Delhi District Court
In Support Of The Above Said Terms Of The ... vs U Vithal 1963 Vii Slr 184 Sc on 19 May, 2007
:1:
IN THE COURT OF SH. I.S. MEHTA: PRESIDING OFFICER:
INDUSTRIAL TRIBUNAL NO.I: ROOM NO.2:
KARKARDOOMA COURTS: DELHI.
I.D.NO.195/2006 (OLD I.D.NO.155/2005)
BETWEEN
The management of M/s. Press Trust of India Ltd.,
P.T.I. Building, 4, Parliament Street, New Delhi-110001.
AND
Its workman Sh. Balram Singh Dahiya S/o Late Sh. Ram Chander
as represented by P.T.I. Employees' Union (Regd),
P.T.I. Building, 4, Parliament Street, New Delhi-110001.
AWARD
Secretary (Labour), Govt. of the National Capital
Territory of Delhi has referred this dispute arising between the
parties, named above for adjudication vide notification
No.F.24(2039)/05-Lab./11861-65 Dated 19.12.2005 with the
following term of the reference :-
(i). "Whether the punishment of stoppage
of two annual increments imposed upon
Sh. Balram Singh Dahiya S/o Late Sh.
Ram Chander workman is illegal and/ or
unjustified and if so, to what relief is he
entitled and what directions are
necessary in this respect ?"
(ii). "Whether the punishment of continuous
suspension w.e.f.18.01.2003 imposed
upon Sh. Balram Singh Dahiya S/o Late
Sh. Ram Chander workman is illegal
and/or unjustified and if so, to what relief
is he entitled and what directions are
necessary in this respect ?"
:2:
(iii). "Whether the transfer of Sh. Balram
Singh Dahiya S/o Late Sh. Ram Chander
workman from Delhi to Gorakh Pur
Office vide office order dated 27.09.2004
is illegal and/or unjustified and if so, to
what relief is he entitled and what
directions are necessary in this
respect?"
1. In support of the above said terms of the reference,
statement of claim was filed wherein it is stated that The Press
Trust of India Employees' Union, Delhi (Regd) is a trade union,
duly registered under the Trade Unions Act, 1926, affiliated to
Federation of PTI Employees Unions, representing the interests
of the workmen employed by M/s. Press Trust of India Limited
in its Delhi Industrial Establishment and has got appreciable
number of the workmen, employed with the management as
its members.
2. It is further stated that the present workman- Sh.
Balram Singh Dahiya S/o Late Sh. Ram Chander is an
employee of the management of M/s. Press Trust of India Ltd.
and is working as Engineer in the Photo Department in the
Delhi Establishment of the management since March 2002. He
was initially employed by the management in the year 1985as
a Trainee Technician at the Delhi office and after completion
of on-the-job training, he was confirmed in the services of the
management and designated as a Junior Technician
(Teleprinter Technician) w.e.f.01.09.1986. The workman was
:3:
transferred a number of time from one place to other while
working as Junior Technician according to its terms and
conditions.
3. It is further stated that the workman got his first time
bound promotion i.e from Junior Technician to Senior
Technician vide letter dated 12.01.95 w.e.f.01.09.94 and there
was no term and condition regarding transfer and
accordingly, thereafter the workman was never transferred
from Delhi to anywhere. The workman was promoted as
Senior Technician while he was stationed at Meerut and he
was transferred to Delhi not because his post was transferable
but because of the fact that the management had closed
down its Merrut Office. Thereafter the workman got his
second time bound promotion i.e. from Senior Technician to
Engineer vide letter dated 04.08.2000 w.e.f.01.01.2000 and
there was also no term and condition regarding transfer to
any outside office. As Engineer, the workman was mainly and
substantially performing technical nature of duties and as per
law promotion to higher substantive post on permanent basis
is a fresh appointment on the particular terms and conditions
of service.
4. It is further stated that the workman became active
in the bonafide activities of The Press Trust of India Employees'
:4:
Union, Delhi since 1996 and at present, he is the Vice
President of the said union. The bonafide and genuine
participation of the workman in the said union was not liked
by the management and the workman became a victim of
discrimination and malafide on the part of the management.
It is further stated that the above said union was the only
union which represents the employees of the management at
its Delhi Establishment till 2002. In 2002, the office bearers who
lost the elections of PTI Employees Union, Delhi formed a new
union in the name of PTI Workers Union, which was registered
in the year 2002. The union namely; PTI Workers Union
became puppets in the hands of the management,
therefore, the management promptly recognized the new
union even before it was registered, in total disregard of
Code of Discipline. It targetted every office bearer and
active members of PTI Employees Union, Delhi.
5. It is further stated that the workman concerned first
became the member of PTI Workers Union, Delhi and when
the workman realised that the management paid heed to
the illegal demands of the union and the said union is a slave
and puppet at the hands of the management, the workman
discontinued the membership of the said union and quit from
the post of President of PTI Workers Union and rejoined the
Press Trust of India Employees Union, Delhi in August 2002.
:5:
6. It is further stated that thereafter the management
started adopting various means to trap him and therefore,
the management cooked up a false, frivolous case against
the workman with a view to punish him for refusing to resign
from the membership of The Press Trust of India Employees
Union, Delhi and rejoin its puppet union. It is further stated that
on 18.01.2003, the management malafidely issued a show
cause notice to the workman and was placed under
suspension and his entry into the PTI Building was banned by
the management. The management filed a false and
frivolous complaint on 18.01.2003 with the SHO Parliament
Street PS against the workman as active member and 13
other employees who are members of PTI Employees' Union,
Delhi. The said action of the management is illegal and
unjustified. Thereafter the management charge-sheeted the
workman on 01.02.2003 malafidely levelling new additional
charges of misconduct and that the management with a
pre-determined mind, constituted an enquiry against the
workman which enquiry was conducted in an advocate's
office which was protested by te workman and he requested
that the enquiry be held in the premises of PTI Building.
7. It is further stated that the said enquiry was
conducted with a pre-determined mind ex-parte and he was
declared guilty of the charges levelled against him and the
:6:
workman remained under continued suspension.
Accordingly, the management passed an illegal and
unjustified order dated 27.09.2004 against the workman
holding him guilty of the charges, levelled in the charge sheet
dated 01.02.2003 and proposing/ imposing upon him a
penalty of freezing of his annual increments as also
transferring him to Gorakhpur Office and keeping him under
continuous suspension. The said order was passed in order to
victimize him for his bonafide trade union activities. It is also
alleged that the workman was a Protected workman U/s 33
(b) of the I.D. Act.
8. The Union's Executive Committee at a meeting on
22.05.2005 resolved to take up the cause of the present
workman against the management and send a demand
notice dated 26.05.2005 but the management did not
accept the said notice. Thereafter the management issued a
charge-sheet dated 09.06.2004 to the workman, claiming that
his non-reporting for duties to Gorakhpur office was a
misconduct and the management instituted an enquiry
wherein the workman was not given any reasonable
opportunity to defend charges and the enquiry officer
submitted an enquiry report which was perverse.
:7:
9. It is prayed that the punishment of stoppage of two
annual increments, proposed/ imposed upon Sh. Balram
Singh Dahiya be held illegal and unjustified and the
continuous suspension w.e.f.18.01.2003 is illegal and unjustified
and the transfer of the workman from Delhi to Gorakhpur
office vide office order dated 27.09.2004 be also held illegal
and unjustified and the management be directed to pay the
full back wages and allowances to the workman
w.e.f.18.01.2003 and to release his wrongfully stopped two
annual increments as also to provide duties to the workman
at its Delhi Establishment.
10. In rebuttal, the management filed written statement,
wherein certain preliminary objections were taken to the
effect that the terms of reference, are referred to this Court
without application of mind and that the enquiry conducted
against the workman is legal, valid and justified and that the
union namely; PTI Employees' Union, Delhi has no locus standi
to raise the dispute qua the present claimant; there is no legal
and valid authorization in favour of the said union and that
the present dispute is not covered U/s 2(k) of the I.D. Act, 1947
as the dispute has not been properly espoused, as required
under law and that the term of reference regarding
suspension has become infructuous as the suspension of the
claimant has been revoked vide letter dated 28.01.2006.
:8:
11. On merits, it is denied that the alleged union namely;
PTI Employees' Union, Delhi is representing in the interests of
workmen, employed by the management. It is further stated
that the alleged union is a creation of certain disgruntled
persons who are bent upon disturbing the industrial peace
and harmony in the organization. It is further stated that the
majority union is the PTI Workers' Union, Delhi which is
recognized by the management and affiliated to the
Federation of PTI Employees' Unions and the PTI Employees'
Union, Delhi was deaffiliated by the Federation on 29.05.02.
