Delhi District Court
Vide Order No. ... vs Presiding Officer Labour on 4 January, 2016
IN THE COURT OF SHRI UMED SINGH GREWAL
PO:LCXVII, ROOM NO. 22 : KKD COURTS :DELHI
ID No.194/10/98.
Unique ID No.02402C0011001998.
M/s. York Restaurant,
1011/K, Connaught Circus,
New Delhi110001.
............. Management
Versus
Sh. Nand Kishore
C/o Hotel Mazdoor Union,
167Panchkuin Road, New Delhi110001.
..............Workman
DATE OF INSTITUTION : 27.08.1998.
DATE ON WHICH AWARD RESERVED : 30.11.2015.
DATE ON WHICH AWARD PASSED : 04.01.2016.
A W A R D :
1.Vide Order No. F.24(3628)/98/Lab./2937377 dated 18.08.1998, issued by Government of NCT of Delhi, a reference was sent to this Court with the following terms:
"Whether the dismissal of Sh. Nand Kishore from services by the management is illegal and unjustified; and if so, to what relief is he entitled ID No.194/10/98. 1/23 and what directions are necessary in this respect?"
2. Claimant's case is that he joined the management as Waiter on 01.02.1990 at the last drawn salary of Rs.3,318/per month. He performed duty sincerely, honestly and diligently without giving any chance of complaint to the management. His service record was clean and unblemished. The management was indulging in unfair trade practice like keeping the workers on temporary basis for years together and also used to pay less wages to them if compared to their permanent counterparts. The management was guilty of appointing needy people by obtaining their signatures on blank papers with a view to misuse those papers at latter stage. The claimant, being office bearer of the union, used to protest against labour practice and therefore, the management was searching ways to victimise him on one or the other pretext. He was suspended on false allegations and domestic enquiry was instituted. Sh. Alok Bhasin was appointed as enquiry officer who left enquiry in midway under mysterious circumstances. The next enquiry officer was favourable to the management and hence did not record his submissions properly. The management's ID No.194/10/98. 2/23 representative Sh. Balbir Singh was a legally trained person who had participated in many sham enquiries. The enquiry officer and management representative were in hand in gloves with each other and took full advantage of his ignorance. He had produced enough evidence that the management was victimising him and other workers but that point was not discussed in enquiry report. No eye witness of the incident was produced but despite it, the enquiry officer failed to apply his mind and held him guilty. His report is not based upon cogent reasons. It is contrary to facts and hence perverse. The enquiry officer closed proceedings in undue haste and did not give fair and reasonable opportunity to him to defend the case. He was dismissed vide illegal order dated 17.10.1997. He had sent a demand notice to the management for reinstatement with continuity of service and back wages but it went unreplied.
3. Written statement is to the effect that Sh. Nand Kishore and Sh. Vijay Singh Rawat had fought with each other in the night of 10.08.1996 in restaurant premises. Both attacked each other with bottles and glasses and used abusive language. They did not stop and calm down even on the intervention of the ID No.194/10/98. 3/23 manager and continued to fight. The staff members intervened, separated them and thereafter, they stopped fight. Sh. Nand Kishore had hit Sh. Vijay Singh Rawat with the glass and seriously injured him under the eye resulting into bleeding for which Sh. Vijay Singh Rawat had to be hospitalized. Chargesheet dated 12.08.1996 was issued to him to which he did not submit any explanation and hence domestic enquiry was initiated. The enquiry was conducted by ExJoint Labour Commissioner, Delhi Administration, Mr. R.P. Dutta in accordance with the principles of natural justice, equity and fair play. The claimant was allowed to be represented by Sh. Kailash Patra who was an outsider and office bearer of the workman's union. Copies of all documents relied upon by the management were furnished to him alongwith list of witnesses. Statement of witnesses of the management were recorded in the presence of the claimant and he was given full opportunity to crossexamine them. After conclusion of evidence of management, the claimant was given opportunity to lead evidence in defence. That opportunity was availed by him. On the basis of evidence and material of record, the enquiry officer found claimant guilty. Copy of enquiry report was sent to him for comments. Charges proved against the claimant were extremely ID No.194/10/98. 4/23 serious in nature and hence management could not repose further confidence in him and terminated his services w.e.f. 17.10.1997. It admitted that initially, Sh. Alok Bhasin was appointed as enquiry officer but he left enquiry midway as he had fallen ill. Further enquiry was conducted by Mr. R.P. Dutta. It is denied that management representative Sh. Balbir Singh was a legal trend person.
