1. The instant writ petition has been filed with a prayer to quash the award dated 18.08.2016 passed in Reference No.27/2012 by the District Judge and Presiding Officer, Labour Court, Kalaburagi, vide Annexure-A and the order dated 29.07.2016 passed in Reference No.27/2012 by the District Judge and Presiding Officer, Labour Court, Kalaburagi, vide Annexure-A1.

2. Heard the learned counsel for the petitioners as well as the learned counsel appearing for the respondents.

3. Brief facts of the case that would be relevant for the purpose of disposal of this writ petition are:

Deceased respondent Sri.Mohammed Zakir Hussain was working as Junior Assistant in the office of the petitioners at Sedam. On the basis of several complaints from consumers, internal audit report was called for and it was found in the audit report that late Mohammed Zakir Hussain had misappropriated cash amount of Rs.3,70,300/- and based on such audit report, a charge memo dated 28.01.2008 was issued to Mohammed Zakir Hussain and other staff members. No reply was filed to the charge memo. The Disciplinary Authority had appointed the Enquiry Officer to conduct departmental enquiry against the aforesaid Mohammed Zakir Hussain and though the Enquiry Officer had issued notices, Mohammed Zakir Hussain had failed to reply for the same and he had not participated in the enquiry proceedings. The Enquiry Officer completed the enquiry and submitted a report dated 03.03.2010 and based on the same, the Disciplinary Authority had issued a final show cause notice to the aforesaid Mohammed Zakir Hussain, who failed to reply to the same. Thereafterwards, the Disciplinary Authority had issued the order dated 18.06.2010 dismissing the aforesaid Mohammed Zakir Hussain from service.

4. The said order was confirmed in appeal by the Appellate Authority vide its order dated 28.02.2011. During the pendency of the appeal, Mohammed Zakir Hussain had expired and therefore, his legal heirs had raised a dispute before the Labour Court under the Industrial Disputes Act and the said proceedings was numbered as Reference No.27/2012. Initially the Labour Court had dismissed the reference and confirmed the order of termination and being aggrieved by the same, the respondents herein had filed W.P.No.100774/2013, which was allowed and the matter was remitted to the Labour Court to re-consider issue No.1 by providing an opportunity to the Management to examine the witnesses in support of its case and proceed thereafterwards in accordance with law.

5. The Labour Court after remand passed an order dated 29.07.2016 answering issue No.1 in the negative and held that domestic enquiry conducted against deceased Mohammed Zakir Hussain was not fair and proper. Thereafterwards, an opportunity was given to the Management to examine their witnesses and the matter was heard and vide the order dated 18.08.2016 partly allowed the claim petition and the order of termination passed against Mohammed Zakir Hussain was set aside and the Management was directed to give all the terminal benefits to the legal representatives of the deceased Mohammed Zakir Hussain by treating the deceased Mohammed Zakir Hussain in service as on the date of death. The Labour Court also directed to pay 50% backwages to the legal heirs of the deceased Mohammed Zakir Hussain from the date of the order of dismissal. Challenging the order dated 18.08.2016 and 29.07.2016 passed by the Labour Court in Reference No.27/2012, the present writ petition is filed.

6. Learned counsel appearing for the petitioner/Management submits that the Labour Court had erred in interfering with the concurrent finding recorded by two authorities. He submits that the claim petition was allowed and the order of dismissal was set aside by the Labour Court only on the ground that the Management has failed to examine the Auditor. He submits that the Labour Court has failed to appreciate the serious charges that were leveled against the workman and therefore, the Labour Court was not justified in setting aside the order of dismissal. He further submits that the jurisdiction of the Labour Court was very limited to interfere as against the concurrent findings and in support of his contentions, he has relied upon the following judgments:

"(i) AIR 2005 SC 2769 - Bharat Heavy Electricals Ltd. -vs- M.Chandrasekhar Reddy and Others;

(ii) (2000) 9 SCC 521 - U.P.State Road Transport Corporation -vs- Mohan Lal Gupta and Others;

(iii) (2020) 3 SCC 423 - State of Karnataka and Another -vs- N.Gangaraj."