12. It is further stated that the workman was working as
Engineer in the Photo Department in the Delhi Establishment
from 2002 to September 2004 and thereafter he was
transferred to Gorakhpur where the workman has not joined
duty till date. It is submitted that employees in PTI are
transferable and there is no exception to any grade junior or
senior in terms of transfer. The workman had been transferred
from time to time due to exigencies of work and
administrative requirements and he also joined at such places
of transfer from time to time. It is submitted that transfer is a
condition of service as stipulated in the appointment letter. It
is submitted that promotion and appointment are not
synonymous. The terms and conditions of service at the time
of appointment and stipulated in the appointment letter
:9:
prevail throughout and do not change on promotion or
otherwise. Promotion only entails a higher grade of pay and
that promotion to a higher grade is not a fresh appointment.
Transfer is a condition of service and is stipulated in the
appointment letter and not in the letter of promotion. The
workman could be transferred as stipulated in the contract of
employment, as per requirement of work and business
exigencies. Since there was a transfer clause in the
appointment letter of Sh. Balram Singh Dahiya, in
accordance with the same, he was transferred from Delhi to
Gorakhpur and there is no infirmity in the same.
13. Allegations, made by the workman in his statement of
claim against the management are denied that it is also
stated that the management has no information about the
trade union activities of the workman. In fact, the
management is not concerned with union activities of any
employee and in fact, the union- PTI Employees' Union, Delhi
of which the workman is alleging himself to be a member, has
a long uninterrupted history of indulging in violent acts and
the so called bonafide activities of the union include attacks/
assaults on Senior Journalists of the organization and that
there are orders of the Hon'ble High Court of Delhi, restraining
the office bearers of the PTI Employees Union, Delhi from
demonstrating within 50 meters of the PTI Building.
: 10 :
14. It is further stated that so far as the suspension of the
workman is concerned, the same was done on account of
gross misconduct, committed by him on 18.01.03, when he
along with some others, led a mob of PTI Employees and
outsiders in holding an illegal and provocative demonstration
inside the premises of PTI. They raised derogatory and abusive
slogans against the management and disrupted the working
of the office. The management had to summon the police
and made complaint on 18.01.03 to the SHO, Parliament
Street PS. Thereafter the workman was issued show cause
notice and the reply to the same of the workman was not
found satisfactory and the workman was subsequently
charge sheeted vide charge sheet dated 01.02.2003 and
enquiry was instituted in which the workman was given full
opportunity to defend himself before the management as
well as defend himself in the enquiry which was conducted in
a fair, valid and proper manner. Thereafter after considering
the report of the enquiry officer and the material on record
and evidences led by the witnesses, held the workman guilty
of the charges.
15. While denying the allegations of malafide, illegality
and unjustifiability on the part of the management, to keep
him under suspension and prevented him from his bonafide
trade union activities, it is submitted that vide order dated
: 11 :
27.09.2004, the services of the workman were transferred from
Delhi to Gorakhpur and he was directed to report at the
place of transfer. It was also mentioned in the said order that
the suspension of the workman would stand revoked upon
joining at the place of transfer. The lenient view of allowing
the claimant to resume his duty had been taken in the hope
that he would not indulge in any act of misconduct or
indiscipline in future and would work as a dedicated and
committed employee of the organization. It is denied that
transfer is a punishment as vaguely alleged. The order dated
27.09.2004 is legal, valid and justified in all respects and there
is no infirmity in the same. It is also denied that the workman
was a protected workman on 27.09.2004. It is further stated
that the order by which the workman was declared
protected workman was passed subsequent to the order
dated 27.09.2004 and the said order is under challenge
before the Hon'ble High Court of Delhi. The workman has
failed to report for duties till date at the place of posting. The
management never withheld his wages and allowances and
that he was being paid subsistence allowance and he was
not entitled to any more. It is further stated that the
suspension of the workman has already been revoked and
that the workman was charge-sheeted vide charge-sheet
dated 09.06.2005 and that a domestic enquiry was
conducted in accordance with the principles of natural
: 12 :
justice and that no action has been taken by the
management as of now and that appropriate action will be
taken at the relevant stage. It is further stated that the
workman has made only vague allegations against the
management in the statement of claim and therefore, it is
prayed that the claim of the workman, which is filed on
behalf of him by PTI Employees' Union, Delhi be rejected.
16. Rejoinder was filed wherein all the contentions raised
in the written statement were controverted and those of the
statement of claim were reiterated.
17. On the pleadings of the parties, the following issues
are framed :-
1. As per reference.
2. Whether the claim is not maintainable for the
objections taken by the management in their written
statement, it will be read along with letter of the
management dated 27.09.2004 ?
3. Relief.
18. The workman examined himself as WW1 and WW2-
Sh. Neeraj Bhushan- General Secretary of the Union is also
examined in the evidence of the workman.
: 13 :
19. On behalf of the management MW1- Sh. Sanjeev
Narula, MW2- Sh. Amrit Mohan, MW3- Sh. H.S. Bawa, MW4- Sh.
Ajay Kaushika and MW5- Sh. Rakesh Hari Pathak have been
examined.
20. I have heard the Learned ARs of both the parties and
have perused the record and my findings are as under :-
21. Learned AR of the management - Sh. B.K. Singh has
submitted that the workman- Sh. Balram Singh Dahiya was in
the employment of the management as Engineer in the
Photo Department from 2002 to 2004 and during the
employment with the management, he has committed
serious misconducts by holding an illegal and provocative
demonstration inside the premises of the PTI Building at 4,
Parliament Street and used abusive and derogatory slogans
against the senior officials of the management i.e Ms. Padma
Alva and Mr. M.K. Razdan on 18.01.03 at about 2.30 pm and
entered into the news room which caused tension and
ultimately to remove the demonstrators from the news room,
the management was forced to call the police into the PTI
Building premises. Thereafter a show-cause notice was issued
to the workman by Assistant General Manager on 18.01.03
and the workman was put under immediate suspension on
not finding his reply satisfactory. Learned ARM has further
: 14 :
submitted that the workman also misconducted himself on
20.01.03 by raising threatening, abusive and derogatory
slogans outside the residence of Regional Manager at Saket
at about 7.45 pm. He has further submitted that the workman
on 21.01.03 around 8 pm chased General Manager's official
car for some distance from near Shastri Bhawan. Thereafter at
about 9 pm, the workman chased the car of Sumir Kaul- a
Journalist, near the office till Ashoka Hotel. Similarly at about
10 pm, the workman and others indulged in similar acts of
chasing the car of Economic Bureau Chief- Sh. R.H. Pathak
from Press Club to Samachar Apartments. Mr. Pathak was
accompanied by Assistant General Manager- Sh. S.D.
Narayan and Senior Manager (Security)- Sh. H.S Bawa. The
workman also chased the car of Mr. Pathak on road leading
to his residence in Ghaziabad in which he was then
accompanied by Bhasha Journalist- Mr. Amrit Mohan.
Learned ARM has further submitted that the workman on
22.01.03 at about 11.45 am, reached the residence of
General Manager, carrying his effigy and shouted abusive
and derogatory slogans against him and thereafter the effigy
was set on fire. The aforesaid acts on the part of the
workman, amounted to serious misconduct against the senior
management's officials.
: 15 :
22. Learned AR of the management has further
submitted that for the above said misconducts, committed by
the workman, a charge sheet dated 01.02.03 was issued to
the workman, stating therein that the conduct of the
workman amounted to subversive of discipline and peace on
the establishment and abuse of his superiors. Thereafter the
management has carried out a proper and fair enquiry
against the workman. The enquiry officer vide its report dated
16.06.03, held the workman, guilty of the charges and
thereafter agreeing with the findings of the enquiry officer- Sh.
Sanjeev Narula, vide office order dated 27.09.2004, the
management proposed to freeze the next two annual
increments of the workman and the workman was transferred
to Gorakhpur due to exigencies and business requirement at
Gorakhpur. Learned ARM has further submitted that the
workman despite repeated requests and the written order did
not join at the place of transfer- Gorakhpur which amounted
to insubordination and defiance of superiors' orders and
constitutes misconduct on the part of the workman. However,
on the contrary instead of complying the transfer order, the
workman filed a civil suit bearing no.221/04. Learned ARM has
submitted that it is not for the workman to decide the
exigencies of the work or how to distribute the man power in
the organization. It is for the management to decide the
exigencies as per the business requirement. In any view, the
: 16 :
transfer of the workman is as per the contract of employment
and there is no infirmity in the same.
23. Learned ARM has further submitted that the
management has examined witnesses namely; MW1- Sh.
