Delhi District Court
Id No. 216/10 ( Old Id No.03/03) vs M/S. Mother Dairy on 7 July, 2014
IN THE COURT OF SH. SANJEEV KUMAR, PRESIDING
OFFICER, LABOUR COURT
KARKARDOOMA COURTS, DELHI.
ID No. 216/10 ( Old ID No.03/03)
INDUSTRIAL DISPUTE BETWEEN :
Sh. Arvind Kumar Arora S/o Sh. Ramesh
R/o Pocket A1117D, Surya Aptt. DDA Flat,
Kalkaji Extension,
New Delhis19 ........Workman
VERSUS
M/s. Mother Dairy, Patparganj,
Delhi ......Management
Date of Institution : 17.01.2005
Date of award
: 07.07.2014
AWARD
1.The Secretary (Labour), Govt. of NCT, Delhi vide order No. F.24 (1570)/04/Lab./SD/844145 dated 25.11.2004 referred the present industrial dispute between the parties for adjudication to the Labour Court on the following terms of reference : "Whether dismissal of Sh. Arvind Kumar Arora S/o Sh. Ramesh have been terminated illegally and/or unjustifiably by the management, and if so, to what sum of money as monetary relief alongwith consequential benefits in terms of existing laws/Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect?"
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2. Brief facts as stated in the claim petition are that the workman was employed with the management in the month of May, 1994 and his last designation was Senior Superintendent (Marketing) and his last drawn wages were Rs. 7500/p.m. His conduct was good and satisfactory and there was no complaint against him. He was suspended vide letter dt.s 19.11.1999 and thereafter he was served with the charge sheet dt. 27.11.99 and an enquiry was started w.e.f. 17.01.2000 and the enquiry officer gave his findings on 15.04.03 and on the basis of enquiry report, management issued show cause notice dt.17.04.03 which was duly replied by the workman but management did not found satisfactory and inflicted the punishment of dismissal vide its order dt.22.07.03. The workman filed an appeal against the said order dt. 17.9.03 but the appropriate authority dismissed the appeal. The workman also file claim before the conciliation officer but the management contended that the action of management was justified. Hence, matter is referred before this court. He has prayed for setting aside the domestic enquiry on the following grounds:
1. In the charge sheet there is no reference to any of the complaint on the basis of which he was given charge sheet.
2. The management conducted a preliminary enquiry after ID NO. 216/10 Arvind Kumar Vs. M/s. Mother Dairy Page no. 2 out of 18 receiving a complaint dt. 10.11.99 from one sh. Avlesh Kumar but the preliminary enquiry was conducted without knowledge of the workman and number of statement was recorded by the management at the back of workman.
3. Copies of the complaint or statement of witness were not supplied to him.
4. Management obtained clandestinely photo copies of certian documents from the bank without due permission from the bank.
Further he has stated that the enquiry findings is perverse and the same is not based on the material placed on record. The enquiry officer taken rejected the testimony of Santvir and Arun without any reason though they had spoken truth. He further stated that to prove that the allegations against him he opened an account in the name of Arun Kumar and was doing business himself to prove his innocence the workman produced witness Arun who was operating the said bank account and was making payment by cheques to the management. Even this could not satisfy the enquiry officer and the enquiry officer held in the enquiry report that WW3 is not the true person. The enquiry officer allowed the management to prove the ID NO. 216/10 Arvind Kumar Vs. M/s. Mother Dairy Page no. 3 out of 18 photocopy of the documents but no originals were called from the bank. The enquiry officer allowed the management to produce the hand writing expert in the enquiry which was not sustainable. Hence, he prayed that the enquiry conducted against him was illegal. Further he stated that even if charges have been proved even then punishment for dismissal are highly disproportionate to alleged misconduct. The workman has meritorious service record of 19 years with the management and the action of management amounts to unfair labour practices. He prayed for reinstatement in service with other back wages in continuity of service.
