Delhi District Court
Sh. Anil Kumar (Age 37) vs Sh. Abraham Pothen (Director ... on 14 May, 2018
IN THE COURT OF SHRI UMED SINGH GREWAL
PILOT COURT / POLCXVII, ROOM NO. 514 :
DWARKA COURTS: NEW DELHI
LIR No. 2894/17.
In the matter of:
Sh. Anil Kumar (Age 37)
Mobile No. 9654310337
S/o Late Sh. Nafe Singh,
through Sky Gourmet Employees Union (Regd. 28)
(Affiliated CITU), B.T.R. Bhawan, 13A,
Rouse Avenue, New Delhi110002
..............Workman
Versus
1.Sh. Abraham Pothen (Director Operations) Mobile No. 9971511300, (Email I.D. P A [email protected]) (2) Sh. Ashutosh Bhatt (Executive Manager) Mobile No. 9910511300, (Email I.D. [email protected]) M/s. Sky Gourmet Catering Pvt. Ltd.
International Airport, Approach Road, Opp. Rose Garden, Terminal3, Mahipalpur, New Delhi110037.
............. Management
DATE OF INSTITUTION : 22.09.2017
DATE ON WHICH AWARD RESERVED : 11.05.2018
DATE ON WHICH AWARD PASSED : 14.05.2018
A W A R D :
1. Vide Order No.F.24(141)/17/SWD/Lab./97199722 LIR No. 2894/17 Page 1 of 25 dated 18.09.2017, issued by Government of NCT of Delhi, a reference was sent to Labour Court No. XIX with the following terms: "Whether the dismissal of Sh. Anil Kumar (Age
37), Mobile No.9654310337 S/o Late Sh. Nafe Singh from the services by the management vide order dated 07.03.2017 is legal and justified and if not, to what relief is he entitled and what directions are necessary in this respect?"
2. Claimant's case is that the management is in permanent and perennial business of Air Catering which is prospering since inception and has never seen down trend. Despite it, the management used to employ persons on fixed term contract. The business is done 24 hours a day, 7 days a week and 365 days a year. He had joined it on 02.09.2010 as Team MemberB (Transport) at a consolidated salary of Rs.6500/ per month. Initially, his employment was for a fixed term beginning from 02.09.2010 but contract was renewed from time to time without any break. In the meantime, the Government of India, vide notification dt. 10.10.2007, removed the term "fixed term employees" from the Draft Standing Orders and now only the term "Badli workers"
remains in the Draft Standing Order. Despite that notification, the management continued to employ persons on fixed term basis and hence, the Union had espoused the matter with Dy. Labour LIR No. 2894/17 Page 2 of 25 Commissioner in 2013. The certifying officer was pleased to modify Clause 5 (h) of Certified Standing Orders on 31.08.2012. Due to that reason, the management, in order to take revenge, terminated the workers who were members of Sky Gourmet Catering Union (Regi.) because the said Union had not been sponsored it. The management had entered into settlement with Union by giving increment of Rs.3,000/ and promise of D.A. It increased salary by Rs.3,000/ but refused to give Dearness Allowance and in this way, it had violated the terms of settlement. The union members met management on 30.07.2013 on the issue of dearness allowance which it refused to grant and hence, the union conveyed that message to workers who stopped work instantly. Police came to the premises of the management on 02.08.2013 and evicted him and coemployees forcibly. The management allowed all workers except seventeen employees to join the job on 05.08.2013 and he was one of the workers who was not allowed to resume duty. He had never participated in any Dharna, strike or agitation. He had merely stood alongwith other workers at the place where all had gathered. He was neither leader nor instigator of the dharna. He was suspended from the service on 06.08.2013 without supplying document. Charge sheet dated 18.09.2013 was issued levelling baseless and vague allegations in which violated provisions of Certified Standing Orders were not mentioned. He LIR No. 2894/17 Page 3 of 25 replied to the chargesheet vide letter dated 20.09.2014. Mr. Dinesh Bhatt was appointed as Inquiry Officer after 9 months of issuance of the chargesheet. He was a biased person because he was associated with Bhasin and Bhasin Co. which handles all the legal disputes of the company. The Inquiry Officer did not conduct proceedings properly. There was always threat on his person at the place of inquiry. It was congested place which was frequented by unknown persons. Inquiry was concluded on 28.08.2015 but the report was filed on 09.01.2017 i.e. after elapse of 1 year and 5 months. Relying upon inquiry report and without assigning any reason, his service was terminated against which he filed complaint before Labour Commissioner, Hari Nagar, where the management did not co operate and, hence, the matter has been referred to this court. He is suffering financially, socially and physically due to suspension and subsequent termination of service. He is jobless since then.