Sanjeev Narula, MW2- Sh. Amrit Mohan, MW3- Sh. H.S. Bawa,
MW4- Sh. Ajay Kaushika and MW5- Sh. Rakesh Hari Pathak
and proved allegations as in the charge sheet against the
workman. Learned ARM has further submitted that the
witnesses to the incident have proved the acts of misconduct
on the part of the workman and on the record, there is no
room left by the workman of his further misconduct but still the
workman was transferred by the management with a view to
giving him an opportunity to work in the organization and that
such view has been taken by the management, purely on the
humanitarian approach. The workman has totally failed to
show that the transfer order, passed by the management is a
punitive order. In fact, the management has established that
the transfer order has been done in the case of the workman
due to exigencies of the work and business requirement at
the place of the transfer. The power of transfer is clearly with
the management and in exercise of the powers and
considering the requirement at the place of transfer, hence,
the points, raised by the workman in his defence cannot be
accepted as the plea of victimisation, raised by the workman
: 17 :
is only subsequent to disciplinary action, taken against him for
proven acts of misconduct. Moreover, the dispute of the
workman is not covered U/s 2k of the I.D. Act and is not
properly espoused and that the union which has filed the
claim on behalf of the workman, has no locus standi to raise
the claim, on behalf of the workman. He has prayed that the
present reference be rejected and relied upon Canara
Banking Corporation Vs. U Vithal 1963 VII SLR 184 SC,
Syndicate Bank Vs. Their Workmen SJR Vol 28 275, Caravan
Goods Carrier Pvt. Ltd Vs. Labour Court Madras & Ors. 1977
(35) SLR 331, Bharat Iron Workers Vs. Bhagu Bhai Patel & Ors.
1976 1 SCC 518, Tarachand Khatri Vs. MCD & Ors. 1977 1 LLJ
331 SC, Management of Bharat Kala Kendra Pvt. Ltd. Vs. R.K.
Baweja & Ors. 1981 LAB IC 893 Del HC, Shilpi Bose & Ors. Vs.
State of Bihar & Ors. 1991 II LLJ 591 SC, Cipla Ltd. Vs. Jaikumar
R & Ors. 2000 84 SLR 80, State of UP & Ors. Vs. Govardhan Lal
2004 II SCC 402, Kendriya Vidyalaya Sangthan Vs. Damodar
Prasad Pandey & Ors. 2004 LAB IC 4061, Dhanalakshmi Bank
Vs. Parmeshwar Menon 1980 2 LLJ 45 and Mysore Paper Mills
Ltd. Vs. Mysore Paper Mills Officer Associated, Bhadravathi
and Anr. 1998 LIC 3203
24. On the other hand, Learned AR of the workman- Sh.
Neeraj Bhushan has submitted that the allegations, alleged
by the management against the workman are false. In fact,
: 18 :
at the relevant time, the workman was the Vice President of
the PTI Employees Union. The management under the garb of
proposed penalty and transfer order is trying to justify the
illegal submarine acts of the management and to victimise
the workman of his lawful union activities. He has prayed that
the punishment of stoppage of two annual increments,
imposed upon the workman be held malafide, illegal and
unjustified and further prayed that the continuous suspension
of the workman after 18.01.03 be also declared illegal and
unjustified and that the transfer of the workman from Delhi to
Gorakhpur vide office order dated 27.09.04 be also held
illegal and unjustified and the management be directed to
pay full back wages and allowances to the workman from
18.01.03 and to release his wrongfully stopped increments
and also to provide duties to the workman at its Delhi
establishment with costs.
25. The transfer is said to be the prerogative of the
management where the transfer so made is bonafide in
exigencies of business requirement but whole difficulty arises
when under the cover of ordering a transfer, an employer
seeks to achieve something which he cannot otherwise
achieve. In such cases, the employees in distress seek
assistance of Courts in their unequal context with their
employer. The transfer can approved a family cause,
: 19 :
irreparable harm to an employee and drive him into
desperation. It is on this account, that transfer so made gets
the colour of punishment and the same cannot be allowed.
26. In the present case, the workman, in his statement of
claim, in para 18 & 54 has specifically stated that the
workman remained the Vice President of the Press Trust of
India Employees Union, Delhi for the year 2003, 2004 & 2--5
and he remained the protected workman at the relevant
time. The management, in reply to the said contention, in the
written statement has stated that the order by which the
claimant was declared protected workman has been
challeged by the management in a writ petition, pending
before the Hon'ble High Court of Delhi.
27. The workman examining himself as WW1 relied upon
documents Ex.WW1/63 & Ex.WW1/64 which are letters, written
to the management with regard to declaration of the
workman as protected workman. The order dated 30.11.2004,
passed by the Assistant Labour Commissioner regarding
declaration of the workman- Balram Singh Dahiya and others
as protected workmen is Ex.WW1/65. The said order is
reproduced as under :-
: 20 :
GOVT. OF NCT OF DELHI
OFFICE OF THE ASSTT. LABOUR COMMISSIONER,
NEW DELHI DISTT.
EMPLOYMENT EXCHANGE BUILDING, IST FLOOR
A-2/E5, KASTURBA GANDHI MARG, NEW DELHI.
No.C-59/ALC/NDD/2004/1184 Dated: 30.11.2004
In the matter of recognition of Protected Workmen under
Section 33(4) of I.D. Act, 1947 read with rule 61 of Industrial
Dispute (Central) Rules, 1957.
*****
A Dispute between
The Press Trust of India Employees Union, Delhi
4, Parliament Street, New Delhi-110001.
....Union
The Press Trust of India Ltd.
4, Parliament Street, New Delhi-110001.
....Management
ORDER
The Press Trust of India Employees Union, Delhi filed an application under Rule 61(4) of the Industrial Dispute (Central) Rule, 197 for deciding the dispute between the union and the management for recognition of officers of the Union as Protected Workmen. The applicant union has stated that it is a registered under the Trade Union Act, 1926 vide Registration No.223 and has a membership of 357 out of total of 397 employees of M/s. Press Trust of India Ltd.. The annual election to the executive was held unanimously on 29.03.04, and the union communicated to the management vide their letter dated 12.04.04 to recognize the following office bearers as protected workmen :-
S.No. Name Employees No. Post
1 Sh. Vinod Kumar 1481 President
2 Sh. Balram Singh Dahiya 1258 Vice President
3 Sh. J.S. Rawat 1023 Vice President
4 Sh. Ghasi Ram 1382 Joint Secretary
5 Sh. Kashmir Singh 2037 Joint Secretary
The applicant union enclosed a copy of letter dated 13.04.04 sent to management confirming the contents of letter dated 12.04.04 and also enclosed a copy of the certificate of Registration of Trade Union. The management even after the receipt of their communication did not take any action on their request and stated that dispute has arisen and prayed that Hon'ble Authority decide the dispute and declare five office bearers of the union or less member as protected workmen in accordance with the provisions of law.
A copy of the application of the union was given to the management for reply. The management has stated that Sh. Vinod Kumar, Sh. Balram Singh Dahiya, Sh. J.S. Rawat for whom status of Protected Workmen has been sought are suspended and have been charge sheeted. Sh. Ghasi Ram has been transferred but a civil suit is pending in this regard : 21 : and that Sh. Kashmir Singh is not performing assigned duties and not complying with legitimate orders of his superiors. The management has stated that as per their information the union is managed and controlled by few individuals for their ulterior motives and the officer and members of the union have been indulging in various reported acts of hooliganism waylaying attacks, threats and criminal intimidation and some of these cases have been reported to the police and cases are pending in courts. It has also been stated that union has not communicated the details of so called election nor forwarded any material to show that decision has been taken in the General Body. The management has further stated that there is another union is recognized by the management and is affiliated to this Federation of P.T.I. Employee's Unions with which the management has been traditionally dealing with through the staff council. The management further stated that P.T.I. Employees union, Delhi is not recognized by the management and the application for granting status of protected workmen has not been made in a bonafide manner but has made with the motive of shielding the claimants from disciplinary action. On merits, the management denied that employees union has a membership of 357 and stated that it is controlled by few individuals for their ulterior motives. The management is not aware of the election of its office bearers and the employees union has not informed as to how the elections have taken place. The management stated that Press Trust of India Workers Union is recognized by the management which has a majority and requested that in the interest of justice notice be given to P.T.I. Workers Union. The management prayed that application of the P.T.I Employees Union be rejected.
The applicant P.T.I. Employees Union hereinafter referred to as employees union in its rejoinder stated that office bearers for whom status of protected workmen has been sought continue to be be on the rolls of the management and they are being victimized for their bonafide Trade Union activities. That employees union was the only union representing the workmen till 2002 when the old office bearers who were puppets of the management were defeated in election held through secret ballot, with the support of the management, the said defeated persons formed another union i.e. P.T.I. Workers Union which was promptly recognized by the management. The employees union denied the contentions of the management and reiterated that it has a membership of 357 out of 400. It also stated that management is opposing the request of employees union for secret ballot for determining the majority character of unions and this facts goes to prove that claim of majority by employees union is true. It also stated that its members have not indulged in acts of violence etc. and no court has held them guilty and that false allegations have been levelled to discourage them from carrying out their trade union activities. The employees union has stated information of election of office bearers has been communicated by their letter dated 12.04.04.