7. Per contra, learned senior counsel appearing for the respondents submits that this court while allowing W.P.No.100774/2013 having taken note of the fact that the workman allegedly had not appeared before the Enquiry Officer and such workman was not alive to tender his evidence to rebut such allegation, the burden was heavy on the Management to examine the Enquiry Officer to prove that he had held a fair and proper enquiry. He submits that this court had held that the Management had not examined appropriate witnesses to establish the validity of enquiry and therefore had remitted the matter to the Labour court to re-consider issue No.1 by providing an opportunity to the Management to examine appropriate witnesses. He refers to the evidence of Enquiry Officer, who was examined as MW-2 and submits that a perusal of the same makes it clear that no fair and proper enquiry was held and sufficient opportunity was denied to the workman. He further submits that since issue No.1 was answered against the Management, the burden was heavy on the Management to prove the charges against the workman by leading evidence before the Labour Court and since the Management had failed to discharge such burden by examining material witnesses, the Labour Court was justified in allowing the claim petition and setting aside the dismissal order.

In support of his contentions, he has relied upon the following judgments of the Hon'ble Supreme Court:

"(i) Neeta Kaplish -vs- Presiding Officer, Labour Court and Another - (1999) 1 SCC 517 ;

(ii) Hardwari Lal -vs- State of U.P. and Others - (1999) 8 SCC 582 "

8. I have given my anxious consideration to the arguments addressed on both sides and also perused the material available on record.

9. It is the specific contention of the petitioner/Management that the workman had not appeared before the Enquiry Officer inspite of repeated notice to him and he had also failed to give reply to the final show cause notice issued to him after submission of the enquiry report. This Court in Writ Petition No.100774/2013 which was disposed of on 17.11.2015 at paragraphs-7 and 8 had observed as follows:

"7. When in a circumstance where it is alleged that the workman concerned had not appeared before the Enquiry Officer despite opportunity being provided and further when such workman was not alive to tender his evidence to rebut such contention, the burden was heavy on the management to examine the Enquiry Officer himself to state with regard to the opportunities that had been provided to the workman and the workman not having utilized such opportunities. Such evidence was required to be tendered by the Enquiry Officer with reference to the proceedings sheet maintained by him and the recording made therein so as to establish before the Labour Court that opportunity which was required to be granted to the workman was granted in the enquiry and therefore the procedure adopted is to be held as fair and proper

8. Hence, essentially the requirement while answering issue No.1 was to concentrate on the procedure that had been followed and the opportunity that was granted. The very fact that the Labour Court has thereafter proceeded in the matter for evidence of the claimant on the other issues would disclose all that was to be considered thereafter was with regard to the perversity of the finding and as to whether there was unfair labour practice. When such heavy burden was there on the management with regard to issue No.1 and the appropriate witness required to be examined had not been examined before the Labour Court to establish the validity of the enquiry, the documents that had been relied on by MW-1 at Exs.M1 to M10 if made use for rendering the finding on issue No.2 certainly prejudice would be caused to the workman when a valuable right with regard to the validity or otherwise of the domestic enquiry available to the workman was very lightly dealt with by the Labour Court. Therefore in a circumstance when the appropriate witness was not examined, the Labour Court was required to set aside the validity of the enquiry and an opportunity ought to have been granted to the management to establish the charges afresh before the Labour Court."

This Court having observed as hereinabove had set aside the award passed by the Labour Court and remitted the matter afresh with a direction to re-consider issue No.1 by providing an opportunity to the Management to examine appropriate witnesses.

10. In support of its case, the Management had examined the Enquiry Officer as MW-2, who has admitted in the cross-examination that he had not produced any material before the Labour Court to establish issuance of a notice to the workman during the course of enquiry. He had also admitted that he had not noted in his order sheet about furnishing the list of witnesses and documents to the workman. He had also admitted that there was a specific direction to him to complete the enquiry within a period of one month. The Labour Court after appreciating the order sheet maintained by the Enquiry Officer has given a categorical finding that the signatures of Mohammed Zakir Hussain were not taken in the order sheet at any point of time. The Labour Court has taken note of the order sheet and has given a categorical finding that there was no proper notice issued to the workman and in the background of this material available on record, the Labour Court has given a finding that the enquiry held as against Mohammed Zakir Hussain was not fair and proper.

11. Once the Labour Court has given a finding on issue No.1 against the Management, the burden was heavy on the Management to examine appropriate witnesses in support of its case to prove the allegations against the workman. Since the Labour Court had already held that the enquiry was not fair and proper, the Labour Court had derived jurisdiction to deal with the merits of the dispute and in such a case, the Labour Court is required to appreciate the evidence adduced before it by the Management and decide the matter on the basis of such evidence. Therefore, the contention of the learned counsel for the petitioner that the Labour Court had exceeded its jurisdiction in interfering with the concurrent finding is required to be rejected.

