Delhi District Court
Whether vs H. Amaresh 2006 on 21 May, 2007
IN THE COURT OF SHRI S.S. HANDA : POLC : V :
KARKARDOOMA: DELHI.
ID NO. 616/98
BETWEEN
The Management of M/s. Maharaja Surajmal Institute of Pharmacy &
Technology, C-4, Janakpuri, New Delhi-51.
AND
The Workman Sh. Bijender Kumar C/o Bhartiya Audyogik General
Kamgar Union, BE-403, Street No. 7, Hari Nagar, New Delhi.
DATE OF REFERENCE : 02.11.98
DATE OF CONCLUDING ARGUMENTS : 18.05.07
DATE OF AWARD : 21.05.07
AWARD
The Secretary (Labour) Govt. of N.C.T. of Delhi has
referred the Industrial Dispute for adjudication to this Court vide Order
No. F.24(4602)/98-Lab./36408-12 dated 02.11.98 in the following
terms of reference :
'Whether the dismissal of Sh. Bijender Kumar is illegal
and/or unjustified and if so, to what relief is he entitled and
what directions are necessary in this respect?'
2. Precisely, the case of the workman is that he was in the
employment of management since 5.8.1991 as a 'Carpenter-cum-
workshop-Instructor' with last drawn wages of Rs.3863/- per month.
For raising the demand for legal benefits the management got annoyed
and terminated his services on 20.6.1997 on the basis of illegal and
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unjust enquiry. The enquiry officer has not given any opportunity to
him to cross examine the witnesses produced by the management in
the enquiry proceedings. He averred that he sent a demand notice to
the management but the same was not responded by the management.
He also lodged complaint in the Labour Department but his grievances
were not alleviated and conciliation proceedings also failed. It is
claimed that since the services of workman were terminated illegally,
he is entitled to be reinstated with continuity in service, full back
wages and other benefits.
3. The management has contested the claim of the workman
with the concise plea that he is not covered by the definition of
workman enshrined U/s 2(s) I.D. Act as he was performing functions
of a "teacher". Secondly the management stated that the workman had
committed gross misconduct and indiscipline for which he was put
under suspension and after enquiry was dismissed vide order dated
20.6.1997. The management refuted the allegation of the management
that his services were terminated by the management illegally for the
reason that it bore a grudge against him for extraneous reasons.
4. In rejoinder the workman disputed the plea set up by the
management and reasserted his allegations of claim and disputed that
he committed any misconduct or indiscipline.
5. Vide order dated 30.11.99 the then Ld. Predecessor framed
the following issues for trial :
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1.Whether claimant is a workman within the meaning of I.D. Act?
2. Relief in terms of reference.
6. To substantiate his claim workman examined himself as WW-1. He tendered his evidence by way of affidavit Ex.WW1/A and relied upon documents Ex.WW1/1 and Ex.WW1/41. For the management Mr. Devender Singh, the Director of the management was examined as MW-1 who testified about the plea set up in the written statement and relied upon documents Ex.MW1/1 to Ex.MW1/3. Apart from this management has examined MW-2 Mr. Tejpal Singh who also testified about the relevant averments pertaining to the plea set up by the management. The management has also examined MW-3 Mr. Sanjiv Kumar who testified about the incident dated 12.6.97 wherein he corroborated the deposition of MW-1 that MW-1 the Director of the management was assaulted by the workman.
It is pertinent to mention that after the parties had concluded its evidence on 18.05.07 an additional issue was framed to the following effect:
"Whether the workman committed misconduct and/or indiscipline as alleged by the management in the charge sheet dated 27.5.96?"
Statements of AR for the parties were recorded to the effect that each of the party had led their evidence on the issue and no further evidence was required to be led.
7. I have heard Mr. K.B. Srivastva, AR for workman and Mr. Ashok Sharma, AR for management. No case law referred or relied / 4 / upon by AR for workman. Mr. Ashok Sharma, AR for management has relied upon :
Divisional Controller, N.E.K.R.T.C. vs. H. Amaresh 2006 LLR 930 SC.
Municipal Board of Pratapgarh and Another v. Mahendra Singh Chawla and Others [1882] 3 SCC 331.
Modern School vs. Govt. of NCT Delhi & Ors. 2003 LLR
890.
Hombe Gowda EDN Trust & Anr. vs. State of Karnataka & Ors. 2006 LLR 141.