On merits, the employees union has stated that management has not verified the claims of workers union and is wrongly deducting the subscription of 357 employees which are their members. The employees union has stated that they have no objection if the workers union is impleaded as a party but the workers union has not made any claim contrary to the claim of employees union. The attitude of the management is partisan and in favour of the : 22 : workers union and against the employees union. The employees union prayed that application of the union for recognition of status of protected workmen be allowed as prayed for.
In view of reply of management that there is another union in organization, notice was also issued to P.T.I. Workers union to file their comments PTI Workers Union hereinafter called workers union filed their reply enclosing the declaration made by 320 employees on the basis of which union subscription is deducted from the salary by the management and stated that no document has been filed by the employees union to substantiate the membership of 357 or that 357 are still the members of the employees union. The workers union filed individual declarations from 320 members in support of their claim and also referred to High Court order wherein the petition of the employees union was dismissed as withdrawn as majority of the members of the employees union resigned and formed another union.
Reacting to the claims of workers union, employees union filed a copy of the resolution of the executive dated 16.07.2004 whereby the register containing the names of 357 members was kept in union's office from July, 17, 2004 to 21.07.2004 and informed that three persons were on leave, 10 persons did not sign and 344 voluntarily signed their register in support of the employees union. The employees union also filed copies of individual membership forms in support of their claims.
I have examined the application of the employees union, reply of the management, comments furnished by the workers union and the documents filed in support of their claims. Admittedly, there are two unions in the organization. Both are registered under the Trade Union Act. Both claiming to be majority unions. The employees union claimed membership of 357 employees which later came down to 344 P.T.I. Workers Union is claiming a membership of 320 on the basis of individual authorization of members given to the management authorizing deduction of union subscription from their salary. The employees union argues that management is favourably inclined forwards workers union which has been granted prompt recognition and is biased towards the employees union which is raising the issues concerning the employees and thereby annoying the management. It will be pertinent to point out that workers union was called in the proceedings as requested by the management in their reply. It was stated by workers union that they had applied to the management for grant of status of protected workmen to its office bearers but did not file any request or application before the Authority. It is apparent that office bearers of the workers union do not need the status of protected workmen given the cordial relations with the management. It is an admitted position that there are 400 employees in Press Trust of India Ltd. which could be the members of the two unions. Both the unions have claimed more than 300 members. As such, it will not be possible to determine the real relationship of each union in these proceedings.
Assuming the strength of both unions equal, I propose to aportionthe status of protected workmen to both the unions. As per provisions of the Industrial Disputes Act, only five office bearers can be recognized as protected workmen. In : 23 : that event, each union is entitled to 2 ½ i.e three protected workmen. As the workmen union has not made any request for recognition of its office bearers as protected workmen no order is passed in respect of P.T.I Workers union. The management may recognize three of its office bearers as protected workmen in consultation with the said union. The office bearers of the employees union continue to be on the rolls of the management and the legislature has chosen to confer the status of protected workmen on office bearers of union to insulate against the malafide actions of the management. I, N.R. Ahluwalia, Asstt. Labour Commissioner, Govt. of N.C.T. Of Delhi in exercise of the powers vested in the undersigned under section 33(4) read with Rule 61 confer the status of protected workmen for the period of 12 months on the following office bearers of P.T.I. Employees Union w.e.f.28.04.2004 i.e the date of filing the application.
Sr. No. Name Post of Union
1 Shri Vinod Kumar President
2 Shri Balram Singh Dahiya Vice President
3 Shri J.S. Rawat Vice President
Ordered accordingly. Parties informed.
(N.R. AHLUWALIA) Asstt. Labour Commissioner Conciliation Officer.
28. A bare perusal of the above said order and the management's contention in its written statement, stating therein that the management has challenged the order Ex.WW1/65 before the Hon'ble High Court of Delhi shows that the management felt aggrieved by recognition of the office bearers of PTI Employees Union as protected workmen. The sense of this feeling of the management being aggrieved is the cause of allegations and counter allegations as a result of which the management alleged that the workman committed misconduct and later on kept the workman in continuous suspension and thereafter transferred him to Gorakhpur.
: 24 :29. The management, in its written statement has raised the objection that the claim of the workman is not covered U/s 2k of the Industrial Disputes Act, 1947 and the dispute is not properly espoused, as required under the law and that the PTI Employees Union has no locus standi to raise the dispute qua the claimant. The workman, in reply to the said objections of the management, in the rejoinder, has stated that the PTI Employees Union is a registered union and submitted that the cause of the workman is properly espoused through the said union.
30. The workman has examined himself as WW1 & also examined Sh. Neeraj Bhushan as WW2 and relied upon Registration Certificate of the Union Ex.WW1/7, list of union membership for the year 2002 Ex.WW1/9, for 2003 Ex.WW1/10 and for 2004, 2005 & 2006 Ex.WW1/8 (Collectively). He has also relied upon union election results for 2002, 2003, 2004 & 2005 Ex.WW1/12 and for the year 2006 Ex.WW1/13. He has also relied upon resolution of the union Ex.WW1/69 and demand notice Ex.WW1/70 and the annual subscription of union members Ex.WW2/1.
31. WW2- Neeraj Bhushan, in his statement has stated that meeting of the Executive Committee of the union at its meeting on 22.05.2005, resolved that the cause of Sh. Balram : 25 : Singh Dahiya be taken up by the union and authorised him to represent the matter further. He relied upon resolution Ex.WW1/69 and minutes of the said meeting Ex.WW2/2. He also relied upon the demand notice and proved its receipt by the management as Ex.WW1/70. Moreover, the present reference order shows that the workman was represented by the union namely; PTI Employees Union, Delhi before the Conciliation Officer also, therefore, there is no force in the argument of the management that the cause of the workman is not properly espoused by the union or the said union has no locus standi to raise the dispute, on behalf of the workman or that the dispute is not covered U/s 2k of the I.D. Act.
32. So far as the conducting of the enquiry by the management against the workman is concerned, the management's contention is that before issuing the charge sheet to the workman, the management issued show- cause notice dated 18.01.03 to the workman. The said show cause notice is reproduced as under :-
THE PRESS TRUST OF INDIA LIMITED No./Admn-102/2003 January 18, 2003 Mr. Balram Singh Dahiya Photo Department Emp. No.1258, PTI, New Delhi.: 26 :
SHOW-CAUSE NOTICE It has been reported to me that :
This afternoon around 2.30 p.m. You along with some others led a mob of PTI Employees and outsiders in holding an illegal and provocative demonstration inside the premises of the PTI Building at 4, Parliament Street, New Delhi.
The mob pushed aside the security guards on duty and forced its way into the PTI compound where it raised slogans against senior members of the management. The mob then forcibly came on to the first floor where the news operations of the Company are located. You and others then raised derogatory and abusive slogans against the Regional Manager Mrs. Padma Alva and the Photo Editor, Mr. Subhash Chander and others, like "Padma Alva Murdabad", "Padma Alva Sharam Karo", "M.K. Razdan Murdabad" and "Management Ka Dalal Subhash Hai Hai" etc. etc. for more than half-an-hour. The administration had to summon the police help to have you removed from the premises and clear the passage.
These alleged acts of yours are in violation of the office discipline and decorum, and amount to disruption of peace, news operations and other functioning in the Company.
Besides prima facie constituting misconduct, the demonstration is in clear breach of the order of the Hon'ble High Court of Delhi issued on February 1, 2002 barring the PTI Employees' Union, New Delhi, its office bearers, members, agents and supporters from doing any demonstration or drama within 50 metres of the PTI Building or, in any way, affecting the ingress and egress of the PTI Building.
Besides you and few others, the demonstration was led by Mr. Neeraj Bhushan, General Secretary of the PTI Employees Union and Mr. Vinod Kumar, President of the same union, both of whom have been charge-sheeted, suspended and banned from entering the PTI Building.
Through this show-cause notice, you are called upon to explain in writing within 3 days of the receipt of this letter as to why appropriate disciplinary action should not be taken against you for the alleged acts mentioned above.
33. The contention of the management is that for the serious misconducts, committed by the workman, a charge sheet dated 01.02.2003 was issued to the workman. The charge sheet is Ex.MW1/1 and is reproduced as under :-
: 27 :THE PRESS TRUST OF INDIA LIMITED REGISTERED AD POST No.ADMN/141/2003 February 1, 2003 Sent to his residential address:
Mr. Balram Dahiya 111-H, Pocket IV,
(Empl No.1258) Mayur Vihar I
Photo Department Delhi-110091.
New Delhi.
CHARGE- SHEET
It has been reported to me :
1. That you along with some others, had led a mob of PTI employees and outsiders in holding an illegal and provocative demonstration inside the premises of the PTI Building at 4 Parliament Street, New Delhi at around 2.30 p.m. on January 18, 2003.
