Delhi District Court
2009 Iv Ad (Sc) 717, The Case Titled Uma ... vs . State on 26 May, 2009
1
IN THE COURT OF SHRI SANJAY GARG : PRESIDING OFFICER : LABOUR
COURT NO. V : KARKARDOOMA COURTS : DELHI.
DID No. 519/08
The workman Sh. Sandeep Kumar Sharma
S/o. Sh. Baldev Raj Sharma,
R/o. D-14/235, 1st Floor,
Sector-3, Rohini, Delhi-110085
Versus
The Management of M/s. Ogilvy & Mather Pvt. Ltd.,
Ogilvy Centre -I,
Okhla Industrial Estate,
Phase-III, New Delhi-110020.
(Registered Office at : 3rd Floor, Trade Centre,
Kamla Mills Compound, Senapati Bapat Marg,
Lower Patel, Mumbai-400013)
Though its- President (Delhi office).
DATE OF INSTITUTION : 18.8.2006
DATE OF CONCLUDING ARGUMENTS : 11.5.2009
DATE OF AWARD : 26.5.2009
AWARD
By this order I shall dispose the claim filed by the workman U/S
10(4)(A) of I.D. Act.
2. Precisely the facts of the case as mentioned by workman in his
statement of claim are that he joined the management at Delhi office as a
Finishing Artist on 1.1.86 with basic pay of Rs.600/- per month vide
appointment letter dated 8.1.86. He was confirmed on the said post on
1.7.86. His performance was highly appreciated by the management as is
evident from the complementary letters and certificates issued by Senior
Authorities of the company. He worked till 3.3.06. On 6.3.06 i.e. the next
working day when he went to his office he was not allowed to work and no
reason was communicated to him for such kind of treatment. Thereafter he
2
continuously went to the office but he was not allowed to enter in the office. On
27.4.06 he was man-handled and physically assaulted by the security guard
posted at the gate of the company when he tried to enter into the office. On
29.4.06 he received a letter dated 25.4.06 from Vice-President (Finance)
informing him for the first time about his termination from service. He was also
asked to fill some forms as per statutory requirement so as to make full and
final settlement of dues. In response to this letter he wrote a letter dated
6.5.06 categorically denying to have received any termination letter and
informing that he had been continuously attending the office during this peirod
and security guard posted at the gate of the company did not allow him to
enter. Vice President (F) again wrote a letter dated 12.5.06 reiterating
contents of his previous letter. He made the representation-cum-notice dated
12.5.06 to the President of the company praying to withdraw so called letter of
termination if issued and resolve his grievances pertaining to his salary for the
month of March, April'2006 and other benefits.
3. His letter to President was responded by Vice President (F) vide
letter dated 23.5.06 stating that his objections to said termination have been
noted and they will reply the same at the appropriate time and forum. He
wrote a letter dated 19.6.06 challenging the validity and authority of Vice
President (F) in responding to the letter addressed to the President and
demanding a copy of letter of termination from service. Thereafter, Vice
President (F) supplied copy of letter dated 23.2.06 to him vide his letter dated
4.7.06 received by him on 7.7.06. It is stated that his illegal termination from
service is effective only w.e.f. 7.7.06.
4. It is stated that no order imposing any major penalty like termination
of service can be issued except after an impartial enquiry and after giving an
opportunity of being heard. It is stated that the action of the management is in
violation of the mandatory requirement and also against the employment
policy of the management. It is stated that he never committed any misconduct
during his service of 20 years. The management had deducted salary for the
excess of leave not due, hence the question of imposing a major penalty of
3
termination on him does not arise. It is stated that he dared to file complaint to
the higher authorities of the company against some biased and prejudiced
Senior Officer for discriminatory treatment and unnecessary harassment given
to him and therefore this officer became biased and made the other senior
officers of the company biased against him. Workman has prayed to be
reinstated with back wages and continuity of service.