3. Written statement is to the effect that the claimant was issued a chargesheet dated 18.09.2013 to which he had submitted explanation vide letter dated 20.09.2014 admitting that the majority of the workers had sat on dharna involuntarily. He did not know the reason for dharna and he had joined the workers in routine. He was not aware of the order dated 11.04.2013 of the Hon'ble High Court of Delhi. He had further mentioned in reply that workers had LIR No. 2894/17 Page 4 of 25 assembled peacefully without raising derogatory, offensive and antimanagement slogans. He had admitted that they were forcefully evicted from factory premises on 02.08.2013. Since the explanation tendered by him was unsatisfactory, domestic enquiry was initiated by appointing Mr. Dinesh Bhatt, an advocate, an independent and impartial person. Mr. Bhatt was never appointed as legal advisor by the management. He was totally an impartial person unconnected with its affairs and hence, he conducted proceedings in accordance with principles of natural justice. The claimant had fully participated in the proceedings. He was given due opportunity to be represented by coemployee and consequently, he was represented by Mr. Narender Kumar. All management witnesses were examined in his presence and were crossexamined. After closure of evidence of management, he was given opportunity to produce evidence in defence and only thereafter, the inquiry was closed. The enquiry officer gave report dated 14.01.2017 holding claimant guilt of the charges levelled against him in the chargesheet dated 18.09.2013. Copy of the report was sent to him with covering letter dated 21.01.2017 but he kept lips tight despite receipt of report and did not show any cause why the finding of the enquiry officer be not acted upon. The management also concurred with the enquiry report as the claimant had indulged in various acts of misconduct. There was no extenuating circumstance which could lessen punishment LIR No. 2894/17 Page 5 of 25 and hence, he was dismissed from service vide letter dated 07.03.2017. It is further mentioned in written statement that service of claimant was terminated after proper inquiry and hence, it was relying upon domestic enquiry proceedings and report. If the court comes to the conclusion that inquiry was not fair and proper, it be given opportunity to lead fresh evidence to substantiate charges before this Court.
4. Following issues were framed on 13.12.2017:
1. Whether the enquiry conducted by the management is not fair and proper? OPW.
2. In terms of reference.
3. Relief.
5. In order to get declared enquiry proceedings invalid, the claimant tendered his evidence as Ex.WW1/A mentioning all the facts stated in statement of claim. He relied upon following documents:
1. Ex.WW1/1 (03 pages) is fixed term contract dated 02.09.10.
2. Ex.WW1/2 are copies of letters dated 02.03.11 for renewal of fixed term contract, 01.06.14 for increment and dated 29.06.11 for renewal of fixed term contract.
3. Ex.WW1/3 (04 pages) is the Gazette Notification dated 10.08.07.
4. Ex. WW1/4 (05 pages) is order dated 31.08.12.LIR No. 2894/17 Page 6 of 25
5. Ex.WW1/5 is settlement dated 16.01.13 between employees of the management and management.
6. Ex.WW1/6 is settlement dated 08.03.13 between employees of the management and management.
7. Ex.WW1/7 is complaint dated 01.03.13.
8. Ex.WW1/8 is suspension order dated 06.08.13.
9. Ex.WW1/9 (04 pages) are copy of chargesheet dated 18.09.13.
10. Ex.WW1/10 is letter dated 09.06.14 appointing the Enquiry Officer.
11. Ex.WW1/11 (03 pages) is copy of reply dated 20.09.14 to the chargesheet dated 18.09.13.
12. Ex.WW1/12 is letter dated 07.03.17.
13. Ex.WW1/13 (04 pages) are notice for appearance dated 04.08.17 sent to the management by Conciliation Officer and letter dated 17.07.17 issued by Labour Officer.