The mob pushed aside security guards on duty and forced its way into PTI building where it raised slogans against senior members of the management. The mob then forcibly came out on the first floor where the news operations of the company are located. You and others raised derogatory and abusive slogans against senior members of the management. Slogans included "Padma Alva Murdabad ", "Padma Alva Sharam Karo ", "M.K. Razdan Hai Hai" etc. etc.
2. That you and others in the mob blocked the staircase and entry to the New Room while carrying out the demonstration. This caused tension and disrupted the working of the office for more than half an hour. The Administration had to summon the police to have you removed from the premises and clear the passage.
You were served a show-cause notice in this regard by the Assistant General Manager on January 18, 2003. You were also placed under immediate suspension that day pending your response to the show-cause notice and the office action thereupon.
I have considered your response dated January24, 2003 to the show-cause notice. You have dismissed the allegations against you as baseless and false.
After studying the show-cause notice and your response to it, we have decided to issue this charge sheet to you as your response is not satisfactory., The allegations made against you prima facie constitute misconduct by way of disorderly, riotous and indecent behaviour. These also constitute acts subversive of discipline and peace on the establishment, and abuse of your superiors.
The reported demonstration and the blockade is also in flagrant violation of the orders of the Hon'ble High Court of Delhi, restraining PTI Employees Union, Delhi, its office bearers, members etc. from demonstrating within the : 28 : radius of 50 metres of the PTI Building and in any way blocking the ingress and egress to it.
3. It has also been reported that on the night of January 21, 2003, you and some others chased the General Manager's official car for some distance from near Shastri Bhavan around 8 pm. Subsequently, you and some unknown others chased the car of Mr. Sumeer Kaul, a journalist and co-worker, from near the office till Ashok Hotel around 9 pm. Also, that you and others indulged in a similar chase of the car of the Economic Bureau Chief, Mr. R.H. Pathak, from the Press Club to Samachar Apartments around 10 pm. Mr. Pathak was accompanied by the Assistant General Manager, Mr. S.D. Narayan and Senior Manager, Security, Mr. H.S. Bawa, who got off at Samachar Apartments in Mayur Vihar, Subsequently, you and others chased Mr. Pathak's car on a road leading to his residence in Ghaziabad in which he was then accompanied by a Bhasha Journalist, Mr. Amrit Mohan. Mr. Pathak has complained that you attempted to waylay his car. In all these reported instances you were at the wheel of your car.
Prima facie these reported acts by you amount to misconduct by way of threatening your superiors and a co-worker.
4. It has also been reported that on January 22, 2003, around 11.45 am, you and others came to the residence of the General Manager at S-50, Greater Kailash I, New Delhi carrying his effigy. You all shouted threatening, abusive and derogatory slogans against him. The effigy was set on fire.
One of the cars used by the mob to come to the General Manager's residence is reportedly owned by you.
5. It has also been reported that on January 20 at about 7.45 pm, you, along with some others went to the residence of the Regional Manager at Press Enclave, Saket, New Delhi, and shouted threatening, abusive and derogatory slogans.
Such violent and threatening demonstrations at the residence of executives is not only in violation of the orders of the Hon'ble High Court of Delhi but also prima facie constitute misconduct by way of indulging in and inciting violence, and threatening and abusing a superior. Such conduct also constitutes unfair labour practice under the Industrial Disputes Act. In view of the aforesaid acts of prima facie misconduct, you are hereby asked to submit within 7 days from the date of delivery of this chargesheet a written explanation to the charges reported against you. If you fail to submit your explanation in respect of any of the charges within the prescribed time limit, it will be presumed that you have no explanation to offer and as such the matter may be disposed of ex-parte without further reference to you.
If you desire to inspect any documents for preparation of your written reply to the charges, you should contact the Regional Manager, Mrs. Padma Alva. She is being instructed to arrange for the documents for your inspection (M.K. RAZDAN) EDITOR-IN-CHIEF & GENERAL MANAGER : 29 :
34. A bare perusal of the show cause notice and the charge sheet shows that both differ by adding subsequent incidents dated 20.01.03, 21.01.03 & 22.01.03 in the charge sheet. The management has examined the enquiry officer-
Sh. Sanjeev Narula as MW1 who during his cross-examination has admitted that his signatures do not appear at pages no.no. 44, 45, 50, 51, 53, 54, 55, 57, 58, 59, 60, 61, 65 (both sides), 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 85, 86, 87, 88, 89, 90, 91, 92, 94, 97, 98 & 99, which are the documents and the statements of the witnesses.
35. Before completing the enquiry, adding of charges in the charge sheet and non-finding of signatures of the enquiry officer on the enquiry proceedings and the workman facing ex-parte order during the enquiry shows that the enquiry officer was not an impartial person and the alleged enquiry, conducted was not in terms of principles of natural justice.
Therefore, the enquiry report Ex.MW1/4 is set aside.
36. The management, in support of the charge sheet has examined witnesses namely; MW2- Amrit Mohan, MW3-H.S. Bawa, MW4- Ajay Kaushika and MW5- Rakesh Hari Pathak.
37. MW2- Amrit Mohan during his cross-examination has admitted that he had not witnessed the incident dated : 30 : 18.01.2003, as mentioned in para 1 of his affidavit and that he was not the witness to the incident of 20.01.2003, as mentioned in para 4 of his affidavit and that he was also not a witness to the incident dated 22.01.2003, as mentioned in para 5 of his affidavit. He is alleged to be the witness of incident dated 21.01.2003, allegedly happened with Mr. Rakesh Hari Pathak. Mr. Amrit Mohan is stated an office bearer of rival union, therefore, his testimony against Mr. Balram Singh Dahiya cannot be said to be trustworthy.
38. MW3- H.S. Bawa during his cross-examination has admitted that he has not seen the incident on 18.01.03, as mentioned in his affidavit which is reproduced as under :-
I was sitting in the GM's Room during the demonstration in the PTI Building on 18.01.2003, as mentioned in my affidavit. The place where the demonstration was held is not visible from the GM's Room.
39. MW3 has further admitted that he had not filed any complaint with regard to the demonstration dated 18.01.03 and that he has not issued any show cause notice to the workman. Regarding the incident dated 21.01.03, happened with General Manager, he during his cross-examination, has stated that he was not with the General Manager and that he had not made any complaint to any authority or to police regarding the GM's car being chased by the workman and that General Manager had not given any complaint to me : 31 : regarding his car having been chased by the workman. He further admitted that Mr. Pathak did not make any complaint regarding his car having been chased by the workman and that he did not see the workman giving threatening abuses and raising derogatory slogans at the residence of Smt. Padma Alva on 20.01.03 and that he did not see the workman buring effigy of the General Manager, shouting, threatening, abusing or making derogatory slogans at the residence of the General Manager and that he had not made any complaint to any authority regarding the acts of demonstration by the workman at the residences of the General Manager or the Regional Manager- Ms. Padma Alva.
40. MW5- Rakesh Hari Pathak during his cross-
examination has admitted that he had not called the police on 100 no. from his mobile phone. During his cross-
examination, he has stated that when he turned from Noida Mod to the road leading to Ghaziabad, he found the car that was constantly chasing him overtook and stopped at some distance ahead of him when he saw Balram Yadav climbing down from the car with others also, he became desperate fearing the worst and that he swung the car and took the car side road to the Patparganj Colony to give a dodge. He was fearful and sweating. The alleged complaints, made to the police are Ex.MW5/2 and Ex.MW5/3 but the same do not bear : 32 : the stamp of police station. So far as the complaint Ex.MW5/4 is concerned, the contents of the same show only the complainant's apprehension and there is no allegation of any acts, acted against him or act of shouting or instigation against the him. There is no allegation of the witness thereafter the workman acted against him subsequently to the said date. Similarly, the statement of MW5, made before this Court as aforesaid suggests that it was mere an apprehension in the mind of MW5.
41. In view of the discussions, made above, the statements of management's witnesses do not inspire confidence. Moreover, there is no explanation on record that why the General Manager- Sh. M.K. Razdan and the Regional Manager- Smt. Padma Alva are not examined who could be the best witnesses to the incidents, happened with them. The management has failed to prove the charges, as contained in the charge sheet dated 01.02.2003 before the Court.
42. The management has alleged that the workman committed serious misconduct by participating in an illegal and provocative demonstration inside the PTI Building and relied upon the complaint dated 18.01.03 made to SHO, Parliament Street which is reproduced as under :-
: 33 :THE PRESS TRUST OF INDIA LIMITED No.Del/637/03 January 18, 2003 To The SHO, Police Station, Parliament Street, New Delhi.
Dear Sir, This is to inform you that a mob led by Mr. Neeraj Bhushan and Vinod Kumar, office bearers of the PTI Employees' Union, Delhi and other under mentioned at about 2.30pm this afternoon pushed and hit our guards at the Main Gate and forced their entry into the premises and carried out their illegal demonstration on the premises and the first floor where all News Operations of PTI take place.
