Delhi District Court
Sh. Nanak Chand vs M/S. Regal Cinema on 15 September, 2011
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL DISTRICT & SESSIONS JUDGE
PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI.
ID NO. 14/10 (Old ID NO. 92/05)
Date of Institution : 18.2.2005
Date of Award : 15.09.2011
IN THE MATTER BETWEEN
Sh. Nanak Chand, S/o Late Sh. Ganesh,
C/o. The General Secretary Delhi Labour Union,
Agarwal Bhawan, G.T. Road, Tis Hazari,
Delhi - 110 054. .....The Workman
AND
M/s. Regal Cinema,
Through : Manager, Regal Building,
Connaught Place,
New Delhi. ....The Management
A W A R D
The Secretary (Labour), Government of NCT of Delhi
ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 1 out of 23
vide its order No. F.24(1811)/2004/Lab.798892 dated 10.11.2004
referred an industrial dispute between the above mentioned parties
to the Labour Court with the following terms of reference :
"Whether the services of Sh. Nanak Chand, S/o Late Sh.
Ganesh have been terminated illegally and/or unjustifiably by
the management, and if so, to what sum of money as monetary
relief alongwith consequential benefits in terms of existing
laws/ Govt. Notifications and to what other relief is he entitled
and what direction are necessary in this respect?"
2 After receiving the reference from the NCT of Delhi
the Statement of Claim was filed by the Workman with the
submissions that he had joined with the management as "Sweeper"
and confirmed in services w.e.f 31.08.1984. The management
neither issue any appointment letter nor his name was entered in the
attendance register. On 01.03.1986, the workman demanded the
appointment letter and requested for enter his name in the
attendance register, the management got annoyed and terminated
his services. The said illegal termination was challenged by raising
an industrial dispute and the same has been decided vide award
dated 20.12.2000 in ID No. 435/86. In the said award, it has been
specifically held that the termination of services of the workman is
ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 2 out of 23
illegal and the management was directed to reinstate the services of
the workman alongwith back wages @ 30% of the last drawn
wages. Thereafter, the management filed a Civil Writ Petition No.
5410/2001 against the said award in the Hon'ble High Court vide
order dated 20.9.2002 by which, the said award was modified and
the back wages @ 30% of the last drawn were disallowed to the
workman. Subsequently, workman filed an L.P.A bearing No.
39/2003 against the said order dated 20.9.2002. Management did
not comply the directions to reinstate the services of the workman
and the management restored the services only when an order
dated 05.10.2001 was passed by the Hon'ble High Court and,
thereafter, the workman was allowed duties. The workman has
been sincerely discharging his duties since the day of his joining
and has a unblemished and uninterrupted record of services to his
credit. The workman was assigned duties but the management was
adamant to terminate his services again and they were harassing the
workman in one way or the other. Sh. Shyam Singh, the Manager
of Regal Cinema several times expressed his displeasure and show
anger against the workman and stated that the workman has been
ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 3 out of 23
taken on duties only due to the order passed by the Hon'ble High
Court, otherwise, he could not get back on the services. The
workman demanded requisite winter and summer uniforms but the
same were not provided to him. The management wants to
terminate the services of the workman by hook or by crook. The
management issued a false and frivolous show cause notice dated
01.08.2003, making therein false and frivolous allegations. The
workman immediately replied the said notice on the same day i.e.
on 01.08.2003 but as the management was adamant to terminate his
services, they appointed Enquiry Officer Sh. S.K. Pandey who
conducted the inquiry which was an inquiry merely for name sake.
Ultimately, the said inquiry officer submitted his false and frivolous
inquiry report dated 25.9.2003 and thereafter, the management has
terminated the services of the workman vide letter dated
23.10.2003. The said termination of the workman w.e.f 23.10.2003
is totally illegal, bad, unjust and malafide because the services of
the workman were terminated only to victimize him. There is no
formal chargesheet was given to the workman. No list of witnesses
was provided to the workman during the inquiry. No documents
ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 4 out of 23
regarding preliminary investigation and their statement of witnesses
were either shown or supplied to the workman. Workman was not
allowed representation by a representative of his choice despite his
specific request in writing on the very first day i.e. on 11.9.2003.
The inquiry officer was totally biased and he was acting only at the
behest of the management. The inquiry officer even did not
mention about filing of the application dated 11.9.2003 in the
inquiry proceedings and in report. The workman concerned was
totally illiterate and was doing the job of a Sweeper while the
management case represented through Sh. Shyam Singh (Manager)
alongwith three other officials of the management namely Mr.