5. The management contested the claim and filed written statement
stating that service of the workman were terminated for grave and serious acts
of misconduct viz unsatisfactory performance, habitual late coming, recurring
unauthorised absence from duty, refusal to do assigned work and not
completing work within stipulated time. Vide letter dated 23.2.06 read with
letters dated 31.3.05, 13.2.03, 8.11.02, 29.9.02, it is stated workman was not
attending the duty from 21.2.06, the letter dated 23.2.06 was handed over to
him when he attended the office on 3.3.06. in the presence of other staff
members but despite receiving the letters workman refused to give
acknowledgment of the same. It is denied that the workman worked upto
3.3.06 with the management. It is stated that the service of the workman were
terminated in a legal and proper manner and as per his service conditions as
the management had lost confidence in him, due to habitual acts of
misconduct committed by him. It is stated that the management reserves the
right to prove the allegations of misconduct by leading appropriate evidence
before this Court, if any infirmity whatsoever is found in its order of termination.
It is stated that performance of the workman in his entire tenure of service with
the management was never satisfactory and from time to time he was being
issued memos in this regard.
6. Workman filed rejoinder to the written statement of the
management reiterating his submissions in his statement of claim and denying
the averments made by management in its written statement.
7. On the pleadings of the parties, following issues were framed on
24.4.07 -:
4
(1)Whether the workman is guilty of misconduct as
alleged in the Written Statement? OPM.
(2) Whether the termination of services of the workman is
legal and justified?
(3) Relief.
8. In evidence workman examined himself as WW1. He filed his
affidavit Ex.WW1/A and relied upon the documents Ex.WW1/1 to Ex.WW1/16
and Mark A-1 to A-5. Ex.WW1/1 is the letter of appointment, Ex.WW1/2 is the
confirmation letter, Ex.WW1/3 is the letter dated 25.4.06 of the management to
the workman, Ex.WW1/4 is the letter dated 6.5.06 written by workman to the
management, Ex.WW1/5 is the letter dated 12.5.06 of the management to
workman, Ex.WW1/6 is the letter dated 12.5.06 written by workman to the
management, Ex.WW1/7 is the complaint made by workman to SHO P.S.
Okhla Industrial Estate dated 12.5.06, Ex.WW1/8 is the letter dated 23.5.06 of
management to workman, Ex.WW1/9 is the letter written by workman to
management dated 19.6.06, Ex.WW1/10 is the letter written by management
to workman dated 23.2.06, Ex.WW1/11 is the letter written by management
dated 4.7.06, Ex.WW1/12 to 14 are the letters written by management dated
25.9.02, 8.11.02 and 13.11.02 respectively to the workman. Ex.WW1/15 is the
letter dated 13.2.03 written by management to workman and Ex.WW1/16 is
the letter written by workman to management dated 17.2.03. The
management examined two witnesses in its evidence. MW1 is Sh. Davinder
Sood. He filed his affidavit Ex.MW1/A and relied upon the documents
Ex.MW1/1 to MW1/9. Ex.MW1/1 is the warning letter dated 31.3.05 written by
management to workman. Similarly, Ex.MW1/2 to 4 are the letters dated
13.2.03, 8.11.02 and 25.9.02 written by management to workman, Ex.MW1/5
is the details of leaves/absents/late comings of the workman for the year 2002-
03, Ex.MW1/6 is the copy of the attendance record of the workman from 2002
to 2006, Ex.MW1/7 is the copy of the register showing late coming of the
workman, Ex.MW1/8 is the copy of the service rules and Ex.MW1/9 is the
copy of the termination letter dated 23.2.06. MW2 is Sh. Satyajit Basu. He
filed his affidavit Ex.MW2/A and relied upon the documents Ex.MW2/1 to
5
Ex.MW2/4 and the documents already filed as Ex.MW1/1 to MW1/4 and
Ex.MW1/9. Ex.MW2/1 comprising four pages are the copies of the E-mails of
the staff of the management regarding performance of the workman,
Ex.MW2/2 to MW2/4 are the charges paid by management for freelance work
got done by the management.
9. Heard arguments of Dr. K.C. Rakesh, Ld. AR for workman and
Sh. Jaideep Bedi, Ld. AR for management. Both the parties also filed written
submissions. Perused the record. My findings on the above issues is as
follows :-
ISSUE NO. 1 &2
10. Both these issues being inter-connected are taken together. One of
the main contention raised by Ld. AR for workman is that workman was
terminated on the ground of misconduct but without any domestic enquiry
against him which is contrary to service jurisprudence and principles of natural
justice. It is further submitted that management can dispense with holding
domestic enquiry against delinquent employee only on exceptional
circumstances otherwise holding of enquiry on the allegations of misconduct is
a rule required to be strictly followed. Per contra Ld. AR for management
submitted that holding no enquiry and vitiating the enquiry proceedings are on
same footing and as per law management has right to prove the misconduct
against the workman first time before the Court. He argued that dismissal of
the workman from service without holding any domestic enquiry do not render
the termination order void or illegal.