3. Per contra, written statement filed by the management in which preliminary objection was taken by the management that the the reference was sent by Secretary (labour) govt. of NCT of Delhi who has no legal and valid delegation of power in his favour for making the terms of reference. And further he has not applied his mind and referred the dispute without considering the submissions of management. Further it is stated by the management that the claimant was working with the management as Senior Superintendent (marketing) and his job was to inter alia, select the site for installation of insulated containers for sale of milk and to sign the ID NO. 216/10 Arvind Kumar Vs. M/s. Mother Dairy Page no. 4 out of 18 agreements duly executed by the parties as a witness on behalf of the management at the time of allotment of insulated containers and as such he was performing his duties in administrative, managerial and supervisory nature. His last drawn salary of the claimant was more than Rs. 1600/p.m. Therefore, he was not a workman as defined under section 2(s) of the Industrial Dispute Act, 1947. Hence, the claim of the claimant before this court is without jurisdiction. Further it is stated that the claimant while working as Sr. Superintendent (marketing). The management has opened current account no. 2738 with Indian Bank Nehru Place Branch on or about 05.09.1994in fictitious/pseudonymous name of Arun Kumar' and signed against the column of signature as 'Arun' (in hindi) i the said account opening form of the bank. He was given his photograph also in connection with the opening of the said bank account no.2738 with the said bank. He also executed agreement dt. 07.09.99 by signing therein as 'Arun' in connection with insulated container no.1069. Further he was operating the said account no.2738 in the name of Arun Kumar by signing as Arun for the purpose of payment by way of cheques to the management 'dairy' in connection with supply of milk through the aforesaid container. The claimant was thereby charged as under:
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(a) opening of current account with the bank in the fictitious/pseudonymous name of Arun Kumar and having dealings with the dairy for pecuniary benefits/personal gain.
(b) Signing of two agreements and issuance of two cheques by workman in the name of 'Arun' in Hindi which is an act of falsification of record .
(c) by signing the two agreements as witnessed in connection with the said insulated container no.1069, he thereby committed grave act of bad faith towards his employer i.e. the management.
(d) by signing two agreements, issuing of two cheques towards the sale price of milk and opening of bank account, the claimant caused dishonesty and fraud in dealing with dairy's business i.e. the management.
Further it is stated that the claimant was suspended by 19/11/09 and thereafter, he was charge sheeted vide charge sheet dt. 27.11.09 and after considering his reply the enquiry was initiated against him in which workman participated and after conducting the enquiry as per principle of natural justice, the enquiry officer submitted his findings on 17.04.03 and held that the charges were ID NO. 216/10 Arvind Kumar Vs. M/s. Mother Dairy Page no. 6 out of 18 proved against him, the dsciplinary authority took a decision not to repose confidence upon the claimant and the management decided to impose on the claimant the punishment of dismissal from its service and show cause notice dt. 17.04.03 was issued to the claimant and he replied vide order dt. 02.04.03 which was duly replied but appropriate authority found no substance in the said reply and dismissed him vide letter dt. 17.04.03. thereafter, claimant filed an appeal which was also dismissed vide order dt. 09.05.05.
On merits, management admitted that claimant was the employee of management and was drawing salary as stated by him and he was issued charge sheet for the misconduct and enquiry was conducted against him and he was dismissed from the service, however, it is denied that the enquiry was not conducted according to principle of natural justice. The management accepted the enquiry report and dismissed him.
4. The workman filed the rejoinder and in is rejoinder, he reagitated the contents of statement of claim and denied all the contents of the statement of claim.
5. From the pleading of both parties, vide order dated 10.08.2005, the following issues have been framed : ID NO. 216/10 Arvind Kumar Vs. M/s. Mother Dairy Page no. 7 out of 18
1. Whether the management conducted unfair and improper enquiry against the claimant?
2. Whether the claimant is a workman?
3. As per terms of reference.
6. The issue no.1 & 2 were treated as preliminary issue and workman examined himself as WW1, through an affidavit Ex.WW1/A and also relied upon documents Ex.WW1/1 to WW1/12. He was cross examined at length by Ld. AR for management.