4. Following issues were framed on 06.09.1999:
(i) Whether a proper enquiry was not conducted in accordance with principle of natural justice and if so, its effect?
(ii) As per terms of reference.
5. On enquiry issue, the claimant tendered his affidavit in evidence as Ex.WW1/A mentioning all the facts stated in statement of claim. The management examined its presenting officer Sh. Balbir Singh as MW1 who tendered his affidavit in evidence as Ex.MW1/A.
6. After decision on enquiry issue in favour of ID No.194/10/98. 5/23 management and against claimant, the claimant moved an application to lead evidence on unfair labour practice. The management had also moved an application for evidence to prove gainful employment of Sh. Nand Kishore. Both applications were allowed by Ld. previous POLC vide order dated 27.04.2013. Thereafter, claimant tendered his affidavit in evidence Ex.WW1/A on 20.05.2014 stating that he was member of working committee of the union. He was also Vice President of the union at the relevant time. Being an active member of the union, he used to take up the cause of aggrieved workers for redressal as the management was engaged in unfair labour practices. The management used to keep the workers on casual/temporary basis for several years by not regularizing them on permanent roll. It used to obtain signatures of the workmen on blank papers which he had opposed. Due to protest against malpractices, he had attracted wrath of the management. He further deposed that the general body of the workers had authorized him in November, 1995 to raise industrial dispute regarding bonus. The executive committee of the union passed a resolution Ex.WW1/X1 on 17.11.1995 to the effect that if the management declined to pay bonus to the workers, the industrial dispute should be raised. Authorization and espousal by ID No.194/10/98. 6/23 general body meeting is Ex.WW1/X2. Sh. Nand Kishore (Unit Vice President of the Union) and Sh. Vijay Singh Rawat (Unit General Secretary of the Union) ultimately raised the dispute. The terms of reference were made to thethen POIT Sh. R.L. Chugh. Statement of claim dated 23.08.1995 Ex.WW1/X3 was filed in which he was examined as WW1. Due to his pursuing the bonus case, the management was annoyed with him. Due to that reason, he was implicated in a false case and his services were terminated. In support, the claimant examined Sh. Ranjan Kumar as WW2 who deposed in his affidavit Ex.WW2/A that he was the office secretary of Hotel Mazdoor Union (Regd.). He claimed himself as one of the signatory to the resolution dated 17.11.1995. He further deposed that the union had sent intimation letter dated 22.01.1993 to the management providing the names of elected members of the union who would take up cause of the workers with the management. He identified the signatures of President Sita Ram Mishra, Vice President Sh. Kailash C. Patra, General Secretary Sh. Brishpal Singh and his own on resolution dated 17.11.1995 Ex.WW1/X1. He further deposed that in general body meeting held on 22.11.1995, the workers of the management had authorized Sh. Nand Kishore, unit vice president to raise the dispute of bonus vide ID No.194/10/98. 7/23 espousal letter dated 20.11.1995 Ex.WW2/3.
After allowing of applications of both parties, the management again examined its presenting officer Sh. Balbir Singh as MW1. He deposed that after termination of service, the claimant Nand Kishore was gainfully employed with a restaurant namely 4 in1, 34, Community Centre, Wazirpur Industrial Area. That fact was evident from certified copy of statement of claim Ex.MW1/1 filed by Sh. Nand Kishore before Ld. POLC. He further deposed that work and conduct of Sh. Nand Kishore was unsatisfactory and he was dismissed from service for grave acts of violence while on duty. His services were not dispensed with due to any malice. There was no connection between bonus case and termination of his service. He denied that Sh. Nand Kishore was an active trade union leader. He lastly deposed that management was not indulged in any labour practice such as employing the workers temporarily for longer periods by obtaining their signatures on blank papers and vouchers.
Issue No. 1
7. This issue has already been decided in favour of ID No.194/10/98. 8/23 management and against claimant by previous Ld. POLC vide order dated 11.08.2010.
Issue No. 2
8. Ld. ARM argued that enquiry issue has already been decided in favour of management holding that it was conducted fairly and properly. Once, enquiry issue has been decided in favour of management, it means that misconduct committed by the workman has been proved and the only issue remains to be decided by the court is whether the quantum of punishment is proportionate to be proved misconduct. Thereafter, the labour court does not have jurisdiction to decide whether the claimant had committed misconduct or not and hence no further evidence can be led by the claimant to prove any other point like unfair labour practice etc.. She relied upon Neeta Kplish Vs. Presiding Officer Labour Court and Anr, AIR 1999 SC 698, in which following observation is relevant:
14. Provisions of the Industrial Disputes Act were thus amended on the recommendation of the International Labour Organisation and Section 11A was introduced in the Act by the parliament, ID No.194/10/98. 9/23 wherein it was provided that the Tribunal had not only the power to set aside the order of dismissal and direct reinstatement of the workman, it had also the power to award lesser punishment. The proviso to Section 11A, however, provided that the Tribunal would rely only on the material already on record and shall not take any fresh evidence.
