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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
RAVINDRA V. GHUGE, J.
Vinod Pralhadrao Farkade - Petitioner
Versus
M/s Ceekay Daikin Limited. (Presently Exedy India Limited) - Respondent
WRIT PETITION NO. 1653 OF 2016
Decided On : 17-01-2017
When the Enquiry Officer is appointed by the Management, any application filed by the charge-sheeted workman or his defence representative seeking a change in the Enquiry Officer, needs to be placed by the Enquiry officer before the Management. It is the domain of the Management to decide whether, the allegations of the charge-sheeted workman need consideration and thereby, change the Enquiry Officer or reject such an application on the ground that the allegations are baseless. It is, therefore, the Management which has to pass this order.
Constitution of India, 1950-Article 226-Domestic enquiry-In domestic enquiry against workman, charge-sheet submitted must clearly set forth circumstances appearing against workman.
It is apparent that the Standing Order mandates that the charge- sheet must clearly set forth the circumstances appearing against the workman against whom the enquiry is proposed to be held requiring his explanation.
Constitution of India, 1950-Article 226-Duty of Enquiry Officer in Domestic Enquiry.-Enquiry Officer must analyse entire evidence on record by drawing specific conclusions based on same.
The Enquiry Officer has merely reproduced the examination-in- chief of the Management Witness and has not analyzed the evidence by drawing specific conclusions based on the same. On account of the deficiency of analysis and conclusions, the findings of the Enquiry Officer cannot be said to be a judgment of the quasi-judicial authority on the charges levelled upon the petitioner.
Constitution of India, 1950-Article 226-Prejudice from domestic enquiry.-If circumstances lead to inference that enquiry officer not afforded a reasonable/fair opportunity to delinquent, prejudice would be apparent from enquiry proceedings.
The Enquiry Officer himself dealt with the application for change in the Enquiry Officer and on account of the fact that the enquiry was closed from the moment the charge-sheeted workman left the enquiry hall in protest, indicates that the substantive right of the petitioner of participating in the enquiry and a reasonable opportunity of defence, has been infringed. The enquiry is, therefore, vitiated for non-adherence to the principles of natural justice.
1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2. The Petitioner/Employee is aggrieved by the part-1 judgment of the Labour Court dated 26.06.2015 in Reference (IDA) No.3/2008 by which it was concluded that the enquiry conducted against the Petitioner/workman is fair and proper and the findings of the Enquiry Officer are not perverse.
3. When this matter was heard by this Court initially on 15.02.2016, both the learned Advocates stated that they have no objection if this Court hears this matter. The same has been recorded in the order dated 15.02.2016.
4. I have heard the learned Advocates for the respective sides at length on 12.01.2017, 13.01.2017, 16.01.2017 and today.
5. Having considered the submissions of the learned Advocates and having gone through the record with their assistance, the undisputed factors are as follows:-
(a) Reference (IDA) No.3/2008 is pending before the learned Labour Court in the light of the dismissal of the Petitioner/Workman.
(b) The Petitioner has assailed the enquiry as well as the findings of the Enquiry Officer and the Labour Court, therefore, framed the following two issues:-
(i) Whether, the Second Party proves that the enquiry conducted against him is illegal, improper and void?
(ii) Whether, the Second Party proves that the findings of the Enquiry Officer are perverse?
(c) By the impugned part-1 judgment dated 26.06.2015, the Labour Court answered both the issues in the negative and concluded that the enquiry is not vitiated and the findings of the Enquiry Officer are not perverse.
(d) The charge sheet-cum-enquiry notice dated 08.09.2007 was issued by the Respondent/Management.
(e) There was no charge sheet cum-show cause notice issued by the Respondent before arriving at a decision to conduct an enquiry.
(f) By the same charge sheet cum-enquiry notice, the Petitioner was placed under suspension.
(g) The enquiry commenced on 17.09.2007.
(h) The letter dated 11.09.2007 served on the Petitioner indicates that the Enquiry Officer was appointed. The Enquiry Officer was actually appointed by the order dated 17.09.2007 by the Respondent/Management and the first date of hearing in the enquiry is on the same date 17.09.2007 at 11:00 am.
(i) The enquiry Roznama dated 17.09.2007 does not disclose that the enquiry procedure was explained to the Petitioner/Employee.
(j) On 23.09.2007, the Enquiry Officer was not available and the enquiry was adjourned.
(k) On 30.09.2007, the Management witness, who claimed to be the victim, was examined and on the same day, he was cross-examined by the Petitioner/Workman. Next date is 14.10.2007.
(l) On 14.10.2007, the Petitioner/Workman filed an application in the enquiry voicing certain grievances against the Enquiry Officer. He prayed for further cross-examining the Management Witness No.1 and also prayed for change in the Enquiry Officer.
(m) Upon receiving the application dated 14.10.2007, instead of forwarding the said application to the Management for it's decision, the Enquiry Officer himself rejected it and stated in the order that the Management has previously rejected the said request.
(n) The entire record of the enquiry does not reveal any application filed by the Employee in the enquiry seeking change of the Enquiry Officer, much less any order passed by the Management rejecting such application.
(o) Consequentially, the Petitioner/charge sheeted workman walked out of the enquiry.
(p) Immediately after he walked out of the enquiry, the Enquiry Officer closed the enquiry on the ground that the Petitioner has abandoned the enquiry.
(q) The Enquiry Officer submitted his report within 48 hours on 16.10.2007 concluding that the charges are proved against the Petitioner.
(r) Thereafter, the Management issued the second show cause notice along with the copy of the Enquiry Officer's report and after receiving the reply of the Petitioner, issued the order of dismissal dated 07.11.2007.
(s) The reply of the Petitioner is dated 06.11.200
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