Delhi District Court
M/S Associated Aviation Pvt. Ltd vs The Presiding Officer on 4 February, 2011
IN THE COURT OF DR. T. R. NAVAL ADDITIONAL
DISTRICT & SESSIONS JUDGE/PRESIDING OFFICER
LABOUR COURT KARKARDOOMA COURTS, DELHI
ID NO. 65/10
In The Matter Between:
M/s Associated Aviation Pvt. Ltd.
The Management
And
Its Workman
Shri Naresh Kumar
The Workman
ORDER
This order will dispose of an application dated 29.10.2010 of the workman for adducing evidence on the point of terms of reference.
2. It has been mentioned in the present case that inquiry issue has been decided in favour of the management and against the workman/claimant. The matter has been fixed for arguments on Section 11 A of the Industrial Dispute Act without giving any chance to the workman to adduce evidence on the point of terms of reference i.e. victimization, gainful employment and dismissal order being null and void. In case M/s Indian Aluminium Co. Ltd. vs. The Presiding Officer, Labour Court, Ranchi and Another 1991(62) FLR 273, Patna High Court has observed that, Labour Court is bound to ID No.65/10 1 of 6 give chance to the workman to adduce evidence on the point of victimization, gainful employment and dismissal order being null and void after deciding issue of inquiry. The claimant/workman wants to adduce evidence on the said point. It has been prayed that claimant/workman may be allowed to adduce evidence on the point of terms of reference.
3. The management contested this application, without filing formal application on the grounds inter-alia that case referred to in the application decided by Patna High Court is not applicable to the facts of present case as the claimant/workman has failed to mention the facts regarding his victimization, gainful employment and dismissal order being null and void. It has also been argued that provisions of Section 11-A provided that labour court cannot take into consideration fresh evidence or material. The application of the workman is not maintainable. Counsel for the management prayed for dismissal of application.
4. I have heard arguments of Ld. Counsel for management and AR for the workman and perused file.
5. In case of M/s Indian Aluminium Co. Ltd., vs. the Presiding Officer, Labour Court, Ranchi and another, (supra), it was held therein by Patna High Court that:
ID No.65/10 2 of 6 "The proviso to Section 11-A of the Act cannot be held to exclude reception of evidence in relation to matters not touched or intended to be touched by the Section to which the proviso is appended. In Mohan Meakin Breweries Ltd. v. Commissioner of Excise, Bihar and others the Supreme Court held that though in the proviso to rule 147 of the Rules framed under the Bihar and Orissa Excise Act, 1915, the expression used was 'an excisable articles that expression did not embrace foreign liquor not imported under the bond because the main part of the rule, to which the proviso was appended applied only to foreign liquor imported under the bond. The proviso to Section 11-A of the Act will, therefore, come into play only when the wider powers of an appellate authority conferred on a Tribunal by Section 11-A are sought to be exercised by the Tribunal for ascertaining the correctness or otherwise of the finding in the domestic enquiry. In matters not covered by the main Section, the proviso would not be attracted. That is why the Supreme Court held in A.I.R. 1973 S.C. 127 (supra) that the proviso did not bar reception of fresh evidence by the Tribunal when the domestic enquiry was set aside and the management proceeded to justify its action by adducing evidence before the Tribunal about the guilt of the workman in exercise of right available to the management under the law evolved by the Supreme Court in the matter of adjudication of disputes relating to disciplinary action taken by the management. For the same reasons, if according to law laid down by the Supreme Court prior to the year 1971, a workman became entitled to assail the action of the employer before the Tribunal on the ground that the action against him is vitiated on account of violation of the principles of natural justice, or on the ground the main section, how can a workman be debarred from adducing evidence in that behalf on the ground that the proviso to Section 11- A of the Act shut out that evidence? The learned Single Judge was, in my opinion, right in holding that the proviso to Section 11-A of the Act do not take away the right of respondent No.2 to adduce evidence with regard to bias or victimisation."
ID No.65/10 3 of 6 6. It has been argued on behalf of the
management that workman has not pleaded any instance of victimisation of the workman and therefore, the law laid down in above mentioned case, is not applicable on the facts of the present case.
7. On perusal of statement of claim, I find that workman or his AR has not quoted any incidence of victimsation of the workman. It has only been mentioned therein that the management terminated the services of workman adopting revengeful attitude.
8. My attention goes to a case of UCO Bank vs. The Presiding Officer & Another, 1999 LLR 1136. The Hon'ble Delhi High Court has held as under:
"12.The necessary consequence of the aforesaid discussion is that the Labour Court/Tribunal has to first examine as to whether enquiry conducted is proper and valid. Only when this issue is decided that Tribunal will have to decide as to what further course of action has to be taken which would be determined upon the outcome on the issue regarding validity of the enquiry. Therefore, it is but proper for the Tribunal to deal with the validity of the domestic enquiry as a preliminary issue. If its finding on the subject is in favour of management then there will be no occasion for additional evidence being produced by the management. A priori where the domestic enquiry is found to have been properly held neither the employer nor the employee shall have right to produce further evidence before the Tribunal to support or demolish the finding of guilt recorded not to sustain the quantum of punishment imposed as a result of the domestic enquiry."
9. My attention also goes to a case of M/s Bharat ID No.65/10 4 of 6 Iron Works vs. Bhagubhai Balubhai Patel and ors. 1976 LAB. I.C. 4, it was held by Hon'ble Supreme Court that:
"9.A word of caution is necessary. Victimisation is a serious charge by an employee against an employer, and, therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them.***
10.The onus of establishing a plea of victimsation will be upon the person pleading it. Since a charge of victimisation is a serious matter reflecting, to a degree, upon the subjective attitude of the employer evidenced by acts and conduct, these have to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced."
10. After considering the arguments of Ld. Authorized representative of workman and Ld. Counsel for management, and the principles of law laid down in above mentioned case, I am of the view that the case of M/s Indian Aluminium vs. The Presiding Officer (supra) relied on by ARW will not provide any benefit to the workman for the reasons, firstly, that facts of the present case and that case are different. Secondly, in the present case the workman has not quoted the instances of victimisation and lastly, the case of UCO Bank vs. The Presiding Officer & Another(supra) and M/s Bharat Iron Works vs. Bhagubhai Balubhai Patel and ors.(supra) supported the case of the management and keeping in view the principles of law laid down therein, there is no ground or justification for allowing the workman to adduce the evidence on the terms of ID No.65/10 5 of 6 reference. Lastly, the case M/s Indian Aluminium Co. Ltd., vs. the Presiding Officer, Labour Court, Ranchi and another, (supra) relied on by ARW pertains to Patna High Court and it has persuasive value on the court situated in territory of Delhi whereas cases UCO Bank vs. The Presiding Officer & Another, (supra) and M/s Bharat Iron Works vs. Bhagubhai Balubhai Patel and ors. (supra) of Delhi High Court and Hon'ble Supreme Court are binding on this court.
11. Consequent upon the above reasons and discussion, application of workman for adducing evidence on the terms of reference is dismissed.
Announced in the Open Court
on 04th February, 2011 (DR. T. R. NAVAL)
Additional District & Sessions Judge
Presiding Officer, Labour Court,
Karkardooma Courts, Delhi
ID No.65/10 6 of 6