Delhi District Court
Sh. Lal Singh vs M/S Deepak Memorial Hospital And ... on 1 February, 2019
::1::
IN THE COURT OF MS SHAIL JAIN,
PRESIDING OFFICER, INUDSTRIAL TRIBUNAL02,
DWARKA COURTS, NEW DELHI
CID no. 6839/16.
Sh. Lal Singh
son of Sh. Durga Prasad,
House No. 133
Gali No. 4, Phase IX
near Ambedkar Park, Shiv Vihar, Karawal Nagar, Delhi.
.............. Workman/applicant
Versus
M/s Deepak Memorial Hospital and Medical
Research Centre,
5 & 6 , Institutional area,
Vikas Marg, Delhi110092.
...........Respondent/Management
Date of Institution: 11.04.2008
Date of Award:01.02.2019
O R D E R :
1. By this order, I shall dispose off the complaint u/s 33 A of the Industrial Disputes Act, 1947 (hereinafter referred as ID Act), as filed by the complainant/workman submitting that the workman joined the services of management on 15.09.1992 as a driver and his last drawn wages was 5600/ per month. It is further alleged that the union 1/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::2::
had raised an industrial dispute which was pending before the Industrial Tribunal, having ID no. 06/2006.
2. It is also submitted by the workman that the management harassed the workman by all means to force him to prevail upon the union to withdraw the above said Industrial Dispute. It is further alleged by the workman that vide letter dt. 31.01.2008 union had submitted a list of office bearers to declare them as a protected workmen, however, the management has not filed any reply to the said demand notice and hence the workmen has acquired the status of protected workmen for the year 200809. It is further alleged that the management with malafide intention issued a charge sheet to the workman making false and fabricated allegations against the workman . The workman replied to the said charge sheet and the management had contested the domestic inquiry against the workman in violation of the principles of natural justice. It is further alleged that the enquiry officer was biased and not conducted the inquiry as per the principles of natural justice.
3. It is further alleged by the workman that the Enquiry Officer had submitted the report to the management which was not based on the material facts and further the management issued a show cause notice to the workman for explaining why his services should not be dismissed. The workman replied to the said show cause notice vide letter dt. 15.03.2008 seeking various documents , however, without supplying the documents, management dismissed the workman from his services on 01.04.2008. The action of the management in 2/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::3::
dismissing the services of the workman is illegal and malafide. Further the workman had sent a demand notice to the management on 02.04.2008 calling upon the management to reinstate the workman in services with all consequential benefits but the said demand notice has not been replied by the management. It is further alleged by the workman that the workman has been a protected workman at the time of dismissal of his services . With this, it is submitted that an Award be passed in favour of the workman and against the management reinstating him in service with continuity of service with full back wages and all other consequential benefits.
4. Written statement was filed on behalf of the management in which the preliminary objections taken by the management is that the complaint filed by the workman/applicant is not maintainable as the workman was dismissed on 01.04.2008 after completion of all the necessary legal formalities and management had sent a letter dt. 19.04.2008 to the workman regarding full and final settlement and cheque no. 582434 dt. 16.04.2008 for Rs. 70181/ drawn on Bank of Maharashtra was issued to the workman. Thereafter, the workman vide letter dt 25/04/2008 written to the respondent informing them that he has not received any cheque along with the letter dt 19/04/2008. It is the case of the management that without going into any dispute, respondent had sent another cheque vide letter dt 06/05/2008, vide regd AD receipt 4119 dt 06/05/2008, along with another cheque no 582537 dt 05/05/2008 for Rs.70181/ drawn on Bank of Maharashtra 3/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::4::
and the said cheque has been cleared and debited from the management Account. It is further alleged that management has filed a writ petition before Hon'ble High Court challenging the order/Award dt. 26.09.2008 passed by Assistant Labour Commissioner East thereby challenged the declaring of workman as protected workman for the period from 18.02.2008 to 01.04.2008.
5. It is further stated by management that present proceedings have been initiated by the workman with ulterior motives and to harass the management, hence, same is liable to be dismissed . The workman had not come to the court with clean hands and the claim of the workman is not maintainable as the workman had already received full and final amount , as per the settlement.
6. On merits, it is submitted by the Ld. AR for the management that the workman was working on daily wages as per the requirement of management as a driver. It is further stated that the ID no. 06/06 should be withdrawn by the union as per the terms and conditions of the Memorandum of Settlement and Undertaking dt. 21.12.2005. It is further alleged by the management that the Inquiry conducted by the management is fair and proper. It is further stated that workman had claimed the suspension allowance and same was paid to the workman/complainant vide cheque no. 582537 dt. 05.05.2008 for Rs.