M.P. Electricity Board vs. Jagdish Chandra Sharma, 2005 LLR 420 (SC).
Tanojkumar B. Chatterji vs. Solapur Municipal Corporation 2004 LLR 108 Bombay High Court.
M/s. Amrit Vanaspati Co. Ltd. vs. Khem Chand and Anr. 2006 LLR 1076 SC.
Engineering Laghu Udyog Employees' Union vs. Judge, Labour Court and Industrial Tribunal [2004] 104 FJR SC.
8. On my due consideration of material on record; submissions made by AR for parties and relevant legal provisions and case law; my findings on issues are as follows:
ISSUE NO. 1.
The burden to prove the issue lay upon the workman. For the workman Mr. K.B. Srivastva relied upon appointment letter Ex.MW1/W-2 and the document Ex.WW1/M-2 the work assignment letter. He also relied upon Ex.WW1/M-3 order of / 5 / carpentry job. He further referred to Ex.WW1/M-4 for repairing of furniture by the workman. He also referred to Ex.WW1/M-5 to M-7 whereby the workman was finishing/making per directions of the management furniture items from time to time. On the basis of the deposition of workman and documents referred it was submitted by Mr. K.B. Srivastva that claimant successfully proved that he was doing carpentry job apart from rendering practical instructions/lessons of carpentry to the enrolled students and thus he fell within the ambit of 'workman' as enshrined U/s 2(s) I.D. Act. Mr. Ashok Sharma, AR for the management referred to the designation given to the workman in the appointment letter dated 5.8.91 and deposition of workman and contended that he was performing the job of an instructor of carpentry. He referred to Divisional Controller, N.E.K.R.T.C. vs. H. Amaresh 2006 LLR 930 SC; Municipal Board of Pratapgarh and Another v. Mahendra Singh Chawla and Others [1882] 3 SCC 331; Modern School vs. Govt. of NCT Delhi & Ors. 2003 LLR 890; Hombe Gowda EDN Trust & Anr. vs. State of Karnataka & Ors. 2006 LLR 141; M.P. Electricity Board vs. Jagdish Chandra Sharma, 2005 LLR 420 (SC); Tanojkumar B. Chatterji vs. Solapur Municipal Corporation 2004 LLR 108 Bombay High Court; M/s. Amrit Vanaspati Co. Ltd. vs. Khem Chand and Anr. 2006 LLR 1076 SC; Engineering Laghu Udyog Employees' Union vs. Judge, Labour Court and Industrial Tribunal [2004] 104 FJR SC and submitted that on the basis of aforesaid judgments and admission of workman it was evident that he was in teaching job and thus was excluded from the definition of workman.
9. It is admitted position of law that mere nomenclature is not / 6 / conclusive of the status of a workman. What is material is that what nature of job or functions were performed by him. His Lordship Mr. Justice N.Y. Chandrachur relying upon National Engineering Industries Ltd. v. Shri Kishan Bhageria, 1988 Lab IC 384 in Tanojkumar B. Chatterji vs. Solapur Municipal Corporation 2004 LLR 108 Bombay High Court laid "the factors for determination of the workman - Mere designation of an employee is not the sole criterion - The Court has to have due regard to the real nature of the duties and functions - In so far as supervisor is concerned, he or she is one who can bind the employer by taking some kind of decision on his behalf". In Section 2(s) I.D. Act, the person who is performing the functions of managerial nature is excluded from the definition of workman. In the given case the workman was admittedly employed at the post of "Carpenter-cum-workshop-Instructor" in carpentry department (Reference Para II of objections in W.S. and appointment letter dated 5.8.91) and was teaching the students of the regular courses as well as under the Community Polytechnic Scheme. He was not given any promotion so as to bring within the post of 'managerial nature'. As per documents Ex.WW1/M-1 to Ex.WW1/M-8 the workman was assigned the job to repair tables, hammer, wooden telephone box, chairs etc. He was working in the carpentry workshop. He was manually making the students to learn carpentry. Thus throughout nature of job of the workman was nothing but of a manual nature. The carpentry duties overlapped and over-weighed his teaching job as 'instructor-carpentry'. The definition of workman is pretty exhaustive. He could be precluded from being a workman by establishing that he was primarily / 7 / performing the functions of managerial nature or say teaching nature. But there was no such evidence that he primarily performed functions of managerial or teaching nature only. In this backdrop I am of the considered opinion that he was performing the nature of duties by which he could safely be inferred performing the duties of a workman. Accordingly he falls within the ambit of workman enshrined U/s 2(s) I.D. Act. Issue is thus answered in favour of the workman.
