Delhi District Court
Sh. Jogesh Kumar Behera vs M/S. Arihant Innochem Pvt. Ltd on 12 September, 2022
IN THE COURT OF GORAKH NATH PANDEY,
ADDL. DISTRICT & SESSIONS JUDGE,
PRESIDING OFFICER : LABOUR COURT - IV,
ROUSE AVENUE COURTS : NEW DELHI.
LCA No.35/2017
CNR No.DLCT130025182017
IN THE MATTER OF:-
Sh. Jogesh Kumar Behera,
R/o E-122, Street No.5, Hari Nagar Extension,
Jaitpur, Badarpur, New Delhi - 110044.
......Workman/Claimant
Versus
M/s. Arihant Innochem Pvt. Ltd.,
Room No.513, Plot No.18,
Ansal Vikasdeep Building,
District Centre, Laxmi Nagar,
Delhi - 110092.
Through its Director/Manager (HR) ....... Management
Date of institution of the case : 27.02.2017
Date of final arguments : 24.08.2022
Date of passing the Award : 12.09.2022
Decision : Dismissed.
AWARD
1. The workman/claimant filed this statement of claim
under Section 25(F) read with Section 35 (C) (2) of the Industrial
Disputes Act, 1947 (hereinafter referred to as the 'Act') on
27.02.2017 stating therein that the management appointed him on
the post of Office Boy for a period of probation of six months
vide appointment letter dated 13.09.2011 and the service of the
workman was thereafter confirmed; his last drawn salary was
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Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.
Rs.12,705/- and he performed his duty with complete honesty
and there was no complaint against him.
The workman contended that he applied for leave
for 02.05.2016 to 26.05.2016 to get his mother treated who was
living at native place i.e. Village Ansaria - Patna, P.O. Gira Via
Rajkanika, District Kendrapara, Odisha and the said leave was
sanctioned by the management. Further, the workman could not
join his duties on 27.05.2016 because of the seriousness of his
mother and informed in this regard to the management
telephonically and on his request, the management extended the
leave orally. However, on 01.06.2016, the workman fallen ill and
gone under the treatment till 25.07.2016. In between, the mother
of the workman expired on 21.06.2016. The workman performed
various funeral ceremonies and post cremation ceremonies of her
late mother as per rituals and remained in his native village till
26.07.2016. On 29.07.2016, the workman reported on his duty,
however, he was disallowed to join the services without
assigning any reason and without any letter of suspension or
termination as well as without any memo and show cause notice.
Aggrieved therefrom, the workman issued legal notice dated
15.09.2016 to the management asking for his reinstatement in the
services with full back wages, benefits, continuity of services
with all the benefits including earned wages and salary of the
leave but of no avail. Conciliation proceedings were also initiated
before the Deputy Labour Commissioner and in the said
proceedings, the management submitted a notice addressing to R.
N. Dubey & Assoicates dated 28.09.2016 in response to the legal
demand notice served by the workman upon the management
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Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.
whereby generated a false ground for termination of his services
upon the garb of trafer from Delhi to Bhivandi Maharashtra. The
workman also replied the notice dated 28.09.2016. No settlement
could be arrived at between the parties before the Conciliation
Officer and hence this petition. It is prayed that an award be
passed in favour of workman thereby setting aside the transfer of
workman from Delhi to Maharasthra and directing the
management to reinstate the workman in the services with full
wages, continuity in service with all consequential relief.
