Delhi District Court
Complainant Be Rejected And Relied Upon ... vs . on 12 April, 2007
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IN THE COURT OF SH. I.S. MEHTA: PRESIDING OFFICER:
INDUSTRIAL TRIBUNAL NO.I: ROOM NO.2:
KARKARDOOMA COURTS: DELHI.
COMPLAINT I.D.NO.01/2006
IN THE MATTER OF
Sh. Devender Kumar S/o Sh. Khem Chand
Delhi Hospitals and Nursing Home Employees Federation
C/o F-180/G-1, Dilshad Colony, Delhi-110095.
.....Complainant/
Workman.
VERSUS
Management of Batra Hospital
1, Tughlakabad Institutional Area,
Mehrauli Badarpur Road, New Delhi-110062.
AWARD
1.This is a complaint, filed U/s 33-A of the I.D. Act by the complainant, alleging therein violation of Section 33 on the part of the management.
2. In the complaint, it is stated that the workman joined the services of the management on 04.07.1989 as a Nursing Aid. The workman is a General Secretary of Batra Hospital Employees Union and due to that reason, there was a constant friction between the workman and the management.
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3. It is further stated that the union raised an industrial dispute bearing I.D.NO.68/05 which is still pending in this Tribunal. It is further stated that thereafter the management suspended the workman w.e.f.25.03.2005 and no charge sheet or notice was served upon the workman.
4. It is further stated that the workman was declared a Protected workman continuously since the last many years. The union vide its letter dated 01.03.2005, sought protection of the workman for the year 2005 but however, no response was received from the management in this regard. Thereafter on moving of application on 17.03.2005 before the Assistant Labour Commissioner, he was declared as a protected workman vide his order dated 27.09.2005.
5. It is further stated that in the meanwhile, the management has also filed an approval application bearing O.P.98/2005 for approval of their action of dismissal of the workman, claiming that they held a domestic enquiry and the workman was found guilty of the charges of misconduct and the management allegedly dismissed the services of the workman on 31.08.2005 which is illegal on the part of the management as the management was liable to sought permission from the Court on account of the status of the workman of being Protected workman.
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6. The management has violated the provisions of Section 33 of the I.D. Act and therefore, the workman is entitled to reinstatement in service with full back wages and continuity of service.
7. The management has filed reply to the complaint of the workman wherein preliminary objections were taken to the effect that the present complaint is not maintainable as the management has already moved an approval application on 31.08.2005 and the same is pending adjudication and that there is no violation of Section 33 of the I.D. Act on the part of the management.
8. On merits, it is stated that the management was contesting the I.D.NO.68/05, accordingly, the management has filed approval application. It is further stated that the management was well within its right to suspend any of its employee for misconduct, committed by him. It is further stated that the complainant was charge sheeted on 19.04.2005 and after conducting the enquiry, he was dismissed from the services of the management on 31.08.2005. It is further stated that the complainant was not a protected workman for the year 2004-2005 and that on the date of dismissal also, he was not a protected workman. It is further stated that the workman is not entitled to any relief of reinstatement with continuity of service as he is gainfully :4: employed. It is prayed that the complainant of the complainant be dismissed.
9. No rejoinder was filed and on the pleadings of the parties, the following issues were framed :-
1. Whether the present complaint is maintainable U/s 33-A of the Industrial Disputes Act ?
2. Whether the present complainant is a protected workman ?
3. To what relief, if any, the complainant/ workman is entitled.
10. The workman/ complainant was examined as WW1 and tendered his affidavit Ex.WW1/A and thereafter tendered additional affidavit Ex.CW1/B and also tendered documents Ex.WW1/1 to Ex.WW1/3 and Ex.CW1/3 to Ex.CW1/5.
11. On behalf of the management, Sh. V.S. Chauhan-
Additional General Manager (P) was examined as MW1 who in evidence, tendered his affidavit Ex.MW1/A.
