Delhi District Court
S M Patra 439 Del-Mum-Del Rs.2665/ vs Surendra Singh on 30 July, 2007
IN THE COURT OF MS. REKHA RANI : POLC - XIII :
KARKARDOOMA COURTS : SHAHDARA : DELHI
I.D. NO.973/06
Date of Institution : 5.7.2005
Award reserved on : 20.07.2007
Date of Award :30.7.2007
BETWEEN
MANAGEMENT OF : M/S A.C. NELSON ORG. MARG. PVT. LTD., D-
24, SOUTH EXT. PART-1, NEW DELHI-49.
AND
ITS WORKMAN : SH. SURJEET SINGH RAUTHAN, S/O SH. VIKRAM
SINGH RAUTHAN C/O 111A/152-A, RACHNA, HIG, GDA DOUBLE
STOREY FLATS, VAISHALI, GHAZIABAD.
AWARD
1. The Secretary (Labour) vide his order F.24
(3253)/2004/Lab./5549-53 dated 23.03.2005 referred the dispute raised
by the workman to this court for adjudication with following terms of
reference :
TERMS OF REFERENCE
"Whether the services of Sh. Surjeet Singh Rauthan S/o Sh.
Vikram Singh Rauthan 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
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what other relief is he entitled and what directions are
necessary in this respect?"
Worker filed claim stating therein the following facts.
He was working as Administrative Assistant / Telephone
operator with the management w.e.f. February 1997 and his last drawn
wages were Rs.9,000/- per month. His work and conduct was
satisfactory. He never gave any cause of complaint to the management.
On 16.9.2002 he was served with a suspension order. Management
served a chargesheet dated 20.9.2002 on him. He replied to the same
vide his letter dated 30.9.2002. Management initiated domestic enquiry
against him on 16.10.2002. Management did not follow principles of
natural justice in conducting the enquiry. He was not given a fair
opportunity to present hiscase. Rather management seized his bag
containing some important documents relating to the inquiry. He reported
the matter to the police at PS Kotla Mubarakpur.
Management dismissed the workman vide its letter dated
22.10.2002. Dismissal is unlawful. Enquiry officer was biased and did
not give fair opportunity to the workman to defend himself.
2. Conciliation proceedings failed as management refused to
reinstate him with full back wages. Hence the reference.
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Workman has prayed for his reinstatment with continuity of
service and full back wages.
3. Management contested his claim vide its written statement. It is
stated that he was appoined w.e.f. 13.1.1999 as Administrative Assistant
Level -I and his last drawn wages were Rs.98216/- per annum. It is
alleged that he was guilty of serious mis-conduct. It is stated that a
chargsheet was served upon him and a domestic enquiry was initiated
against him in order to give him an opportunity to him to defend himself.
4. It is alleged that on 17.10.2002 during the enquiry proceedings he
became violent and tore off enquiry proceedings and other documents
and threw the same on the face of the enquiry officer. It is alleged that
subsequently he made false complaint before the police and he himself
withdrew the complaint by writing a letter to the SHO police station Kotla
Mubarakpur on 17.10.2002.
5. It is further stated that enquiry officer informed the management
vide its letter 21.10.2002 that on account of hostile and non-cooperative
attitude of the workman it was not possible to complete the enquiry. As
such enquiry proceedings could not be completed. It is stated that the
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management wants to prove the charges as contained in the chargesheet
in the court. It is further stated that the management dismissed the
workman from service vide its letter dated 22.10.2002 and his gratuity
amount of Rs.13, 638 vide cheque was paid to him which he got
encashed.
6. It is alleged that since the workman mis-approriated the
management money, it has led to loss of trust and confidence and
thereafter there is no question of reinstatment of the workman.
7. My Ld. Predecessor framed following issues on 12.1.2006 :
1. As per terms of reference.
2. Relief.
8. Worker examined himself as WW-1 and thereafter closed his
evidence. Management examined Sh. Ram Subramanium its Manager
(Admn) as MW-1 and thereafter closed its evidence.
9. I have carefully perused the case file and also heard Sh. Rohit
Parihar Ld. Authorised Representative for workman and Sh. M.K.