10. ADDITIONAL ISSUE :
It is an admitted fact that the management had conducted domestic enquiry against the workman upon the charge sheet Ex.WW1/M-8 dated 27.5.96. Admittedly this charge sheet was received by the workman. The charges levelled against him were :
(i)No class of Community Polytechnic in Carpentry trade was held from 15th to 25th November, 1995 during this period between 4.40 p.m. to 6.40 p.m. and a false bill has been submitted by you which amounts to serious act of misconduct and unbecoming of an employee of the Institute;
(ii)Making fraudulent entries in the record of class timings i.e. Signing the staff attendance register for the period from 4.40 P.M. to 6.40 P.M. while actually writing the time for classes is from 3 P.M. to 5 P.M. also shows serious misconduct on you part;
(iii)Making misleading statements to the Investigating Officer during the preliminary investigations;
(iv)Violating the Code of Conduct by writing letters directly to the Head, Rural Development Department, Chandigarh without the permission of the authorities;
(v)Misbehaviour with the superior officers of the Institute.
/ 8 / He filed reply Ex.WW1/M-9 dated 3.6.96 to the charge sheet whereby he denied the allegations levelled in the charges. With regard to the charges of misconduct/misbehaviour MW-1 corroborated the allegation made in the written statement by way of his examination-in- chief tendered in the form of affidavit Ex.MW1/A. In para 6 to 8 of affidavit he concisely made the allegation firstly that workman had presented false bills for the period 15.11.1995 to 25.11.1995 while he had not taken the classes, secondly that he had tampered with the attendance register, thirdly that he made the report to the higher authorities at Chandigarh without proper channel and lastly MW-1 had testified that he was assaulted by the workman along with other accomplices. The charges (i) to (iv) were denied by the workman but there was no denial to charge (v) (Emphasis supplied).
11. The workman in his deposition stated that vide Ex.WW1/M-2 he was conveyed the time table of his duties. Vide Ex.WW1/M-16 he was given a memo that he had not taken any class for the period 15.11.95 to 25.11.95 being a strike period. He had submitted a bill of Rs.250/- which the management found false. Therefore it was concluded that bill laid for classes not taken tantamounts to misconduct. Further vide Ex.WW1/M-17 he had admitted the tampering of attendance register in his own words "That I took classes from 15 to 30 Nov. on working days though there was a strike in the Institute during this period. But few student (which are not out regular Diploma Students) used to attend the classes after noon from 3.00 to 5.00 p.m. But I have recorded timing from 4.40 to 6.40 p.m. in the attendance register (Emphasis supplied). Due to strike, I / 9 / took classes earlier than scheduled time. These classes were checked by Mr. Z.S. Sehrawat as you can see in the attendance register". He in his cross admitted "he had submitted the bill alike Mr. T.P. Singh and Mr. Naresh Chand". Thus from the own admission of workman and from the deposition of MW-1 and 2 it stands established that the workman had furnished and claimed the false bill. In Divisional Controller, N.E.K.R.T.C. vs. H. Amaresh 2006 LLR 930 SC his Lordship Mr. Justice Dr. A.R. Lakshmanan laid that in a case of charge of pilferage it can be safely inferred that management had lost confidence in the workman. His Lordship held it a misconduct justifying the punishment of dismissal. In Municipal Board of Pratapgarh and Another v. Mahendra Singh Chawla and Others [1882] 3 SCC 331 the acceptance of amount of Rs.200/- by the workman was held to be act of gross misbehaviour and indiscipline. In this perspective, I am of the opinion that the charge (i) stands duly proved against the workman. The charge (ii) against the workman was that no class of community polytechnic in carpentry was held from 15th to 25th November, 1995 between 4.40 p.m. to 6.40 p.m. but he made fraudulent entries in the attendance register. In Modern School vs. Govt. of NCT Delhi & Ors. 2003 LLR 890 His Lordship Mr. Justice Dr. Mukundakam Sharma held that workman who had fabricated and manipulated documents to claim benefits under I.D. Act was guilty of gross misconduct. In the light of my findings on charge no. (i) and admission made in his deposition that he had submitted the bill alike Mr. T.P. Singh and Mr. Naresh Chand, his submission that their bills were cleared but his bill was withheld does not absolve him of omission of submitting a false bill for encashment to the management.