2. Notice of the statement of claim was issued to the
management and management had filed the written statement to
the statement of claim of workman contended that the workman
was engaged by the management of Arihant Trading Co. as office
boy w.e.f. 13.09.2011 vide appointment letter dated 13.09.2011;
on 01.04.2014, the workman was transferred to Arrihant
Innochem Pvt. Ltd. as 'office boy' vide letter of transfer dated
01.04.2014; on 22.04.2016, leave application for leave of 26 days
from 02.05.16 to 27.05.16 submitted by the workman was
sanctioned and he was supposed to resume his duties on
28.05.2016 but he could not reach the office or not even
contacted the management; on 30.05.2016, the management has
received a call from the workman for extension of his leave for
another 10 more days and the said request was allowed by the
management and instructed him to resume duty by 08.05.2016;
the workman could not resume his duty on 08.05.2016 and the
management had tried to contact him over phone and his mobile
phone was switched off throughout; the management also tried to
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Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.
communicate the workman at the address provided by him,
however, the letter sent through registered post to the workman
received back with the remarks 'refused to accept'; that even after
08.05.2016, the management had waited for the workman
another 15 days and appointed another office boy on 24.06.2016
as it was very difficult for the management to run the office
without the help of an "office boy" and even thereafter, for a
period of one month, no communication so far received by the
management from the workman, however, on 28.07.2016 i.e.
almost 48 days after his leave period, the workman reported to
the Delhi office of the management and claimed for job; the
workman was informed by the management that they were
constrained to appoint another person as 'office boy' on
24.06.2016 due to the unauthorized absence of the workman;
however, considering the personal issues and financial difficulty
of the workman and for the fact that he was working with the
management from 2011, the management has decided to
accommodate him at their Bhivandi warehouse and requested
him to join at the earliest; the workman has not joined for the
duty and the management has received a lawyer notice for
reinstatement in service, with full back wages, from the
workman, raising untenable allegations against the management;
on 18.09.2016, the management had sent reply letter to the notice
sent by the workman stating all factual position in connection
with his case; on 19.11.2016, another reply was sent by the
workman to the management as a reply to the letter sent by the
management alleging that the workman was offered for resuming
for duty at Bhivandi warehouse as a punishment; on 29.11.2016,
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Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.
the management had sent reply to the letter dated 19.11.2016 sent
by the workman specifically pointed out by the management that
the management has no motive to punish the workman but to
safeguard his employment; instead of resuming his duty with the
Bhivandi Warehouse of the management, a complaint has been
filed before the Labour Commissioner by the workman.; the
management had also sent their submissions to the Labour
Commissioner and written statement of the Conciliation Officer
on 25.01.2017. The management denied all the allegations made
in the statement of claim and lastly prayed to dismiss the claim
petition.
3. Vide order dated 24.09.2018, the following issues
were framed in view of pleadings of the parties:-
ISSUES:
(1) Whether the services of workman had been
terminated illegally and/or unjustifiably by the management?
OPW
(2) If the answer to the above mentioned issue no.1 is in
the affirmative, then as to what consequential relief is the
workman entitled for? OPW
(3) Whether the workman had remained unauthorizedly
absent beyond the period of his sanctioned leaves and had thus
committed misconduct?OPM
(4) Relief.
The case was, thereafter, fixed for evidence of
workman.
4. In order to discharge the onus and prove the issue,
the workman had appeared as witness and filed in evidence his
examination in chief by way of affidavit Ex.WW1/A wherein he
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Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.
had reiterated the contents of his statement of claim on solemn
affirmation. Besides this, he had also placed on record the
following documents :-
(i) Ex.WW1/1: Pay slip for the month of May, 2016;
(ii) Ex.WW1/2: Medical certificate dated 25.07.2016
issued by the doctor;
(iii) Ex.WW1/3: Death certificate;
(iv) Ex.WW1/4: Bill of medicine;
(v) Ex.WW1/5: Prescription of Lab;
(vi) Ex.WW1/6: Notice dated 15.09.2016 issued to the
management;
(vii) Ex.WW1/7: Courier receipt;
(viii) Ex.WW1/8 (Colly): Speed post envelop address to
the workman receipt;
(ix) Ex.WW1/9 (Colly): Reply to the notice dated
28.09.16 of the management;
(x) Ex.WW1/10: Speed post envelope addressed to the
workman;
(xi) Ex.WW1/11: Prescription receipt of Dr. Ram
Manohar Lohia Hospital, New Delhi pertaining to the workman.