They were in clear violation of High Court Orders of February 1, 2002, which had passed an injunction against the PTI Employees' Union, Delhi, its members, their friends and agents from holding any dharna/ demonstration and blockade which may directly or indirectly affect free ingress and egress to the building premises and further restraining this union from demonstrating within a radius of 50 metres from the main gate of the PTI building.
This group shouted slogans and blocked the passageway and entrance to the Main Operations room of our news agency.
We would like to place on record that yesterday, 17.01.2003, our Senior Manager (Security & Building), Mr. H.S. Bawa, met you. I personally asked you to take steps to see that no clash, breach of peace of violation of High Court Order takes place on the PTI premises and that the orders of the Hon'ble High Court are strictly complied with. Despite this, we found this afternoon that adequate force had not been deployed and Mr. Bhushan, Mr. Vinod Kumar and others forced their way into the premises and carried out the demonstration for well over half-an-hour, raised abusive and derogatory slogans against the General Manager and undersigned.
They also blocked, as mentioned earlier, the main staircase and passage way and door leading to the main News Operations room.
We, further apprehend breach of peace and violation of High Court Order in view of the notice put up by Mr. Neeraj Bhushan on 17.01.2003 threatening drastic action. We would like you to take any necessary action to prevent anything untoward happening. We are enclosing a copy of the notice. Following is the list of those who entered the premises and held the illegal demonstration along with Mr. Neeraj Bhushan and Vinod Kumar.
1. C L Gupta
2. J S Rawat
3. Bhuwan Choubey
4. Balram Singh Dahiya
5. B C Pandey
6. D S Rawat : 34 :
7. Anand Singh
8. Kashmir Singh
9. K Johnson
10. Dharam Singh
11. Ms. Kavita Pant
12. M C Paliwal
13. Satan Singh Thanking you, Yours faithfully, sd/-
(Padma Alva) Regional Manager Encls: as above.
43. The workman, in his affidavit Ex.WW1/A in para-30 has stated that on 18.01.2003, the management malafidely issued the show cause notice to him and three others alleging reported acts of misconduct. He was also threatened by Regional Manager - Smt. Padma Alva who got the show cause notice and suspension letter received by him in her chamber, that he will be dismissed from service if he does not resign from Press Trust of India Employees' Union. The management has not examined the material witness and author of the above said police complaint dated 18.01.2003- Smt. Padma Alva. However, the management has examined Sh. H.S. Bawa as MW3 who during his cross-examination has admitted that he has not seen the incident dated 18.01.03.
44. The management thereafter conducted an ex-parte enquiry against the workman into the charges as contained in the charge sheet dated 01.02.2003 of alleged misconduct of 18.01.03 and added alleged misconducts of 20.01.03, : 35 : 21.01.03 & 22.01.03 for which there were no show cause notices. Thereafter the enquiry officer- Sh. Sanjeev Narula submitted his enquiry report dated 16.06.2003 (which enquiry is already held to be vitiated as aforesaid). Thereafter the management issued transfer letter dated 27.09.2004 to the workman which is reproduced as under :-
THE PRESS TRUST OF INDIA LIMITED No.ADMN/362/2004 September 27, 2004 BY REGISTERED POST Letter Sent to his residential address:
Mr. Balram Dahiya 111-H, Pocket IV,
(Empl No.1258) Mayur Vihar I
Photo Department Delhi-110091.
New Delhi.
You were chargesheeted under office communication No.Admn/141/2003/ Dated February 1, 2003 for reported acts of misconduct. You responded to the chargesheet on February 15, 2003. Your explanation to the chargesheet was found unsatisfactory and a domestic enquiry into the charges against you was ordered vide Admn/127/2003 dated March 26, 2003. The Enquiry Officer provided you ample opportunity to participate in the enquiry. You did not come forward to participate in the enquiry. You were informed that if you failed to attend, the enquiry would proceed ex-parte. The enquiry proceedings were thereafter conducted in your absence after fully complying with the requirements of natural justice.
In the enquiry report dated June 16, 2003 the Enquiry Officer found you guilty of the charges levelled against you in the chargesheet. A copy of the findings of Enquiry Officer was sent to you on July 2, 2003 with a view to giving you an opportunity to make your representation against the findings on merits. You made your representation the enquiry report on October 31, 2003. At your request, I, the Disciplinary Authority gave you a second personal hearing on February 10, 2004.
The case summary mentioned in the preceding paragraphs clearly brings out that you had been given ample opportunity to defend yourself against the charges.
I have carefully considered all your responses to the charge sheet, the Enquiry Officer's findings and the submissions you have made during the personal hearings. In view of the evidence and findings against you after an impartial domestic enquiry, I am unable to accept your stand that you are not guilty of any of the charges. The charges levelled against you in charge sheet dated February 1, 2003 are clearly proven.: 36 :
Taking into consideration your proven acts of misconduct, you should have been dismissed from the service of the Company, but I have decided to give you one more opportunity to continue working for the organization.
Considering the exigencies of work and requirement of Gorakhpur and in the larger interest of the organization, we have decided to post you to Gorakhpur. You are hereby directed to report for duty in Gorakhpur on or before October 4, 2004. Your suspension will stand revoked from the date of joining at Gorakhpur. You may intimate to the Chief Administrative Officer in writing the date you will report in Gorakhpur and if you require any transfer advance.
The lenient view of allowing you to resume duty has been taken in the hope that you will not indulge in any acts of misconduct or indiscipline in future and will work as a dedicated and committed employee of the organization. However, in view of the serious misconducts proven against you in the domestic enquiry, I propose to freeze your next two annual increments.
In case you have any objection with the penalty of freezing of your two annual increments proposed to be imposed on you, you may submit the same to the undersigned within one week of receipt of this notice, failing which it would be understood that you have agreed to the proposed penalty.
(M.K. RAZDAN) EDITOR-IN-CHIEF & CHIEF EXECUTIVE OFFICER & DISCIPLINARY AUTHORITY
45. It is not disputed between the parties that the registered office of the Press Trust of India Limited is at 4, Parliament Street, New Delhi and the workman was also working in the Delhi Office at the time of his suspension w.e.f.18.01.2003. The enquiry report Ex.MW4/1 shows that the enquiry was concluded on 16.06.2003 and thereafter the management issued letter dated 27.09.2004 Ex.MW4/1. A bare perusal of the said letter as reproduced above shows that the management directed the workman to report for duties in Gorakhpur and further proposed the punishment to be imposed of stoppage of two annual increments. It further : 37 : shows that the management given the understanding to the workman that his suspension will stand revoked from the date of joining at Gorakhpur and that this lenient view is taken so that the workman would join at Gorakhpur and to avoid workman's indulgence in misconduct or indiscipline in future but the management still proposed freezing of next two annual increments- the punishment to be imposed. Thereafter the management issued letter dated 28.01.06 Ex.WW1/83, stating therein that since the workman has raised a dispute over continued suspension, the management has decided to revoke suspension with immediate effect which letter is reproduced as under :-
THE PRESS TRUST OF INDIA LIMITED No.ADMN/038/2006 January 28, 2006 BY REGISTERED A.D/ COURIER Sent to his residential address:
Mr. Balram Dahiya 111-H, Pocket IV,
(Empl No.1258) Mayur Vihar I
Photo Department Delhi-110091.
New Delhi.
You were transferred to Gorakhpur vide letter no.ADMN/362/2004 dated 27.09.2004 and you were asked to report for duty at Gorakhpur on or before October 4, 2004. However, you did not report for duty on that date. You were sent reminders and given several opportunities vide our letters dated 05.10.2004, 17.12.2004, 19.02.2005, 31.01.2005, 16.03.2004 to report for duty at Gorakhpur, but you failed to do so.
You were charge-sheeted vide charge sheet No.CAO- 689/2005 Dated June 19, 2005. The Enquiry Officer in his report dated 09.11.2005 has held that some of the charges have been proved.
: 38 :Further, since you have raised a dispute over your continued suspension, it has been decided to revoke your suspension with immediate effect. You are required to proceed and join duty at Gorakhpur within 7 days of receipt of this letter.
(M.K. RAZDAN) EDITOR-IN-CHIEF & CHIEF EXECUTIVE OFFICER & DISCIPLINARY AUTHORITY.
46. From the evidence on record, it shows that the allegations and counter allegations have taken birth in the year 2002 when the PTI Employees Union conducted the elections. Ex.WW1/65- the order, passed by Assistant Labour Commissioner also strengthens the version of the workman that after the elections in 2002, one another union namely; PTI Workers' Union came into existence and claiming itself to be the majority union. The management without behaving like a management got itself involved in siding the another union.