6. The management examined Enquiry Officer, Mr. Dinesh Bhatt as MW1 who deposed that first date of enquiry was 06.09.2014 and the last date was 28.08.2015. He admitted that he was a practicing lawyer but he had no connection with the affairs of the management. He was never associated with Bhasin and Bhasin Associates during enquiry. He had conducted proceedings independently, impartially and without any bias for or against any party. Full opportunity was given to claimant to participate and LIR No. 2894/17 Page 7 of 25 rebut the charges levelled against him. Copies of documents relied upon by management were supplied to him. All three witnesses of the management were examined in his presence and were cross examined by him. He recorded the proceedings correctly and truthfully. No outsider was allowed to be present during enquiry.
Environment and venue of enquiry were free from fear and threat. All contentions, submissions and objections of the claimant were recorded truthfully and correctly. He next deposed that he submitted enquiry report on 14.01.2017 without any kind of bias. He relied upon following documents :
I. Ex.MW1/1 is the copy of enquiry proceedings dated 20.05.15.
II. Ex.MW1/2 (colly. Page 48 to 134) are the copies of documents and correspondence filed during the enquiry proceedings.
III. Ex.MW1/3 (colly, 18 pages) is the enquiry report dated 14.01.2017.
IV. Ex.WW1/10 and from Ex.WW1/M1 to Ex.WW1/M14.
Issue No.1:
7. This issue has already been decided in favour of management and against claimant by this court vide order dated 05.05.2018.LIR No. 2894/17 Page 8 of 25
Issue No. 2:
8. Ld. ARM argued that the claimant had instigated the staff members on 30.07.2013 at 4.00 PM to do strike as their demand for DA was not acceded to by the management. He alongwith certain others led the mob of workers to the operational area raising derogatory, offensive and antimanagement slogans and directed workers at the shop floors to stop work forthwith. They obeyed his command. He along with some other workers called up the staff deputed at Airport, directed them to leave their work and return to the factory. On his instigation, they left work at the Airport and returned to factory as a result of which the flights had to be catered by senior executives. He did not allow workers to leave the factory premises even after completion of their shift. He did not allow other workers, who were rostered for the night duty, to go to their respective places of work. As a result of strike of 30.07.2013, its clients namely Jet Airways and Air India shifted to Oberoi Flights Services and Taj Air Catering respectively. He along with others remained on sit in strike inside the factory premises in violation to the High Court orders dated 11.04.2013 and 28.02.2013 vide which they were restrained from holding any demonstration, dharna, raising any derogatory and ofensive slogans against management within the radius of 100 meters from the gate and boundary walls of the factory premises. The Hon'ble High Court of LIR No. 2894/17 Page 9 of 25 Delhi had directed police to evict them from premises. Eventually, they were evicted on 02.08.2013 at 11.30 AM. That action of the workers was condemned by its union also. He further submitted that the management had issued notice dated 30.07.2013 to the workers to restore normalcy but they did not budge. It had sent notice dated 30.07.2013 to Union also asking it to intervene and to restore normalcy. Complaint was given to SHO PS IGI Airport also on 30.07.2013. When the workers did not leave the premises, the Hon'ble High Court of Delhi directed the concerned police station vide order dated 01.08.2013 to evict them forcibly and they were evicted next day. He further submitted that a general body meeting of members of Sky Gourmet Catering Employees Union affiliated to Airport Employees Union (CITU) was held on 07.08.2013 in which it was resolved that workers' flash strike and dharna inside the factory premises on 30.07.2013 was unwarranted because the process