(xii) Mark A: Appointment letter dated 13.09.2011;
(xiii) Mark B: Increment letter dated 07.05.2014;
(xiv) Mark C: Salary document;
(xv) Mark D: Letter of transfer dated 01.04.2014;
(xvi) Mark D: Prescription slip;
(xvii) Mark F: Discharge certificate;
(xviii) Mark G: Reply dated 28.09.2016; and
(xix) Mark H: Reply dated 29.11.2016.
Workman's evidence was thereafter closed.
5. In rebuttal, management had examined Ms. Nitima
Kumari as MW1 who filed his affidavit by way of evidence as
Ex.MW1/A, reiterating the factual contents of the written
statement of management on solemn affirmation. MW1 also
placed on record the following documents:
(i) Ex.MW1/M1: Appointment letter dated 13.09.2011
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Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.
alongwith terms and conditions issued by the management of
Arihant Trading Co. to the workman;
(ii) Ex.MW1/M2: Letter of transfer dated 01.04.2014
issued by the management of Arihant Trading Co. to the
workman;
(iii) Ex.MW1/M3: Leave application dated 22.04.2016
submitted by the workman;
(iv) Ex.MW1/M4: Copy of the lawyer notice dated
15.09.2016 sent by the workman to the management;
(v) Ex.MW1/M5 (Colly): Reply dated 28.09.2016 sent
by the management to the workman alongwith salary payment
details of May, 2016;
(vi) Ex.MW1/M6: Letter dated 19.11.2016 sent by the
workman to the management;
(vii) Ex.MW1/M7: Reply dated 29.11.2016 sent by the
management to the workman;
(viii) Ex.MW1/M8: Copy of the submissions dated
25.01.2017 sent by the management to the Labour
Commissioner;
(ix) Ex.MW1/M9: Copy of the written statement dated
25.01.2017 submitted by the management before the Conciliation
Officer;
(x) Ex.MW1/M10: Copy of the reference order dated
22.02.2017 passed by the Labour Commissioner.
The management's evidence was, thereafter, closed.
6. I have heard the arguments addressed by both the
sides. I have also gone through the records as well as the written
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Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.
arguments filed by the AR for the Management in support of his
contention.
7. My issue wise findings are as under:-
ISSUES NO.1 to 3:
(1) Whether the services of workman had been
terminated illegally and/or unjustifiably by the management?
OPW
(2) If the answer to the above mentioned issue no.1 is in
the affirmative, then as to what consequential relief is the
workman entitled for? OPW
(3) Whether the workman had remained unauthorizedly
absent beyond the period of his sanctioned leaves and had thus
committed misconduct?OPM
The onus to prove the Issues no.1 & 2 was on the
workman whereas the Issue no.3 was to be proved by the
management. All these issues are examined and decided together
being inter-related.
8. The statement of claim filed by the workman along-
with defence of management has been mentioned at the outset.
The workman claimed that he was appointed by the management
on 13.09.2011; his last drawn salary was Rs.12705/- per month;
he was not allowed to join duty after availing leave and
terminated his services on 29.07.2016.
The management on the other hand denied the
averments of the workman and claimed that the workman could
not resume his duty on 08.05.2016, the management tried to
contact him over phone and his mobile phone was switched off
throughout; the management also tried to communicate with the
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Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.
workman at the address provided by him, however, the letter sent
through registered post returned with the report 'refused to
accept'.
9. The WW-1/workman/claimant vide his affidavit
Ex.WW1/A reiterated the contents of his statement of claim. The
witness was cross-examined at length by the AR of the
management and deposed that:-
"I worked as Office Boy with the management. I was the only
office boy employed with the management at that time. In my
absence, my work was look after by Safai lady and the Tea
vendor near the office used to deliver tea, couriers was picked
by the courier boy from the office. My leave was sanctioned to
look after my mother but I continued extending my leave again
and again on the pretext of illness of my mother. I remained on
leave from May, 2016 till July, 2016. I was allowed leave for 24
days only. I could not join the management on time being the
only son in my family and therefore I was looking after the
family affairs. I have not intimated the management that I shall
report on duty on a particular day after return from leave in
writing. I do not know other office boy was employed by the
management when I appeared in the management on
29.07.2016. It is wrong to suggest that the management
employed my alternate as an office boy due to my unauthorized
absence and necessity of the management and therefore, my
service was not required by the management. It is wrong to
suggest that I was transferred by the management on
29.07.2016 to Bhiwani in Maharashtra but I have not reported
on duty and refused to join (controverted with para 14 of my
affidavit). Presently, I am not ready and willing to join the
management at Bhiwani, Maharashtra. Vol. I have medical
reasons".