/ 10 / Further in reply to the memo Ex.WW1/17 in this regard; in Ex.WW1/18 he admitted tampering of record but took up the plea that classes were checked by Mr. Z.S. Shehrawat. But he was not examined by him. In the light of the above; therefore I find that charge (ii) also stands duly proved against the workman.
The charge no. (iii) against the workman was to the effect 'for making misleading statements to the enquiry officer during the enquiry proceedings'. But enquiry proceedings having not been pressed, the charge is found to be non-sustainable. Charge (iv) against the workman was for violating the code of conduct by writing letters directly to the head office Chandigarh without the permission of authorities. The workman admitted having written the letter. At the same time it is a fact that copy of the same was marked to the management. I find merit in the submission of the AR for the workman that it did not constitute misconduct. He justified that letter was not sent through proper channel as it contained the allegations against the management; in all likelihood it must have not been sent by the management to the concerned department. This ipso facto does not constitute violation of code of conduct in the present set of facts. And code of conduct is not proved on record. Accordingly in my opinion charge (iv) is also not established against the workman.
12. The most serious charge against the workman was charge
(v) i.e. misbehaviour with the superior officers of the management. The management had specifically made allegations against the workman having assaulted Mr. Devender Singh, the Director of the Institute. The workman has denied the allegation as false and and fabricated. To substantiate the allegation of assault, Mr. Devender / 11 / Singh, the Director of the institute examined himself as MW-1. He gave vivid details of the assault in the following words : "On 12.6.97 the claimant along with Baljit Singh & Jaswant Rai forcibly tried to enter my office to attack me. Baljit was carrying a sword used for cutting grass. My staff save me". His deposition was corroborated by MW-3 Shri Sanjiv Kumar. He testified that "on 12.6.97 the claimant Sh. Bijender alongwith Sh. Jaswant Rao and Sh. Baljit came to the office of the principal Sh. Davender Singh and started abusing him. Sh. Bijender was carrying a danda and Baljit carrying a sword and they abuses the principal and said we are not going to spare you and we will kill you then I shouted and asked for help from other employees. These people were creating nuisance at that time. Had we people not saved the principal then claimant and others would have certainly killed the principal". MW-3 in his cross denied the suggestion that Mr. Devender Singh, the Director of management was not assaulted by the workman. He denied that no such incident took place. Ironically no such suggestion was given to MW-1. Thus the allegations of the management about the incident of 12th June, 1997 testified by the victim himself have gone unchallenged. When this crucial fact was pointed out to Mr. K.B. Srivastva he was in a dilemma. He had no reason to wriggle out of this adverse situation. He simply conceded that the deposition of MW-1 Mr. Devender Singh about the assault has gone unchallenged. The only lame plea made by him was that the allegation in the charge sheet Ex.WW1/M-8 were not in this description. This submission is of no consequence. Assault, abuses, passing of remarks, indiscipline, disgracing superior; or even co- worker directly or through any one tantamount to misbehaviour or misconduct.
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13. Misconduct is a transgression of some established and defined rule of action, where no discretion is left except what necessity may demand; it is a violation of definite law, a forbidden act. It differs from carelessness.
14. Thus undisputed examples concise misconduct under the Model Standing Orders :
(a) Wilful insubordination or disobedience; whether alone or in combination with others, to any lawful and reasonable order of a superior,
(b) Theft, fraud or dishonesty in connection with the employer's business or property, [c] Wilful damage to or loss of employer's goods or property,
(d) Taking or giving bribes or any illegal gratification.
(e) Habitual absence without leave or absence without leave for more than 10 days.
(f) Habitual late attendance.
(g) Riotous or disorderly behaviour during working hours at the establishment or any act subversive of indiscipline,
(h) Habitual negligence or neglect of work,
(i) Frequent repetition of any act or omission for which a fine may be imposed to a maximum of 2 per cent of the wages in a month, and
(j) Striking work of inciting others to strike work in contravention of the provisions of any law, or rule having the force of law.
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15. In Hombe Gowda EDN Trust & Anr. vs. State of Karnataka & Ors. 2006 LLR 141 the workman had assaulted the principal by 'chappal' and the Hon'ble Supreme Court upheld the misconduct and the punishment of dismissal. His Lordship Mr. Justice S.B. Sinha held that "Indiscipline in an educational institution should not be tolerated. Only because the Principal of the Institution had not been proceeded against the same by itself cannot be a ground for not exercising the discretionary jurisdiction by the court. It may or may not be that the management was selectively vindictive but no management can ignore a serious lapse on the part of a teacher whose conduct should be an example to the pupils. This court has come a long way from its earlier view points". In M.P. Electricity Board vs. Jagdish Chandra Sharma, 2005 LLR 420 (SC) the Hon'ble Apex Court held that the employee found injuring his superior supervising him; committed gross misbehaviour and indiscipline.