11. Ld. AR for workman in support of his contentions has relied upon
2009 IV AD (SC) 717, the case titled Uma Nath Pandey & others Vs. State
of U.P. and another, wherein Apex Court has observed that Audi alteram
partem rule provide that no one should be condemned unheard and giving the
notice is the first limb of this principle. It is further observed by the Apex Court
that purpose of following the principles of natural justice is the prevention of
6
miscarriage of justice. Ld. AR for workman has further relied upon (2013) 12
SCC 1, the case titled Engineering Laghu Udyog Employees Union Vs.
Judge, Labour Court and Industrial Tribunal & Another. As pointed out by
Ld. AR for workman in para 15, in this case the Apex Court has observed that
although in certain contingencies an employer may in case of grave nature of
misconduct dismiss a workman without holding an enquiry but ordinarily such
an enquiry will not be dispensed with. Ld. AR for workman vehemently
contended that there must be specific contingencies during which the
employer may not conduct the domestic enquiry otherwise in a normal course
the domestic enquiry is must.
12. The facts of the case leading to relevant observation as mentioned
above of the Apex Court in Engineering Laghu Udyog (Supra) will be
discussed subsequently. Ld. AR for management contended that law is
settled that an employer can for the first time prove the misconduct before the
Court. In support of his contentions he has relied upon AIR 1973 SC 1227,
the case titled the workman of M/s. Firestone Tyre & Rubber Co. V/s. The
management and anothers. Perused the judgment relied upon by the
management. In this case the Apex Court has exhaustively discussed the
issue regarding the defective domestic enquiry or no domestic enquiry and the
legal position before 15.12.1971 when section 11A was introduced in the
Industrial Disputes Act and the legal position thereafter.
13. The relevant observations of the Apex Court in para 27 (4) (5) (7)
(8) and (9) is as follows :-
(4) Even if no enquiry has been held by an employer or if the
enquiry held by him is found to be defective, the Tribunal in
order to satisfy itself about the legality and validity of the order,
had to give an opportunity to the employer and employee to
adduce evidence before it. It is open to the employer to adduce
evidence for the first time justifying his action, and it is open to
the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the
7
Tribunal would not have to consider only whether there was a
prima facie case. On the other hand, the issue about the merits
of the impugned order of dismissal or discharge is at large
before the Tribunal and the latter, on the evidence adduced
before it, has to decide for itself whether the misconduct alleged
is proved. In such cases, the point about the exercise of
managerial functions does not arise at all. A case of defective
enquiry stands on the same footing as no enquiry.
(7) It has never been recognised that the Tribunal should
straightway, without anything more, direct reinstatement of a
dismissed or discharged employee, once it is found that no
domestic enquiry has been held or the said enquiry is found to
be defective.
(8) An employer, who wants to avail himself of the opportunity of
adducing evidence for the first time before the Tribunal to justify
his action, should ask for it at the appropriate stage. If such an
opportunity is asked for, the Tribunal has no power to refuse.
The giving of an opportunity to an employer to adduce evidence
for the first time before the Tribunal is in the interest of both the
management and the employee and to enable the Tribunal itself
to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry
conducted by an employer or by the evidence placed before a
Tribunal for the first time, punishment imposed cannot be
interfered with by the Tribunal except in cases where the
punishment is so harsh as to suggest victimisation.
14. The Apex Court has further observed that even after 15.12.1971
when the provision under section 11-A was introduced into the Industrial
Disputes Act, the legal position regarding enquiry remains same. The relevant
observation in para 33 is as follows :-
" ............Therefore the position is that even now the employer is
entitled to adduce evidence for the first time before the Tribunal
8
even if he had held no enquiry or the enquiry held by him is
found to be defective. Of course, an opportunity will have to be
given to the workman to lead evidence contra. The stage at
which the employer has to ask for such an opportunity, has been
pointed out by this Court in Delhi Cloth and General Mills Co.