The aforesaid crossexamination of the workman
clearly proves that he was allowed leave for 24 days only by the
management but he remained on leave from May, 2016 till July,
2016 and did not intimate the management about the extension of
leave. The workman also admitted in his crossexamination that
he was the only office boy with the management and in his
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Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.
absence, his work was lookafter by Safai Lady/Tea vendor. The
contention of the management regarding unauthorized absent of
the workman is proved in view of the crossexamination of the
workman/WW1.
10. The defence/contention of the management since
beginning remained that the workman did not resume his duty
after availing leave and this claim of the management is
substantiated from the records as well as discussed above. MW1
deposed in his affidavit regarding unauthorized absent of the
workman w.e.f. 08.06.2016 without informing the management;
letter issued to the workman through registered post at the
addresses provided by him which was returned with remarks
refused to accept; the management waited for the workman
another 15 days and appointed another office boy on 24.06.2016
as it was very difficult for the management to run the office
without the help of an office boy. It is reiterated that the
workman in his cross-examination also admitted that he was the
only office boy with the management. The witness/MW1 also
deposed regarding the relevant documents and proved the same
vide Ex.MW1/1 to Ex.MW1/10. The testimony of the MW1
remained unimpeached/uncontroverted in one way or the other.
11. The testimony of the witness/workman and his
cross-examination recorded above is sufficient to show that his
version is not consistent and is contradictory to each other. It is
further apparent from the records that the workman did not report
for duty after availing leave and after his transfer by the
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Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.
management at the transferred place. There was no suggestion
given by the workman during cross-examination of the
management's witness that the workman was not offered duties.
Even no offer was made by the workman to join the duties during
the cross-examination of the management's witness or legal
proceedings. Even in the cross-examination, the workman
deposed that he is not ready and willing to join the management
at Bhiwani, Maharashtra. It is established from the testimony of
the management's witness that the workman failed to resume
duties and remained absent without any reasonable or plausible
ground and his services was not illegally terminated by the
management at all. This Court is opinion that the management
has been able to prove that the workman did not report to the
management after taking leave or at the transferred place and he
remained absent unauthorizedly from his duty on his own and the
services of the workman were not terminated by the management
illegally and unjustifiably.
12. As far as the contention of Ld. AR for the workman
that neither any notice was issued by the management nor any
internal inquiry was conducted against the workman by the
management for the alleged misconduct, this Court is of the
opinion that such inquiry is only required when the management
intends to inflict some punishment upon the workman.
Honble Delhi high Court in Diamond Toys Company
(P.) Ltd. Vs. Toofani Ram and Anr., W.P. (C) No. 4501/04,
decided on 07.02.2007 held that -
"6. It is commonly known that a person, who is working in the
industry keeps on trying for better jobs and better opportunities.
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Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.
The moment he gets better job, he is free to leave his previous
employer. The industrial law does not require him to pay any
compensation to the employer while leaving his job, as the
industrial laws require an employer to pay retrenchment
compensation when employer wants to terminate the workman.