Dwivedi, Ld. Authorised Representative for management.
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ISSUE NO. : 1
10. Management has alleged an act of serious mis-conduct on the
part of the workman. It is alleged that he mis-appropriated the money of
the management leading to loss of trust and confidence.
11. Workman was served with the following chargesheet dated
20.9.2002. The chargesheet was proved as Ex.PW1/4. The same is
relevant and is reproduced below :
"You have been assigned work of ticket booking for rail
journey for company's personnel as per the instructions
received from the concerned staff. Accordingly you had
made following rail booking with M/s Kartic Travels, New
Delhi.
Sl. No. Name of Executive Bill No. Sector Amount
1. S M Patra 439 Del-Mum-Del Rs.2665/-
2. Jayasurya 466 Del-Mum-Del Rs.5070/-
3. K K Verma 467 Del-R'chi-Del Rs.4244/-
4. K K Verma 547 Del-Vara-Del Rs.2640/-
Since the concerned executive could not undertake the
journey you had cancelled the tickets directly, but you
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had not deposited the amount of cancellation in the
office and had kept the money with you in unauthorised
manner with ulterior motive.
Subsequently you had paid the amount of
above bills through your personal cheque drawn on
ICICI bank. As the cheque was dishonoured by the
bank you had made cash payment against bill no.467
and 547 and issued cheque (drawn on IOB) for
Rs.7750/- against Bill no.439 and 466.
The above action on your part amounts to
serious mis-conduct, as it amounts to misappropriation
of company's fund and cheating with the company, and
subversive of good discipline as per the rules applicable
to you.
You are hereby instructed to submit your
written explanation as to why strict disciplinary action
should not be initiated against you for your above
serious misconducts. Your explanation, if any should
reach to the undersigned within three days from the
receipt of this charge sheet failing which it will be
presumed that you are not interested in giving
explanation and we will proceed further in the matter.
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The name of the Enquiry officer, place, date
and time will be communicated to you by separate post."
12. Worker sent reply to the said charghsheet vide Ex.PW1/5 dated
23.9.2002. He generally denied the allegations contained in the
chargesheet. However, there is no clear, unequivocal or specific denial of
allegations that he had booked the railway tickets in question with M/s
Kartic Travels vide bill No. 439, 466, 467 and 547 as per instructions of
the management. His reply is vague and is reproduced below :
"First of all I want to make you clear that this is not only one
person's responsibility to book tickets. Whenever the journey
memo comes from executive /professionals then anybody from
the admin. Staff books the tickets accordingly. So no body is
particularly responsible for ticket booking. Hence I don't
know whether I or somebody else had made those booking,
that you had mentioned on your letter, from the admin. Staff as
I was sitting at EPBX board at that time. So all the allegations
made against me for booking tickets is unauthentic and only
one sided."
13. So there is no clear denial by the workman that he had not
booked railway tickets in question on behalf of the management with M/s
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Kartic Travels.
14. It is further alleged in the chargesheet that as the concerned
executive could not undertake the journey the workman cancelled the
tickets directly and did not deposit the amount of cancellation and kept it
with him with ulterior motive. To this again the reply of the workman is
vague. There is no specific denial that he did not cancel the tickets
directly. He has simply stated that he did not send these bills to the head
office for payment and no payment was made by the management against
the outstanding bills regarding which his explanation was sought. He did
not specifically deny that he did not cancel the tickets directly so there
was no question of depositing the amount of cancellation in the office or
keeping the said amount with him unauthorisedly.
15. It is further alleged in the chargesheet that he paid amount of the
bills in question to the travel agent earlier by cheque and when cheque
was dishonoured by cash.
16. Workman admitted having made payment of the bills in question
to the travel agent but alleged that he was pressurised by Mr. Sunil and
the travel agent and ultimately on advice of Mr. Ram he made the
payment of outstanding bills.
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17. He has further added that the management did not make any
payment to the travel agent against outstanding bills mentioned in the
chargesheet so he has not embezzled any money of the management. He
stated that it was his own money which he paid to the travel agent and on
an agreement with him and on instructions of Mr. Ram.