Siddeshwar Dayal, Mr. Ravinder Bhatnagar and one another
manager namely Sh. Ravi Sharma. During the inquiry, all the
discussion was made between the inquiry officer and the
management in English language which was not understandable by
the workman. The workman was put under a tremendous mental
pressure during the inquiry proceedings, as he was all alone. On
17.9.2003, the inquiry officer in collusion and on connivance with
the management officials locked the workman inside the room and
ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 5 out of 23
they even asked the workman to sign on certain blank papers. A
complaint in this regard was also lodged with Police Station,
Cannaught Place, New Delhi. The Manager Sh. Shyam Singh has
illwill and grudge against the workman and during the inquiry, he
himself was the prosecutor as well as complainant as well as
management witness etc. In fact in connivance with the inquiry
officer, he was acting as a Judge. The inquiry was totally perverse
and illegal and traveled beyond the scope of the inquiry, which is
totally erroneous and illegal. The inquiry was conducted in a very
hasty manner and this was totally prejudicial to the interest of the
workman. The workman has completed more than 240 days of his
continuous employment prior to his illegal termination and he
could not be thrown out of job in the manner, as it was done. The
termination of the services of the workman is violative of Section
25F,G &H of the Industrial Dispute Act, 1947 r/w Rule 76 & 77 of
the Industrial Dispute (Central) Rules, 1957. The workman is
totally unemployed since his services have been terminated w.e.f.
from 23.10.2003. A demand notice was served upon the
management by Regd. A/D post vide communication dated
ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 6 out of 23
04.12.2003, duly received in the office of management, but no reply
has been received and it is resumed that the demand has been
rejected. Thereafter, a Statement of Claim was filed before the
Conciliation Officer, Govt. of NCT of Delhi. The conciliation
proceedings were initiated but the same resulted in failure because
of the adamant and noncooperative attitude of the management.
Therefore, it is prayed that an award be made in favour of the
workman holding that the termination of workman concerned i.e.
Sh. Nank chand is totally illegal and unjustified and the workman
be held entitled for reinstate in service with continuity and full back
wages with all consequential benefits either monetary or non
monetary. The cost of litigation as provided in section 11 (7) of the
Industrial Dispute Act, 1947 may also be awarded to the workman.
3 After issuing the notice of the statement of claim to the
management, the management filed written statement whereas
controverted the claim of the workman with the prayer that the
workman has been dismissed from the services on grave charges of
misconduct which was duly proved in the domestic inquiry. All the
averments made in the statement of claim has been denied. On the
ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 7 out of 23
other hand it is submitted that in fact late sh. Ganesh who was an
employee of the Theater had died on 16.10.1984. After the death of
workman, father late Sh. Ganesh and on the specific request of Sh.
Nanak Chand, the management had considered the workman for
engagement as a casual worker in the theater on compassionate
grounds. The management as and when required, all the workman
time to time and the workman had worked as casual labour purely
on temporary basis. In the month of February 1986, the
management could not provide his employment on temporary basis.
On this, the workman misbehaved and used most derogatory
abusing and insulting language in front of joint receiver who is also
a proprietor of Theater. On this, the workman had raised an
industrial dispute against the management and in that dispute the
Hon'ble Labour Court had directed for reinstated the workman with
30% back wages. The management had challenged the said order
in the Hon'ble High Court vide Civil Write petition no. 5410/2001
which is decided in favour of the management and the Hon'ble
High Court had modified the award and the back wages of 30 % of
the last drawn wages were disallowed. The workman had filed
ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 8 out of 23
LPA No. 39/2003 before the Hon'ble Court for adjudication.
During the employment after reinstatement in service with the
management, the workman committed several misconduct on
several occasions. The workman was habitual of black marketing of
tickets, using abusive language, nonperforming of his regular duty
and misbehaving with the officials of Theater, disobeying the
orders of management. On 28.7.2003, while the workman was on
duty at about 8 pm, he was found to be not performing his duty.
The workman was directed to perform his duty in the Hall. The
workman categorically refused to perform his duty. The workman
had also used filthy language. Again on 29.7.2003 at about 9 pm
when the Manager was standing in thebooking office, the workman
misbehaved with him. A chargesheet cum show cause notice dt.
