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2013 Supreme(Bom) 2364
In the High Court of Bombay at Aurangabad
RAVINDRA V. GHUGE, J.
Bapu Parwati Urmude
Versus
Premier Industries
Writ Petition No. 4568 of 2011
Decided on : 29-11-2013
For the Petitioner:P.V. Barde, Advocate.
For the Respondent:A.P. Bhandhari, Advocate.
Headnote:INDUSTRIAL EMPLOYMENT (S.O.) ACT, 1946 - Order 25 - Enquiry. - Failure of Enquiry Officer to record reason for conducting enquiry even after completion of 90 days, will not render enquiry a nullity. - If a deadline of three months was mandated, there was a possibility of its misuse. It could turn out to be a tool in the hands of an employer to rush through the enquiry in haste and complete it within the time frame of three months. So also, a workman could claim that the enquiry is invalid if conducted beyond three months. It would, thus, be counter-productive. Whether Standing Order 25(4) regarding completion of enquiry within a period of 3 months is a mandatory provision or could it be interpreted to mean a directory provision, is to be seen under the provisions of the Model Standing Orders. Standing Order 25(4), read in tandem with the proviso thereunder, leaves no room for doubt.
In fact, the proviso clearly indicates that if an enquiry cannot be concluded within a period of three months, the enquiry officer can record his reasons in writing and extend the period as may be deemed necessary by him. Failure to record reasons would not be fatal to such proceedings, since what is needed to be ensured is that the parties to the enquiry are given adequate opportunity in defence and the principles of natural justice are adhered to.
"Enquiry Shall be completed within a period of 3 months" in Standing Order 25(4) appears to be a mandate.
The word "shall" is normally interpreted to indicate a mandate. However, the proviso thereof gives liberty to the enquiry officer to extend the enquiry beyond three months for a period as he may deem necessary, but by recording reasons. Standing Order 25 (5-A) enables an employer to place the charge-sheeted employee under suspension, pending enquiry. Standing Order 25(5-A)(i) entitles a suspended workman, subject to the condition of not taking up any employment during the period of suspension, to subsistence allowance.
For the first ninety days of the suspension period subsistence allowance is 50% of his normal daily wages. Under Standing Order 25(5-A)(ii), a suspended workman is entitled to subsistence allowance beyond the period of9O days "if the enquiry gets prolonged and the workman continues to be under suspension for a period exceeding ninety days", @ 75% of his normal daily wages. Similarly, under Standing Order 25(5-A)(iii), if the enquiry is not completed within a period for 180 days, the workman shall be entitled to full wages as subsistence allowance. This provision of the Standing Order clearly indicates that though it is desirable to complete an enquiry within a period of 90 days, it would not be an anathema to conduct the enquiry beyond 90 days.
The entire scheme under the above referred provisions of the Model Standing Orders clearly indicates the intent and object of law. It emerges that an enquiry, if not completed within 3 months, would neither render it a nullity nor an illegality. Provision of completing the enquiry within a period of three months is directory in nature and not mandatory. It can also be said that it is desirable for the enquiry officer to record his reasons. Failure to do so however will not render the enquiry a nullity.
1. Rule. Rule made returnable forthwith by consent of the parties and heard.
2. The contention of the Petitioner is that after having joined employment in 1981, he has put in a blot less service till 21st October, 2002, when the Respondent alleged that the Petitioner had abused one of the partners of the Respondent. Thereafter, as a retaliatory action, the Petitioner was prevented from entering the premises of the Respondent Industries with effect from 22nd October, 2002. According to the Petitioner, this amounts to oral refusal of work. The Petitioner made strenuous efforts for resumption of duty but in vain due to the adamant attitude of the Respondent.
3. Subsequently, charge-sheet dated 30th December, 2002 was issued to the Petitioner. Grievance is made that a show cause notice prior to the said chargesheet was not given. It is an admitted position that the Petitioner was given the assistance of a practicing advocate as his defence representative. According to the Petitioner, the enquiry ought to have been completed within a period of 90 days, to be computed from the date of issuance of charge sheet.
4. Since the enquiry was not completed within a period of 90 days and the Petitioner was deprived of his wages, he preferred Complaint (ULP) No. 161 of 2003 before the Industrial Court, Ahmednagar. The Petitioner invoked Items 5, 9 and 10 of Schedule IV of the MRTU & PULP Act, 1971.
5. My attention is drawn to Paragraph 3(d) of the Complaint which is at Page Nos. 14 and 15 of the Petition paper book. It is canvassed that Standing Order 25 of the Model Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 was violated. It was specifically brought to the notice of the Industrial Court that the law mandates completion of domestic enquiry within a period of 90 days. Failure to do so, creates an obligation on the enquiry officer to draw a conclusion as to why the enquiry was not completed within the said period and thereafter take steps for completion of the enquiry.
6. The sum and substance of the submissions of the Petitioner is that, the fact that the enquiry was not completed within 90 days renders the enquiry bad in law. The Petitioner also makes a serious grievance that he was not paid any wages from 22nd October, 2002 till his dismissal from service eventually ordered on 4th April, 2005. It is clarified that the said dismissal has been challenged through Reference (IDA) No. 21 of 2012.
7. The Petitioner, thereafter, has taken me through the observations of the Industrial Court, Ahmednagar on page nos. 44, 45 and 46 of the Petition paper book, which are as follows;-
“When the complainant was issued with show cause notice and his comments were called upon by providing him copy of the findings there was no reason for the complainant to file such a complaint and allege unfair labour practice. In fact, complainant ought to have waited to action on the part of the Respondent thereafter only ought to have approached the appropriate forum but by not doing so the complainant pre-maturely filed the present complaint and in my opinion the act of the complainant of filing complaint is nothing but using the process of law at premature stage and with a view to restrict management from taking action in accordance with law. When the complainant was representing by an Advocate there was no question of depriving the complainants legitimate rights of defending himself in the enquiry. The complainant was allowed to depose in the enquiry and thereby evidence was adduced by the complainant. Such facts indicates that the principles of natural justice were followed and there was no violation of the principles of the natural justice. The Standing Order do not indicate that the enquiry officer is duty bound to complete the enquiry within three months by way of mandatory directions but it is discretion and depending upon the convenience of the parties as far as possible the enquiry is to be concluded. There is no
