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[Cites 11, Cited by 0]

Delhi District Court

Anil Prasad Joshi vs M/S. Kothari Associates Pvt. Ltd on 29 May, 2015

    IN THE COURT OF SHRI UMED SINGH GREWAL
      PRESIDING OFFICER : LABOUR COURT XVII:
    ROOM NO. 46, KARKARDOOMA COURTS: DELHI
ID No.44/10/98.
Unique ID No.02402C00006911998

Anil Prasad Joshi,
C/o Hindustan Engg. & General Mazdoor Union,
D­2/17, Sultanpuri, Delhi­41.
                                            ..............Workman
                              Versus

M/s. Kothari Associates Pvt. Ltd.,
G­65, Connaught Circus, New Delhi­1.
                                               ............. Management


DATE OF INSTITUTION          :                          16.05.1998.
DATE ON WHICH AWARD RESERVED :                          16.05.2015.
DATE ON WHICH AWARD PASSED   :                          28.05.2015.

A W A R D :­


1.

Vide Order No. F.24(1762)/98/Lab./15892­96 dated 12.05.1998, issued by Government of NCT of Delhi, a reference was sent to this Court with the following terms:­ "Whether the dismissal of Shri Anil Prasad Joshi from service is illegal and / or unjustified, and if so, to what relief is he entitled and what directions are necessary in this respect?"