Ltd. 1972-1 Lab LJ 180 = (AIR 1972 SC 1031). No doubt, this
procedure may be time consuming, elaborate and
cumbersome.................."
15. To support his contentions workman has relied upon the
observations made by Apex Court in Engineering Laghu Udhyog (Supra). The
Ld. AR for workman submitted that in this case the apex court has observed that
except in certain contingencies its not proper to dismiss a workman without
holding an enquiry in cases of grave nature of misconduct. Perused this
judgment relied upon by the workman. In this case an employee of the company
was terminated without conducting any domestic enquiry. Relying upon its earlier
decision in Firestone (Supra), the apex court has reiterated that there is no
distinction between a case of defective enquiry and no enquiry. However, it was
observed by the Apex Court that if it is found by the Labour Court that the
employer had adopted unfair labour practice and order of termination has been
passed mala fide or by way of victimisation Tribunal can pay compensation. The
relevant para 15 of the judgment runs as follows :-
"We may, however, observe that although in certain
contingencies an employer may in a case of grave nature of
misconduct dismiss a workman without holding an enquiry
but ordinarily such an enquiry will not be dispensed with. In
the event it is found ultimately by the Labour
Court/Industrial Tribunal that the employer had taken
recourse to unfair labour practice or the order of
termination has been passed mala fide or by way of
victimisation, it will be open to the Tribunal to direct
payment of compensation even in a case where ultimately
charges are proved, despite holding that the order of
9
termination is valid for the reason that the principles of
natural justice have not been complied with."
16. In view of the law laid down by the apex court in Firestone (Supra),
the case of no enquiry is similar to case of defective enquiry. Accordingly, in
the present case even if the workman was terminated without any domestic
enquiry for the allegations of serious misconduct, management is within its
right to prove misconduct directly for the first time before the Court.
17. To prove misconduct management has examined two witnesses.
MW1 Sh. Davinder Sood, Group Commercial Manager, in his affidavit
Ex.MW1/A has deposed that workman was terminated for committing gross
and serious acts of misconduct as detailed in letters Ex.MW1/1 to 4. It is
stated that performance of the workman was unsatisfactory and much below
to the expectations. His salary was deducted time and again on account of
over availing his leave entitlement. The work got hampered because of his
habitual absentism and a work was out-sourced costing heavily to the
management. His salaries were cut in order to make him realise the action. It
is stated that the workman most of the time used to report for duty around
10.50 a.m against the normal timings of 9.30 a.m and used to be absent as
and when required and did not bother to inform his boss or office at all. He
also refused the work assigned to him by his seniors and often indulged
himself in unnecessary arguments. It is stated that the workman came late on
62 occasions in the year 2002-03, 83 occasions 2003-04, 112 occasions in the
year 2004-05 and 71 occasions in the year 2005-06. He remained absent
from duty for 198 days in the 2002-03, 68 days in 2003-04, 60 days in the year
2004-05 and 59.5 days in the year 2005-06. It is stated that since the
workman was absent from duty w.e.f. 21.2.06, the letter of termination dated
23.2.06 was handed over to him when he attended the office on 3.3.06 in the
presence of other staff members but despite receiving the said letter he
refused to take the acknowledgment of it.
18. MW2 Sh. Satyajit Basu in his affidavit Ex.MW2/A deposed similar
10
facts as deposed by MW1 in his affidavit. In addition he deposed that normally
workman used to reach office at 10.50 a.m whereas normal timings is 9.30
a.m. After that he went to park his two wheeler scooter and take lunch box. He
used to take 30 minutes to re-enter the office and go to toilet to freshen up.
After that he used to take tea and reach his seat by 12 noon. There he will
involve in gossiping disturbing other workers. He will never come back from
lunch at scheduled time and come late and used to massage cream on his
fingers. At 5.30 p.m he will leave office without informing anyone in the
department. It is stated that the management being a very fast moving
industry, workman was not interested to work/upgrade himself. It is stated that
his main intention was to do a single job per day and delay the job purposely.
At one point of time they had to abstain to give any new job to workman as no
body wanted to work with him. Workman never completed the designated job
within stipulated time. The management was forced to send the jobs outside
due to irresponsible attitude of workman. It is further deposed that workman
was too slow in comparison to other operators, who completed 10 jobs in the
stipulated time while workman will complete only one job in that period of time.