7. On the other hand management examined Sh. M.G. Sharma, enquiry officer as MW1 who led his evidence by way of affidavit Ex.MW1/A and also relied upon documents Ex.MW1/1 to Ex.MW1/4. MW2 R.T. Wadhwa, Assistant manager also examined through an affidavit Ex.MW2/A. Both witnesses were cross examined by Ld. ARW.
8. My Ld. Predecessor, vide order dt.21.08.08 decided the issue no.2 in favour of workman and held that the workman is covered under the definition of workman as define u/s 2(s) of the I.D. Act. Further Ld. Predecessor has decided issue no.1 against the workman ID NO. 216/10 Arvind Kumar Vs. M/s. Mother Dairy Page no. 8 out of 18 as she held domestic enquiry was conducted by management according to principle of natural justice and was fair and proper. Thereafter, my Ld. Predecessor has put the case of the workman u/s 11(a) of the I.D. Act.
9. Thereafter, workman has filed affidavit Ex.WW1/B and relied upon documents Ex.WW1/1 to 12. he was cross examined by ARM. Management also examined Sh. R.T. Wadhwa who lead his evidence by way of affidavit Ex.2/A and he was cross examined.
10. Arguments were addressed by Sh. Jatin Sahni Ld. AR for workman and Sh. Raj Birbal Ld. Sr. Advocate and Ms. Raavi Birbal Advocate, Ld. AR for management.
Issue No.3 "As per terms of reference"
"Whether service of the Sh.Arvind Kumar Arora terminated illegally and or unjustifiably by the management."
11. Ld. ARM has argued that since the issue of fairness of inquiry has already been decided by Ld. Predecessor against the workman and workman has filed an appeal in Hon'ble High Court ID NO. 216/10 Arvind Kumar Vs. M/s. Mother Dairy Page no. 9 out of 18 through an W.P. (c )no. 168/2013 which was decided vide order dt. 11.01.03 dismissing the appeal of the workman and no appeal in Supreme Court has been prefered by workman therefore order has attained finality. Hence the misconduct of the workman has been proved and now workman can not reagiate that he has not committed any misconduct merely on the ground that he has been subsequently acquitted by the criminal court.
12. Ld. Senior Advocate appearing for management has argued that the acquittal in the criminal case has no bearing in the domestic enquiry because the stander of proof in domestic enquiry in the criminal case are different. In the criminal case standard of proof is different as in criminal case principal of proving beyond reasonable doubt is follows whereas in the domestic enquiry, the standard of proof is only preponderance of probability. In support of the contention Ld. AR has relied upon judgments Divisional Controller,KSRTC vs M.G.Vittal Rao Manu/SC/1368/2011 also (2012)SCC442, Workman of Balmadies Estates vs Management Balmadies Estates and others(2008)6SCC517,Southeren RailwayOfficers Assn. And another vs Union Of India (2009)2SCC24,Ajit Kr.Nag vs G.M.(P.J.)Indian Oil Corporation ID NO. 216/10 Arvind Kumar Vs. M/s. Mother Dairy Page no. 10 out of 18 Indian Kanoonhttp:/indian kanoon.org/doc/1639372.
12. On the other hand, Ld. ARW has contended that workman has been terminated illegally as besides taking disciplinary action management has also lodged a criminal case against the workman on the same allegation vide FIR No.149/2000 at P.S. Mandawali u/s 419, 420, 468, 471 IPC and in that case workman has been acquitted by the Ld. CMM vide order dt. 18.05.03, hence the termination of workman became illegal, therefore, he is entitled to be reinstated with full back wages. In support of his contention he has relied upon judgements GM Tankvs State of Gujrat Indian Kanoonhttp:/indian kanoon.org/doc/1212741,Capt.M. Paul Anthony vs Bharat Gold Mines Ltd.&Another Indian Kanoon http:/indian kanoon.org/doc/888207.