Thus, there are no fetters on the workman on leaving the job
while there are fetters on the employer in terminating the service
of an employee. If a workman leaves his job all of a sudden and
stops attending the workplace of the employer, Industrial Dispute
Act does not put any obligation on the employer to call back the
workman and request him to come and join his duties. Such a
request can be made by the employer only when employer
considers that a useful workman should not leave the job or
where a workman is governed by certain rules and regulations
under State employment and the employer is supposed to hold an
enquiry under the service rule before termination of service of an
employee. Where the workman is free to leave and join another
employer without even a notice and without obtaining a no
objection from his employer, the employer cannot be compelled
to call such a workman for joining the duties or to conduct an
enquiry into the absence of the workman and then terminate his
services. Leaving the services of an employer by the workman is
a valid mode of his abandonment and there is no illegality
attached to a workman leaving the services of his previous
employer and joining another employer. If the employer does not
consider the abandonment of service or leaving the service by a
workman as a misconduct, the law cannot force the employer to
consider such abandonment as a misconduct and hold an enquiry.
Misconduct of an employee is the one which an employer
considers as the misconduct. An enquiry is required to be held
only where an employer intends to impose punishment on the
employee for an alleged misconduct. if an employer does not
intend to impose any punishment on the employee and considers
that if the employee has left his service, let it be so, the law
cannot compel the employer to hold an enquiry and punish an
employee for the misconduct.
7. I consider that it was not necessary for the employer to hold an
enquiry into the abandonment of the service by the respondent. It
was for the respondent to prove that his services were terminated
for some reasons by the employer or without any reason by the
employer. The respondent had taken a stand which was found to
be false. Under these circumstances, the Labour Court's
conclusion that it was a case of retrenchment is perverse".
The ratio of the judgment is squarely applicable in
the facts and circumstances of this case. It is reiterated that the
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Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.
workman failed to discharge the onus in this case.
13. Hon'ble High Court of Delhi in the case of "Tej Pal
Vs. Gopal Narain & Sons & Anr", (2006) 132 DLT
311, decided on 28.08.2006 discussed the retrenchment as
envisaged under Section 25F is defined under Section 2(oo) of
the Industrial Disputes Act, which reads as under -
"2(oo) 'retrenchment' means the termination by the employer
of the service of a workman for any reason whatsoever,
otherwise than as a punishment inflicted by way of
disciplinary action but does not include -
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of
superannuation if the contract of employment between the
employer and the workman concerned contains a stipulation
in that behalf; or
(bb) termination of the service of the workman as a result of
the non-renewal of the contract of employment between the
employer and the workman concerned on its expiry or of
such contract being terminated under the stipulation in that
behalf contained therein or)
(c) termination of the service of a workman on the ground of
continued ill-health."
8. A perusal of Section 2(oo) of the Act shows retrenchment
means the termination of services of a workman by
management. Where management does not terminate services
of the workman and writes a letter to the workman to come
and join duties, no inference can be drawn that services of the
workman were terminated. It was not the case of the
workman before the Labour Court that after receiving letter
of the management asking him to join duties, he had gone to
join duties and was not allowed to join duties. The contention
of the workman that employer was supposed to initiate an
inquiry into his absence before terminating his services, is
baseless because in this case employer had not terminated
services. An employer who writes a letter to the workman to
join duties since he was absent, cannot be said to have
terminated the services of the petitioner. Only if the petitioner
had not been allowed to join duties on his reporting, it could
have been said that his services were terminated".
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Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.
In this case, the workman was transferred at other
place but he did not join his duties nor produced anything to
prove that he was stopped by the management from joining his
duties.
14. The claimant has not joined his services at the
transferred place nor proved his willingness to join. He failed to
prove that he approached the management but was stopped from
joining in view of documents relied by him. It is relevant to refer
observations of Hon'ble Supreme Court in Vijay S. Sathaye Vs.
Indian Air Lines Ltd. & Ors., SLP (C) No. 24220-24221 of 2007.
Relevant paras 9 to 13 of the judgment has been reproduced as
under -
"9. It is a settled law that an employee cannot be termed as a
slave, he has a right to abandon the service any time voluntarily
by submitting his resignation and alternatively, not joining the
duty and remaining absent for long. Absence from duty in the
beginning may be a misconduct but when absence is for a very
long period, it may amount to voluntarily abandonment of
service and in that eventuality, the bonds of service come to an
end automatically without requiring any order to be passed by
the employer.