of signing a negotiated settlement with management was under progress. Vide that resolution, the general body had criticized the action of the workers. Next argument of ld. ARM is that as per clause No.13 of certified standing orders, the workers cannot go on strike without giving 14 days notice. Any strike resorted to in contravention of that clause shall be deemed illegal. He further submitted that the workers can go on strike only if their grievances remain unresolved by mutual negotiations provided under the said LIR No. 2894/17 Page 10 of 25 orders. The process of mutual negotiation was still under way and it was to be signed very shortly but the workers could not restrain themselves and went on strike without giving any notice. He submitted that as per Sudhir Chandra Sarkar Vs. Tata Iron and Steel Co. Ltd. and Ors. Civil Appeal No. 1803/1970 decided on 27.03.84 by the Apex Court, the standing orders have the force of law. He also relied upon (i) UCO Bank Vs. Presiding Officer (2000) 1 LLJ 1187, Delhi, (ii) Syndicate Bank & Anr. and K. Umesh Nayak and Ors. (1994) II LLJ. (iii) M/s. Eicher Goodearth Ltd. Vs. The Presiding Officer, Labour Court & Another 1999 LLR, (iv) The Workmen represented by Bihar Engineering Kamgar Union, Refugee Market, Dhanbad, Vs. Presiding Officer Labour Court, Bokaro Steel City, Bokaro and another, 2003 LLR,
(v) Ravindra Sharma Vs. Labour Court & Ors., 2011 LLR 495 and
(vi) Association of Engineering Workers, Mumbai Vs. Hindustan Motor Manufacturing Company, Mumbai, 2015 LLR 920.
On the other hand, ld. ARW argued that the workers had tendered unqualified apology in the Hon'ble High Court of Delhi and the apology was accepted by the counsel of the management and in this way, the contempt petition was disposed off by the High Court on 17.09.2014. After unconditional apology, the management should not have taken coarse step of removal from LIR No. 2894/17 Page 11 of 25 service. He next argued that the claimant had never instigated the mob. In fact, the leaders have been spared and dumb riven cattle have been fired from job.
9. It is the admitted case of both parties that there was strike in the premises of management on 30.07.2013 at 4 PM. It is also the admitted fact that the Hon'ble High Court of Delhi had restrained workers vide orders dated 28.02.2013 and 11.04.2013 from holding demonstration, dharna, raising derogatory and offensive slogans against management within the radius of 100 meters from the gate and boundary wall of the premises. It is also the admitted fact that the Hon'ble High Court of Delhi, vide order dated 01.08.2013, had directed the concerned police station to evict the striking workers from the premises of management. It is mentioned in statement of claim itself that the claimant alongwith others was evicted from the premises of management by police on 02.08.2013 at 11.30 AM. The letter dated 30.07.2013 written by management to the workers is on the file in which it is mentioned that they should restore normalcy and resume worker and those who were not on duty or were not willing to be on duty, should leave the premises and go beyond the radius of 100 meters from the boundary of the premises. On the same day, the management had written a letter to General Secretary of Airport Employees Union (Regd.) LIR No. 2894/17 Page 12 of 25 (Affiliated to CITU) with following contents: "You are well aware that your union submitted a Charter of Demands dated 10th June 2010 to the management of M/s. Sky Gourmet Catering Pvt. Ltd., New Delhi on behalf of the workmen of M/s. Sky Gormet Catering Pvt. Ltd. New Delhi working as Team MemberC, Team MemberB and Team MemberA. Your union thereafter raised an industrial dispute on behalf of Sky Gourmet Employees' Union (unregistered) named as Sunil Bagri and 117 others in respect of the above Charter of Demands which was referred for adjudication by the Government of NCT of Delhi to the learned Industrial Tribunal, Karkardooma Courts, Shahdara, Delhi vide order of reference dated 01.11.10.