18. It is not disputed that domestic enquiry was initiated against the
workman on 16.10.2002 and that the enquiry was not completed. The
management has alleged that the enquiry proceedings had to be dropped
on account of violent and non-co-operative attitude of the workman.
Workman, on the other hand, has alleged that he was not given a fair
opportunity to defend himself. It is alleged that enquiry officer was
biased and when he (workman) demanded certain documents, the
presenting officer Mr. Ram turned him out and seized his bag containing
some documents. He reported the matter to the police station Kotla
Mubarakpur.
19. As the enquiry could not be completed management has sought
permission to prove the charges in the court.
In the present case enquiry was not completed which is as good
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as no enquiry. In such a case, the management has a right to prove the
charges in the court by leading evidence.
In Hindustan Vidyut Product Ltd. & Anr. V. Surendra Singh
S/o Sh. Hargyan Singh and Anr. 2002 LLR 722 the enquiry officer
after having commenced the enquiry proceedings expressed his inability
to conduct the enquiry and submitted his report that under the
circumstances created by the employee he was unable to conduct the
enquiry. On the aforesaid the employer terminated the services of the
employee by issuing show cause notice. It was held that employer has a
right to prove the mis-conduct on merits by adducing evidence in the
court. It was observed :
"In view of the provision of law as interpreted by the
Supreme Court under Section 11 A of the Industrial
Disputes Act, 1947, the employer has a right to prove the
mis-conduct on merits by adducing the evidence.
The employer for the reasons best known to it has tried to
knock the doors of this Court in spite of the fact that no
prejudice is being caused to them. Their right for
adducing the evidence before the labour court and
substantiating the charges of misconduct is protected."
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20. Management examined Mr. Ram Subramanium to prove the
charges against the workman. He appeared in the witness box as MW1.
He deposed that the workman made railway booking of tickets through
travel agent with M/s Kartic Travels and the travel agent raised four bills
bearing number 439, 466, 467 and 547 on the management. It is further
deposed that executive of the management did not undertake journey. The
workman cancelled the tickets directly but did not deposit the money in
the office and kept the same with him with ulterior motives. It is stated
that he paid the amount of bills to the travel agent out of his pocket. The
witness further deposed that the payment of bills itself was sufficient to
hold that the workman mis-appropriated the management's money and
therefore no enquiry was needed. But with a view to know as to whether
any other person was also involved chargesheet was issued and enquiry
was conducted.
21. He further deposed that he was appointed as representative of the
management but during the enquiry on 17.10.2002 workman became
violent and aggressive. He tore off the enquiry proceedings and threw
the same at the face of the enquiry officer.
22. He further stated that gratuity amount of Rs.13,638 after
termination of employment of the workman was sent to the him vide
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letter 10.3.2003 (Ex.MW1/2) and now nothing is due to the workman
against the management.
23. In his cross-examination the witness clarified that the travel
agent namely M/s Kartic Travel used to raise bills for railway ticket
bookings and the management used to pay the bills. He added that that
the bill is first scrutinized by the local office and then sent to the head
office for payment.
24. Emphasis of cross-examination of this witness by the workman is
on the fact that management did not make any payment to the travel
agent against bills mentioned in the chargesheet so there was no question
of misappropriation of the same by the workman and this is the defence
of the workman throughout. In his reply Ex.PW1/5 workman repeatedly
stated that no payment had been made by the company to the travel agent
for outstanding bills regarding which his explanation had been called.
He stated that he had not kept the company's money and it was his
personal money which he paid to the travel agent. (para 6 & 7 page 2 of
the reply).
25. This is not the case of the management that it had made payment
to the travel agent for booking of the tickets. Its case is that the workman
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got the tickets booked from the travel agent and cancelled the same
directly and kept the cancellation amount with him. Travel agent raised
bills on the management for payment. The workman himself has not
denied that the travel agent had raised bills on management for payment
as is clear from his letter sent to the labour office on 8.1.2003 which was
proved as Ex.PW1/9. In para 3 page 2 of Ex.PW1/9 it is stated that
Sushil Goel showed certain outstanding bills of Kartic Travels to the
workman. Workman sought a week's time to verify the bills and on
verification he realised that the executive of the management did not
travel on these tickets nor these bills were sent to the head office for
payment.
