Delhi District Court
Sh. Phool Shankar vs . M/S. Dcm Silk Mills Id No. 119/05 on 7 December, 2011
Sh. Phool Shankar Vs. M/s. DCM Silk Mills ID No. 119/05
IN THE COURT OF DR. P S MALIK THE PRESIDING OFFICER
IN
LABOUR COURT XI, KARKARDOOMA COURTS, DELHI
ID No. 02402C0481762005
F.24 (1474) 2005/ Lab. - 4412 - 16 dated
Reference No.
23.08.2005.
Type of Case Reference Case
Date of Institution 24.09.2005
Evidence concluded on 02.09.2011
Arguments Heard on 25.11.2011
Date of Order 07.12.2011
WORKMAN MANAGEMENT
Vs.
Sh. Phool Shankar, S/o Sh. Shyama M/s. D.C.M. Silk Mills, Shivaji
Charan, C/o Engineering & Marg, Nazafgarh, Road, New
Karamchari Lal Jhanda Union, M Delhi.
714 - 15, Mangol Puri, New Delhi
- 83.
PRESENT:
● None for the parties.
ORDER :
1. The appropriate Government sent a reference no.F.24 (1474) 2005/ Lab. 4412 - 16 dated 23.08.2005 to this court in relation to the illegal discharge from the services of the claimant / workman Phool Shankar by the Management M/s. D.C.M. Silk Mills. The reference specifically pointed out as follows : "Whether Sh. Phool Shankar, S/o Sh. Shyama Charan was discharged from services illegally and/or unjustifiably by the Management and if so, to what relief in terms of money along with ORDER ON ENQUIRY ISSUE Page 1 of 8 Sh. Phool Shankar Vs. M/s. DCM Silk Mills ID No. 119/05 consequential benefits in terms of existing laws / Government Notifications and to what other relief was he entitled and what directions were necessary in that respect?"
2. As per claim the workman Phool Shankar was working with the Management M/s.
D.C.M. Silk Mills as a "Labourer" since 15.04.1978 and his last drawn salary was Rs.2000/ p.m. He claimed to have worked there without giving any chance of complaint to the Management. He claimed to be an active member of a labour union. Being enraged due to his conduct, the Management served upon him a false chargesheet and appointed one Sh. S.N. Gupta as an Enquiry Officer.
3. As per the workman, the Enquiry Officer did not allow him to bring a defence assistant. He neither gave the workman a list of witnesses nor any other documents. He also did not furnish the Hindi translation of the Standing Orders sanctioned by the appropriate Government for the present Management.
4. The Management filed its reply / written statement. It took a preliminary objection that the Management had obtained an order dated 18.12.2004 from an Industrial Tribunal, Delhi on 18.12.2004 pursuant to an application of the Management U/S 22 (2) (b) of the Industrial Disputes Act for seeking approval of the discharge of the workman from the services. In the domestic enquiry the workman was found guilty of habitual absence. The Management also raised an objection that the present filing of this industrial dispute by the workman was highly belated in time and his claim was liable to be rejected. In its reply on merits, the Management stated that the attendance record of the workman was quite unsatisfactory. For his recurring absence a chargesheet was served upon the workman; an enquiry officer was appointed and an enquiry was initiated and conducted as per law against him. In this enquiry the workman was found guilty and hence was given a punishment of dismissal from the services.
5. The Management repeatedly impressed upon the findings of the Ld. Industrial Tribunal dated 18.12.2004 wherein the enquiry held by the Management against the workman was held as fair and justified. The Management denied other details of the workman's claim. ORDER ON ENQUIRY ISSUE Page 2 of 8 Sh. Phool Shankar Vs. M/s. DCM Silk Mills ID No. 119/05
6. In these circumstances, the Ld. Predecessor vide its orders dated 20.03.2007 framed the following two issues :
1. Whether the enquiry held by the Management was as per the principles of natural justice and fair?
2. Relief in terms of reference.
The issue no. 1 was treated as preliminary issue.
7. The workman examined himself as WW1 and he almost reiterated his claim. He tendered his evidence by way of affidavit Ex. WW1/A. He further relied upon six documents which are Ex. WW1/1 to Ex. WW1/6. The document Ex. WW1/1 is the chargesheet dated 30.03.1992; the document Ex. WW1/2 is the reply of the workman to this chargesheet and this was dated 01.04.1992; the document Ex. WW1/3 is the letter written by the Labour union to the Assistant Labour Commissioner; the document Ex. WW1/4 is the enquiry report of the enquiry officer; the document Ex. WW1/5 is a letter written to the workman by the Management thereby describing the absence of the workman from his services in the year 1991 and a part of 1992; and the document Ex. WW1/6 is a letter dated 16.03.2005 written by the workman to the Managing Director of the Management M/s. D.C.M. Silk Mills.