16. His Lordship Mr. Justice Dr. A.R. Lakshmanan in M/s. Amrit Vanaspati Co. Ltd. vs. Khem Chand and Anr. 2006 LLR 1076 SC held "the proof of the charges of riotous nature constituted misconduct". The accumulated effect of the allegations substantiated on record in the light of catena of case law is that the charges (i), (ii) and (v) fully stand proved against the workman. And these charges clearly constituted act of grave misconduct. Issue is accordingly answered against the workman.
17. ISSUE NO. 2 :
As recorded above charge no. (i), (ii) and (v) amounting to gross misconduct stand proved against the workman. The question for consideration to answer the 'reference' arose; as to whether the / 14 / order of dismissal dated 20.06.1997 was justified.
For the workman no case law is referred or relied upon saying that the punishment was disproportionate to the charges of misconduct. For the management catena of case law is referred by Mr. Ashok Sharma, AR for the management. The Hon'ble Apex Court in M/s. Amrit Vanaspati Co. Ltd. vs. Khem Chand and Anr. (Supra) had laid down certain guidelines so as to weigh as to whether the punishment of dismissal to the workman was proportionate to the charges of misconduct. The same are as follows :
(1)The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2)Before imposing the punishment, an employer is expected to conduct a proper inquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The inquiry should not be an empty formality.
(3)When a proper inquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said inquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the inquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
(4)Even if no inquiry has been held by an employer, or if the inquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and / 15 / employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5)The effect of an employer not holding an inquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective inquiry stands on the same footing as no inquiry.
(6)The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no inquiry has been held or after the inquiry conducted by an employer is found to be defective.
(7)It has never been recognized that the Tribunal should straightway, without anything more, direct reinstatement or a dismissed or discharged employee, once it is found that no domestic inquiry has been held or the said inquiry is found to be defective.
(8)An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9)Once the misconduct is proved either in the inquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed / 16 / cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
(10)In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in the Management of Panitole Tea Estate v. The Workmen, 1971 (22) FLR 217 (SC), within the judicial decision of a Labour Court or Tribunal."
18. In Onkar Nath Misra Vs. State of Haryana and Anr. 2005 LLR 478; the Hon'ble apex court reasserted that punishment ought to be proportionate to the misconduct. And the court oughtnot disturb the discretion of the management having awarded the punishment.
19. In Mahindra and Mahindra Ltd. vs. N.B. Naravade etc. 2005 LLR 360 SC it was held that "Dismissal of a workman for using abusive language cannot be held to be disproportionate when the Labour Court and the High Court have held that the language used by the workman was filthy which cannot be tolerated by any civilised society hence the use of such abusive language against a superior officer, in the presence of his subordinates cannot be termed to be an indiscipline calling for lesser punishment". While analysing the charges proved against the workman; in the light of above guidelines; I am of the considered opinion that the workman did not deserve any leniency. The punishment awarded to the workman was just, expedient and proportionate to the charges of misconduct and indiscipline committed by him.
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20. Another question during the course of arguments arose as laid in Engineering Laghu Udyog Employees' Union vs. Judge, Labour Court and Industrial Tribunal [2004] 104 FJR SC the Hon'ble Apex Court; as to whether the order or dismissal was to be effective from the date of order of dismissal or from the date of order of the court.
In the facts and circumstances of the given case as laid in Engineering Laghu Udyog Employees' Union vs. Judge, Labour Court and Industrial Tribunal (Supra) the order of dismissal is to be given effect from the date of order of dismissal i.e. 20.06.1997.
In the light of above the workman is not entitled for any relief claimed for. Issue is answered accordingly.
21. ORDER :
In view of my above discussion and findings on the issues; the workman is not entitled for any relief. An award is passed accordingly. Reference is also answered accordingly.
A copy of this award be sent to the appropriate government for its publication.
File be consigned to record room.
Dated: 21.05.07 ( S.S. HANDA )
PRESIDING OFFICER :
LABOUR COURT-V:
DELHI.