12. I have considered the arguments of Ld. ARs for both parties and carefully gone through the material placed on record.
13. As per chargesheet given by management EX MW1/2 the workman has committed misconduct (i)by opening the current bank account in Indian Bank fictitious name of Arun Kumar by presenting himself as 'Arun' and carried on dealing with the management in connection with supply of milk to the insulated milk containers and ID NO. 216/10 Arvind Kumar Vs. M/s. Mother Dairy Page no. 11 out of 18 got pecuniary benefits and thus committed misconduct of engaging in private work or trade for profit in violation of section 20(b)x, (ii) by signing agreements and two cheques in the name of Arun committed misconduct of falsification of the record which is misconduct in clause 20(b)xxviii, (iii) by sibning agreements dt. 7th September 1998 and 7th September 1999 in connection with insulated container as Arun committed misconduct of bad faith which is misconduct in clause 20(b)xxxiii, (iv) In view of above committed misconduct of fraud and dishonesty in dealing with dairy buisness which is misconduct in clause 20(b)iii. In the domestic enquiry it has been held by enquiry officer that all the charges have been proved against the workman. Since the enquiry issue has already been decided by my ld. Predecessor holding that the enquiry has been conducted fairly and properly and since the Hon,ble High Court has dismissed the appeal of the workman against the said order,hence I am bound by the decision of High Court and cannot set aside the finding of enqury issue given by my Ld. Predecessor whereby she held that enquiry was conducted fairly and properly. Hence it is proved against the workman that he committed the misconduct as alleged in the chargesheet hence his termination cannot be said to be ID NO. 216/10 Arvind Kumar Vs. M/s. Mother Dairy Page no. 12 out of 18 illegal.
15. Section 11A of the ID.Act provide power to the labour court that if it is satisfied that the order of discharge or dismissal is not justified, it may set aside the order of discharge or dismissal and direct reinstatement of the workman. Hence it is to be seen whether order of dismissal of workman from service is justified or not.
16. Ld AR for the workman has placed great reliance upon the order dt.08.05.2013 passed by Ld. Chief Metropolitan Magistrate, East/Karkarduma Court Delhi in case FIR no.149/2000 PS Madawali u/s 419/420/468/471 IPC whereby claimant has been acquitted in criminal case registered against the claimant by management. Ld. AR has argued that said case has been registered by management on same allegation on the basis of which workman was chargesheeted for misconduct and terminated after domestic enquiry. He argued that since said case has been decided after evidence of workman therefore judgement could not be proved in evidence. Ld AR has contended that this judgement clearly proved that claimant has not conducted any misconduct. Therefore dismissal of the workman is unjustified.
17. I have considered the argument and gone through the record. There is nothing new in the evidence of workman which was ID NO. 216/10 Arvind Kumar Vs. M/s. Mother Dairy Page no. 13 out of 18 led through affidavit EXWW1/B after decision of enquiry issue. He has denied that he conducted any misconduct. He further deposed that his alleged misconduct do not pertained to any disobedience, non performance of duty or otherwise. There is no pecuniary loss to the management nor same relates to the reputation of management. Therefore awarding extreme punishment is not sustainable in the eyes of labour jurisprudence.
18. I am agree with the contention of Ld. AR for management that merely acquittal in criminal case does not ipso facto result into setting aside the finding of domestic enquiery because standard of proof in criminal proceedings and domestic enquiry are different as in criminal case the standard of proof is beyond reasonable doubt whereas in domestic enquiry it is preponderance of probability. The same is also the ratio of judgements mentioned in para no.12 which are relied upon by the Ld. AR for management. But at the same time, I am agree with the contention of Ld. ARW that where facts of both domestic enquiry and criminal case are same certainly court can take into consideration the acquittal in criminal case as held in judgement G.M.Tank (Supra) relied upon by Ld.AR for workman.