12. I have heard Learned ARs for both the parties and have perused the record carefully and my findings are as under :-
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13. Learned AR of the management - Sh. Pankaj Malik has submitted that the present complaint U/s 33-A is not maintainable for want of correct name & description of the management and that the complainant was not a protected workman at the time of his dismissal which dismissal was after conducting a proper enquiry into the charges of serious misconduct against the workman/ complainant. The management has already moved an approval application on 31.08.2005 in this regard. The management has not violated the provisions of Section 33 of the Industrial Disputes Act and submitted that the complaint, moved on behalf of the complainant be rejected and relied upon Maghar Singh Vs. T.K. Industries : FJR: 209-Vol (47) & Mahindra And Mahindra Ltd. Vs. N.B. Naravade : FLR- Vol-104: 2005- Page No.1218.
14. On the other hand, Sh. N.A. Sebastian- Learned AR of the workman/ complainant has opposed the contentions of Learned AR of the management and submitted that the workman was a protected workman and the management, in violation of Section -33, during the pendency of industrial dispute bearing no.68/05, dismissed the services of the workman on 31.08.2005. The illegal action of the management is liable to be set aside and the complaint of the complainant be allowed and he be held entitled to reinstatement with full back wages and continuity of service. :6: ISSUE NO.1 & 2
15. Issue no.1 & 2 are taken together being interconnected.
16. The case of the workman/ complainant is that he was the General Secretary of the Union of workers of Batra Hospital and that he was taking up the cause of the workers of the hospital for a long time. The union raised an industrial dispute for general demands bearing I.D.NO.68/2005 and during the pendency of the said industrial dispute, on false charges of misconduct against the workman, the management dismissed the services of the workman/ complainant w.e.f.31.08.2005. The workman has also stated that he was a protected workman for the year 2005-2006 and that the management was liable to take permission of their action before dismissing the workman. He has prayed that he be reinstated in service with full back wages and continuity of service.
17. On the other hand, the case of the management is that the workman/ complainant was not a protected workman and that the management conducted a fair enquiry into the charges against the workman and thereafter dismissed the services of the workman w.e.f.31.08.2005. There was no need to file any permission application as the :7: management was contesting the I.D.NO.68/05, therefore, the management filed the approval application. It is prayed that the complaint of the complainant be dismissed being not maintainable.
18. It is an admitted fact between the parties that there is pendency of industrial dispute bearing I.D.NO.68/05. Perusal of the said case file shows that the said industrial dispute was raised by the union namely; Batra Hospital Employees Union demanding general demands against the management of M/s. Batra Hospital & Medical Research Centre in which case, the workman- Devender Kumar is stated to be the General Secretary of the Union. The reference of the said industrial dispute was received by this Court on 15.06.2005 and that the statement of claim was filed on 28.07.2005 in the above said industrial dispute.
19. It is also an admitted fact between the parties, that the workman-Devender Kumar was dismissed from service of the management on 31.08.2005. The dismissal of the workman on 31.08.2005 shows that it was during the pendency of the above said industrial dispute i.e I.D.NO.68/2005.
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20. Rule 61(1) of the Industrial Disputes (Central) Rules, 1957 reads as under :-
Protected Workmen- (1) Every registered trade union connected with an industrial establishment, to which the Act applies, shall communicate to the employer before the 30th April every year, the names and addresses of such of the officers of the union who are employed in that establishment and who, in the opinion of the union should be recognised as "protected workmen". Any change in the incumbency of any such officer shall be communicated to the employer by the union within fifteen days of such change.
21. Rule 61(2) of the Industrial Disputes (Central) Rules, 1957 reads as under :-
(2) The employer shall, subject to section 33, sub-section (4), recognise such workmen to be "protected workmen" for the purposes of sub-
section (3) of the said section and communicate to the union, in writing, within fifteen days of the receipt of the names and addresses under sub-
rule (1), the list of workmen recognised as protected workmen for the period of twelve months from the date of such communication.