15. The provisions of Section 11A, specially the prohibition contained in the proviso that the Labour court would not take any fresh evidence, came to be considered by this Court in several cases which we shall shortly notice but even before the introduction of Section 11A, this Court in Ritz Theatre (Pvt.) Ltd., Delhi Vs. Its Workmen, (1962) 2 Lab LJ 498 : AIR 1963 SC 295 : (1963) 3 SCR 461, laid down that where the Management relied upon the domestic enquiry in defending its action, it would be the duty of the Tribunal of first consider the validity of the domestic enquiry and only when it came to the conclusion that the enquiry was improper or invalid, it would itself go into the merits of the case and call upon the parties to lead evidence.
In support, she relied upon UCO Bank Vs. The Presiding Officer Labour Court and Anr. 1999 LLR 1036, in ID No.194/10/98. 10/23 which it was held by the Apex Court that if the preliminary issue on fairness of domestic enquiry is decided by the tribunal in favour of the management, neither the management nor the employee shall have right to produce further evidence before the tribunal in support or demolishing the finding of guilt recorded nor to sustain the quantum of punishment imposed as a result of domestic enquiry. Following observations are relevant:
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 nor to sustain the quantum of punishment imposed as a result of the domestic ID No.194/10/98. 11/23 enquiry.
9. On the other hand, Ld. ARW argued that above citations, there was no argument from the side of the workman about unfair labour practices. He further submitted that the application has already been allowed and hence this court cannot go into the legality/illegality of the order vide which the application was allowed as the said order was never challenged by the management.
10. It becomes clear from order dated 27.04.2013 that one application filed by claimant and one application filed by management were allowed. Application of claimant was for proving unfair labour practices and application of the management was for proving the gainful employment of Sh. Nand Kishore. So, the order dated 27.04.2013 has been passed on the application of management also. Now, it cannot be allowed to turn back and say that the claimant cannot lead evidence after decision of enquiry issue in favour of the management. If the same can be done by the management, why does it have objection if it is done by the ID No.194/10/98. 12/23 workman. Moreover, this court is not sitting in appellate jurisdiction to the order dated 27.04.2013. That order has already become final as no party filed any writ petition against that order. So, this court shall have to take into account the evidence led by both parties consequent to allowing of their applications vide order dated 27.04.2013.
11. Ld. ARM argued that allegations against Nand Kishore and Vijay Singh Rawat are that they fought with each in the premises of the restaurant in the night of 10.08.1996 and used bottle and glasses to attack each other. Both shouted in high pitch and used abusive language. They did not stop attacking each other even on the intervention of the manager. When the other staff members intervened and separated them, they stopped assaulting each other. In fight, Sh. Vijay Singh Rawat was seriously injured and he was bleeding professedly under the eye and was taken to the hospital. She further submitted that enquiry was conducted against both claimants in which they were found guilty. Even this court has decided enquiry issue in favour of the management and against claimant. It means that the court has already held that there was no ID No.194/10/98. 13/23 perversity in the enquiry proceedings. In this way, the misconduct proved during enquiry proceedings has been upheld by this court also.
On the other hand, Ld. ARW argued that claimants were dismissed from services not on the ground of misconduct and rather, their services were terminated because Sh. Nand Kishore and Sh. Vijay Singh Rawat, in the capacity of Vice President and Secretary of Hotel Mazdoor Union respectively, used to agitate against unfair labour practices of the management. The management did not use to grant bonus to the workers. In this regard, the Hotel Mazdoor Union, vide resolution dated 17.11.1995 Ex.WW1/X1, had authorized Sh. Nand Kishore to raise the case of the workers before the management and to sign all required papers. In pursuance, the workers authorized Sh. Nand Kishore vide authorization letter Ex.WW1/X2 dated 20.11.1995 to raise the demand of bonus before the management. Before it, Sh. Nand Kishore and Sh. Vijay Singh Rawat alongwith four other workers had already filed statement of claim dated 23.08.1995 before the then POIT Sh. R.L. Chugh for a direction to the management to pay them bonus @ 20%. He further submitted that sole reason of ID No.194/10/98. 14/23 dismissal of services of claimant is that they used to raise the demand of the workers before the management due to which the management was feeling agrieved and was in the search of occasion to dismiss their services.