26. The fact that the bills were not sent to the head office for
payment makes it clear that management had not made payment to the
travel agent. But the fact that the travel agent raised these bills for
payment on the management shows that the amount was outstanding
against the management and due to the travel agent. Since executives of
the management did not undertake the journey the tickets were cancelled.
The cancellation amount was payable to the travel agent on behalf of the
management.
27. Workman has not disputed that he made payment of the bills to
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the travel agent out of his pocket. Management has stated that he
deposited the cancellation money with the travel agent which indicates his
guilt. Although mere deposit of cancellation amount may not prove his
guilt conclusively but there are certain other circumstances which do
lead to an irresistible inference that the conduct of the workman was not
bonafide.
28. His defence is inconsistent as to why he made the payment of the
bills in question if he neither booked the tickets nor cancelled the same
nor got the money of cancellation.
29. In his complaint addressed to the labour office Ex.PW1/9 dated
8.1.2003 he alleged that Mr. Ram Subramanium suggested to him that he
made the payment of Rs.14619/- to the travel agent against bills
439,466,467 and 547 and he was assured that after the enquiry his money
would be refunded to him. In his reply to the charge sheet Ex.PW1/5
dated 23.9.2002 he stated :
"Mr. Sushil and the travel agent had continuously pressurised
me. Despite that I was telling them that I did not have any
bills they were continuously allegating me".
30. Why would the travel agent "continuously pressurise" the
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workman if the workman had not booked the tickets with the travel agent
nor got the same cancelled directly. Further the workman wrote that he
made the payment
"personally on agreement with travel agent that they will
return all the money back to me after all this matter would
resolved."
31. The workman further speaks of some agreement with the travel
agent on page 2 at the beginning of his reply.
"I had not kept the company's money as that was my personal money
which I forward to travel agent on agreement and for the advice of Mr.
Ram then how the question of keeping money arose"
32. Workman admitted in his cross-examination that he did not write
any letter to the travel agent for refund of his amount. He added that he
tried to sort out the matter with the travel agent. He said :
"I did not enclose my letter with the cheques forwarded to
M/s Kartik Travels. I did not write any letters to M/s
Kartik Travels till date for refund of amount which I paid
against the bills. Vol. The amount was paid on advice of
Mr. Ram Subramanium. I tried to sort out matter with
travel agent."
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33. Mr. Ram Subramanium was examined as MW-1. In his cross-
examiantion he denied that he advised the workman to make the payment
to the travel agent or assured him that his money would be returned. The
workman has stated that during enquiry proceedings Mr. Ram was
representative of the management. He alleged in his letter Ex.PW1/9 that
Mr. Ram misbehaved with him and threw him out of the premises and
also seized his bag. He reported the matter to police station
Kotlamubarakpur. He stated that he withdrew his complaint on verbal
assurance of Mr. Ram that the enquiry would take place in proper manner.
How can the workman believe alleged verbal assurances of Mr. Ram
again and again. He paid money to the travel agent on alleged advice of
Mr. Ram on his alleged assurance that his money would be returned. His
money was not returned. Rather he was suspended and enquiry was
initiated against him. During enquiry Mr. Ram allegedly misbehaved
with him, seized his bag yet the workman withdrew his complaint against
Mr. Ram on his alleged verbal assurance that a fair opportunity would be
given to him to present this case.
34. Workman is inconsistent as to the reason of withdrawal of his
complaint filed before police station Kotla Mubarakpur. In Ex.PW1/8 he
stated that he withdrew the same on verbal assurance of Mr. Ram that
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"enquiry proceedings shall take place in a proper manner and
proper opportunity shall be given to me to present my case."
Whereas in his cross-examination he stated that since his bag,
which was seized by Mr. Ram, was returned to him he withdrew the
complaint.
