JUDGMENT:

(Per the Hon(cid:146)ble the Chief Justice Satish Chandra Sharma)

The present writ appeal is arising out of the order dated

03.10.2007 passed by the learned Single Judge in W.P.No.27472 of

2005.

The undisputed facts of the case reveal that on account of misconduct, a departmental enquiry took place against the appellant. The appellant has approached the Industrial Tribunal by filing I.D.No.90 of 2003 under Section 2-A(2) of the Industrial Disputes Act, 1947. The Industrial Tribunal, as enquiry report was not furnished to the employee, has passed an award dated 19.07.2005 setting aside the order of punishment and directing reinstatement without back wages. The respondent No.1 in the present writ appeal has challenged the aforesaid award by filing W.P.No.27472 of 2005 before this Court. The learned Single Judge, keeping in view the judgment delivered by the Hon(cid:146)ble Supreme Court in the case of Managing Director, ECIL, Hyderabad vs. B. Karunakar1, has allowed the writ petition with a direction to the Tribunal to decide the matter on merits afresh. The operative portion of the aforesaid order, as contained in paragraphs 11 and 12, is reproduced as under:-

11. The fallacy in the argument of Sri Jaya Prakash Rao, is exposed by question No.(iv) framed as extracted supra and answered by the Supreme Court in para 30 (iv) of the judgment. It was categorically held that the said ratio would apply to all employees of all establishments whether Government or non- Government, public or private. In the face of this categorical finding of the Constitution Bench there is no room for any argument that the observations made in para 31 of the judgment

1 (1993) 4 SCC 727

in Managing Director, ECIL, Hyderabad (supra) do not apply to industrial disputes. The judgments relied upon by Sri A.K.Jaya Prakash Rao in Y.Somaiah V. Managing Director, APSRTC, Musheerabad, Hyderabad and others (1998 (4) ALD 2); Delhi Cloth and General Mills Co., Ltd., V. Ludh Budh Singh (1972 (1) LLJ 180); State of Maharashtra V. Bhaishankar Avalram Joshi and another (Air 1969 SC 1302) and State of Gujarat V. R.G.Teredesai and another (AIR 1969 SC 1294) have absolutely no application to the issue involved in the present case. Except first of the referred judgments which is of this Court, all other judgments were rendered prior to the Constitution Bench Judgment of the Supreme Court in Managing Director, ECIL, Hyderabad (supra) and therefore they have no relevance on the issue whether non-supply of enquiry report per se vitiates the order passed against the employee or not. The judgment of this Court in Y.Somaiah (supra) though later in point of time does not help the respondent as this neither fell for consideration nor discussed. Therefore, this contention of the learned counsel for the petitioner is rejected as wholly baseless.

12. For the aforementioned reasons the award under challenge is set aside. The matter is remanded to the Tribunal to follow the procedure laid down in para 31 of the judgment of the Supreme Court in Managing Director, ECIL, Hyderabad (supra) and decide the case afresh on merits. It is open to the petitioner and respondent No.2 to raise respective contentions on the effect of non-supply of enquiry report and the validity or otherwise of the domestic enquiry by adducing necessary evidence. No costs.(cid:148)

This Court has carefully gone through the judgment delivered in the case of Managing Director, ECIL, Hyderabad (supra). In the present case, it is certainly true that the enquiry report was not furnished to the writ appellant/employee. The Hon(cid:146)ble Supreme Court in the case of Uttarakhand Transport Corporation vs. Sukhveer Singh2 has again dealt with similar controversy and paragraphs 7 to 10 of the aforesaid judgment read as under:-

(cid:147)7. The award of the labour court was set aside by the High Court on the sole ground that non-supply of the inquiry report prior to the show cause notice vitiated the disciplinary proceedings. The