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22. The workman examined himself as CW1 and proved document Ex.CW1/3 which is a letter dated 01.03.2005, written to the management of M/s. Batra Hospital & Medical Research Centre by Batra Hospital Employees Union, requesting the management to declare the active members of the union to be the Protected Workmen The workman further proved the acknowledgment receipt Ex.CW1/4 and the acknowledgment card Ex.CW1/5.
23. During cross-examination of the workman, the management has not put any suggestion to the workman that the above said letter dated 01.03.2005 Ex.CW1/3 was never received by the management. Further more, the workman during the cross-examination as CW1 has stated that on 01.03.2005, he was the General Secretary of the Union. No suggestion was put to the workman that he was not the General Secretary of the union. Rather, a suggestion was given to him which was admitted by the workman that his services were dismissed on 31.08.2005.
24. It is also admitted that the management never replied the letter dated 01.03.2005. The version of the workman that on the date of his dismissal i.e.31.08.2005, he was a Protected Workman is further strengths by proving the document Ex.WW1/3 which is a letter dated 27.09.2005 by the Assistant Labour Commissioner whereby the active : 10 : members of the Batra Hospital Employees Union were declared protected workmen for the year 2005-2006. The name of the present workman- Sh. Devender Kumar- General Secretary finds mention at S.NO.3. No cross- examination on this letter was done by the management upon the workman.
25. There is no plea on behalf of the management that somebody else was the protected workman for the year 2005- 2006 and at the same time, the management has not sent any objectionable reply to the letter dated 01.03.2005, regarding Protected Workmen, sent by the Union within 15 days which automatically entitles the workmen, mentioned therein to be the protected workmen. Moreover, in the present case, the Assistant Labour Commissioner has also approved the workman to be the Protected Workman. Therefore, I hold that the workman was a protected workman as on the date of dismissal i.e.31.08.2005.
26. The Hon'ble High Court of Delhi in the case 2004 III LLJ Delhi P-914 M/s. Batra Hospital and Medical Research Centre of Sh. Aishi Ram Batra Charitable Trust Vs. Batra Hospital Emplyees' Union and others has held as under :-
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Rule 61(2) of the Industrial Disputes Rules, 1957 clearly indicates that objection, if any, to protected status of a workman, has to be communicated by the management within 15 days. Otherwise it will be deemed that the workmen mentioned in the application begins to enjoy protected status. Significant indeed is the use of the word "shall" in Rule under Rule 61 sub- clause (2) which indicates the emergent and mandatory nature of a prompt reaction by the management.
27. The pendency of industrial dispute bearing I.D.NO.68/2005, the dismissal of the workman- Devender Kumar on 31.08.2005 during the pendency of I.D.NO.68/2005 and the workman being the General Secretary of the Union is directly involved and concerned in I.D. NO.68/2005 are admitted facts between the parties. On record, it is established that the workman was a protected workman, therefore, the management was liable to file a permission application U/s 33(3) of the I.D. Act before alleged dismissal of the workman by the management instead of filing approval application U/s 33(2)(b) Act. The management has violated the provisions of Section 33, therefore, the action of the management is liable to be set aside. As such, issue no.1 & 2 are decided in favour of the workman/ complainant and against the management. The judgments relied upon by Learned ARM is no help to the management.
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28. In view of the above discussion, the action of the management of dismissal of the workman on 31.08.2005 during the pendency of I.D.NO.68/2005 without taking permission of the Court is set aside. The management is directed to reinstate the workman w.e.f.31.08.2005 with continuity of service and full back wages. The management is further directed to allow the workman to resume duties and also to pay the arrears of back wages within one month of the passing of this award. The complaint U/s 33 of the complainant/ workman- Devender Kumar is allowed. Award is passed, accordingly.
Dated: 12.04.2007.
[ I.S. MEHTA ] PRESIDING OFFICER:
INDUSTRIAL TRIBUNAL NO.I:
DELHI.
(one separate copy attached).