Workman never provided his residential telephone number and address for
emergency contact. Workman used to take excuses like "he cannot hold
mouse for long duration as his fingers has skin issues". In the year 2003
some jobs of Motorola was given to him, he could not complete it within
stipulated time and management had to depute an other operator to assist
him. Similar things happened with their client Hutch.
19. Both the management witnesses were cross-examined at length.
During cross-examination MW1 deposed that in the beginning performance of
the workman was satisfactory but later on w.e.f. 1999-2000, his performance
was not up to the mark. During the period 2000-02, no warning letter or any
memo was issued to workman. He denied the suggestion that Mr. Basu had
misbehaved, harassed and tortured the workman. He is not aware about the
E-mail mark X-1 sent by workman to Ms. Kalpana Rao complaining against
Mr. Basu. He denied that due to this complaint Mr. Basu got annoyed with the
workman and decided to take revenge and accordingly terminated him. A
11
warning letter Ex.MW1/1 dated 31.3.05 was issued to the workman. He and
Divya Bali, HR Talent Manager did workman's counseling and he was told to
perform better. He denied the suggestion that workman had improved his
performance after three months. He admitted that E-Mails Ex.MW1/X-1 to X-4
were issued by Mr. Jaspreet Bawa, working with the company appreciating the
work done by workman. He deposed that Mr. Bawa was in friendly terms with
the workman and he was not senior executive with the company and had
issued these mails to the workman because of his relations with him. MW1
further deposed during his cross that management has its own service rules.
He does not know if as per the company rules before termination a notice is
required. He denied the suggestion that workman has been terminated in
violation of rules. He deposed that even now management is ready to pay the
dividend and full and final dues to the workman.
20. MW2 Sh. Satyajit Basu was also cross-examined at length by the
workman. During his cross-examination MW2 stated that he is working as
Senior Controller Production Services with the management. Workman was
under his supervision till the date he joined the management. He had informed
the workman 10-15 times about his work not being satisfactory. He did not
personally issue any letter to workman. He made efforts to know from the
workman as to why he used to be absent, on leave from duty and come late
but workman used to make funny excuses. Workman never submitted any
application for medical leave and medical certificate in support of it. Because
of the unauthorised absence of the workman, management could not complete
the jobs undertaken in time resulting in loss of business. He deposed that he
cannot admit or deny if the explanation given by the workman for his absence
was accepted or not by the management as the explanation was given to
Administration Department and not to him. He denied the suggestion that
letters Ex.MW2/1 were manipulated just to penalise the workman or to nullify
the appreciation letters issued to him.
21. Ld. AR for workman submitted in the written submissions that
workman had completed 20 years of service and during 1st 18 years he was
12
not issued any warning letter or memo by the senior authorities and suddenly
he was illegally terminated by the management without giving any
chargesheet making false allegations. It is submitted that both the
management witnesses has admitted during their cross-examination that till
1999 the performance of the workman was satisfactory and MW1 has
admitted that during the period 2000-02 management did not issue any
warning letter or memo in writing to the workman. It is submitted that no
opportunity of hearing was given to workman before terminating him from
service. The management has failed to establish whether workman has
committed any misconduct during his 20 years of service. It is stated that both
the management witnesses who claims to be well conversant with the facts
know nothing about the case. It is stated that workman was ousted from
service without serving any letter of termination and till 7.7.06 no letter of
termination was issued to him and even his dues regarding his salary,
dividends, OTA etc. were released while terminating him. Even the service
rules of the company on the question of termination were not followed.
22. On the other hand Ld. AR for management submitted in written
submissions that workman was terminated for grave and serious acts of
misconduct i.e. unsatisfactory performance, habitual late coming, unauthorised
absence, refusal to do the assigned work and not completing the work within
stipulated time. It is submitted that from the record produced on record by both
the management witnesses the misconduct pertaining to late coming and
unauthorised absence from duty stands established. It is submitted that no
appreciation letter or certificate was ever issued by any Department Head to
the workman. It is stated that misconduct against the workman stands proved
from the testimonies of MW1 and MW2. It is stated that action of the
management is fully legal and justified. In support of his contentions Ld. AR
for management has relied upon various judgments which will be discussed in
the succeeding paras.