Another reference in respect of purported dispute named as Jagbir Singh and others through your Union was also made by the Government of NCT of Delhi to the Learned Industrial Tribunal, Karkardooma Courts, Delhi.
This dispute, referred by order of reference dated 07.02.2011, is marked as I.D. No. 31/2011 and is pending adjudication before the Learned Industrial Tribunal. Consequent to stoppage of work from 16th January to 17th January, 2013, an interim payment of Rs.3000/ (Rupees Three Thousand Only) [subject to adjustment against final settlement and/or the Award of Industrial Tribunal] was allowed to the workmen effective January 2013 by the Management of M/s. Sky Gourmet Pvt. Ltd. for resumption of work, restoration of peace and continuation of business of the Unit. As a result of reconsideration and discussion, meetings and negotiations, thus, held from time to time between the parties, a settlement in this regard was also arrived at subject to LIR No. 2894/17 Page 13 of 25 certain conditions agreed by both the parties. It was also agreed by the parties that after execution of Settlements, joint application will be filed before the designated Industrial Tribunal with a prayer to pass a Consent Award.
However, these two Settlements could not be executed on account of your Union raising two more demands at the last moment when we assembled on 16th July 2013 i.e. the dte agreed upon for execution of Settlements. Decision of Management has been conveyed to your union on both the issues on 22 July, 2013 and you have not yet reverted on this. Management of the Company has been in regular communication with your union as well as CITU for an early execution of Settlement.
Pending the above, 07 workmen of the Company and members of your Union, claiming to be representing the entire workmen of the Company met undersigned on 29th July, 2013 disowning the negotiated Settlement as also the consideration shown by the Management for reemploying/joining of 18 terminated, suspended and unauthorizedly absenting (transferred) workmen and demanded that the Management concedes to their fresh financial demand by 1600 hrs. tomorrow i.e. 30th July, 2013 away and independent of negotiated Settlement, otherwise they will stop the work. WE contacted the CITU leaders of State level, explained the details to them and requested them to prevail upon their members to refrain from their proposed course of action, more particularly when we were already on the negotiation table and had arrived at an understanding for signing of Settlement. To our amazement, while the Union leaders confirmed that they had neither given any such call nor do they support any indiscipline among their members and such irresponsible LIR No. 2894/17 Page 14 of 25 action, they expressed their inability on grounds that if their members were not listening to them what could they do? We, however, still met them yesterday as also today, since Management has been open to dialogue, and explained the position in detail. They do not seem to be amenable to reasons and logic. They clearly stated that they have nothing to do with the Unions and they were Union unto themselves. There also do not appear to be any initiative from the Union side to defuse the situation.
In view of this, we request you to kindly use your good offices to intervene in the matter so that normalcy is restored forthwith in the factory and inconvenience is not caused to the travelling public, failing which we shall be constrained to take our own view in the entire issue."
10. On 30.07.2013 itself, the management had given update of the situation to SHO PS IGI Airport. Vide order dated 01.08.2013, the Hon'ble High Court of Delhi had directed police to take effective steps without any delay, in ensuring that the orders of the court were complied with. It was made clear that any failure on the part of the police authority to implement the order in full would be viewed seriously by the Court. A general body meeting of the members of Sky Gourmet Catering Employees Union affiliated to Airport Employees Union (CITU Delhi) was held on 07.08.2013 which adopted the following resolution: "This The General Body Meeting (GBM) is of the view that the reaction of employees by holding a flash strike and dharna inside the factory premises was unwarranted LIR No. 2894/17 Page 15 of 25 because the process of signing a negotiated settlement with the management was under progress. The GBM regrets this action of the employees. It assures the management that such a situation will not recur in future. The process of mutual dialogue between the management and the union should start immediately to maintain peaceful environment and healthy Industrial relations. This GBM authorizes the elected committee of its union and leaders of the Airport Employees Union (to which the Sky Gourmet Catering Employees is affiliated) and leaders of CITU to sign the negotiated settlement on the demands and other work practices with the management with a fortnight."
