The court upheld that an employer cannot impose unreasonable qualification demands after long service, and that fair enquiry procedures must be followed, including the opportunity for cross-examination.

JUDGMENT

Mr. Sanjay Vashisth, J. (Oral)

Petitioner/Management (Aggarsain Hospital), has filed the present writ petition for issuance of a writ in the nature of certiorari for quashing of award dated 06.10.2021 (Annexure P-3) passed by respondent No.1, in favour of respondent No.2-Pushpa Devi (workwoman), whereby she was ordered to be reinstated in service alongwith 50 % back wages.

2. Reference No.206/2016 has been answered in favour of the workwoman by holding that her termination from service is improper and unjustified and therefore, she is entitled for reinstatement.

Further, observed that in case the back wages are not paid within a period of 45 days from the publication of the award, Management-Aggarsain Hospital shall be liable to pay the amount along with interest @ 6 % per annum till its realization.

3. Respondent No.2-Pushpa Devi served a demand notice dated 07.09.2015, and on the failure of conciliation proceedings, dispute was referred to Industrial Tribunal-cum-Labour Court, under Section 10 (1) (c) of Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act, 1947') vide Endorsement No.1998 dated 01.07.2016.

4. Pleaded case of respondent No.2-workwoman is that she was appointed as 'Parchee clerk' on 01.04.1985 and continued to work under the Management (petitioner herein) till 06.05.2015. After rendering about 30 years of service, suddenly, an unjust demand was raised by the Management asking workwoman to produce her matriculation certificate. However, workwoman failed to produce the original matriculation certificate, and thus, was shunted out from the service. Thereafter, workwoman raised an industrial dispute in which she challenged the enquiry proceedings by alleging that all such proceedings were conducted against the rules and in violation of the principles of natural justice, and thus, her order of termination is illegal.

5. On the other hand, petitioner-Management pleaded that the removal of Pushpa Devi-workwoman from service is genuine. As per rules, for appointment to the post of clerk (parchee clerk), minimum qualification of matriculation is required and workwoman has failed to produce any such qualification certificate. Therefore, she has been rightly removed from the service after being subjected to the enquiry, conducted as per law.

6. While conducting the proceedings, learned Tribunal found that workwoman was appointed on 01.04.1985 and after a gap of about 28 years i.e. on 09.02.2013, she was directed to submit a copy of her matriculation certificate. While dealing with the requirement of matriculation certificate and direction by the Management for its production, onus was firstly upon the Management to prove that as per rules, requisite qualification for the post in question (parchee clerk) is matriculation.

Learned Tribunal also held that the Management failed in discharging its onus because no such rule or regulation was ever produced since the beginning or even during the course of enquiry that under what procedure of law such certificate can be asked after rendering of 28 years of service. Moreover, any such rule or inquiry existing anywhere for recruitment to the post in question has not been produced before the learned Tribunal.

7. Not only this, witness appearing on behalf of the Management as MW1 clearly admitted that he had not brought any record of the appointment letter or advertisement of the vacancy, when it occurred and the rules pertaining to the appointment at that time. Rather, he deposed that Management is not in possession of any such record except the one already produced in the file and even, said witness was not aware of any such rule.

8. Accordingly, the evidence of the said witness was dealt with by the Tribunal and relevant part of the award is reproduced herein below:

'Admittedly, the claimant was appointed on 01-04-1985 and for the first time the claimant was directed to submit the copy of matriculation certificate on 09-02-2013 i.e. after a period of 28 years.