23. To substantiate his deposition MW1 has relied upon four letters
Ex.MW1/1 to MW1/4 admitted to have been received by workman. Ex.MW1/5
13
(comprising four pages) is the details of leave/absents/late comings of the
workman for the year 2002-03, 2003-04, 2004-05 and 2005-06. It is most
pertinent to mention that workman has not disputed the various
leaves/absents/late comings assigned to him by the management for this
period. Ex.MW1/4 is the letter dated 25.9.02, first in time sent by management
to workman. To appreciate the contentions raised by management the
contents of this letter are relevant to be re-produced here. This letter runs as
follows :-
"September 25, 2002
Mr. Sandeep Sharma
Ed-68, Tagore Garden,
NEW DELHI-110 027.
Re : Absentism
Dear Sandeep,
It has been observed that you have been absent from duty since July 30, 2002
without information and you did not seek prior approval for this purpose. As a
result, work of the department is getting hampered and your colleagues have
to fill in for you. Heavy expenses towards overtime payments were incurred.
Surprisingly, you did not bother to call up Office and inform anybody about
your unavailability except in the first week of September when you called up
the undersigned and informed him that your grandfather (Nana) has expired
and you have injured your feet, but you would be joining office in the next 7 to
10 days time. Till date, neither you called nor your joined the office.
Mind you, this is not the first time that such a thing has happened. As far as
absentism is concerned, you have a very bad record for past several years and
the advise given to you from time to time on the improvement has fallen on deaf
years. You have not shown any willingness to ameliorate your late comings or
regular absentism and that you have over availed your leave every year. In order
to recover the excess leave availed by you, your salary has been deducted, but it
also failed to leave any impact on you. Since July 30, 2002, you have been
regularly absent from duty and till date you have taken 128.5 days of leave from
April 1, 2002 onwards which includes - 27.5 days of leave over availed by you till
March 31, 2002. Once again, we have been constrained to deduct your
salary in order to recover the excess leave availed by you. Hence, we have
deducted 25 days of salary in August and 30 days of salary will be
deducted in September, 2002. We are still to recover 48.5 days of salary
from you on account of absence. Refer the enclosed Annexure for
reference.
You are hereby advised to resume your duties without any further delay
or respond to us within 7 days about your availability from the date of receipt of
14
this letter, failing which, we will be constrained to take appropriate action against
you.
Thanking you,
Yours sincerely,
Satyajit Basu
Studio Controller"
24. In this letter it is mentioned that workman had a very bad record for
absentism for the past several years and time to time advises were given to
him but he had failed to improve. Prior to year 2002-03, the management has
failed to bring an iota of evidence regarding absentism of workman from duty.
From the entire evidence led by management the absentism, late coming and
leaves are attributed to workman only from the year 2002-03 onwards.
25. During his cross-examination workman has admitted that he was
not issued any appreciation letter during 1996 to 2004. He has admitted his
signatures in the late coming register Ex.MW1/10. He also admitted that the
assignment given to each employee has to be completed within specified time.
He also admitted that the attendance shown against his name in the
attendance register from January'2002 to March'2006 in Ex.MW1/6 relates to
him. Similarly, he admits that entries in the leave register Ex.MW1/7 for the
year 2003, 2004 and 2005 relates to him. Workman has relied upon his letter
dated 5.10.02 which is mark A-2 written by him in reply to letter of the
management Ex.MW1/4 wherein workman has given reason for his absence
as he was suffering from Sciatica pain and had been advised by the doctor to
take rest. Similarly, Ex.WW1/14 is the reply dated 13.11.02 given by workman
to management, against letter Ex.MW1/3. Ex.WW1/16 is the letter dated
17.2.03 written by workman accompanying his medical certificate to the
management against the letter of the management Ex.MW1/2. In these
various letters written by workman to the management variety of reasons like
suffering from Sciatica pain, surgery of his four years old son etc. are given
for his absence. But there is no whisper in the entire pleadings of the workman
15
that why he used to reach late in the office so often between 2002-03 to 2005-
06.