The letter dated 09.03.2004 Ex.WW1/59 which proved that the management involved itself in the controversy of two rival unions which is reproduced as under:-
THE FEDERATION OF PTI EMPLOYEES' UNIONS Date: 9th March, 2004 TO THE GENERAL MANAGR PRESS TRUST OF INDIA LTD NEW DELHI.
Sir, This is to remind you that the Federation of PTI Employees Unions had de-affiliated Press Trust of India Employees' Union, Delhi, led by Mr. Neeraj Bhushan as its Northern Region affiliate, with effect from May 28, 2002. In the emergent meeting of the General Council held on May 28-29, 2002, at Lucknow, Federation also had affiliated the PTI Workers' Union, Delhi as its Northern Region affiliate with effect from May 28, 2002.
The Federation had demanded immediate suitable action against 12 persons named in a resolution enclosed with the letter sent to the management, for : 39 : indulging into anti-organization activities. While the management acted on our resolution to the discipline some of the persons named in our resolution, it did not take suitable action as desired against other persons named in the resolution.
After our above referred Lucknow meeting, these persons, led by Mr. Neeraj Bhushan and Mr. Indukant Dixit of a rogue union, did not stop their anti- organisation and anti-union activities and for the last two years they have been engaging in condemnable activities.
In view of this, the Federation demands that immediate suitable and strong action should be taken against following employees for indulging into anti- organization and anti-union activities.
1. Indukant Dixit 2. Vinod Kumar 3. Ghananad Joshi
4. J.S. Rawat 5. Subhash Sharma 6. Ghasi Ram
7. Kashmir Singh 8. Balram Dahiya 9. Satan Singh Negi
10. M.C. Paliwal 11. B.R. Bhaskar 12. T. Surendran
13. B.S. Bora 14. Renu Sinha Thanking you, Yours faithfully sd/-
(M.S. YADAV) GENERAL SECRETARY Sh. M.K. Razdan- the General Manager becoming the cause in the alleged incidents dated 21.01.2003 & 22.01.2003 and later he himself issued the charge sheet to the workman and thereafter he transferred the workman to Gorakhpur, showing his lenient view that his suspension will be revoked on joining at the place of transfer and giving him an opportunity to work with the organization under continued suspension and further imposed the punishment of stoppage of two annual increments while acting as a Disciplinary Authority. Sh. M.K. Razdan could not keep away himself from the mess of two rival unions and acted as disciplinary authority on his own cause too. It is not out of place to mention here that the management in its written statement : 40 : has specifically stated that the management has filed writ petition before the Hon'ble High Court of Delhi against the order of Assistant Labour Commissioner, wherein the workman- Balram Singh Dahiya was declared as protected workman. The aforesaid facts & circumstances does not support the version of the management's taking lenient view.
Rather this submarine act of the management is controverted by the document Ex.WW1/65 which shows that the management has sided the new union which has taken birth only after 2002 and thereafter issued show-cause notice and charge sheet to the present workman who was the Vice President of the union and was a protected workman at the relevant time and the said union was registered prior to 2002 and the transfer order Ex.MW4/1, issued in continued suspension from Delhi to Gorakhpur is in the colour of the punishment. Further the letter dated 28.01.06 Ex.WW1/83 cannot be overlooked by which the management revoked his suspension of its own as the workman raised the present industrial dispute. Therefore, the action of the management by transferring the workman to Gorakhpur by way of punishment cannot be said to be justified.
47. The letter dated 27.09.2004 Ex.MW4/1 is sufficient enough to show that the contention of taking lenient view by the management is in fact not correct but it is submarine act : 41 : on the part of the management by indulging in siding another union. The facts on record suggest that the transfer order dated 27.09.2004, issued by the Disciplinary Authority-
Mr. M.K. Razdan without consent in violation of Clause 4 of Schedule 1B of the Industrial Employment (Standing Orders) Central Rules, 1946, does not seem to be issued in exigencies of business requirements and since the management is siding another union, the said transfer order cannot be said to be without malice. As such reference no.1, 2 & 3 are decided in favour of the workman and against the management. The judgments, relied upon by the management are not help to them.
48. In view of the discussions, made above, though the transfer being a managerial prerogative, in normal circumstances Courts ought not to interfere with it, but, in the present case, the transfer so made is not a bonafide transfer and the facts on record do not suggest that the transfer made is in the exigencies of the business requirements. The document Ex.WW1/65- giving recognition to the workman to be a protected workman, thereafter management's filing writ against the said order and keeping workman under continued suspension from 18.01.2003 onwards in the form of punishment, thereafter issuing charge-sheet by Sh. M.K. Razdan- General Manager and his acting as Disciplinary : 42 : Authority by issuing the transfer order dated 27.09.04, coloured in the form of punishment, the management's siding the alleged another new born union i.e. PTI Workers' Union and the management's not behaving like a management are the compelling circumstances to reach to the conclusion that the transfer order so made is full of malice in view of the judgments Nikhil Chandra Dey & Others And Steel Authority of India Ltd. & Others II LLJ High Court, Calcutta P-419, M. Sigamani Son of Munusamy Vs. Management of Central Institute of Plastics Engineering and Technology, 2003 LLR 1156 and P. Pushpakaran and Coir Board and another LLJ High Court, Kerala P-139, I set aside the transfer order dated 27.09.2004 and consequently, the proposed punishment of stoppage of two annual increments is held to be ineffective.
The continuous suspension of the workman w.e.f.18.01.03 in the form of punishment is also held to be not justified on the part of the management.
49. In view of the above discussions, the management is directed pay full back wages to the workman w.e.f.18.01.2003 onwards excluding the amount already paid towards subsistence allowance within one month of the passing of this award. The management is further directed to provide duties to : 43 : the workman at its Delhi Establishment within one month unless his transfer is required for bonafide exigencies of business requirements. Reference is answered in favour of the workman.
Award is passed, accordingly.
Dated: 19.05.2007.
[ I.S. MEHTA ] PRESIDING OFFICER:
INDUSTRIAL TRIBUNAL NO.I:
DELHI.
(one separate copy attached).: 44 :
47. Letter dated 08.06.2005 Ex.WW1/98 P-302 THE PRESS TRUST OF INDIA LIMITED No.CAO-687/2005 June 8, 2005 BY REGISTERED A.D/ COURIER Letter Sent to his residential address:
Mr. Balram Dahiya 111-H, Pocket IV,
(Empl No.1258) Mayur Vihar I
PTI Delhi-110091.
New Delhi.
This is with reference to your letter dated 01.06.2005 addressed to the CEO and received by us on 02.06.2005.
At the outset it is clarified that the only penalty which was imposed upon you vide our letter dated 27.09.04 was that of freezing of your two annual increments. The penalty was imposed upon you after you were found guilty of the charges in the domestic enquiry conducted against you. The transfer has nothing to do with the misconduct proved against you. Your transfer to Gorakhpur was not punitive. Your transfer was in accordance with the conditions of service and terms of your appointment and does not in any manner amount to imposition of punishment.
As regards the issue of your being a Protected Workman and imposition of penalty, the legality of the order dated 30.11.2004, passed by the Assistant Labour Commissioner according you the status of Protected Workman, is already under challenge by Writ Petition No.3884/2005 and is pending before the Hon'ble High Court of Delhi. The provisions regarding permission/ approval under Section 33 of the Industrial Disputes Act are not attracted in the present case. We have been advised that no permission is required in issuing our letter dated 27.09.04.
We have also applied our mind to your claim about applicability of the judgment of Hon'ble Supreme Court in the case of Jaipur Zila Sahkari Bhoomi Vikas Bank Ltd. We have been advised that the said judgment is not applicable in the present case.
It is once again reiterated that the penalty of freezing your two annual increments was neither illegal, unjustified, malafide or by way of victimisation. It is further denied that the transfer order was malafide or was made in order to victimise you. The transfer order is lawful and reasonable and you are once again directed to join duties at Gorakhpur forthwith failing which it will be presumed that you are no longer interested in the same and further action shall follow.
(Padma Alva) Chief Administrative Officer.
48. Letter dated 19.02.2005 Ex.WW1/15 P-313 THE PRESS TRUST OF INDIA LIMITED : 45 : No.CAO-172/2005 February 19, 2005 BY REGD. A.D/ U.P.C./ COURIER Letter Sent to his residential address:
Mr. Balram Dahiya 111-H, Pocket IV,
(Empl No.1258) Mayur Vihar I
Engineer Delhi-110091.
PTI, New Delhi.
This has reference to your letter dated February 10, 2005 making wild allegations as usual, as is your habit.
You had come to the main gate in the afternoon of February 9, 2005 requesting for permission to enter the premises to go to the bank. The permission was granted on the strict understanding that you would visit the bank and leave the premises immediately thereafter. We sent you a letter to the effect, a copy of which is enclosed. We have been informed that you not only refused to sign the receipt of the official communication sent to you vide letter no.Del/086/2005, but also tore it to bits.