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18. Fact of this GM tank case are that workman was chargesheeted under section 5(2) of Prevention of Corruption Act by Anti Corruption Bureau for having properties disproportionate to his known source of income. A departmental enquiry was also ordered and as per department enquiry report he was found guilty of the charge and he was dismissed from service. The workman filed writ petition against dismissal which was also dismissed. However, Supreem Court has set aside the dismissal of workman from service while relying upon Capt.M Paul Anthony(supra)saying that since fact in the criminal proceeding and domestic enquiry being same distinction usually proved between the department and criminal proceedings on the basis of the approach and burdon of proof would not be applicable.
19. It is undisputed fact that claimant/workman has been acquitted in the criminal case which was registered on the same set of allegation on which domestic enquiry was conducted i.e. workman has impersonated himself as one Arun and opened the account in Indian Bank to deal with management for running milk Container which he got allotted from management. The Ld. Chief Metroplitan Magistrate in her judgement dt. 08/05/2013 passed in case FIR no. ID NO. 216/10 Arvind Kumar Vs. M/s. Mother Dairy Page no. 15 out of 18 149/2000 PS Mandawali while acquitting workman has given reason that defense witness Arun Kumar who is cousin of workman resembles each other to the extent that both of them can be termed as identical twins and it is very difficult for strangers to say who is Arvind(workman) and who is Arun. Hence the main allegation against the workman that he represented in the bank as Arun and pasted his photograph as of Arun goes because actual Arun exist and is not a fictitious person and he was running the dairy. Therefore, the judgement G.M. Tanks (supra) is squarly applicable in the present case.
20. I am agree with the contention of Ld. AR for workman that since the said judgement has been passed after decision on inquiry issue by my Ld. Predecessor and High Court therefore, they do not have benefit to consider the said aspect taken in criminal case by Ld. Metropolitan Magistrate. Ld. CMM has categorically held that there is another person Arun who is similar in appearance and look twin cousin of claimant. Hence it could not be ruled out that management got doubt that said person Arun is claimant. As far as handwriting of accused matching on bank document as of person who sign as Arun is concerned in criminal case Ld MM has held that ID NO. 216/10 Arvind Kumar Vs. M/s. Mother Dairy Page no. 16 out of 18 since handwriting expert report was inconclusive. with regard to the signature of claimants on bank opening account and other bank documents purported to be written by claimant therefore there is no evidence that said documents were written bu him. The claimant has not been acquitted by giving benefits of doubt or lack of evidence but has been honorably acquitted as claimant produced real Arun who was allotted milk insulated container, hence, though in view of the finding of my Ld. Predecessor and Hon'ble High Court on domestic enquiry issue it would not be appropriate to say that workman has not conducted misconduct but considering the judgement of G.M Tank ( Supra) which squarely applicable on present case, hence, in my view lenient view is required to be taken while awarding punishment.
21. Even otherwise also, on perusal of the charges against the workman I found that the main charge against the workman which pertain to duty of workman is that he engaged in private work for pecuniary benefits. Admittedly he had not committed forgery in any any of documents of management and whatever alleged forgery has been done, same is done with the bank documents as workman allegedly opened account in the name of fictitious persons. Admittedly no pecuniary loss has been caused to the management ID NO. 216/10 Arvind Kumar Vs. M/s. Mother Dairy Page no. 17 out of 18 due to misconduct of workman. Therefore, considering all the facts and circumstances I held that in dismissal of the workman is not justified as same is excessive punishment therefore I set aside the order of dismissal of workman from service and ordered to reinstate him within 30 days of publication of this award however he will not be entitle to any back wages for the period he remained out of service. Issue no. 3 decided accordingly.
RELIEF
22. In view of my finding of Issue no.3 I ordered to reinstate workman/claimant in service within 30 days of publication of this award however he will not be entitle to any back wages. Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication of the award. The award be also sent to server (www.delhicourts.nic.in). File be consigned to Record Room. Announced in the Open Court th on this 7 July, 2014 (Sanjeev Kumar) Presiding Officer, Labour Court, Karkardooma, Delhi.
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