11. As per clause No.13 of certified standing orders, the workers shall not go on strike without 14 days notice and any strike resorted to in contravention of that clause shall be deemed illegal. It is further mentioned that the workers, in the event of any grievance, shall first try to resolve the same by mutual negotiations and the machinery provided under standing orders. Any strike resorted to without exhausting the provisions of standing orders shall be illegal.
The settlement talks between union and management were still undergoing. The claimant and others did not wait the completion of process and immediately went on strike on 30.07.2013 without giving any notice. They violated the orders of the Hon'ble High Court vide which they were restrained from holding any dharna or raising derogatory remarks against management within the radius of 100 meters of the gate and LIR No. 2894/17 Page 16 of 25 premises. They were evicted by the police on 02.08.2013 at 11.30 AM because of the order of 01.08.2013 passed by the Hon'ble High Court of Delhi in contempt petition. So, their actions are definitely illegal.
12. But the moot question is whether the punishment of removal from service is disproportionate to the proved misconduct or not. As per clause No. 30 of certified standing orders, following are the punishments for misconduct: 30.1. Warned or censured; or.
30.2. Fined subject to and in accordance with the provisions of law, or 30.3. Punished by withholding of increment if any, with or without cumulative effect; or 30.4. Suspended without wages, by way of punishment for a period not exceeding four days; or 30.5. Reduced to a lower post or grade or a lower stage with consequential reduction in salary and status; or 30.6 Discharged with notice or wages in lieu thereof, by way of punishment; or.
30.7. Dismissed without notice.
13. In, Syndicate Bank and Ors Vs. K. Umesh Nayak & Ors. (1994) II LLJ, following was held by the Apex Court: "9. The strike as a weapon was evolved by the workers as a form of direct action during their long struggle with the LIR No. 2894/17 Page 17 of 25 employers. It is essentially a weapon of last resort being an abnormal aspect of the employeremployee relationship and involves withdrawal of labour disrupting production, services and the running of the enterprise. It is a use by the labour of their economic power to bring the employer to see and meet their viewpoint over the dispute between them. In addition to the total cessation of work, it takes various forms such as working to rule, go slow, refusal to work overtime when it is compulsory and a part of the contract of employment, "irritation strike" or staying at work but deliberately doing everything wrong, "running sore strike", i.e. disobeying the lawful orders, sitdown, stayin and lie down strike etc. etc. The cessation or stoppage of work whether by the employees or by the employer is detrimental to the production and economy and to the well being of the society as a whole. It is for this reason that the industrial legislation while not denying the right of workmen to strike, has tried to regulate it along with the right of the employer to lockout and has also provided a machinery for peaceful investigation, settlement, arbitration and adjudication of the disputes between them. Where such industrial legislation is not applicable, the contract of employment and the service rules and regulations many times provide for a suitable machinery for resolution of the disputes. When the law or the contract of employment or the service rules provide for a machinery to resolve the dispute, resort to strike or lockout as a direct action is prima facie unjustified. This is particularly so when the provisions of the law or of the contract or of the service rules in that behalf are breached. For then, the action is also illegal.
The question whether a strike or lockout is legal or illegal does not present much difficulty for resolution since all that is required to be examined to answer the question is whether there has been a breach of the relevant provisions. However, whether the action is justified or unjustified has to LIR No. 2894/17 Page 18 of 25 be examined by taking into consideration various factors some of which are indicated earlier. In almost all such cases, the prominent question that arises is whether the dispute was of such a nature that its solution could not brook delay and await resolution by the mechanism provided under the law or the contract or the service rules. The strike or lockout is not to be resorted to because the concerned party has a superior bargaining power or the requisite economic muscle to compel the other party to accept its demand. Such indiscriminate use of power is nothing bus assertion of the rule of "might is right". Its consequences are lawlessness, anarchy and chaos in the economic activities which are most vital and fundamental to the survival of the society. Such action, when the legal machinery is available to resolve the dispute, may be hard to justify. This will be particularly so when it is resorted to by the section of the society which can well await the resolution of the dispute by the machinery provided for the same. The strike or lockout as a weapon has to be used sparingly for redressal of urgent and pressing grievances when no means are available or when available means have failed, to resolve it. It has to be resorted to, to compel the other party to the dispute to see the justness of the demand. It is not to be utilised to work hardship to the society at large so as to strengthen the bargaining power. It is for this reason that industrial legislation such as the Act places additional restrictions on strikes and lockouts in public utility services.