8. During the cross - examination this workman stated that he was allowed to bring his coemployee as a defence representative during the enquiry. However, he was not allowed to bring an advocate or an office bearer of the Management as his defence assistant.
9. One Sh. S.N. Gupta was examined by the Management as MW1 who stated that the enquiry was held as per rules and the principles of natural justice. He stated that the claimant / workman Phool Shankar was allowed to be represented in the enquiry by any co - employee, however, the request for an advocate was disallowed. As per his affidavit Ex. MW1/A, the workman was represented by one Sh. Bhudev Prasad, a coworker of the claimant / workman. The workman also cross - examined the MWs and led his defence evidence. The enquiry proceedings were exhibited as Ex. MW1/1 collectively and the enquiry was proved as Ex. MW1/2. Even during his cross - examination ORDER ON ENQUIRY ISSUE Page 3 of 8 Sh. Phool Shankar Vs. M/s. DCM Silk Mills ID No. 119/05 this witness kept sticking to his earlier version that the workman was allowed to be represented by a co worker and co - employee.
10. The Management examined one Sh. Sushil Sharma also who tendered his evidence affidavit as Ex. MW2/A. He identified the signatures of the claimant / workman on letter dated 21.02.1994 (Ex. MW2/1). The Hindi translation of the enquiry report was exhibited as Ex. MW2/3. He filed some other documents also. ISSUE NO. 1 :
11. In this issue this court has to adjudicate upon the factum if the enquiry held by the Management was as per the principles of natural justice and fair.
12. The claimant impleaded the respondent / Management as M/s. D.C.M. Silk Mills i.e. a limited company. This court has seen the material available on record. There is not even a single piece of paper showing that the written statement or the so called Management's affidavit was really filed by the respondent / Management Company. It appears to have been filed by some "Management" with illegible signs. Similarly MW1 Sh. S.N. Gupta has no where filed any authorization from the Board of Directors / Managing Director / Directors of this company. He has not filed any Resolution of any Board of Directors of the said respondent / Management company. There is no Articles of Association showing the constitution of the Board of Directors. Everything has been kept in dark.
13. The Management has not given a chance to this court to look into the fact as to who is defending this claim of the workman. Everything cannot run by presumption. It cannot be presumed here that whoever appeared in the name of the respondent / Management was really the respondent / Management.
14. A company is a legal persona and has a definite identity. There is a specific legal procedure to be followed by a company in instituting / defending legal claims. But the same has not been duly followed here in this case. There is no linkage between the legal persona impleaded in these proceedings and the people contending that they were appearing for this legal persona. Link or relation of this nature cannot be thrust forcibly by the appearing persons.
15. This court has no objective mechanism to ascertain the identity of the ORDER ON ENQUIRY ISSUE Page 4 of 8 Sh. Phool Shankar Vs. M/s. DCM Silk Mills ID No. 119/05 person or persons who apparently defended or tried to defend this claim.
16. It is not sufficient for a party just to file an authorization in Form 'F' Industrial Disputes Act. That party has to give its identification and authentication also. The party which authorizes its attorney / AR to appear before this court has to give its own particulars also. For each party e.g. a natural person, a legal person, a society, a trust, a limited company or a private limited company, this requirement of identification may vary. But in all cases, it is a sine qua non so that the court is in a position to identify the parties and ascertain that the proceedings before it are not collusive in nature. In the present case, the respondent / Management has totally failed in giving any identification of its authenticity or genuineness.
17. This view of this court is also substantiated by Chapter 16 Instructions to Civil Courts in Delhi Delhi High Court Rules. The observations of this court are in tandem with Rules contained therein.
18. The same is the intention of the legislature enshrined in Section 119 CPC where all unauthorized persons are restrained from addressing the courts during adjudication.
19. Conversely, this evidence in the name of the Management's evidence does not bind the Management itself. In case any adverse order is passed against the Management, then no law would make that adverse order binding on the Management because legally the Management had not participated nor did anyone appeared in this case on behalf of the Management. Consequently, if the evidence led by the Management is taken on record, it would simply pave the way for this Management to accept or reject the court's verdict, and that too as per its own choosings. This evidence does not bind the respondent / Management.
20. In these circumstances, this court has no hesitation in rejecting this piece of evidence led by the so called Management as being inadmissible in law. It is totally insufficient to link it to the respondent / Management which is in fact a company i.e. a person incorporate.