26. Various other allegations are levelled by the management like his
unsatisfactory performance over a period of time, non-completion of work
within stipulated period of time and as consequent to that getting the work
outsourced causing financial burden to the company and proceeding on leave
without prior intimation and approval, against the workman. Ex.MW2/2 to
MW2/4 are the documents filed by MW2 to establish the financial burden
borne by the management for outsourcing the work due to absence of the
workman. These documents only show the payments made by management
in the year 2005 towards the charges for freelance work got done. From these
documents it is not possible to conclude that absence of the workman was the
sole reason for getting this work outsourced putting financial burden on the
management. Similarly, the management also fails to prove that for the last
many years prior to 2002 performance of the workman was not satisfactory.
However, workman has admitted during his cross-examination that the
assignment given to each employee has to be completed in the specified time
and there is no doubt that due to unauthorised absence of the workman as
well as his regular late coming to the office must have considerably hampered
the smooth working of the management vis-a-vis work assigned to him is
concerned.
27. Ex.MW1/8 are the services rules for the management applicable to
all employees including the present workman. It is not the case of the
workman that he was not subject to these service rules. Rule 7 (b) (viii)
provides that if an employee remains absent without permission for 10
consecutive days, he shall ceased to be an employee of the company and his
name shall be struck off from the rolls of the company. Rule 9(D) (1) provides
that an employee guilty of misconduct may be at sole discretion by
management dismissed without notice.
28. In view of the aforesaid reasons, on the basis of the evidence led by
16
management the late coming of the workman for 62 occasions in the year
2002-03, 83 occasions in the year 2003-04, 112 occasions in the year 2004-05
and 71 occasions in the year 2005-06; absentism from duty for 198 days in the
year 2002-03, 68 days in the year 2003-04, 60 days in the year 2004-05 and
59.5 days in the year 2005-06 stands proved. It is not the plea of the
workman that either he used to give prior intimation or used to take prior
approval before proceeding on leave during this duration. Thereby I hold that
management has been able to prove misconduct on the part of the workman
on account of mass leaves/absentisms and habitual late coming on the other
days, for the period between 2002 to 2006. Now the adequacy and
proportionality of the punishment of the termination imposed vide letter
Ex.MW1/9 is to be scruitinised invoking powers under section 11-A of the I.D.
Act.
29. To support his contentions Ld. AR for management has relied upon
113 (2004) DLT 258 (SC), the case titled Delhi Transport Corporation Vs.
Sardar Singh. The relevant paras 9 to 12 are as follows :-
"9. When an employee absents himself from duty, even without
sanctioned leave for very long period; it prima facie shows lack of
interest in work. Para 19(h) of the Standing Orders as quoted
above relates to habitual negligence of duties and lack of interest
in the Authority's work. When an employee absents himself from
duty without sanctioned leave the authority can, on the basis of
the record, come to a conclusion about the employee being
habitually negligent in duties and an exhibited lack of interest in
the employer's work. Ample material was produced before the
Tribunal in each case to show as to how the concerned
employees were remaining absent for long periods which affect
the work of the employer and the concerned employee was
required at least to bring some material on record to show as to
how his absence was on the basis of sanctioned leave and as to
how there was no negligence. Habitual absence is a factor which
establishes lack of interest in work. There cannot be any
17
sweeping generalisation. But at the same time some tell-tale
features can be noticed and pressed into service to arrive at
conclusions in the departmental proceedings.
10. Great emphasis was laid by learned Counsel for the
respondent-employee on the absence being treated as leave
without pay. As was observed by this Court in State of Madhya Pradesh Vs. Harihar Gopal, 1969 (3) SLR 274, by a three-Judge Bench of this Court, even when an order is passed for treating absence as leave without pay after passing an order of termination that is for the purpose of maintaining correct record of service. The charge in that case was, as in the present case, absence without obtaining leave in advance. The conduct of the employees in this case is nothing but irresponsible in extreme and can hardly be justified. The charge in this case was misconduct by absence. In view of the Governing Standing Orders unauthorised leave can be treated as misconduct.
11. Conclusions regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly, when same is unauthorised. Burden is on the employee who claims that there was no negligence and/or lack of interest to establish it by placing relevant materials. Clause (ii) of Para 4 of the Standing Order shows the seriousness attached to habitual absence. In Clause (i) thereof, there is requirement of prior permission. Only exception made is in case of sudden illness. There also conditions are stipulated, non-observance of which renders the absence unauthorised.
