Delhi District Court
Is Shri K. Muralidharan Not Workman vs Presiding Officer & Anr. 123 on 1 March, 2008
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I.D. No. 1353/90.
IN THE COURT OF SH. GURDEEP KUMAR
PRESIDING OFFICER INDUSTRIAL TRIBUNAL II,
KARKARDOOMA COURTS, DELHI
IN THE MATTER OF
M/s. Circle Freight Intl. (India) Pvt. Ltd.,
C-11, Safdarjung Development Area,
Community Centre, Hauz Khas,
New Delhi-110037
...Management
Versus
Its workman
Sh. Muralidharan K.
K-56-A, Mahipal Pur, New Delhi-37. ...Workman
A W A R D :-
Date of institution of case : 12.07.1990.
Date on which the judgment
has been reserved : 23.02.2008.
Date on which the judgment
has been delivered : 01.03.2008.
Secretary (Labour), Government of National Capital
Territory of Delhi has referred the dispute arising between the
Contd...
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parties named above for adjudication vide its order No. F. 24
(2226) / 90 / Lab. / 21665- 70 dated 06.07.90 u/s 10(1)(c), and
12(5) of the I.D. Act, 1947 with the following terms of
reference:-
"Whether the termination of services
of Shri Muralidharan K. is legal and /
or justified and if not to what relief is
he entitled and what directions are
necessary in this respect?"
Workman's case in brief is that he was working with the
management as Operations Supervisor since 04.07.1986 and
his last drawn wages were Rs. 3630/- per month. His work and
conduct was exceptionally good and he had been earning the
due increments and the services had been appreciated by the
management. Because of the personal vengeniance cultured
by the Company Secretary-cum-Accounts Manager, Mr. Anoop
Sharma, the management looked the workman to be sacked
and false and frivolous charges were made. However, no
Contd...
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chargesheet / show cause notice were issued to the workman
during his tenure in the organization. On 23rd September, 1989
the workman received a letter dismissing him without any
rhyme and reason which is illegal. The order of termination has
been passed to penalize him for having earned the wrath of an
officer. It is averred that no enquiry was held in the case. The
charges levelled against the workman are false. It is further
averred that workman is entitled to be reinstated with full back
wages and continuity of service. He made the demand upon
the management vide letter dated 03.10.1989 which was
rejected by the management.
2. The management has filed written statement in which it
denied the case of the workman. Mr. K. Muralidharan was
termed as a Supervisor but management treated him as an
employee of managerial cadre. He was sent to U.S and
Contd...
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Phillipines in three successive years to educate him on the
international operational procedures in the freight forwarding
industry. He has also carried out managerial functions and has
acted as an Operational Manager. It is averred that workman
enjoyed an average salary in excess of Rs. 4200/- per month.
It is further averred that he falls outside the purview of the
definition of a workman as stated u/s 2 (s) of the Industrial
Disputes Act, 1947. The services of the workman were
terminated when it came to light that he had defrauded the
company by falsifying expense vouchers. Prior to dismissal of
employee, a fair enquiry was conducted and no personal biases
have entered into dismissal of his services but he has been
dismissed on disciplinary grounds.
3. The workmen filed rejoinder denying averments in the
written statement and reiterating the facts stated in the
Contd...
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statement of claim.
4. On the pleadings, following issues were settled by my ld.
Predecessor on 08.02.1991 :-
1. Is Shri K. Muralidharan not workman
as alleged in Section 2(s) of I.D. Act?
2. Did the management hold a legal and
valid enquiry against Sh. K.
Muralidharan according to principles
of natural justice?
3. As per terms of reference.
Issue No. 2 relating to the enquiry was treated as a
preliminary issue. The management failed to adduce any
evidence whatsoever despite repeated opportunities. Nothing
had been placed on record by the management to prove the
legality and validity of the enquiry conducted by them against
the workman. For want of any evidence whatsoever by the
management in that regard, my ld. Predecessor decided the
Contd...