After having committed an act of indiscipline, you now have the temerity to write to us that no communication was sent to you. Further, after tearing up the official communication, you chose to hang around outside the gates along with your agents and friends, in clear violation of the High Court orders. The management cannot be blamed for your inability to look after your wife, who you say is unwell. It is strange that on one hand you say your wife can't be left unattended, on the other you are seen everyday outside the PTI Premises for hours on end and also in various courts in the city. You were present in the High Court on February 16, 2005 for several hours even though you were not required in the case. You are also seen attending Industrial Tribunal/ Labour Court at Karkardooma as well as the courts at Tis Hazari everyday. It is pertinent to mention that in these cases, you are neither the concerned workman nor a witness, whose presence is required.
(Padma Alva) Chief Administrative Officer
49. letter dated 22.02.2006 ExWW1/85 P-361 THE PRESS TRUST OF INDIA LIMITED No.CAO-272/2006 February 22, 2006 BY REGISTERED A.D Sent to his residential address:
Mr. Balram Dahiya 111-H, Pocket IV,
(Empl No.1258) Mayur Vihar I
Engineer, PTI Delhi-110091.
: 46 :
This is with reference to your letter dated 02.02.2006 addressed to the Chief Executive Officer, in reply to our letter No.ADMN/038/2006 dated 28.01.2006.
Your contention that you did not receive our communications dated 05.10.2004, 17.12.2004 and 19.01.2005, is wrong and denied. It is also denied that the management admitted in the enquiry that you never received these communications. We would like to draw your attention to your communication wherein you yourself admitted that since you were staying at your wife's maternal place at Model Town, it is possible that you had not received those letters. However, all these letters were once again sent to you, which were duly received by you. Despite several reminders and opportunities, you did not join duties at the place of transfer.
You were charge sheeted vide charge sheet No. ADMN/141/2003 dated 01.02.2003. A domestic enquiry was conducted and you were found guilty of the charges. You were transferred vide letter dated 27.09.2004 to Gorakhpur. Your transfer is now the subject matter of reference. We reiterate that your transfer was legal, valid and justified.
You had been transferred to Gorakhpur and you are required to join duties there. For the period under suspension, you had already been paid subsistence allowance and you are not entitled to more. Of course, on your reporting for work at Gorakhpur, you will be paid your usual emoluments for working at Gorakhpur.
This is without prejudice to our rights and contentions in the pending reference.
(Padma Alva) Chief Administrative Officer.
: 47 :50. Letter dated 16.03.2005 P-317 THE PRESS TRUST OF INDIA LIMITED No.CAO-271/2005 March 16, 2005 REGISTERED A.D/ COURIER Letter Sent to his residential address:
Mr. Balram Dahiya 111-H, Pocket IV,
Engineer(Empl No.1258) Mayur Vihar I
PTI, New Delhi. Delhi-110091.
This is with reference to your response dated 09.02.2005 to our show-cause notice dated 31.01.2005. Reference is also made to your letters dated 10.02.2005 (which has already been replied to) and 25.02.2005. In reply, we have to state as under :-
At the outset, the contents of your letters are wrong and thus denied. Needless to mention that as usual you have raised irrelevant and extraneous issues. In fact your letter dated 25.02.2005 is nothing bu a brazen attempt to wriggle out of a situation when confronted with the truth.
In your letter dated 09.02.2005, you have mentioned that you have not received our letters dated 05.10.2004 17.12.2004 and 19.01.2005. The said letters were sent to you by Registered Post as well as UPC. In any event, we are now once again forwarding copies of our letters dated 05.10.2004, 17.12.2004 and 19.01.2005.
You did not inform us that you were staying at Model Town, at your wife's maternal home. It is ironical, because whatever communications you have been sending to us, the envelops bear the same residential address at which we had been sending you our communications, which you claim have been received by you. It may be noted that your not informing us about your temporary change of address, in itself, amounts to misconduct.
Vide our letter no.ADMN/362/2004 dated 27.09.2004, you were directed to proceed to Gorakhpur on transfer. It was also stated that your suspension would stand revoked from the date of joining at Gorakhpur. You have not joined duty at Gorakhpur till date. Instead you filed a civil suit before Civil Judge, Delhi, praying for an injunction order against the transfer, which was not granted. Since there is no stay on your transfer, therefore, whether the review or the appeal is pending, you are required to obey office orders, which you are defying. Through this letter you are once again directed to join duty at Gorakhpur immediately. We reiterate that only upon joining duty at Gorakhpur will your suspension stand revoked. We may point out that since the delay is being caused by you in joining duty at Gorakhpur, it is only you who is solely responsible for your continuing in suspension.
By the said letter no.ADMN/362/2004 dated 27.09.2004, you were given an opportunity to submit your objections, if any, to the proposed punishment of freezing two annual increments. Your : 48 : explanation in this regard is found to be unsatisfactory. As regards the matter of your being a protected workman is concerned, the matter is sub-judice before the Hon'ble High Court of Delhi. The company has filed a writ petition and currently the ALC's order has been stayed. We have been advised that no permission is required in issuing our letter dated 27.09.2004.
So far as the transfer order is concerned, it is clarified that it is not punitive. The transfer order is lawful and reasonable and does not in any manner amount to imposition of double punishment. You had been transferred due to exigencies of work and an urgent requirement at that place. The Hon'ble Supreme Court has laid down very clearly that not only is transfer a normal incidence of service but also that on failure of the employee to obey transfer order, the employer can take appropriate action against the employee. Even otherwise, the issues raised by you on your transfer stand decided by a recent order of the Ld Addl. Sr. Civil Judge in your colleague B.R. Bhaskar's case and your consent is not required for your transfer. Further, you are amply aware that advance/ transfer charges are paid only when applied for and not otherwise.
It is again denied that the transfer order was malafide and was made in order to victimize you. Our subscribers in Gorakhpur, are important subscribers and include All India Radio and leading Hindi Dailies. Since PTI is a 24 hr. news agency, the office must be manned round-the-clock and one engineer is not enough. Even otherwise, it is not for you to decide whether there is shortage of staff or not and prerogative lies with the management.
We hope you will not delay in proceeding and joining duty at Gorakhpur any further. If you do not join duty at Gorakhpur forthwith, it will be presumed you are no longer interested in the same and further action shall follow.
We have also applied our mind to your allegations about applicability of the judgment of Hon'ble Supreme Court in the case of Jaipur Zila as well as provisions of Industrial Employment Rules. There is no illegality or infirmity in the transfer.
As for your subsistence allowance from the month of October 2004 till date, an amount of Rs.25,329.75/- (Rupees Twenty Five thousand three hundred and twenty nine and paisa seventy five) has been credited to your account no.31933 on 15.03.2005 in Bank of India. We are also enclosing a copy of your salary slip. In this regard, we may clarify that previously you were getting 75% of wages as subsistence allowance. However, since, it is you who is solely responsible for your continuing in suspension, it has been decided to reduce the subsistence allowance to 50% from 75%. We could have well reduced it to 25% but, taking a lenient view in this regard, it is kept at 50% for the time being. If you have to say anything in this regard, you may do so by making an appropriate representation.
Lastly, it is once again denied that the show-cause notice was issued with a preconceived and a biased mind and the same is completely justified.
Padma Alva Chief Administrative Officer : 49 :
51. letter dated 19.01.2005 P-322.
THE PRESS TRUST OF INDIA LIMITED
No.CAO-048/2005 January 19, 2005
BY REGISTERED POST
Letter Sent to his residential address:
Mr. B.S. Dahiya 111-H, Pocket IV,
(Empl No.1258) Mayur Vihar- Phase-I
Engineer Delhi-110091.
PTI, New Delhi.
Vide order no.ADMN/362/2004 dated September 27, 2004 you were asked to report for duty at Gorakhpur on or before October 4, 2004. You were also informed that your suspension will stand revoked from the date of joining office at Gorakhpur. You did not report for duty at Gorakhpur. Thereafter, you were given two more opportunities and your date of joining Gorakhpur office was further extended till October 12, 2003 and subsequently by December 27, 2004 vide letters dated October 5, 2004 and December 17, 2004, respectively.
It is regrettable that despite being given several opportunities and extension of time, you have still not reported for duty at Gorakhpur office, in clear and blatant disregard of office orders.
There is a severe shortage of staff in the Technical Department in Gorakhpur and as such, there is an urgent need for an Engineer there. You are once again directed to join there on account of administrative exigencies.
Through this communication, you are directed to report for duty latest by January 29, 2005 This is the last and final opportunity given to you to report for duty and no further extension shall be granted in any event. Your failure to do so will be deemed as refusal to obey the orders of superiors and indiscipline and you shall be liable for disciplinary proceedings being initiated against you for misconduct Padma Alva
52. Chief Administrative Officer.