21. Therefore, this court has received a preliminary doubt regarding the identity of the respondent / Management and the persons who allegedly ORDER ON ENQUIRY ISSUE Page 5 of 8 Sh. Phool Shankar Vs. M/s. DCM Silk Mills ID No. 119/05 appearing on its behalf. This court proceeds to examine the case of the workman if he had been successful in alleging and proving an unfairness and impropriety in the enquiry held against him by the Management The claimant / workman has made following main allegations on the fairness and propriety of the enquiry proceedings i.e. : ● the enquiry originated from a personal vendetta on the part of the Management;
● he was not allowed to be represented by a union office bearer; ● The workman was not given the list of witnesses or the documents relied upon by the Management during the course of enquiry; and ● he was also not given the Hindi translation of the Standing Orders.
22. In the cross - examination the workman clearly stated that he was allowed to bring his co - employee to represent him in the enquiry and only an advocate or an office bearer of the union was disallowed.
23. The law on the point of enquiry was laid down by the Hon'ble Supreme Court in D.G. Railway Protection Force and Others Vs. K. Raghuram Babu (2008) 4 Supreme Court Cases 406.
Following an earlier decision in N. Kalindi Vs. Tata Locomotive and Engineering Company Limited AIR 1960 SC 914 the Hon'ble Supreme Court further stated "an enquiry is not a suit or criminal trial where a party has a right to be represented by a lawyer. It is only if there is some rule which permits the accused to be represented by someone else, that he can claim to be so represented in an enquiry vide Brooke Bond India (P) Limited Vs. Subba Raman (1961) 2 LLJ 417 (SC).
Similarly, in Cipla Ltd. Vs. Ripu Daman Bhanot (1999) 4 SCC 188; (1999) SCC (L&S)847, it was held by this Court that representation could not be claimed as of right. This decision followed the earlier decision Bharat Petroleum Corporation Limited Vs. Maharashtra General Kamgar Union (1999) 1 SCC 626: (1999) SCC (L&S) 361 in which the whole case law has been reviewed by this Court.
ORDER ON ENQUIRY ISSUE Page 6 of 8 Sh. Phool Shankar Vs. M/s. DCM Silk Mills ID No. 119/05 Following the above decision it has to be held that there is no vested or absolute right in any chargesheeted employee to representation either through a counsel or through any other person unless the statute or rules / standing orders provide for such a right. Moreover, the right to representation through someone, even if granted by the rules, can be granted as a restricted or controlled right. Refusal to grant representation through an agent does not violate the principles of natural justice.
24. Keeping in view the aforesaid law laid down by the Hon'ble Supreme Court, it is clear that the right to representation through someone can be granted as a restricted or controlled right. Refusal to grant representation through an agent does not violate the principles of natural justice. So far as allegations regarding Hindi translation of the Standing Orders is concerned, the workman did not show any prejudice that had been caused to him by such forbearance on the part of the Management.
25. In his cross - examination, he has clearly admitted that he participated in the enquiry proceedings from the commencement till the end and every proceeding sheet baers his signatures. During the course of enquiry proceedings, he cross - examined all the witnesses of the Management. This fact is clear from his own document Ex. WW1/4.
26. From the aforesaid discussion, it appears that the objections of the workman to the fairness and propriety of the enquiry held by the Management were more of formal nature in a customary way. They do not appear to have any substance in them.
27. For setting aside an enquiry held by the Management, there ought to be clear allegations against it regarding its fairness and propriety. After these allegations, the workman ought to have brought a sufficient amount of evidence to prove these allegations. In the present case, the workman made allegations in the claim and evidence affidavit both, but he could not maintain them during the course of his cross - examination. He failed to have proved those allegations with an evidence.
28. Although the evidence of the Management has been rejected by this court on the grounds as aforesaid, but it is further observed by this court that the requirement of evidence by the workman and the Management is not simultaneous. It is for the workman, first to establish a case by pleading and corresponding evidence. The Management's role starts only ORDER ON ENQUIRY ISSUE Page 7 of 8 Sh. Phool Shankar Vs. M/s. DCM Silk Mills ID No. 119/05 thereafter. If the workman fails to prove these allegations against the Management's action, then the Management is not duty bound to lead any evidence in that case because that would be without any requirement. (Automobile Association of Upper India Limited Vs. PO Labour Court & Anr. LLR 851)
29. Exactly the same has happened in this case. The workman has failed to prove the allegations on the enquiry and the Management has failed to bring on record any admissible evidence. As a result of this entirity of circumstances, the workman has failed to prove that the enquiry held against him by the Management was not fair and proper.
32. As a result, the enquiry is held to be effective against the workman.
33. Now it is for the workman to address the court on the point of quantum of punishment inflicted by the Management, as per schedule given in the ordersheet. ANNOUNCED IN THE OPEN COURT ON 07.12.2011.
Dr. P S MALIK POLC XI, Karkardooma Courts, Delhi ORDER ON ENQUIRY ISSUE Page 8 of 8