12. The Tribunal proceeded in all these cases on the basis as if the leave was sanctioned because of the noted leave without pay. Treating as leave without pay is not same as sanctioned or approved leave.
30. The Ld. AR for management has further relied upon 2008-1 LLJ 849 (SC), the case titled L & T Komatsu Ltd. Vs. N. Udayakumar. In this 18 case the Apex Court reiterated the observations made by it in AIR 2005 SC 1924, wherein it was observed that the Labour Court was not justified in interfering in the orders of removal from service when the charge against the employee stood proved. In para 20 of (AIR 2005 SC 1924), it observed as follows :-
"20. It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 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........".
31. It is not the case of the workman that during this duration he was too ill to inform or take prior approval of the management before proceeding on long leaves. As is evident from the evidence led on record by the workman he was suffering from sciatica pain and if wanted he could have easily informed the management about his leave. Absolutely, no explanation has been given by workman for his late coming to office practically everyday during this duration. Even assuming the medical certificates filed on record by workman to be true, it required to be proved that workman suffered from sciatica pains continuously for such a long duration and degree of pain was so severe rendering him totally immobile. It is evident from the evidence led by management on record that from 2002 till his termination workman practically 19 ignored his official duties by either remaining on unauthorised long leaves or reporting late on duty everyday. His habitual late coming and long leaves establishes his lack of interest in work. As already discussed in para 27 of this judgment rule 7(b) (viii) of Service Rules Ex.MW1/8 empowers the management to treat an employee as "ceased to be employee" if he remains absent without permission for 10 consecutive days. Further rule 9 (D) (1) empowers the management to dismiss the employee without notice guilty of misconduct.
32. In view of the aforesaid reasons, to my mind, punishment of termination meted out to the workman by the management, in view of the proved misconduct was just and warranted under the circumstances of this case. The other grievance raised by workman is that he was never served with the termination order dated 23.2.06. As per him the copy of the letter of termination was only received by him on 7.7.06. However, as deposed by MW1 since the claimant was absent from duty w.e.f. 21.2.06, the letter of termination dated 23.2.06 was handed over to workman on 3.3.06 when he attended the office, in the presence of other staff members but despite receiving the letter workman refused to give acknowledgment of it. Who handed over the termination letter Ex.MW1/9 to the workman on 3.3.06 and who were the staff members present when this letter was allegedly handed over to workman on 3.3.06, there is no shred of evidence led by management on this point. It is evident from the letter Ex.WW1/11 dated 4.7.06 of the management that copy of the termination letter was sent to workman alongwith this letter. Accordingly, management has failed to prove that before 4.7.07 it had served the termination letter dated 23.2.06 upon the workman.
33. Principles of equity demands that the workman was required to be informed about the reasons of his sudden termination from service immediately. As the punishment of termination was inflicted upon the workman without any domestic enquiry, it was earnestly required on the part of the management to serve the copy of the termination letter immediately after passing the adverse order against him. As already discussed management 20 took four months to serve the termination letter upon the workman after passing termination order putting workman to great mental trauma and harassment. It is an unfair labour practice adopted by the management. As observed by Apex Court in Engineering Laghu Udyog (Supra) in para 15 already discussed in above paras, for this workman is required to be compensated. Accordingly both these issues are decided in favour of the management and against the workman.
ISSUE NO.3 (RELIEF)
34. In view of the findings on issue no.1 & 2, the misconduct against the workman stands proved and his termination from service is held to be legal and justified. Since the management failed to serve the termination letter immediately upon the workman, as observed earlier, the workman is required to be compensated for that. The management is accordingly directed to pay compensation of Rs.50,000/- to the workman. For the sake of clarification it is mentioned that workman is entitled to get the other dues and service benefits remaining with the management at the time of his termination. The workman is held not entitled to relief of reinstatement. The management will comply with this order within one month of publication of this award. Reference is answered accordingly.
35. Award is passed in the above terms. Six copies of the award be sent to the appropriate Government. File be consigned to record room.
Dated : 26.5.09 ( SANJAY GARG )
PRESIDING OFFICER :
LABOUR COURT-V:
DELHI.