2. Workman's case is that he joined the management in ID No.44/10/98. 1/10 1982. He was promoted to the post of Dispatcher on 07.03.1987. He was again promoted, but was demoted. He was suspended on 27.03.1996 and at that time his monthly wages were Rs.2464/­. He was the President of M/s. Kothari Associates Pvt. Ltd. Employees Union (Regd.). Disciplinary proceedings were issued against him in pursuance to chargesheet dated 27.03.1996. Notice dated 09.09.1996 issued by the management was received by him on 11.09.1996 which he replied on 20.09.1996 and demanded to reject the domestic enquiry proceedings.
3. Written statement is to the effect that claimant was appointed as a Peon in 1982 and he was never promoted. His last drawn wages have been admitted as Rs.2464/­. The workman had done an act of insubordination and misbehaviour. He was habitual absentee and late comer. In this background, show­cause notice / chargesheet was given to him in 1996 and he was kept under suspension and subsistence allowance at the rate of 50% was given to him despite the fact that he did not co­operate in the enquiry and adopted dilatory tactics due to which enquiry was delayed.
4. Following issues were framed on 06.12.2001:­
1. Whether a proper and fair enquiry was not conducted against the workman in accordance with principles of natural justice?
ID No.44/10/98. 2/10
2. As per terms of reference.
5. Workman tendered his affidavit in evidence as Ex.WW1/A, wherein he deposed that he starting working with the management in 1982 and without any complaint, he was promoted to Dispatcher on 07.03.1987. One promotion was given to him thereafter also, but was demoted to Dispatcher. He further deposed that he was suspended on 27.03.1996 with malafide intention because the management wanted to break the union which was headed by him. He relied upon the chargesheet as Ex.WW1/1. He further deposed that notice dated 09.09.1996 Ex. WW1/2 issued by management was received by him on 11.09.1996 and he replied the same on 20.09.1996 vide letter Ex.WW1/3 asking the management to reject the enquiry proceedings. He further deposed that without any reason, he was directed on 22.02.1996 vide letter Ex.WW1/4 to report at J.K. Hospital site Saket. It is stated on oath that management was well aware that no office of the management was located at J.K. Hospital site and also that he was posted as Dispatcher Clerk since 07.03.1997 and hence there was no question of sending him to J.K. Hospital at Saket terming as Peon. Moreover, the construction work at J.K. Hospital was in progress about 4 years prior to 1996 and since then no Dispatch Clerk or Peon was posted there and these facts show that the management had prepared document Ex. WW1/4 in order to dismantle the trade ID No.44/10/98. 3/10 union. He took the plea that management had no right to transfer him and this regard, he relied upon Memorandum of Settlement as Ex. WW1/5. It is further deposed that management forced him to visit the J.K. Hospital site at Saket from 14.03.1998 to 05.04.1994 but his attendance was not marked. His letters written to the Enquiry Officer in response to the chargesheet were not taken into account in enquiry proceedings. The management did not give him prior intimation what charges were against him and by whom those charges were to be enquired into. He was not intimated about the appointment of Mr. V.K. Mishra as management representative. He further deposed that he did not get any notice of the date fixed as 27.05.1996 as fixed for enquiry proceedings. He further deposed that letters written by him to the Enquiry Officer were not replied. He was knowing only Hindi language and hence he was incapable of understanding the proceedings held in English. Lastly, it is deposed that the management did not consider his reply dated 20.09.1996 while dismissing him from job on 30.09.1996.
6. Management examined Mr. V.K. Mishra as MW1. It is pertinent to mention that Mr. V.K. Mishra was appointed as Presenting Officer for the purpose of enquiry proceedings. He deposed that the workman had admitted in cross examination dated 08.07.1998 that he was given a letter for conduction of enquiry against him one date before the enquiry when he had gone to the ID No.44/10/98. 4/10 office of the management. He further admitted that he had appeared before the Enquiry Officer for the first time on 20.07.1996. He further admitted that he had written a letter dated 27.07.1996 addressed to the Enquiry Officer. MW1 further deposed that in view of admission of the workman in cross examination, there is no substance in his plea that he was not intimated about the enquiry to be conducted by the Enquiry Officer. He further deposed that after completion of enquiry, the management issued a show­cause notice dated 09.09.1996 to the workman and was replied by the workman on 20.09.1996 vide letter Ex.MW1/2 in which he did not point out any reason of his not participating in the enquiry despite having notice and full knowledge of the enquiry.
Issue No. 1.
7. Vide order dated 04.03.15, it has already been held that enquiry was conducted as per principles of natural justice. Now, the only controversy that survives is whether the punishment handed down to the claimant is disproportionate or not to the allegations proved against him.
ISSUE NO. 2.
8. Ld. ARW argued that workman is unemployed for the last 20 years. Now he is of 50 years and he has three children and ID No.44/10/98. 5/10 a wife to maintain. One daughter has already been married off. Second one is studying in BA final. Lone son is studying in 12th class. He further submitted that claimant was expelled from the job as he was a union leader. He submitted that it is a case of reinstatement and it can be easily done because management is still running the business. He lastly whispered that the charges against the claimant are not so serious.
9. Ld. ARM argued that ARW is not justified to say that charges are not so serious. He counted 8 incidents of insubordination. He submitted that on 17.01.1996, the claimant sat on strike and instigated the co­workman to do the same and the workers who refused to do so were threatened. It is further argued that he was unauthorizedly present in the head office on 26.02.1996 and he asked the sweepers not to sweep the accounts section and asked them to beat co­employee Parmanand with shoes and slippers. On 27.02.1996 and 19.02.1996, during his unauthorized presence at head office, he had asked the co­workmen to disobey the superiors. He was transferred to J.K. Hospital site Saket on 22.02.1996, but he did not join there immediately and joined only on 14.03.1996 and remained absent during the intervening period. It is lastly argued that the claimant was habitual late comer. In support, the ARM relied upon the following citations :­
1. Dalip Singh Vs. State of Uttar Pradesh And Others, (2010) ID No.44/10/98. 6/10 2 Supreme Court Cases 114.
2. Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate, (2005) 2 Supreme Court Cases 489.
3. M.P. Electricity Board Vs. Jagdish Chandra Sharma, (2005) 3 Supreme Court Cases 401.
4. Uttar Pradesh State Road Transport Corporation Vs. Nanhe Lal Kushwaha, (2009) 8 Supreme Court Cases 772.
5. LIC of India Vs. R. Dhandapani, (2006) 13 Supreme Court Cases 613.
6. Managing Director, North­East Karnataka Road Transport Corpn. Vs.K. Murti, (2006) 12 Supreme Court Case 570.
7. Bharat Heavy Electricals Ltd. Vs. M. Chandrasekhar Reddy, (2005) 2 Supreme Court Cases 481.