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said issue on 26.08.1996 against the management and in
favour of the workman.
5. After the said order dated 26.08.1996, the management
had sought an opportunity to lead evidence to prove the alleged
misconduct before the Tribunal and then the management filed
an application on that very day for an opportunity to lead
evidence to prove the charges of misconduct before the
Tribunal. The workman contested that application. The said
application was dismissed in default on 28.08.1997. On
16.09.1997, the management filed an application for restoration
of the said application and the same was allowed on
11.09.1997 by my ld. Predecessor and an opportunity for
adducing evidence was given to the management vide order
dated 12.12.1997 and an additional issue in that regard, which
is reproduced below, was framed by my ld. Predecessor :-
Contd...
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Additional Issue :- Whether the workman committed the
alleged misconduct? OPM.
6. To prove its case, the management examined MW1 Mr.
Mahesh Kumar Malik, General Manager in the management.
On the other hand, the workman examined himself as WW1.
My ld. Predecessor passed an award dated 03.01.2003 in
favour of the management and against the workman which was
challenged. The said award dated 03.01.2003 was challenged
by the workman in the Hon'ble High Court of Delhi vide Civil
Writ Petition No. 7023/03. The said Writ Petition was disposed
of by Their Lordships vide orders dated 30.04.2007 and the
case was remanded back to this Tribunal for fresh
consideration on the aforesaid issue and the relief in
accordance with law based on material already placed on
record by the parties.
In the award dated 03.01.2003, my ld. Predecessor had
Contd...
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answered Issue No. 1 in favour of the management and against
the workman. Similarly in the said award dated 03.01.2003, my
ld. Predecessor had answered issue No. 2 in favour of the
management and against the workman. Findings on both
issue No. 1 & 2 were challenged by the workman in the
aforesaid Civil Writ Petition in the Hon'ble High Court of Delhi.
Their Lordships vide order dated 30.04.2007, set aside the
findings on issue No. 1 and held that the Petitioner is a
workman within the meaning of Section 2 (s) of the Industrial
Disputes Act, 1947.
Findings on issue No. 2, in the said award dated
03.01.2003 by my ld. Predecessor, were also set aside by Their
Lordships vide said orders dated 30.04.2007. As mentioned
above, the said enquiry issue was treated as a preliminary
issue and was decided against the management and in favour
of the workman by my ld. Predecessor vide orders dated
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26.08.1996. However, that very issue was again decided by
my ld. Predecessor in the award dated 03.01.2003 taking a
contrary view. Their Lordships held as under :-
"This issue had been clearly held
against the respondent No. 1
(management) by the order dated 26.08.1996 which finding had not been assailed by respondent No. 1 (management) in any proceedings.
The findings thus returned on this issue had attained finality and were binding in the adjudication proceedings and the parties."
7. In the orders dated 30.04.2007, it was observed by Their Lordships that in the award dated 03.01.2003 my ld. Predecessor had not given any findings on the aforesaid additional issue framed vide orders dated 12.12.1997 and, therefore, Their Lordships remanded back the case to this Tribunal for fresh consideration on that issue and the relief, if any, to be found admissible to the workman in accordance with Contd...
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law based on the material placed on record by the parties. In compliance of the said directions by Their Lordships in the order dated 30.04.2007, I have heard A.Rs for both the parties on the said additional issue dated 12.12.1997 and also with regard to relief, if any. I have considered the submissions made by both the A.Rs for the parties. I have also gone through the evidence brought on record by the parties.
8. As already mentioned above, management examined MW1 Mahesh Kumar Malik who tendered his affidavit Ext. MW1/A duly attested by an Oath Commissioner appointed by the Hon'ble High Court of Delhi reiterating averments of the management in their written statement. He also relied upon the documents Ext. M1 to M6 as mentioned in his affidavit. On the other hand, the workman examined himself as WW1 wherein he tendered his affidavit Ext. WW1/A attested by an Contd...