With the emergence of the organised labour, particularly in public undertakings and public utility services, the old balance of economic power between the management and the workmen has undergone a qualitative change in such undertakings. Today, the organised labour in these institutions has acquired even the power of holding the society at large to ransom, by withholding labour and LIR No. 2894/17 Page 19 of 25 thereby compelling the management to give in on their demands, whether reasonable or unreasonable. What is forgotten many times, is that as against the employment and the service conditions available to the organised labour in these undertakings, there are millions who are either unemployed, underemployed or employed on less than statutorily minimum remuneration. The employment that workmen get and the profits that the employers earn are both generated by the utilisation of the resources of the society in one form or the other, whether it is land, water, electricity or money which flows either as share capital, loans from financial institutions or subsidies and exemptions from the Governments. The resources are to be used for the wellbeing of all by generating more employment and production and ensuring equitable distribution. They are not meant to be used for providing employment, better service conditions and profits only for some. In this task, both the capital and the labour are to act as the trustees of the said resources on behalf of the society and use them as such. They are not to be wasted or frittered away by strikes and lockouts. Every dispute between the employer and the employee, has therefore, to take into consideration the third dimension, viz., the interests of the society as a whole, particularly the interest of those who are deprived of their legitimate basic economic rights and are more unfortunate than those in employment and management. There justness or otherwise of the action of the employer or the employee has, therefore, to be examined also on the anvil of the interests of the society which such action tends to affect. This is true of the action in both public and private sector. But more imperatively so in the public sector. The management in the public sector is not a capitalist and the labour an exploited lot. Both are paid employees and owe their existence to the direct investment of public funds. Both are expected to represent public LIR No. 2894/17 Page 20 of 25 interests directly and have to promote them."
In, The Workmen Represented by Bihar Engineering Kamgar Union, Refugee Market, Dhanbad Vs. Presiding Officer, Labour Court Bokaro Steel City, Bokaro and another 2003 LLR 922, following was held by the Hon'ble High Court of Jharkhand: "26. Last but not the least in the case of Dunlop Rubber Co. (I) Ltd. V. Their Workmen, AIR 1965 SC 1392 the Supreme Court was considering a similar question in case where order of dismissal was passed in a domestic inquiry on the ground of the charge of misconduct i.e. slowing down of work and engaging or inciting others to arrange unjustified or illegal strike. Their Lordships firstly held that the charge of slowing down the work is a grave charge and the order of dismissal on the basis of the said charge is proper. Their Lordships further observed that against the said order of dismissal, the Industrial Tribunal cannot act as any Court of appeal and cannot substitute its own judgment unless the action of the inquiry officer is liking in bona fide or is manifestly perverse of unfair. "
14. Following was held by the Hon'ble High Court of Rajasthan in M/s. Eicher Goodearth Ltd. Vs. The Presiding Officer, Labour Court & Another 1999 LLR 156: "9. The question, therefore, which falls for consideration in the case at hand is not merely of a worker against whom misconduct has been alleged on account of his own lapse but the misconduct alleged to have been proved is whether he acted as a kingpin in order to enforce a strike by exerting his will on others who were not willing to participate. It is no LIR No. 2894/17 Page 21 of 25 doubt true that the right to go on strike of a workman has been treated as an acknowledged method of demonstrating his protest but the fact remains that the element of willingness on the part of other workers to join the strike is predominant and one workman cannot be said to be having a superior right of pressurising and forcing other workmen to abstain from work as it is an individual right of each and every workman to decide for himself whether he wishes to join the strike or not. It is quite obvious that it is in this context that the Constitution Bench of the Supreme Court considered over the matter and distinguished the cases of those workmen who were described as 'dumb riven cattle' from those who were the kingpin of the strike. The decision of the Supreme Court in Indian General Navigation & Railway Company Ltd. V. Their Workmen, (Supra) therefore, is clearly a case where the learned Judges have considered over the matter and had been pleased to lay down that an Industrial Tribunal has to consider as to whether the punishment of dismissal or termination of service has to be imposed on such workman who had not only participated in the illegal strike but had been instrumental in initiating it and had been guilty of violence for doing acts detrimental to the maintenance of law and order in the locality where the work had to be carried on."