12. The Hon'ble Supreme Court in the case of Neeta Kaplish (supra) has observed as follows:

"In view of the above, the legal position as emerges out is that in all cases where enquiry has not been held or the enquiry has been found to be defective, the Tribunal can call upon the Management or the employer to justify the action taken against the workman and to show by fresh evidence, that the termination or dismissal order was proper. If the Management does not lead any evidence by availing of this opportunity, it cannot raise any ground at any subsequent stage that it should have been given that opportunity, as the Tribunal, in those circumstances, would be justified in passing an award in favour of the workman. If, however, the opportunity is availed of and the evidence is adduced by the Management, the validity of the action taken by it has to be scrutinised and adjudicated upon on the basis of such fresh evidence."

13. In the case of Hardwari Lal (supra), the Hon'ble Supreme Court has observed as follows:

"Before us the sole ground urged is as to the non-observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant."

14. From the aforesaid pronouncements made by the Hon'ble Apex Court, it is very clear that after the Labour Court had given a finding in the negative on issue No.1, the burden was completely on the Management to prove its allegation as per the charges leveled against the workman by adducing sufficient material before the Labour Court. It is the specific case of the respondents that the Management has failed to examine the material witnesses before the Labour Court. The Management has made allegation against the workman that he had misappropriated the amount to the tune of Rs.3,70,300/- and this allegation was made on the basis of the audit report. Therefore, the internal auditor would have been the competent witness to speak about his report on the basis of which the charge memo was issued to the workman. The Labour Court appreciating this aspect of the matter has held that the Management had failed to prove the misconduct of the workman.

15. The judgments relied upon by the learned counsel for the petitioner are all rendered in cases where the enquiry against a delinquent employee was held to be fair and proper and it has been held in the said cases that in such an event the punishment imposed on the employee especially where the allegations are grave, the same should not be interfered by the courts. The said judgments would not be applicable to the facts and circumstances of the present case, as the Labour Court in the present case has answered issue no.1 against the Management and held that the enquiry was not fair and proper and this finding given by the Labour Court is based on the material available on record, more so, the deposition of the Enquiry Officer and therefore, said finding cannot be found fault with. Once the enquiry is held to be not fair and proper, the consequent order passed by the Disciplinary Authority based on such enquiry report loses its relevance and in order to establish its case the Management is required to adduce evidence of the appropriate witnesses before the Labour Court to prove its allegation/charges against the workman.

16. It is not in dispute that when the matter had reached the Labour Court, the workman had expired and he was not available to lead rebuttal evidence as against the allegations made against him. It is in this background, this Court while disposing of W.P.No.100774/2013 had specifically observed that the burden to establish the issues was on the Management and the Management had failed to discharge such burden by examining the material witnesses.

17. Under the circumstances, I find no illegality or irregularity in the order dated 29th July 2016 passed by the District Judge and Presiding Officer, Labour Court, Kalaburagi in Reference No.27/2012 vide Annexure-A1 while answering issue No.1 against the Management. The Labour Court having held that the Management had failed to prove its allegation against the workman by examining the material witnesses to establish the charges leveled against him, has set aside the order of dismissal and has directed to grant all terminal benefits to the legal heirs of the workman by treating the deceased workman that he had died while in service. The Labour Court had also directed the Management to pay 50% of backwages from the date of dismissal of the workman till his death.

18. In my considered view, though the Labour Court was justified in setting aside the order of dismissal and directing the Management to grant all terminal benefits to the legal heirs of the workman by treating the workman that he had died while he was in service, the Labour Court was not justified in directing the Management to pay backwages from the date of dismissal till the date of death of workman since admittedly the deceased workman had not worked for the said period. To the said extent, the order passed by the Labour Court in Reference No.27/2012 dated 18th August 2016 vide Annexure-A is required to be modified. Accordingly, the following order:

The Writ Petition is partly allowed. The order dated 29th July 2016 passed by the District Judge and Presiding Officer, Kalaburagi in Reference No.27/2012 vide Annexure-A1 is confirmed and the order dated 18 th August 2016 made in Reference No.27/2012 by the court of District Judge and Presiding Officer, Labour Court, Kalaburagi vide Annexure-A is modified to the extent it relates to directing the Management to pay backwages to the legal heirs of the workman/ Mohammed Zakir Hussain from the date of dismissal of the workman till his death.

The order passed by the Labour Court insofar as it relates to setting aside the order of dismissal of the workman and directing the Management to grant all the terminal benefits to the respondents by treating that the workman/Mohammed Zakir Hussain had died while in service, remains unaltered.