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Oath Commissioner appointed by the Hon'ble High Court of Delhi. He also relied upon the documents Ext. WW1/1 to WW1/3 as mentioned in his affidavit.
9. I have heard the submissions made by A.R for both the parties and gone through the evidence on record.
My findings on the additional issue framed on 12.12.1997 are as under :-
10. As borne out from the record, the management had not served any chargesheet as such on the workman. As per the record, the management had issued circular dated 27.06.1989 marked as Ext. M3 which is addressed to five officers of the management including Mr. A.P. Shukla, K. Muralidharan, K.K. Mukherjee, T.S. Ramamurthi and Sh. Anoop Sharma stating therein that a shortage of approximately rupees 21,000/- in the Contd...-:12:-
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cash box of management has been revealed while the exact quantum has not been ascertained. It was further stated that no conclusive liability has been fixed and the opinion of the said persons was solicited as to how the cash shortage has arisen. Another memo dated 10.07.1989 was addressed by the management to four officers stating that from a report of Hoshang Netarwala's report, it appears that Rs. 21,000/- was missing. It was further mentioned therein that the Company cannot employ employees who have control in the office of both financial and administrative management and have funds missing. If this happens again the Company will have no choice but to take personal action against them individually. It is noteworthy that both the circulars dated 27.06.1989 and 10.07.1989 were in nature of general circulars to all employees and did not level any specific charges against any person, nor was it in the nature of a chargesheet served upon a workman.
Contd...
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The said communications were thereafter followed only by a letter dated 23.09.1989 Ext. W2 wherein it was alleged that in the year 1987 a sum of Rs. 34,376.61 paise was defalcated and the investigation revealed that advances given by the Company were not settled in entirety for extended periods of time. In addition, it was stated that an amount of Rs. 25,355.85 paise was advanced in the petitioner's name which has not been settled. Further that petitioner has falsified the vouchers of Rs. 20,788.90 paise in the month of February, 1988. On the basis of those assertions in the Ext. W2, it was alleged by the management that workman's actions were compatible with the corporate policies and that in view of the gross abuse of the corporate funds, the management had lost confidence in his ability and had no option but to terminate his services and to call upon him to make good those losses.
In the absence of any chargesheet as such, the charges of Contd...
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misconduct enumerated in the letter dated 23.09.1989 marked Ext. W2 have to be treated as alleged misconduct on the part of the workman. From the said letter, following charges emerge out against the workman :-
1. That in the year 1987, a sum of Rs.
34,376.61 paise were defalcated and the investigation revealed that advances given by the company were not settled in entirety for extended period of time.
2. That a sum of Rs. 25,355.85 paise was advanced in the name of the workman which has not been settled and
3. That the workman has falsified vouchers totaling to Rs. 20,788.90 paise in the month of February, 1988.
Onus is on the management to prove the said alleged misconduct on the part of the workman. Mr. Vikas Tiwari, Authorized Representative of the management has fairly conceded that the management has not been able to bring on Contd...
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record any iota of evidence to prove charges No. 1 and 2 as incorporated in termination letter dated 23.09.1989.
11. Coming to the third charge, onus is again on the management to prove the said alleged misconduct i.e. the workman has falsified vouchers totaling to Rs. 20,788.90 paise marked Ext. M5 colly in the month of February, 1988 and that it has resulted into loss of confidence in the abilities of the workman.
A.R for the management has pointed out that the workman in his cross examination admitted to have collected the amount against the vouchers Ext. M5 colly but he has failed to account for the same. He has further pointed out that the workman in deposition as WW1 claimed to have collected the amount against the said vouchers Ext. M5 colly on behalf of one Raj Kumar but he has failed to produce the said Raj Kumar in the Contd...