10. Enquiry proceedings have already been upheld. Enquiry officer, vide his report dated 09.09.1996 Ex. MW1/1, came to the conclusion that the allegations levelled against the workman vide statement of imputation dated 27.03.1996 were fully established rendering him liable for disciplinary action.

11. Following are the incidents of insubordination against the claimant:­

(i) He was transferred to J.K. Hospital, Saket on 22.02.1996. He did not obey the order saying that first he should be given conveyance allowance at the rate of Rs.800/­ per month. He joined the duty there only ID No.44/10/98. 7/10 on 13.03.1996.

(ii) He was deputed to go to Kanpur on 16.12.1995, but he refused and so management had to send co­workman Mr. Yogender Singh there.

(iii) Managing Director Mr. R.N. Kothari had asked him on 12.12.1995 to go to Jhandewalan site. Instead of complying with the directions, he was rude and abusive with the MD.

(iv) He was asked to go to Bombay on 18.01.1996 and on his refusal, Mr. Yogender Singh had to be sent.

(v) He was asked on 25.01.1996 to get done the photocopies of the documents from the market as the photocopy machine of the office was out of order. He refused.

(vi) On 26.02.1996, during his unauthorized presence in the head office, he asked sweepers not to sweep the accounts section and asked them to beat a co­ employee Parmanand with shoes and slippers.

(vii) During his unauthorized presence in the head office on 27.02.1996 and 29.02.1996, he asked co­workers to disobey the superiors.

13. He was absent from 23.02.1996 to 14.03.1996 as he did not join the J.K. Hospital site Saket despite transfer.

14. He was a habitual late comer for 46 days from 07.08.1995 to 22.02.1996.

ID No.44/10/98. 8/10

15. In LIC of India Vs. R. Dhandapani (supra), the Apex Court held that the Tribunal has power u/s 11­A of the I.D. Act to reduce the quantum of punishment, but it has to be done within the parameters of law. To support its conclusion, the Industrial Tribunal / Labour Court has to give reasons in support of its decision. In Uttar Pradesh State Road Transport Corporation Vs. Nanhe Lal Kushwaha (supra), the Hon'ble Supreme Court held that the discretion which can be exercised u/s 11 A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot, by way of sympathy alone, exercise the power u/s 11­ A of the Act and reduce the punishment.

16. In case in hand, the third incident of insubordination is that he was rude and abusive to the managing direction Mr. R.M. Kothari when he asked him to go Jhandewalan site on 12.12.1995. There are six other instances of insubordination. He was absent from duty from 23.02.1996 to 14.03.1996. He came late for 46 ID No.44/10/98. 9/10 days from 07.08.1995 to 22.02.1996. Dismissal order based on so many instances of insubordination, absenteeism and habitual late coming do not make the termination of his service illegal .

In Orissa Cement Limited Vs. Adikunda Shah (1960) I LLJ 518 (SC), the Apex Court held that use of abusive language against a superior justified punishment of dismissal. In New Sharroke Mills Vs. Bhai T.Rao, (1996) 6 SCC 590, the Apex Court held that punishment of dismissal of using abusive language cannot be held to be disproportionate.

Relief.

18. Consequent to decision on issues No. 1 & 2, statement of claim is dismissed. Workman is not entitled to any relief. Parties to bear their own costs.

19. 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 to the Steno & announced (UMED SINGH GREWAL) in the open Court on 28.05.2015. POLC­XVII/KKD, DELHI.

ID No.44/10/98. 10/10