1.08.03 was served on the workman to which the workman gave a reply dated 1.8.03 itself which was not found to be satisfactory. Consequently, the management held a valid and proper domestic enquiry in respect of the charges. The enquiry officer found the charges to be correct and proved on record after conducting the domestic inquiry in followed principles of natural justice. On ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 9 out of 23 receipts of enquiry report the management had sent a copy of the einquiry report alongwith its letter dt. 3.10.03 which was delivered to the workman on 3.10.2003 itself in person. The workman submitted his reply to the same vide his letter dt. 11.10.2003 after carefully examine the enquiry proceedings. On the reply dt. 11.10.2003, the management had decided to impose upon the workman the punishment of dismissal from services. Accordingly, the workman was dismissed by the management from his services vide its letter of dismissal dt. 23.10.2003.
4. It is also denied that the demand notice was served upon the management by registered AD post dt. 4.12.2003 and the prayer of the workman is totally vague, factious and wrong and prayed that the reference of dispute may be answered in negative against the workman and in favour of the management.
5. The rejoinder to the written statement was filed by the workman whereas controverting the contents made in the written statement and reaffirmed the contentions raised in the statement of claim and prayed to grant relief, as prayed in the claim petition.
6. From the pleadings of the parties, the following issues ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 10 out of 23 were framed on 23.8.2005 :
1. Whether management conducted domestic enquiry legally, fairly and in accordance with principles of natural justice?
2. Whether the services of Sh. Nanak Chand S/o. Sh Ganesh have been been terminated illegally and/or unjustifiably by the management, and if so, to what sum of money as monetary relief alongwith consequential benefits in terms of existing laws/ Govt. Notifications and to what other relief is he entitled and what direction are necessary in this respect?
7. On the issue of enquiry both the parties have led the evidence and controverted the issue raised by them in the cross examination of the witnesses and filling after arguments of both the parties. Issue regarding enquiry have been decided in favour of the workman. The enquiry was vitiated vide order dt. 27.2.2008 passed by this court.
8. After decided the issue of enquiry, the management allowed to led a fresh evidence on misconduct. The management examined three witnesses namely sh. Shyam singh, Sh. Satender Prakash and Sh. Ravi Sharma through affidavit. All the witnesses have tendered the evidence through affidavit by examining them. ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 11 out of 23 MW1 Sh. Shyam Singh who in his cross examination on behalf of the workman testified that the workman had worked under his control and supervision. He had not made complaint U/s. 107/150 Cr. PC. There is a duty shift of the workers including workman. But he could not produce the duty roaster as he had left the service of the management. He said that the incident was of 28.7.03 in the evening at about 5:00 pm to 6:00 pm. Being a Safai Karamchari, workman was told to do duty within the Cinema hall at ground floor, the movie was exhibited but he was not present on the duty place. When he arrived after sometime had repleid that he was here only and when he was asked to clean the cinema hall and straightway refused to perform the duty and he uttered the words "AAPSE JO HOTA HAI KARLO" and also used unparliamentary language. Sh. Satprakash, booking clerk and Sh. Vinod Vij, Booking Clerk were allegedly present at the time of incident. The incident was occurred in the cabin of Sh. Shyam Singh. The booking clerk was in his cabin to take the ticket books which were lying in his cabin. The workman used the filthy and unparliamentary language by using the words that : ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 12 out of 23 a. You are the chamcha of the proprietor;
b. You are doing chamchagiri;
c. You cannot do anything against me and whatever you want you can do;
d. Jo Apse Ukharta hai ukharle mera kuchh nahin bigar sakte;
9. MW1 Sh. Shyam Singh was called by the ACP in the matter of 107/150 Cr. PC. He had not given any statement against the workman. The incident dated 29.7.03 was took place at about 4 pm to 6 pm. The workman was asked to perform the duty by Sh. Prabhu Shankar but workman had refused and used unparliamentary language. The rest of the suggestions were denied.
10. The MW2 Satprakash stated in the examination in chief through an affidavit on 29.7.03 in his presence, the workman Nanak Chand misbehaved with MW1 Shyam Singh at the booking window he used filthy language before whole staff. On 10.8.2003, the workman caught hold his coller and threatened for dire consequences for the issuance of the tickets and also threatened for filing the case and imprisonment for six months in a case and also ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 13 out of 23 given a complaint in writing on 10.8.03. The MW2, Sh. Satprakash in his cross examination stated that besides the incident of 29.3.10 and 10.8.03 he has no concern with any incident when the workman was called by Shyam Singh on 29.3.07 he refused to do the work and Nanak Chand stated that whatever he can do he can do it. The whole of incident dated 29.8.03 occurred with him in presence of Shyam Singh and Sh. Parbhu Shanker and the workman lodged a complaint against him in the Police Station on the basis of said complaint, he must convicted in a criminal case. The workman abuses him only. He did not heard abuses of other persons.
