Delhi District Court
Vide Order No. ... vs Po on 8 October, 2015
IN THE COURT OF SHRI UMED SINGH GREWAL
PO:LCXVII, ROOM NO. 22 : KKD COURTS :DELHI
ID No.126/10/95.
Unique ID No.02402C0006012001
M/s. The Corporative Store Limited (Super Bazar)
Through its General Manager,
Connaught Place, New Delhi1.
............. Management
Versus
Sh. S.N. Jha,
C/o Delhi Labour Union, Aggarwal Bhawan,
G.T. Road, Tis Hazair Court, Delhi54.
..............Workman
DATE OF INSTITUTION : 20.03.1995.
DATE ON WHICH AWARD RESERVED : 15.09.2015.
DATE ON WHICH AWARD PASSED : 08.10.2015.
A W A R D :
1. Vide Order No. F.24(3269)/94Lab./473035 dated
15.03.95, issued by Government of NCT of Delhi, a reference was
sent to this Court with the following terms:
"Whether the dismissal of Shri S.N. Jha from his
services is illegal and / or unjustified and if so, to
what relief is he entitled and what directions are
necessary in this respect?
ID No.126/10/95. 1/14
2. Claimant's case is that he joined the management as a
Sales Assistant on 19.11.1985. He was regular and permanent
employee of the Super Bazar and his last drawn salary was
Rs.2100/ per month. He was placed under suspension vide order
dated 09.11.1991, but that order was revoked vide letter dated
16.01.1992 and he was allowed to resume duties. He was served a
chargesheet dated 31.12.1991 whereby following charge was
framed against him :
"That the said S/Sh. S.N. Jha, SA, Subhash Chand and Babu Ram,
Packers, while functioning on the Spl. Mobile VanII of INA RDC
during the period from July, 1988 to 27.08.91, were responsible for
heavy stock shortages and committed misappropriation of goods of
Super Bazar in connivance with each other.
And thereby committed misconduct as defined in sub
Rule (v) and (ix) of Rule 69 of the Service and Conduct Rules of
the Cooperative Store Limited"
Following was the statement of imputation of
misconduct against him:
"That Sh. Subhash Chand and Babu Ram, Packers, working on
Special Mobile VanII of INA RDC were responsible for heavy
shortages in all the periods mentioned above and Sh. S.N. Jha, SA
during the period from 01.07.1988 to 31.03.1989 only. They,
committed misappropriation of goods of Super Bazar in connivance
with each other".
ID No.126/10/95. 2/14
He submitted reply to the chargesheet, but the
management was not satisfied with it and hence a domestic enquiry
was initiated. Consequent to the report of Enquiry Officer, a show
cause notice was served upon him on 06.01.1993 and he was
terminated vide order dated 24.02.1993. Appointment of Enquiry
and Presenting Officer was neither proper nor legal. The Enquiry
Officer did not provide him reasonable opportunity of being heard.
The allegations levelled against him were not proved beyond
shadow of reasonable doubt. Charge of misappropriation of goods
was not, at all, proved against him and report of the Enquiry
Officer was perverse because it was based on foreign and
extraneous consideration.
3. Written statement is to the effect that claimant was
appointed as a Sales Assistant on 20.07.1989 on a probation period
of one year. He was not confirmed because his work and conduct
was not above board. He was placed under suspension on
09.11.1991. A chargesheet dated 31.12.1991 was served upon him
for misappropriation of goods / heavy stock shortages of
Rs.48,037.21 for the period from 01.07.1988 to 31.03.1989. A
ID No.126/10/95. 3/14
proper domestic enquiry, strictly as per principles of natural justice,
was conducted in which full opportunity was given to him to
defend the case. Vide report dated 30.12.1992, the Enquiry Officer
held him guilty of misappropriation and thereafter a show cause
notice was issued to him for the proposed punishment. The
disciplinary authority accepted the enquiry report and dismissed the
claimant from service vide letter dated 24.02.1993. It is further
mentioned that major punishment was awarded to the claimant
because of his unsatisfactory past service record and seriousness of
misconduct.
The management is a multi state cooperative society
governed by Multi State Cooperative State Act, 1984. It was
sustaining heavy loss year after year and in view of the various
reports, the Central Registrar, Multi State Cooperative Societies, in
exercise of power conferred under Section 77 (2) of the Act, passed
an order dated 05.07.02 ordering winding up of the management.
A liquidator was appointed with a direction to proceed with the
liquidation as per the Act. No business activity is, at all, being
carried out by the management and so there can be no claim of
reinstatement. Due to winding up, the relationship of employer and
employee has ceased to exist between it and the claimant.