35. Workman has been repeatedly harping on the fact that the
management did not pay anything to the travel agent and that he paid him
out of his pocket so there is no loss caused to the management and there is
no misappropriation of management money. Workman is trying to
confuse the issue which is very clear. It is true that the management did
not make any payment to the travel agent for booking railway tickets but
the travel agent raised bills for payment of railway tickets booked by him
on the management which shows that amount of tickets was outstanding
against the management. The tickets were cancelled as management did
not undertake journey. So outstanding amount was payable to the travel
agent by the management.
36. Management may not have suffered any pecuniary loss but proof
of loss is not necessary to prove misappropriation. In HVM Shenoy S/o
N. Madhav Shenoy V. Chairma & Managing Director, Corporation Bank
17
and Others 2006 LLR 1025 it was held that :
I have no hesitation in holding that the proof of loss is not
necessary for the initiation and the conclusion of the
disciplinary proceedings against a delinquent."
In Disciplinary Authority-cum-Regional Manager
v. Nikunja Bihari Patnaik 1996 (9) SCC 69 it was held that it
is not defence available to say that there was no loss or profit
resulted in case, when the officer/employees acted without
authority.
37. The fact that workman made payment to the travel agent out of
his pocket does not absolve him. It is not his case that he neither booked
the tickets nor cancelled the same.
In Vishwa Nath, Appellant V. State of Jammu & Kashmir,
Respondent, 1983 (SC2) -GJX- 0007-SC it was held that
refund of the amount by delinquent employee does not absolve him of the offence of misappropriation. In Ram Ratan Dwivedi V. Municipal Council, Devendra Nagar & Ors. 2006 LLR 457 it was held that a charge of embezzlement by an employee, duly proved against him in 18 the enquiry held against him, will not be swept merely because he has deposited the embezzled amount after it was found in the audit that he has misappropriated the said amount.
38. Workman has admitted that he has encashed the cheque for Rs.13638/- sent by the management to him towards gratuity. He added that he did not know as to on what account the cheque was sent so he encashed it. He further stated that later he received a letter from the management mentioning that the payment was towards gratuity. He further admitted that even after he came to know that the payment was towards gratuity he did not write any letter to the management.
39. Workman has not denied specifically that he did not book the tickets nor got the same cancelled directly. The fact that his reply is vague coupled with the fact that he reimbursed the travel agent leads to an irresistible inference that his act was not bonafide.
40. Workman has not explained in his statement of claim as to under what circumstances he deposited the money with the travel agent. Even in his affidavit he is silent as to the circumstances which allegedly forced him to make payment to the travel agent. It is settled law that what is not 19 pleaded cannot be proved.
41. The standard of proof in enquiry proceedings is not proof beyond reasonable doubt but preponderence of probability leading to an inference that the fact must be more than probable. Only circumstantial evidence would furnish the proof as held in Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi and Others, 1991 (2) SCC 7-16, wherein it was held :
"It is thus well settled laws that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic Tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc., seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof."
42. The workman has not denied that it was not his duty to book the tickets. In fact he stated that it may be he or somebody else who booked the tickets. He has not specifically denied that he did not cancel the 20 tickets directly. This fact coupled with the fact that he made payment to the travel agent and never wrote to him for refund of the amount lead to an inference that he is guilty of gross misconduct. It led to breach of trust and consequently termination of his services.
43. In U.P. State Road Transport Corporation, Dehradun V. Suresh Pal 2006 LLR 1267 it was held :
"It is not only the amount involved but the mental setup, the type of duty performed and similar relevant circumstances which go into the decision making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable."
44. The workman in this case has not denied that he was also doing railway reservations on behalf of the management with the travel agent. 21 So he was dealing in financial transactions. So it was desired of him to act with trustworthiness and integrity which was lacking in his case. A dishonest employee holding position of trust, must be dealt with iron hands.
45. This issue is accordingly decided in favour of the management and against the workman.
ISSUE NO. 2 : RELIEF.
46. In view of the aforesaid, I hold that the workman is not entitled to any relief. Reference is answered in the negative. Appropriate Government be informed. File be consigned to record room.
Announced in open court
on 30.07.2007 PRESIDING OFFICER
LABOUR COURT NO. XIII
KARKARDOOMA COURTS, DELHI
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