70181/ and the said cheque was debited from the account of management. Other allegations of the workman are denied by the Ld. AR for the management. It is further prayed that No Dispute Award may 4/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::5::
be passed in favour of the management and against the workman.
7. After completion of the pleadings, following issues were framed by my Ld. Predecessor on 17.02.2009: (1) Whether the present complaint is not maintainable for the reasons mentioned in para no.1 of the Preliminary objection of written statement?OPM (2) Whether workman resigned from preliminary membership of Deepak Memorial Hospital Employee's union , if so its effect?OPM (3) Whether Hospital Union arrived at the settlement and understanding with the management on 21.12.2005, if so its effect?OPM (4) Whether the workman acquired the status of protected workman for the year, 20082009, if so its effect?OPW (5) Whether the action of the management in dismissing the services of workman without permission of the competent authority is in violation of the Section 33 (2)(b) of the Industrial disputes Act, 1947, if so its effect?OPW (6) Relief.
8. Thereafter matter was listed for WE. Workman has examined himself as WW1 , he had tendered his evidence by way of affidavit Ex. WW1/A .
9. Management has examined Sh. Rajesh Gupta as MW1 who had tendered his evidence by way of affidavits Ex. MW1/A & Ex.
MW1/B and had relied upon documents Ex. MW1/3 to Ex. MW1/6 & Ex.MW1/7A to Ex.MW1/7C and Ex.MW1/8 and Ex.MW1/9. Thereafter 5/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::6::
management had closed ME.
10. Arguments were advanced by the Ld. AR for the parties . Written submissions also filed by the Ld. AR for the workman.
11. I have considered the arguments advanced by Ld. AR for the parties and written submissions filed by Ld. AR for the workman.
After considering the submissions of Ld. AR for parties , evidence led by the parties and material on record, my issue wise findings are as under:
12. Since, issue no. 1 and issue no. 5 are inter related and inter connected, hence, I will discuss both these issues simultaneously.
ISSUE NO. 1"Whether the present complaint is not maintainable for the reasons mentioned in para no.1 of the Preliminary objection of written statement?"OPM ISSUE NO. 5 "Whether the action of the management in dismissing the services of workman without permission of the competent authority is in violation of the Section 33 (2)(b) of the Industrial disputes Act, 1947, if so its effect?" OPW
13. In the preliminary objection no.1, it has been mentioned by the 6/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::7::
management in their written statement that since the present complainant had been dismissed on 01.04.2008 after completion of all the necessary legal formalities and a cheque of Rs. 70181/ for full and final payment, due to the workman, had been sent to him, which was encashed by the complainant and the amount was debited from the account of the management, hence, no dispute remains in the present case and the complaint should be dismissed.
14. The claim of the management in preliminary objection no.1 is mainly that since the workman had been legally dismissed from his services and due amount has already been paid to him which has been duly encashed by the workman, therefore, the workman cannot challenge the dismissal u/s 33 A of Industrial Disputes Act. The contention of the workman in the present case is that his services have been illegally terminated and, therefore, he is entitled to be reinstated. After complete perusal of the pleadings of the parties, it appears that none of the party is clear about the contentions being raised by them in respect to the present case. Workman had challenged his dismissal firstly on the ground that there was a industrial dispute number 06/06 pending before the Industrial Tribunal and hence during the pendency of earlier industrial dispute his termination amounts to a change in service condition and, therefore, was violative of Section 33 of ID Act, and thus he has filed the present complaint u/s 33 A of ID Act, Secondly, workman had also contended that he was a "protected workman" at that time and, therefore, the Management could not have 7/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::8::
terminated his service. The third contention of the workman is that a false inquiry was initiated by the management against him which was illegal and no document of inquiry were supplied to him and, therefore, his service could not have been terminated.
15. On the other hand, management had taken the defence firstly, they have denied that the workman was a protected workman, secondly, they have stated that the workman had encashed a cheque of full and final payment sent by the management and, therefore, the requirement of Section 33 (2) (b) of ID Act has been completed and, therefore, the complaint is liable to be dismissed. Thirdly, the management had taken a view in the written statement that there was no union of Deepak Memorial Hospital Employees existing at the time, as all the members have given their resignation in the year, 2005 and it has also been stated by the management in their written statement that a Memorandum of settlement in respect to ID no. 06/06 was arrived at between Deepak Memorial Hospital Employees Union and the Management due to which the earlier ID no. 06/06 should have been withdrawn by the workman and union but the same was not withdrawn by the union despite compromise. On the basis of this management had stated in their written statement that the present complaint is not maintainable and should be dismissed.