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witness box, nor has brought on record to show that he had paid that amount to Raj Kumar which he had collected against the vouchers Ext. M5 colly. A.R for the management has further stated that as deposed by the workman as WW1 he was not concerned to verify if M/s. Preeti Exports mentioned in Ext. M5 was in existence or not. A.R for the management states that in the light of the deposition by the workman in his cross examination, the aforesaid misconduct of falsification of the vouchers amounting to Rs. 20,788.90 paise during the month of February, 1988 proved against him.
12. It is not in dispute that the vouchers Ext. M5 colly are the vouchers submitted by the workman while accounting for the amount received by him against IOU to meet expenses on account of custom clearance etc. during the course of performing his official duties. Perusal of those documents Ext.
Contd...
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M5 colly reveals that the said amount was accounted for / settled by the workman with the management on the basis of receipts submitted by him along with those vouchers to the management. Management has failed to place on record those documents (receipts) in their evidence and also did not confront the workman with the same in his cross examination, to establish that same are false and fabricated documents. MW1 Mr. Mahesh Malik in his affidavit Ext. MW1/A has deposed that in February, 1988 Mr. Muralidharan had taken Rs. 24,000/- from company in lieu of expenses for alleged works done but the vouchers in regard thereto were falsified by Mr. Muralidharan as the Company came to know that the ostensible account for which cash was withdrawn, was in fact incorrect from some of the parties and that the vouchers had been falsified. He further stated that the copies of said vouchers are marked as Ext. M5 colly. Since the onus is placed on the Contd...
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management, it is for the management to bring on record cogent and authentic evidence to prove that the vouchers in questions are falsified. However, MW1 Mr. Mahesh Malik in his entire deposition did not depose that on what basis he says that the vouchers Ext. M5 colly are falsified. Even in the cross examination of the workman WW1 Mr. Muralidharan, the management did not confront him with those vouchers and the receipts submitted by him as mentioned in the vouchers Ext. M5 colly while accounting for the amount received by him to meet the expenses while performing his duties for the management. It is further noticed that the management did not examine any official / officer from M/s. Preet Exports, Arkay Enterprises, Cine Limited, Pace Education Private Limited, Santosh Kakar and Director M.M.D Telecom Department to prove that the receipts submitted by the workman along with vouchers Ext. M5 colly were not issued by them and that the Contd...
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same were forged and fabricated. There is no cogent and authentic evidence by the management to prove that the vouchers Ext. M5 colly relating to alleged falsification of vouchers for the sum of Rs. 20,788.90/- are forged and fabricated. Bald allegation unsupported by any detail of accounting or documentation would no further the case of the management of misconduct on the part of the workman. No material has been placed before the Tribunal in its evidence by the management which could have established that the petitioner had committed the misconduct. In the light of the above discussion, I am of the considered view that the management has failed to discharge the initial burden of proof which lies on it to prove any of the aforesaid misconduct on the part of the workman. Therefore, the additional issue is decided in favour of the workman and against the management.
Relief.
Contd...
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13. The next question is what would be appropriate relief in the facts and circumstances of the case. Authorized representative of the management, during the course of the arguments, had submitted that even if the charges of misconduct were not proved against the workman, in the given facts and circumstances, it would not be appropriate to pass an order for reinstatement with or without back wages. He further stated that keeping in view the facts and circumstances of the case and the long period which has passed since 1989, the proper remedy would be to award some reasonable compensation to the workman. In that regard the management has relied upon the case law reported as Ruby General Insurance Company Ltd. And Chopra (P.P.) 1970 1 LLJ 63, Pramod Kumar & Anr. Vs. Presiding Officer & Anr. 123 (2005) DLT 509 (DB), Hindustan Motors Ltd. Vs. Tapan Contd...