ID No.126/10/95. 4/14
An impartial and unbiased person was appointed as an
Enquiry Officer The Presenting Officer was also not from legal
background. All relevant documents were supplied to the claimant
and he was allowed to cross examine the witness produced by the
management. He was also allowed to engage defence assistant of
his own choice. During the whole enquiry proceedings, the
workman did not deny that there was no shortage of heavy stock
during the period when he was posted on Special Mobile VanII.
4. Following issues were framed on following dates:
On 28.09.1995:
"Whether the domestic enquiry was fair and proper?"
On 14.08.2008 :
1A. Whether the Central Registrar - Multi State
Cooperative Societies in exercise of the power
conferred under Section 77 (2) of the Multi State
Cooperative Societies Act 1984, has passed an
order dated 05.07.2002 ordering winding up of
the respondent Super Bazar? If so, its effect?
1B. Whether the respondent company has gone into liquidation of the societies and no business activities are carried out by the respondent / management? If so, its effect?
ID No.126/10/95. 5/14 On 28.05.15 : As per terms of reference.
5. In order to prove the enquiry proceedings invalid, the claimant tendered his affidavit in evidence as Ex. WW1/A on 17.10.1996. He deposed all the facts which he had mentioned in the statement of claim.
6. The management examined Enquiry Officer Mr. K.K. Narula as MW1. He deposed that he was appointed as Enquiry Officer by the General Manager vide office order No. Vig./1/162/91/SB2132 36 dated 22.04.1992 Ex. MW1/1 to conduct domestic enquiry against the claimant and two coworkers who were jointly charged vide order dated 31.12.1991 Ex. MW1/2. The claimant participated in the enquiry. He recorded the proceedings of each dates in the form of daily order sheets. Enquiry proceedings are Ex. MW1/3. It is further deposed that he signed the daily ordersheets, statement of witnesses, their cross examinations and other documents in the presence of the claimant. The claimant was allowed to engage a defence assistant vide letter ID No.126/10/95. 6/14 dated 28.04.1992 Ex. MW1/4. He was given copies of documents filed by the management in support of its case. Claimant and other charged officials had requested him for inspection of documents and the request was allowed vide letter dated 09.06.1992 Ex. MW1/5. They were allowed to cross examine the witnesses produced by the management. In defence, the claimant had examined two witnesses, namely, P.C. Batra and Mr. Anil Kumar Sharma. He further deposed that the claimant and other official did not raise objection about his appointment as Enquiry Officer. He tendered the enquiry report as Ex. MW1/6.
7. Vide order dated 11.02.11, the previous Ld. Presiding Officer taking into account Glaxo Smithkline Consumer Healthcare Ltd. Vs. PO, Labour CourtIX & Anr. 2010 LLR 900, came to the conclusion that all issues would be decided together. Thereafter, the claimant tendered his fresh affidavit in evidence on 26.08.11. The management also examined Mr. Anil Kumar Sharma as MW2 to prove the misconduct. On 07.08.2015, both authorized representatives submitted that enquiry issue be decided first. Their request was allowed.
ID No.126/10/95. 7/14
The enquiry issue has already been decided in favour of the management and against the claimant and so this Court is not concerned with the evidence led by both parties on misconduct (merits).
Issue No. 1.
8. That issue has already been decided by this Court against the claimant and in favour of the management by upholding that there was no violation of principles of natural justice and there was no perversity in the enquiry report.
Issue Nos. 1A & 1B.
9. In the written statement, a specific plea was taken by the management in para No. 2 of preliminary objection that the Super Bazar is cooperative society registered under Multi State Cooperative Societies Act, 1984. The Central Registrar had ordered winding up of the management under SubSection (2) of Section 77(2) of the Multi State Cooperative Societies Act, 1984 vide order dated 05.07.2002. The Central Registrar had appointed a liquidator. The claimant did not file rejoinder in respect of that ID No.126/10/95. 8/14 assertion. Inevitable conclusion is that the claimant has admitted the said assertion. Moreover, there is order dated 05.07.2002 passed by Mr. K.S. Bhoria, the then Central Registrar of Cooperative Societies, in the following terms : "Now, therefore, after considering all the circumstances and facts of the case, I K.S. Bhoria, Central Registrar of Cooperative Societies in exercise of the powers under 77 of the MultiState Cooperative Societies Act, 1984, direct the winding up of the Cooperative Store Ltd. i.e. the Super Bazar. I also hereby appoint Shri Kamla Kishore, IES (Rtd.) and ExEconomic Adviser, Department of Consumer Affairs, as Liquidator of the Cooperative Store Ltd.