16. In preliminary objection no. 1, Management has mainly based its defence on the point that cheque of Rs. 70181/ bearing number 582537 dt. 05.05.2008 had been sent to the workman, which 8/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::9::
was duly received by him and encahsed by him , therefore, workman can not challenge his dismissal from services as requirement of law had been fulfilled by management. Workman had stated in his evidence that he has returned the cheque to the management , it was then pointed out by the Ld. AR for the management that the cheque was not returned by the workman and the said cheque was also not found on the record. Again, workman has taken the plea that he has returned the amount given by the management vide cheque number 652826 but no said cheque was either placed on record by the workman, nor workman has been able to prove that the said cheque no. 652826 was ever issued by the workman in favour of Management or that any amount was deducted from his Account in lieu of cheque no. 652826. Therefore, the defence of the management, that they have made payment of full and final amount to the workman has been proved by the management. Management has proved that amount of Rs. 70181/ has already been paid vide cheque no. 582537 and same has been encashed by the workman. The bank statement of the management has been placed and proved on record as Ex. MW1/5 which shows that amount of Rs. 70181/ was deducted from the account of management vide cheque no. 582537.
17. Though it is proved by the management that full and final payment was made by the management to the workman but it does not prove that requirement of Section 33 (2)(b) have been complied with by the management. Issue no. 5 is very specific to this effect that whether 9/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::10::
the action of the management in dismissing the services of the workman without seeking any permission of the competent authority where earlier dispute no. 06/06 was pending is in violation of Section 33(2) (b) of the ID Act or not and if so its effect.
18. For better understanding, Section 33(2)(b) of the ID Act, Section 33 ID Act is reproduced here as under:
Section 33 "Conditions of Service, etc. to remain unchanged under certain circumstances during pendency of proceedings- (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before (an arbitrator or) a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall :--
(a) In regard to any matter connected with the dispute, alter , to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings;or
(b) for any Misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute (or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman).
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceedings; or
(b) for any misconduct not connected with the 10/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::11::
dispute, discharge or punish, whether by dismissal or otherwise, that workman provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer."
19. From perusal of section 33 (2)(b) r/w proviso , it is clear that in case of a Industrial dispute pending between the workman and management, the terms of contract and service conditions can only be changed if the matter is not connected with the dispute previously pending or in case of misconduct, not connected with the dispute, the workman's service conditions can be changed by way of his dismissal or discharge. However, proviso provides that no such workman shall be discharged or dismissed unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. Thus, it is clear from the provision of Section 33 (2)(b) of ID Act that two conditions are necessary before discharge or dismissal of a workman in case of misconduct. Firstly, one month wages should be paid to the workman and Secondly, an application for approval of discharge or dismissal should be made before the Competent authority.
20. In Batra Hospital & Medical Research Centre vs Batra Hospital Employees Union: 2013 (133) DRJ 450, Hon'ble High Court 11/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::12::
of Delhi has held that:
"Section 33 (2) requires an employer to obtain approval of any punishment meted out to the workman, "for misconduct not connected with the dispute" also. However as far as the "protected workmen" are concerned, section 33 (3) provides for permission in writing before meeting out any punishment for a misconduct not connected with the dispute also. It would thus be seen that "protected workmen enjoy a special status under the Act. If the respondent no. 3 Sh Vijay Singh were to be a "protected workman", then under section 33 (3) of the Act, the appellant could not have dismissed him from services without the prior express permission in writing of Labour Court/Industrial Adjudicator. However, if he were not to be a "protected workman", only post facto approval of the disciplinary action is required to be taken under section 33 (2). This is the significance of the present dispute."
21. In the present case, admittedly no application has been filed by the management, hence, it cannot be said that Management has not violated the provisions of Section 33 (2)(b) of ID Act and, therefore, the complaint, as filed by the complainant cannot be dismissed on this ground. Merely , making payment of one month wages to the workman does not satisfy the ground for discharge and dismissal of the workman. It is necessary and mandated by the legislature that an 12/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::13::
approval application has to be filed by the employer before the authority where the first Industrial dispute is pending in case of dismissal or discharge of workman whether the ground is 'misconduct' or not. Since the management in the present case, has failed to file any approval application for seeking approval of the competent authority for discharge or dismissal of the workman, therefore, issue no.1 and issue no.5, both are decided against the management to the effect that complaint, as filed by the workman is not liable to be dismissed and Management has violated the provisions of Section 33 (2)(b) of ID Act.
ISSUE NO.2:
"Whether workman resigned from preliminary membership of Deepak Memorial Hospital Employee's union , if so its effect?"
