous<\/p>\n
    past history or bad record of such employee
\n                              ig                     Was the employee not<\/p>\n
    entitled to a chance   to improve.     It has been held by the Hon’ble<\/p>\n
    Supreme Court in the case of Colour-Chem Ltd. vs. A.L. Alaspurkar and<\/p>\n
    others<\/a> reported in (1998) 2 SCC 192 in Para 13 as under;\n<\/p>\n
              “———-Consequently it must be held that when<\/p>\n
              looking to the nature of the charge of even<\/p>\n
              major misconduct which is found proved if the<\/p>\n
              punishment    of   dismissal   or   discharge      as<\/p>\n
              imposed is found to be grossly disproportionate<\/p>\n
              in the light of the nature of the misconduct or<\/p>\n
              the past record of the employee concerned<\/p>\n
              involved in the misconduct or is such which no<\/p>\n
              reasonable employer would ever impose in like<\/p>\n
              circumstances, inflicting of such punishment<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:59:36 :::<\/span>
\n                                  28<\/span><\/p>\n
     itself could be treated as legal victimisation. On<\/p>\n
     the facts of the present case there is a clear<\/p>\n
     finding reached by the Labour Court and as<\/p>\n
     confirmed by the Industrial Court that the<\/p>\n
     charges      levelled     against        the    respondent-\n<\/p><\/blockquote>\n
     delinquents       which   were      held       proved    even<\/p>\n
     though reflecting major misconducts, were not<\/p>\n
     such in the light of their past service record as<\/p>\n
     would     merit    imposition
\n                        ig               of    punishment         of<\/p>\n
     dismissal.    This factual finding would obviously<\/p>\n
     attract the conclusion that by imposing such<\/p>\n
     punishment        the    appellant-management              had<\/p>\n
     victimised         the       respondent-delinquents.\n<\/p><\/blockquote>\n
     Imposition of such a shockingly disproportionate<\/p>\n
     punishment by itself, therefore, has to be<\/p>\n
     treated as legal victimisation apart from not<\/p>\n
     being factual victimisation as on the latter<\/p>\n
     aspect the Labour Court has held against the<\/p>\n
     respondent-workmen and that finding has also<\/p>\n
     remained well sustained on record.                   Thus it<\/p>\n
     must be held that the management even though<\/p>\n
     not guilty of factual victimisation was guilty of<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:59:36 :::<\/span>
\n                                       29<\/span><\/p>\n
              legal victimisation in the light of the proved<\/p>\n
              facts which squarely attracted the ratio of the<\/p>\n
              decisions of this Court in Hind Construction and<\/p>\n
              Bharat Iron Works.——-”\n<\/p>\n
              In my opinion in the facts of this case; ultimate punishment<\/p>\n
    from dismissal of service could not have been upheld by the tribunal as<\/p>\n
    has been done by the impugned award. The submission that petitioner<\/p>\n
    was a temporary employee and therefore, no enquiry was even<\/p>\n
    necessary is liable to be rejected outright since this stand was never<\/p>\n
    taken in the Court below or at any point of time and further the<\/p>\n
    respondent-management itself agreed to prove the misconduct before<\/p>\n
    the Court on the same chargesheet which was issued by them.\n<\/p>\n
    Therefore such a plea cannot be raised.\n<\/p>\n
    12.       Taking over all view of the journey undertaken by the<\/p>\n
    petitioner for the period from 1984 till this date the effect thereof on<\/p>\n
    his family members and on himself and on his mental condition, in my<\/p>\n
    opinion, the appropriate punishment at this stage would be to issue<\/p>\n
    him a ‘warning’ and to deprive him of 50% back wages. In the light of<\/p>\n
    decision of the Hon’ble Supreme Court in the case of B.C. Chaturvedi<\/p>\n
    vs. Union of India and others<\/a>, AIR 1996 SC 484, I am entitled to impose<\/p>\n
    appropriate punishment to shorten the litigation.       The respondent-\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:59:36 :::<\/span>