11. The MW3 Ravi Shanker in his cross examination, has deposed that he did not have personal knowledge of the incident occurred on 29.7.03 and 10.7.03. the workman has refused to report to Surender Bhatnagar, partner of the firm (now deceased). The workman has not replied the notice dt. 3.6.03 and he was orally warned for the incident.
12. The workman in his behalf himself prove the allegations by examining himself and produced Sh. Ravi Shanker ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 14 out of 23 Verma as WW2 who stated in his affidavit that no such incident has been taken place on 28.7.03, 29.7.03 and 10.08.03 as alleged by the management. The Shyam Singh, Manager used to harass Sh. Nanak Chand openly that he was reinstated by the management in pursuance of the court order. The management has concocted a false story to get rid from Nanak Chand. The workman never been indulged in any kind of untowards incident in cross examination, it is testified by WW2 Sh. Ravi Shanker that his duties is of a Torch Man and after getting the ticket holders inside the cinema hall, it is the duty of the ticket man to come out side the hall and to perform the duty at main gate of the cinema and not the outer gate. He has not deposed in any other court pertaining to the incident. The other suggestions were denied one after the other.
13. From the depositions of Ravi Shanker in support of the statement of workman, he stated that no such incident as alleged in the chargesheet ever happened on 28.7.03, 29.7.03, and 10.8.03 and WW2 further stated that the Manager Shyam Singh used to harass the workman openly. The workman was reinstated by the management in pursuance of the court order. The domestic inquiry ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 15 out of 23 is declared vitiated and the depositions made by the witness have been leveled that the workman lodged a complaint against MW2 Satprakash booking clerk in the cinema at the relevant time and on the basis of the said complaint, the MW2 Satprakash was convicted therefore, his testimony cannot be found trustworthy against the workman. So far as the MW1 Sh. Shyam Singh who himself bearing grudge against the workman after his reinstatement and caused harassment to the workman for one reason or the other. He has unable to produce duty roaster of duty slip of the workmen including management witness and it is also revealed that the workman was worked under his control and supervision there is no show cause notice or any memo of alleged incident or absence from the duty except the chargsheet issued during the inquiry proceedings. In such circumstances, testimony of management witness does not conspire confidence. The MW3 Ravi Sharma Manager if the Regal Cinema is a formal witness with respect to the issue of notice dt. 3.6.03 and his testimony is not much likely to give any consideration in favour of the management.
14. The apex court in Neeta Kaplish Versus Presiding ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 16 out of 23 Officer, Labour Court & Anr. (1999) 1 SC 517 observed that "once the domestic enquiry is declared to be vitiated by the Industrial Tribunal, material which was placed before the Enquiry Officer did not constitute "material on record" and therefore, the Industrial Adjudicator cannot rely upon the same for deciding as to whether the charges leveled against the workman stand proved or not".
15. Since the inquiry in the instance case have been vitiated and the said finding has not been challenged, therefore, the terminations on the basis of the inquiry report is illegal and unjustifiable by the management. After finding of the court on the basis of inquiry, the management has allowed to lead evidence in order ssto prove the charges against the workman. The management has also failed to prove through independent corroborative evidence that the charges against the workman are sustained in the eyes of law. There is no independent corroborative evidence found against the workman to prove the allegations.
16. In case reference 2011 LLR 631, Purvanchal Vidyut Vitran Nigam Ltd.,Varanasi and Anothers Versus State of UP and ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 17 out of 23 Others, it was observed in para no. 8 to 12 that "moreover it was held by Supreme Court in several authorities including that the only definition in the termination order of the workman is not compliance of section 35 of the ID Act. Then it is onwards necessary to direct reinstatement and in such supervision the award of compensation would be more appropriate relief particularly when the employer is a Government or Government agency and relevant rule have been not violated and workman was daily wager on muster roll employee".