22. Although the contention of the management has been that all the workmen have resigned from the preliminary membership of Deepak Memorial Hospital Employees Union but no such evidence has been led by the management. Management has relied upon document mark "A" which is a photocopy of minute book of the meeting dt 07/09/06 for dissolving the union but neither original of these minutes have been placed or proved on record by the management nor the office bearer of the union, at the relevant time, have been examined by the management to prove that the workman has already resigned from the primary membership of the Deepak Memorial Hospital Employees Union or that the union itself had come to an end , after all its members 13/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::14::
have resigned from preliminary membership of union. In the cross examination, WW1/workman has clearly denied having resigned from preliminary membership of union. The claim of the management that the union has been dissolved is also refuted by the workman. Hence, issue no.2 is decided against the management as not proved and in favour of workman.
ISSUE NO.3 "Whether Hospital Union arrived at the settlement and understanding with the management on 21.12.2005, if so its effect?"
23. Although the management has taken this contention in the written statement that there was a settlement between the Union and Management dt. 21.12.2005 and they have also relied upon document Ex. MW1/8 but it is also admitted by the management that even if there was any settlement in ID no. 06/06 (new number 502/16) same was never withdrawn by the Union till September, 2018. Management itself has placed on record the copy of the Award passed by Sh. Chander Gupta, Ld. POIT1 dt. 28.09.2018 wherein the dispute ID no. 06/06 (new number 502/16) was dismissed and a "No Dispute Award" was passed, as the workmen were not appearing in the case. From the Award passed by Sh. Chander Gupta, Ld. POIT1, it is clear that till 28.09.2018, the Industrial dispute number 06/06 was pending and even if there was a settlement arrived at between the hospital union and the management , the same was not given effect to by the union till 14/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::15::
2018. Hence, this issue is also decided against the management and in favour of the workman.
ISSUE NO. 4:
"Whether the workman acquired the status of protected workman for the year, 20082009, if so its effect?"
24. It has been claimed by the workman that he was a protected workman at the time when management has dismissed him from his services on 01.04.2008. As per the case of the workman, union has sent a letter dt. 31.01.2008 to the management whereby they have asked the management to declare the office bearers of the union as "protected workmen" . It has further been contended by the workman/complainant herein that the workman had acquired the status of protected workman for the year 20082009 as his name is appearing at serial number 4 of the demand notice dt. 31.01.2008 which is exhibited as Ex. WW1/6 and the same was sent to the management vide registered post Ex. WW1/7. WW1/workman had stated that since no response was given by the management to the union within 15 days of receiving the letter dt. 31.01.2008, therefore, the workman had acquired the status of protected workmen as per Rule 61 of Industrial Disputes (Central) Rules 1957.
25. On the other hand, it has been stated by the management that no such letter dt. 31.01.2008 was received by the management and in the envelope only photocopies of the newspaper were found and 15/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::16::
hence, management could not reply to the workman within 15 days. Both the parties in the present case have entered into a detail controversy and discussion on the point of validity of dismissal of workman but no proper evidence was led by any of the parties in respect to the complainant herein being "protected workman". The workman had also asserted that he had become a protected workman due to non response of the management within 15 days but no evidence has been specifically led by either of the parties to ascertain that whether the complainant had become a protected workman or not.
26. The legal position in respect to "protected workman" has been discussed in detail in case Voltas Limited vs. Voltas Employees' Union and another , 2007 SCC Online Del 53 of Delhi High Court and M/s Fouress Engineering (India) Ltd. Vs. Fouress Engineering Karmika Sangh and another, 2013 SCC Online Kar 7.
27. In Fouress Engineering Karmika Sangh and another (supra) , Hon'ble Division Bench of Hon'ble Karnataka High Court had observed that : "Recognition of 'protected workmen' is not automatic. Management can decline to declare particular workman as 'protected workman' who is either dismissed from service or against whom criminal case is pending. In view of the specific language employed in Section 33 of the Industrial Disputes Act, 1947 and relevant Rules framed thereunder requiring specific recognition in the manner as provided for, unless there is a positive decision taken by the management in this regard and communicated to the trade union in writing within 16/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::17::
the stipulated time, it cannot be said that the workmen have automatically acquired the status of "protected workmen" on the failure of the employer to communicate within 15 days, the dispute has to be decided by the Conciliation officer. The contention that once a request is made by the union to the management for declaring a particular workman as "protected workman', the management has no option but to protect the workman is without any substance."