(Super Bazar) under subSection (1) of Section 80 of the MultiState Cooperative Societies Act, 1984. He is directed to proceed with the liquidation of the above said society as per provisions of the Act and Rules and made thereunder. The Liquidator is further directed to complete the liquidation proceedings within a period of six months from the date of issue of his Order and submit final report to the Central Registrar after complying with the provisions of the Act and rules."
ID No.126/10/95. 9/14
10. Above order of the Central Registrar of Cooperative Societies prove that winding up of the management has been ordered. For its effect, this Court is required to go through the order dated 26.02.2009 passed by the Apex Court in SLP(C) Nos. 8398 - 8399 and 12415 of 2005 titled as Super Bazar Karamchari Dalit Sangh and Ors. Vs. Union of India and Others. Vide that order, the Apex Court upheld the revival plan of the management and bid of sole bidder M/s. Writers & Publishers Limited, Bhopal was accepted. Apex Court passed the following order : "Accordingly, we direct that our Order passed today be placed before the Official Liquidator and the Central Registrar, Multi Cooperative Societies who will take steps to revive the Super Bazar in terms of the Orders passed by this Court from time to time. Pending the said revival the Order of winding up dated 5th July, 2002 will remain suspended. As and when the revival scheme comes into force, it will substitute the order of winding up dated 05.07.2002."
11. In pursuance to that order, Ministry of Consumer Affairs, Food and Public Distribution, Government of India passed an order under Section 123 of MSCS Act, 2002 appointing the ID No.126/10/95. 10/14 officers of M/s. Writers and Publisher Limited, Bhopal as Administrators. It is mentioned in para No. 2 of that order that in pursuance to the orders of the Hon'ble Supreme Court, Super Bazar was directed under Section 122 of MSCS Act, 2002 to suitably amend the byelaws for enhancement of the share capital and reconstitution of the new Board of Super Bazar in accordance with the provisions of Multi State Cooperative Societies Act, 2002, but the Cooperative Store Limited (Super Bazar) had failed to comply with the directions given to it and hence, the Department of Consumer Affairs was constrained to accede to the request of M/s. Writers and Publishers Limited, Bhopal to appoint their officers as Administrators.
Above orders of the Hon'ble Apex Court and Department of Consumer Affairs, Government of India show that the management is still doing business under the administration of M/s. Writers and Publishers Limited, Bhopal. Though, the management was winded up at some point of time, but revival plan was accepted by the Hon'ble Apex Court and also by the Department of Consumer Affairs, Union of India. The conclusion is that the management is still doing business. If this Court reaches to the conclusion that punishment given to the claimant is ID No.126/10/95. 11/14 disproportionate, it can grant any relief to the claimant against the management.
Issue No. 2.
12. Ld. ARW argued that the claimant had joined the management in 1985. He had served the management for about 8 years when his services were terminated on 24.02.1993 on the allegation of misappropriation of meager amount of Rs.44,000/. He further submitted that length of service of the claimant be taken into account. Next submission is that the Court cannot be oblivious of the fact that the claimant is jobless since the day of his termination and his family members are on the brick of starvation.
13. It is not in dispute that the claimant, being employee of the management, was being governed by the Cooperative Store Limited, New Delhi, Services and Conduct Rules dated 23.12.1985. As per rule 69(v) theft, fraud or dishonesty in connection with the society's business or property is a major misconduct. Punishment for major misconduct is prescribed in Rule No.70 and it includes removal from services and / or dismissal from services. ID No.126/10/95. 12/14 Allegations against the claimant are that he along with other co employees, namely, Subhash Chand and Babu Ram, was responsible for heavy stock shortages and misappropriation of goods from July, 1988 to 27.08.1991. As per AnnexureII supplied to the claimant with memorandum dated 31.12.1991, responsibility of the claimant is attributable only for the period from 01.07.1988 to 31.03.1989. There was a stock shortage of the goods of Rs.47,090.95. As per procedure of the management, he was given leverage of 0.20% percentage shortage. After deducting the leverage amount of Rs.2431.10, net loss caused to management by the claimant was of Rs.44,659.77. That was a huge amount in the year, 1988. Allegations against him are of serious and grave nature. Punishment handed down to him by the management is not disproportionate to the misconduct proved against him. His dismissal from services suffers from no illegality or unjustifiability. This issue is decided in favour of the management and against the claimant.
Relief
14. Consequent to decision on issue Nos. 1 & 2, it is held ID No.126/10/95. 13/14 that the claimant is not entitled to any relief. Statement of claim is dismissed. Parties to bear their own costs. Reference is answered accordingly. Award is passed accordingly.
15. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to record room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 08.10.2015. POLCXVII/KKD, DELHI. ID No.126/10/95. 14/14