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Kumar Bhattacharya and Another (2002) 6 SCC 41 and Allahabad Jal Sansthan Vs. Daya Shankar Rai and Another (2005) 5 SCC 124. Besides, A.R for the management has also relied upon the case law reported as Devendra Swamy Vs. Karnataka State Road Transport Corporation 2002 9 SCC 644, Janatha Bazar (South Kanara Central Cooperative Wholesale Stores Ltd.) And Others Vs. Secretary, Sahakari Noukarara Sangha and Others (2000) 7 SCC 517, Manoharan R. Vs. Presiding Officer, Labour Court, Salem and Another 2002-IV-LLJ (Suppl.) 850, Divisional Controller, KSRTC (NWKRTC) Vs. A.T.Mane (2005) 3 SCC 254, Sri Narendra Raja Textiles, Ltd., Coimbatore Vs. 1. S/ Aruchamy, 2. Presiding Officer, Labour Court, Coimbatore 2006 LLR 1199.
14. On the other hand, Mr. M.L. Khattar, Authorized Contd...
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representative of the workman stated that he is not averse to the workman being granted reasonable lump sum compensation in the case findings on the additional issue go against the management and in favour of the workman.
15. I have gone through the case law being relied upon by the management. With due respect to Their Lordships, the case law reported as Devendra Swamy Vs. Karnataka State Road Transport Corporation (supra), Janatha Bazar (South Kanara Central Cooperative Wholesale Stores Ltd.) And Others Vs. Secretary, Sahakari Noukarara Sangha and Others (supra), Manoharan R. Vs. Presiding Officer, Labour Court, Salem and Another (supra), Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane (supra) and Sri Narendra Raja Textiles, Ltd., Coimbatore Vs. 1. S/ Aruchamy, 2. Presiding Officer, Labour Court, Coimbatore (supra) is not Contd...
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applicable to the case and it does not help the management in any manner whatsoever because the facts of those cases are entirely different from the case in hand. In case of Ruby General Insurance Company Ltd. And Chopra (P.P.) (supra), services of an employee (Stenographer holding a post of trust and confidence) were terminated within one year of appointment. Termination of his services was held to be punitive and unjustified and the Industrial Tribunal passed an order for his reinstatement. It was held by Their Lordships that relief of reinstatement, in the given circumstances, should not have been granted. Compensation equivalent to 12 months' salary with interest at 6 per cent from the date of termination till date of payment, was held to be appropriate and proper.
16. Our own Hon'ble High Court in case of Pramod Kumar Anr Vs. Presiding Officer & Anr (supra) has laid down as Contd...
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under :-
"Since the decision of the Federal Court in the case of Western India Automobiles Association Vs. Industrial Tribunal, reported in AIR 1949 FC 111 is a settled law that an Industrial Tribunal has jurisdiction to direct reinstatement and in a case of wrongful dismissal, reinstatement is the normal rule. However, there are exceptions to this rule and these exceptions have been recognized in various judgments. Reinstatement has not been considered desirable in cases where there have been strained relationship between employer and employee or there is lack of trust or loss of confidence.
Reinstatement is also denied when an employee has been found to be guilty of subversive activity or acting prejudical to the interest of the industry. Courts have also denied reinstatement with back wages in cases where long time has lapsed. Reference in this regard may be made to the judgment of the Supreme Court in cases of Rattan Singh Vs. Union of India & Anr., (1977) 11 SCC 396; Rolston John Vs. Central Government Industrial Tribunal-cum-Labour Court & Ors., (Supp) 4 SCC 549; Gujrat State Road Contd...-:25:-
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Transport Corporation & Anr. Vs. Mulu Amra, 1995 Supp (4) SCC 548 and MP Shikshak Sangh & Ors. Vs. State of MP & Ors., 1995 Supp (1) SCC 556." "
Their Lordships further held as under :-
"In a number of matters, this Court has also examined the same issue and it has been repeatedly held that where a long period has lapsed since the date of termination, compensation should be paid in lieu of reinstatement and back wages. Reference in this regard may be made to the judgments in the cases of Murari Lal Sharma Vs. Nehru Yuva Kendra Sangathan, 96 (2002) DLT 412 (DB) and K.H. Pandhi Vs. The Presiding Officer, Addl. Labour Court & Anr., 110 (2004) DLT 101 and Pal Singh Vs. NTPC Ltd., 96 (2002) DLT 877."