28. In this judgment Hon'ble High Court of Karnatka had considered the provisions of Rule 61 and Ruls 62 of the Industrial Disputes (Karnataka) Rules , 1957 which are similar to the Industrial Dispute (Central) rules, 1957 and has also considered the provisions of Section 33 (3) and Section 33 (4) of the Industrial disputes Act.
29. Similarly, in P H Kalyani Vs. Air France, 19631LLJ697 (SC) Hon'ble Apex Court has held that: "The Labour Court has held that accurding to the rules framed by the Government of West Bengal as to the recognition of protected workmen there must be some positiove action on the part of the employer in regard to the recognition of an employee as protected workman before he could claim to be a protected workman for the purpose of Section 33. Nothing has been shown to us against this view. In the absence therefore of any evidence as to recognition, the Labour Court right held that the applicant was not a protected workman and therefore previous permission under section 33 (3) of the Act is not necessary before the dismissal ."
30. Hon'ble Madras High Court in the case of Parthasarathy N Vs. Blue Star Limited , 2009IIILLJ111 dealing with this 17/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::18::
recognition had held that : "In view of the specific language employed in Section 33 of the Act and Rule 65(2) of the Rules framed thereunder requiring specific recognition in the manner as provided for, we are of the considered view that there must be a positive action on the part of the employer to recognize the employees mentioned in the list of Union as Protected Workmen before they could claim protection guaranteed to them under Section 33 of the Industrial Disputes Act and the concept of "Deemed recognition" cannot be impliedly imported into the section to provide legislative safeguards. Unless there is a positive decision taken by the management in this regard and communicated to the trade union in writing within the stipulated time, it cannot be said the workmen have automatically acquired the status of "protected workmen" on the failure of the employer to communicate within 15 days."
31. In Voltas Limited Vs. Voltas Employees Union and Another (supra) , it has already been held by the Hon'ble Supreme court that when such opinion of declaring "protected workmen" is sent by the union, then, management has every right to ask for every information about the manner of election of the office bearers, therefore, it cannot be presumed by any stretch of imagination that if the Management has not given any response within 15 days. The workman will be deemed to have been declared as a "protected workmen".
32. In view of above judgments, it is clear that just because workman or union had sent a letter to management for being declared as "protected workmen" being office bearers of union, they will not 18/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::19::
attain the status of "protected workman" until and unless positive response of the same is given by the management. This issue is thus decided in favour of the management and against the workman to the effect that workman was not a "protected workmen" at the time when he was dismissed by the management, and he was declared protected workman only on 26/09/2008 by the Labour Commissioner.ISSUE NO. 6
As per terms of reference.
33. In view of my above discussion, I am of the opinion that the complaint is not liable to be rejected on the ground of preliminary objection taken by the management that the union had already dissolved or that workman was given full and final settlement of wages, as per law. Issue no.1, 2 , 3 and 5 have been decided against the management and in favour of the workman, issue no. 4 had been decided against the workman and in favour of the Management. Therefore, I am of the opinion that since the management has failed to comply with the requirement of filing approval application as provided in Section 33 (2)(b) of the ID Act. The complaint of the workman, as filed is to be allowed.
34. Although the complaint of the workman has been allowed, but considering the long pendency of dispute and trial of the present case, I am not inclined to allow reinstatement to workman with the management as it may adversely affect the industrial peace and tranquility. Further, it is also to be considered that Management had 19/20 Lal Singh Vs. M/s Deepak Memorial Hospital ::20::
offered an alternative job to the workman at Noida Hospital but he had refused to join the said hospital on the ground of threat to his life. As, Deepak Memorial Hospital is no longer inexistence & workman had refused to work in other hospital of Management at Noida, it would not be appropriate to grant reinstatement to workman. Workman deliberately did not join the services at Noida hospital which gives strength to the contention of the management that he is doing some other gainful job or employment at other place and that is why he had refused to join the management at Noida. Considering these facts , I am of the opinion that ends of justice would be met if the workman is allowed to have 70% of his last drawn wages from the date of his termination till today after deducting the amount of interim relief already granted to the workman. Management is directed to pay the balance amount to the workman within one month after publication of the Award.
35. The complaint filed by the complainant is, therefore, allowed.
36. The copy of the award be sent to the Government of NCT of Delhi for publication of the award.
37. File be consigned to the Record Room.
Announced in the open Court on (SHAIL JAIN) this 1st February 2018. Presiding Officer,POIT02 Dwarka Court, New Delhi.
Digitally
signed by
SHAIL SHAIL JAIN
Date: 20/20
JAIN
Lal Singh Vs. M/s Deepak2019.02.04
Memorial Hospital
15:26:52
+0530