15. It becomes clear from above citations that the management and labour court have to adopt different yardsticks for the worker who had instigated the strike and those who had only participated in the strike.
In the case in hand, the management had examined three witnesses before the Enquiry Officer. The witness No. 1 Mr. Kuldeep Kaushik deposed that claimant alongwith others had led LIR No. 2894/17 Page 22 of 25 the mob of workers. The management had conducted domestic enquiry against several employees and case filed by 15 employees are before this Court. In evidence of all those cases, Mr. Kuldeep Kaushik had not named any other person as the instigator except the person against whom the enquiry was being conducted. The witness No.2 is Mr. Sachin Sikka and he named only few persons as instigator. The witness No.3 Sh. V. Rangarao did not depose before Enquiry Officer that the claimant had instigated any mob. Had claimant been one of the instigators, the evidence of all three witnesses of the management would have been uniform before enquiry officer. The other claimant has placed on record email Mark W1 dated 03.08.2013 in the connected case titled as Hari Ram Vs. M/s. Sky Gourmet Catering bearing LIR No. 2896/17, decided on 31.03.2018, sent by an Officer Mr. Priyanshu Singh of the management to its other officers. In fact, that mail is the list of terminated and suspended employees. As per that mail, 12 persons were terminated from service on 02.08.2013 and 17 persons were suspended from 01.08.2013 to 06.08.2013. Ld. ARM submitted that 12 persons were terminated for some other misconduct. But his explanation is not cogent. The biggest problem before management from 30.07.2013 to 02.08.2013 was strike of its workers. It is pertinent to mention that workers were evicted from its premises on 02.08.2013. Date of termination of 12 persons as 02.08.2013 shows LIR No. 2894/17 Page 23 of 25 that terminated members were the leaders and suspended employees were only participants. While removing claimant from service, the management did not take into account the fact that claimant had merely participated in the strike. He was not one of the instigator. Moreover, in contempt petition, the union had tendered unqualified apology for behaviour of its members. The apology was accepted by the counsel of the management in order to maintain healthy employer - employee relationship. After tendering of unqualified apology, the management had not pressed the contempt petition. The management did not take into account that fact also while passing the removal order from service. Taking into account these two circumstances, it is held that the removal order is not illegal but it is unjustifiable.
Issue No. 3:
16. It has already been held in issue No. 2 that the removal order is not illegal but it is unjustifiable. The management should have awarded any other punishment provided under clause 13 of certified standing orders. Hence, the removal order is set aside and it is replaced with punishment of withholding of two increments with cumulative effect. The claimant is not entitled to back wages because he had participated in illegal strike. Hence, the management is directed to reinstate claimant with continuity of service and LIR No. 2894/17 Page 24 of 25 without back wages but by inflicting the punishment of two increments with cumulative effect. It is further directed to give the said benefits to him within a month from the date of publication of the award. Reference is answered accordingly. Award is passed accordingly.
17. 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 & announced (UMED SINGH GREWAL) in the open Court on 14.05.2018. PILOT COURT / POLCXVII DWARKA COURT, NEW DELHI.LIR No. 2894/17 Page 25 of 25