17. From the evidence on record, it has been brought on recored that the workman is not gain fully employed in any establishment from the date of termination w.e.f. 23.10.03, initially the burden to prove the unemployment is upon the workman. The workman in the statement of claim has proved that he is totally unemployed since the termination of his service i.e. on 23.10.2003, this fact has been testified by workman in his depositions. On the contrary, the management simply denied the said averments without any cogent evidence. In these circumstances, the workman is entitled for back wages considering the facts and circumstances of ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 18 out of 23 the case. The service of the workman was illegally terminated there was representation of the workman against the finding of the inquiry officer. The past conduct was taken into account. In such circumstances, the major penalty of termination while finding of the guilty against the workman by disciplinary authority in respect of the charge is illegal and unjust.
18. So far as in respect of reinstatement of the workman service was being terminated in the year 2003, the workman was already reinstated by the order of the court showing from the past record. There is further likelihood of victimization to the workman in the hand of the management in case of reinstatement in service. There is no evidence that the claimant is a gainfully employed after the termination of the service.
19. In 2011 LLR 581 Chhattisgarh High Court WP (L) Nos. 4374 and 4377/2010, State of Chhattisgarh & Anr. Versus Umendi & Ors. it was held that "..in lieu of reinstatement and back wages a daily wager worked for 240 days terminated without payment of retrenchment compensation as provided U/s. 25 F of the Industrial Disputes Act. The retrenchment held illegal, ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 19 out of 23 reinstatement is not a necessary consequence, monetary compensation of Rs. One lakh as compensation in lieu of reinstatement would be appropriate, just and equitable. This incident of reinstatement, the monetary compensation would serve the end of justice".
20. In case 2011 LLR 529 CR DasI Alias Chittaranjan Das Vs. Personal Manager, Jute Corporation of India & Anrs. It is observed that : "An Inquiry Officer will not be impartial if he performs the role of a prosecutor by crossexamining the witnesses hence the enquiry as held is liable to be vitiated. Since the inquiry as held against the delinquent employee who was chargesheeted for stealing of Rs. 3,342 has been vitiated, the petitioner (delinquent) will be paid Rs. 50,000/ since thirty years have elapsed and he has suffered all along".
I also get support from 2009IILLJ19 (SC) Awadesh Chandra Agarwal Versus divisional Manager, LIC of India; "
Reinstatement - Compensation in lieu thereof - Direction to pay Rs. 40,000 compensation issued subject to condition of restoration of ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 20 out of 23 Labour Court's award, on default".
21. Having regard to the aforesaid facts and circumstances, just cited and the findings on the issues which are decided in favour of the workman. Considering all the aspects, the inquiry proceedings has already been vitiated. In these circumstances, the order of termination passed by the disciplinary authority is set aside for the same reasons. The report of the Enquiry Officer also stands null & void. Now coming to the question of relief, in earlier occasion, the punishment for termination was already awarded which was set aside and the workman was reinstated on the directions of the Hon'ble High Court and thereafter, joining of the management again by the workman, the perverse attitude of the management resulted into termination of the service of the workman. If the workman is again reinstated by order of the court, it will also again invite the further similar consequence and bias attitude of the management and workman may not be in the unit. The workman has already been contested the cases from several years and being faced the rigar trials and cause economical loss. The court is not inclined to enter into detailed exercise as to how ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 21 out of 23 much loss workman suffered in monetary terms because of such act of management. The workman is already in the middle of age and few years of the service left with the management. Therefore, it deemed fit in the facts and circumstances of the case instead of reinstatement of the workman be awarded a some amount as compensation it implicit which cover the right of the workman to receive retrenchment & reinstatement compensation as per law. The workman should be paid compensation at the time of retrenchment @ 15 days average pay for every completed year of continuous service or any part thereof is not access of six months. It is undisputed fact that the workman had worked 240 days during the period of 12 calender months from the date of retrenchment. Thereby directed the management to pay a sum of Rs. 2 lacs (Rupees Two Lacs) to the workman as a compensation towards retrenchment; reinstatement and backwages from the day of publication of award, failing which the management is required to pay the interest @ 9% p.a. On the sum awarded as compensation.
22. An award stands passed as per the foregoing findings. A copy of the award be sent to the Secretary (Labour) Government ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 22 out of 23 of National Capital Territory of Delhi for necessary action. Award be also sent to server (www.delhicourts.nic.in). File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 15th August, 2011.
(SATINDER KUMAR GAUTAM) PRESIDING OFFICER LABOUR COURT KARKARDOOMA COURTS : DELHI.
ID No.:14/10 Nanak Chand Vs. Regal Cinema Page no. 23 out of 23