A punishment involving a reduction in pay scale creates a continuing cause of action, and the failure of an employer to produce mandatory departmental inquiry records justifies an adverse inference against the employer.

ORAL ORDER

1. By the present writ petition, the petitioner is challenging the award dated 30.08.2018, whereby the learned Industrial Tribunal, Vadodara has set aside the order dated 30.12.2009, by which the respondent workman has been inflicted with a punishment by placing him two stages down in pay scale for alleged misconduct.

2. Learned advocate for the petitioner submits that the respondent workman was working as a Driver since 24.03.2009 at Dahod Depot in Godhra Division. He was appointed on fixed duty. On 25.03.2009, the respondent workman had been instructed to report for duty on the Dahod route due to ill health of another Driver. The respondent workman had disobeyed such instructions and thereafter another Driver had to be deployed. There was another charge against the respondent workman that he had come to Dahod Control Point in intoxicated condition and had misbehaved and shouted in abusive language with the TrafÏc Controller. In view of this misconduct, the respondent workman was given charge-sheet in default case No. 51 of 2009 on 27.03.2009 and thereafter departmental inquiry came to be conducted against the delinquent workman and punishment came to be imposed by the order dated 30.12.2009 by placing him two stages down from his existing pay scale. She further submits that the dispute came to be raised by the respondent workman after a period of six years, which culminated into a reference being Reference (IT) No. 62 of 2016.

2.1 Learned advocate further submits that in the said proceedings, the petitioner had raised the question of delay and laches. However, the learned Industrial Tribunal without adverting to such issue of limitation has proceeded to decide the reference on merits and set aside the order dated 30.12.2009 and the punishment imposed on the delinquent respondent workman. Learned advocate submits that the learned Industrial Tribunal did not appreciate the fact that no records were available with the petitioner after a period of six years in respect of the departmental inquiry. She submits that the records were not traceable after a long period of more than six years. Learned advocate submits that the learned Tribunal has held that the said factum is against the petitioner and on the said basis, the departmental inquiry initiated against the respondent workman and the punishment imposed has been set aside. She further submits that the learned Tribunal ought to have appreciated the facts which led to conduct the departmental inquiry against the delinquent workman. Learned advocate for the petitioner submits that appropriate procedure in law had been followed and principles of natural justice also came to be followed. Only on the basis of non availability of the record, the departmental proceedings against the respondent workman have been set aside. She therefore, submits that the impugned award be set aside and the writ petition be allowed.

3. Per contra, learned advocate Ms. Anuradha Rathod for the respondent workman submits that the respondent workman by his claim petition had specifically averred that no such misconduct as alleged by the petitioner had taken place at all. It was further averred in the claim petition that the charge- sheet was illegal and wrongly came to be issued to him for alleged misconduct. It is submitted that the respondent workman was not responsible for any such misbehaviour. She further submits that the reply of the respondent workman was not taken into consideration by the petitioner durin