10. In M/s. Jeewanlal (1929) Ltd., Calcutta v. Its Workmen, AIR
1961 SC 1567, this Court held as under:
"......there would be the class of cases where long unauthorised
absence may reasonably give rise to an inference that such
service is intended to be abandoned by the employee." (See also:
Shahoodul Haque v. The Registrar, Co-operative Societies, Bihar
& Anr., AIR 1974 SC 1896).
11. For the purpose of termination, there has to be positive action
on the part of the employer while abandonment of service is a
consequence of unilateral action on behalf of the employee and
the employer has no role in it. Such an act cannot be termed as
'retrenchment' from service. (See: State of Haryana v. Om
Prakash & Anr., (1998) 8 SCC 733).
12. In Buckingham and Carnatic Co. Ltd. v. Venkatiah & Anr.,
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Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.
AIR 1964 SC 1272 while dealing with a similar case, this Court
observed :
"Abandonment or relinquishment of service is always a question
of intention, and normally, such an intention cannot be attributed
to an employee without adequate evidence in that behalf."
A similar view has been reiterated in G.T. Lad & Ors. v.
Chemicals and Fibres India Ltd., AIR 1979 SC 582.
13. In Syndicate Bank v. General Secretary, Syndicate Bank Staff
Association & Anr., AIR 2000 SC 2198; and Aligarh Muslim
University & Ors. v. Mansoor Ali Khan, AIR 2000 SC 2783, this
Court ruled that if a person is absent beyond the prescribed
period for which leave of any kind can be granted, he should be
treated to have resigned and ceases to be in service. In such a
case, there is no need to hold an enquiry or to give any notice as
it would amount to useless formalities. A similar view has been
reiterated in V.C. Banaras Hindu University & Ors. v. Shrikant,
AIR 2006 SC 2304; Chief Engineer (Construction) v. Keshava
Rao (dead) by Lrs., (2005) 11 SCC 229; and Regional Manager,
Bank of Baroda v. Anita Nandrajog, (2009) 9 SCC 462".
15. It is further settled that where an employer has failed
to make an enquiry before dismissal or discharge of a workman,
it is open for him to justify the action before the labour court by
leading evidence before it. It is relevant to refer the observations
of Hon'ble Supreme Court in Civil Appeal No.142/2021 titled
State of Uttarakahand and Ors. vs. Smt. Sureshwati decided on
20.01.2021. As held in the relevant para no.14 -
14. This Court has in a catena of decisions held that where an
employer has failed to make an enquiry before dismissal or
discharge of a workman, it is open for him to justify the action
before the Labour Court by leading evidence before it. The entire
matter would be open before the tribunal, which would have the
jurisdiction to satisfy itself on the evidence adduced by the
parties whether the dismissal or discharge was justified. A four
Judge Bench of this Court in Workmen of the Motipur Sugar
Factory Private Ltd. v. Motipur Sugar Factory (AIR 1965 SC
1803) held that:
" 11. It is now well settled by a number of decisions of this Court
that where an employer has failed to make an enquiry before
dismissing or discharging a workman it is open to him to justify
the action before the tribunal by leading all relevant evidence
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Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.
before it. In such a case the employer would not have the benefit
which he had in cases where domestic enquiries have been held.
The entire matter would be open before the tribunal which will
have jurisdiction not only to go into the limited questions open to
a tribunal where domestic enquiry has been property held (see
Indian Iron & Steel Co. v. Workmen (AIR 1958 SC 130) but also
to satisfy itself on the facts adduced before it by the employer
whether the dismissal or discharge was justified. We may in this
connection refer to Sana Musa Sugar Works (P) Limited v.
Shobrati Khan (AIR 1959 SC 923), Phulbari Tea Estate v.