\n                                         30<\/span><\/p>\n
    management ought to have been careful before imposing such a harsh<\/p>\n
    punishment as per law existing then also, but that did not happen. I<\/p>\n
    therefore hold that the award made by the Labour Court upholding the<\/p>\n
    order of dismissal of the petitioner or holding dismissal from service of<\/p>\n
    petitioner as the proper punishment is illegal and consequently I hold<\/p>\n
    that he must be deemed to be in service. As discussed by me earlier it<\/p>\n
    is not that the petitioner was sleeping about 12 to 13 years in the<\/p>\n
    matter of dismissal of his service but for want of proper and timely<\/p>\n
    legal aid. I therefore hold that the petitioner cannot be deprived of the<\/p>\n
    entire back wages after dismissal from service nor for continuity of<\/p>\n
    service. In cross-examination of petitioner by the management, he has<\/p>\n
    clearly deposed that he and his family members could not get any<\/p>\n
    gainful occupation or employment and sometimes he used to sell<\/p>\n
    vegetables, but was required to pay rent of a rented house.                I have<\/p>\n
    therefore no difficulty in coming to a conclusion that petitioner was not<\/p>\n
    proved   to   have   been   in   gainful   avocation.      Considering         the<\/p>\n
    pronouncement of law in the case of J.K. Synthetics vs. K.P. Agrawal<\/p>\n
    and another reported in (2007)2 SCC 433, and the fact that lump-sum<\/p>\n
    payment of 50% back wages would be enough compensation for the<\/p>\n
    entire episode, in my opinion, petitioner can be awarded only 50%<\/p>\n
    back wages.    I have already held that punishment of ‘warning’ and<\/p>\n
    depriving him of 50% back wages would subserve the ends of justice.\n<\/p>\n
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\n                                           31<\/span><\/p>\n
    In the result I make the following order.\n<\/p>\n
               Writ Petition No.3618\/2008 is partly allowed. The impugned<\/p>\n
    Judgment     and    Award     dated     21-5-2008        in     Reference          No.<\/p>\n
    CGIT\/NGP\/72\/2001 is quashed and set side.           The reference made to<\/p>\n
    Central Government Industrial Court-Cum-Labour Court is answered<\/p>\n
    partly in the affirmative.\n<\/p>\n
               Termination\/dismissal from service of petitioner as General<\/p>\n
    Majdoor on 11-7-1984 is set aside. Punishment of ‘warning’ shall be<\/p>\n
    recorded by respondent. The petitioner shall be reinstated by<\/p>\n
    respondent in his former post forthwith and shall be granted continuity<\/p>\n
    of service with all benefits accruing therefrom, and 50% back wages<\/p>\n
    till his actual reinstatement within ten weeks from today.                         The<\/p>\n
    respondent shall pay costs of Rs.5,000\/- (Rupees Five Thousand Only)<\/p>\n
    of this petition to the petitioner forthwith.\n<\/p>\n
                                                    JUDGE
\n    Later On:-\n<\/p>\n
               Mr. Mehadia, learned counsel for respondent prays for six
\n    weeks time to approach the appellate Court. This Court grants time of<\/p>\n
    four weeks to approach the appellate Court. Till then, this judgment
\n    shall stand suspended.\n<\/p>\n
                                                    JUDGE
\n    adgokar<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:59:36 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shri Santosh Kumar vs The Sub-Area Manager on 9 September, 2009 Bench: A. B. Chaudhari 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, NAGPUR BENCH, NAGPUR WRIT PETITION NO. 3618\/2008 Shri Santosh Kumar s\/o Babulal Gupta, aged about 45 years, Occupation – Unemployed, R\/o C\/o Shri Babulal Gupta ( […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-22087","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShri Santosh Kumar vs The Sub-Area Manager on 9 September, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shri-santosh-kumar-vs-the-sub-area-manager-on-9-september-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri Santosh Kumar vs The Sub-Area Manager on 9 September, 2009 - 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