The Hon'ble Apex Court in Haryana Tourism Corp. Ltd. Vs. Fakir Chand Ors. VII (2003) SLT 194, directed payment of compensation of Rs. 70,000/- instead of reinstatement with 25% back wages taking into consideration the factors like (a) Contd...
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Workers were daily wagers, (b) workers were not recruited through employment exchange or regular mode of selection, (c) services of the workers were terminated long back, and (d) considering nature of work, the workers must have done similar work at least intermittently.
17. In the light of the aforesaid law laid down by the Hon'ble Apex Court and our own Hon'ble High Court, I am of the considered view that in the facts and circumstances of the case, it would be appropriate and proper to award some reasonable compensation to the workman in lieu of relief of reinstatement and back wages, if any. In order to determine the amount of compensation, a number of factors have to be kept in mind which includes the nature of the job and the duties being performed by the workman, the length of his services before his services were terminated, his last drawn wages and the Contd...
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possibility of the workman having done similar work at least intermittently etc. As borne out from the record, the workman was working with the management as Operations Supervisor since 04.07.1986 and his last drawn salary was Rs. 3630/- per month. As admitted by the workman in his cross examination, he is under-graduate and since 1979 he was doing the work of custom clearance and freight forwarding. In the year, 1974 he left his graduation and since 1974 to 1979 he was working in a Hada Group of Companies as Personal Secretary to the Managing Director and in the year, 1979 he joined Freight Forwarding Jina & Company. Later on he joined as Stenographer but was subsequently promoted as Import Incharge in 1976. As Import Incharge he used to deal with the import customers and meet with the requirements where he worked till 01.07.1986 when he joined the respondent management. Keeping in view the above narrated facts, Contd...
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possibility of the workman doing similar work at least intermittently cannot be ruled out. Another factor while deciding the amount of compensation is his entitlement for back wages during the intervening period. In this regard, I have perused the statement of claim filed by the workman. Perusal of the statement of claim reveals that there is no pleading to the effect that the workman is unemployed and is not gainfully employed ever since termination of his services vide letter dated 23.09.1989. However, while deposing as WW1, the workman stated that he is unemployed and have no source of income. He has been trying to get alternative job but has not been able to get any since termination. As per settled law, no amount of evidence on facts beyond pleadings can be taken into consideration. It is for the workman to first plead and then lead evidence to prove his plea that he was unemployed and was not gainfully employed since date of termination of his services Contd...
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on 23.09.1989. Since in the statement of claim there is no pleadings to that effect workman's deposition in his affidavit in that regard cannot be considered at all and in the light of this, it cannot be said that the workman is entitled to back wages at all or any compensation in lieu of back wages at all along with compensation in lieu of relief of his reinstatement.
After taking into account the facts and circumstances of the case and the other factors as narrated above, I am of the considered view that it would be appropriate and proper to award him a compensation of Rs. 1,20,000/- (Rupees One Lac And Twenty Thousand Only) in lieu of reinstatement and back wages, if any. Accordingly, the workman is granted compensation of Rs. 1,20,000/- (Rupees One Lac And Twenty Thousand Only) in lieu of reinstatement and back wages, if any. The management is directed to pay the said amount to the workman within two months from the date of this award, failing Contd...
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which, the workman shall be entitled to interest on that amount @ 8% per annum from the date of the award till payment / realization of that amount.
The reference is answered accordingly. File be consigned to record room after due compliance by the Ahlmad.
(GURDEEP KUMAR) ANNOUNCED IN THE OPEN COURT PRESIDING OFFICER st ON 1 Day of March, 2008. INDUSTRIAL TRIBUNAL II, K.K.D COURTS, DELHI Contd...