Workmen (AIR 1959 SC 1111) and Punjab National Bank
Limited v. Workmen (AIR 1960 SC 160). These three cases were
further considered by this Court in Bharat Sugar Mills Limited
v. Jai Singh (1962) 3 SCR, 684 and reference was also made to
the decision of the Labour Appellate Tribunal in Ram Swarath
Sinha v. Belsund Sugar Co. (1954) LAC 697 . It was pointed out
that "the important effect of omission to hold an enquiry was
merely this: that the tribunal would not have to consider only
whether there was a prima facie case but would decide for itself
on the evidence adduced whether the charges have really been
made out". It is true that three of these cases, except Phulbari Tea
Estate case , were on applications under Section 23 of the
Industrial Disputes Act, 1947. But in principle we see no
difference whether the matter comes before the tribunal for
approval under Section 33 or on a reference under Section 10 of
the Industrial Disputes Act, 1947. In either case if the enquiry is
defective or if no enquiry has been held as required by Standing
Orders, the entire case would be open before the tribunal and the
employer would have to justify on facts as well that its order of
dismissal or discharge was proper. Phulbari Tea Estate
case was on a reference under Section 10, and the same principle
was applied there also, the only difference being that in that case
there was an inquiry though it was defective. A defective
enquiry in our opinion stands on the same footing as no enquiry
and in either case the tribunal would have jurisdiction to go into
the facts and the employer would have to satisfy the tribunal that
on facts the order of dismissal or discharge was proper."
Subsequently in Delhi Cloth and General Mills Co. v. Ludh
Budh Singh (1972) 1 SCC 595 this Court held that :
"(1) If no domestic enquiry had been held by the management, or
if the management makes it clear that it does not rely upon any
domestic enquiry that may have been held by it, it is entitled to
straightway adduce evidence before the Tribunal justifying its
action. The Tribunal is bound to consider that evidence so
adduced before it, on merits, and give a decision thereon. In such
a case, it is not necessary for the Tribunal to consider the validity
of the domestic enquiry as the employer himself does not rely on
it.
....
LCA No.35/2017 Page 16 of 20
Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.
(3) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
Reliance is also placed on the judgment of this Court in Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management of Firestone Tyre & Rubber Co. of India (P) Ltd and Others. (1973) 1 SCC 813 wherein the broad principle regarding holding of the enquiry were spelt out as:
"32. From those decisions, the following principles broadly emerge:
"(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has LCA No.35/2017 Page 17 of 20 Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.
to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmens, (1971) 1 SCC 742 within the judicial decision of a Labour Court or Tribunal.
..........
40. Therefore, it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11-A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved.
41. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11-A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because LCA No.35/2017 Page 18 of 20 Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.
the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to re- appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11-A."
The contention of the AR of the workman that no notice was issued to the workman nor any enquiry was held appears to have no substance as there is nothing on record to show that the workman joined his duties and was stopped by the management.
16. In the given facts and circumstances, on the basis of material placed and proved on record and in view of aforesaid discussions, it is held that the workman himself remained absent beyond the period of his sanctioned leave and not joined the duty at the transferred place and that his services was never terminated illegally and unjustifiably by the management. Accordingly, Issues no.1 & 2 are decided against the workman whereas Issue No.3 is decided in favour of management and against the workman/claimant.
LCA No.35/2017 Page 19 of 20Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd. ISSUE NO.4:
Relief.
Consequent to the decision of Issues No.1 to 3, it is held that the workman/claimant is not entitled to any relief. Statement of claim is, therefore, dismissed.
17. Award is passed accordingly.
18. Digitally signed copy of the award be sent to the Labour Commissioner for publication.
19. The award be also uploaded to server.
20. File be consigned to record room after necessary Digitally signed by compliance. GORAKH GORAKH NATH NATH PANDEY Date: 2022.09.16 PANDEY 16:06:56 +0530 Announced in the open (Gorakh Nath Pandey), Court on 12.09.2022 Addl. District & Sessions Judge, Presiding Officer Labour Court- IV, Rouse Avenue District Courts.
LCA No.35/2017 Page 20 of 20Sh. Jogesh Kumar Behra v. M/s. Arihant Innochem Pvt. Ltd.