12. Ex.WW1/X4 dated 22.01.1993 is a letter vide which the erstwhile Secretary of Hotel Mazdoor Union had intimated the management that Sh. Vijay Singh Rawat and Sh. Nand Kishore had been appointed as secretary and vice president of the union by the workers. It means that both claimants used to raise demands of the workers before the union since 22.11.1993. Chargesheet is dated 12.08.1996 and their services were dispensed with in 1997. If both claimants were sore of the eyes of the management, the management would not have waited so long to terminate their services. It is pertinent to mention that both claimants were working as office bearers of the union about 3 ½ years prior to the chargesheet. Such a long time is enough to hold that chargesheet dated 12.08.1996 had nothing to do with the activities of the claimants as office bearers of the union.
Statement of claim Ex.WW1/X3 shows that both ID No.194/10/98. 15/23 claimants along with four others had filed a case before thethen POIT Sh. R.L. Chugh against management for payment of bonus @ 20%. It was filed by them in individual capacity through Sh. R.P. Sharma, advocate. The resolution Ex.WW1/X1 and authorization Ex.WW1/X2 are dated 17.11.1995 and 20.11.1995 respectively. It is pertinent to mention that vide the said resolution and authorization letter, the claimant Nand Kishore was authorized to take up the case of the workers before the management. Both claimants had filed case against the management for bonus before such resolution and authorization. There is no document on the file to prove the activities / cases taken up by the claimants before the management in pursuance to resolution and authorization letter dated 17.11.1995 and 20.11.1995. It mans that claimant had not raised any issue for the workers before the management in pursuance to resolution and authorization letter. If they had not raised any issue of the workers before the management, why the management can be said to be aggrieved by their being Secretary and Vice President. It is not in dispute that both claimants had lost the bonus case which they had filed vide statement of claim Ex.WW1/X3. The management could have been said to be prejudiced towards them had they won the case but the facts are ID No.194/10/98. 16/23 vice versa. So, the claimants have failed to prove that their services were terminated by the management solely because they used to raise worker's demand before the management.
13. Nand Kishore is demanding back wages. He did not intimate court before filing of document Ex.MW1/1 by the management that he was employed with a restaurant namely 4in1 since August, 1998. It is pertinent to mention that Sh. Nand Kishore had filed a case against restaurant 4in1 also alleging that he was working in that as Senior Steward since August, 1998. He admitted that fact only on filing of terms of reference and statement of claim Ex.MW1/1 by the management on 10.07.2015 i.e. after decision of enquiry issue against management. In that case also, he had alleged that the said management namely 4in1 restaurant was engaged in antilabour unfair labour practices such as denial of earned wages, victimisation of the union minded workers and violation of labour laws.
14. Misconduct had already been proved against both claimants. After proof of misconduct, the plea of victimisation ID No.194/10/98. 17/23 goes into oblivion. Following was held by the Apex Court in Bharat Iron Works Vs. Bhagubhai Balubhai Patel & Ors. AIR 1976, SC 98:
"..... once in the opinion of the tribunal, a gross misconduct is established as required, on legal evidence either in a fairly conducted domestic enquiry or before the tribunal on merits the plea of victimisation will not carry the case of the employee any further. A proof misconduct is anti thesis of victimisation as understood in industrial relations....."
15. The scope and power of judicial review of the courts while dealing with the validity of quantum of punishment imposed by disciplinary authority is now well settled. In the case of Deputy Commissioner K.V.S. & Ors. Vs. J. Hussain, (2013) 10 SCC 106, the law on this subject is recapitulated in the following manner:
6. When the charge proved, as happened in the instance case, it is the disciplinary authority with whom lies the discretion to decide as to what kind of punishment is to be imposed. Of course, this discretion has to be examined objectively keeping ID No.194/10/98. 18/23 in mind the nature and gravity of charge. The Disciplinary Authority is to decide a particular penalty specified in the relevant Rules. Host of factors go into the decision marking while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in department or establishment where he works, as well as extenuating circumstances, if any exist. The order of the Appellate Authority while having a relook of the case would, obviously, examine as to whether the punishment imposed by the Disciplinary Authority is reasonable or not. If the Appellate Authority is of the opinion that the case warrants lesser penalty, it can reduce the penalty so imposed by the Disciplinary Authority. Such a power which vests with the Appellate Authority departmentally is ordinarily not available to the court or a Tribunal. The court while undertaking judicial review of the matter is not supposed to substitute its own opinion on reappraisal of facts. (See: Union Territory of Dadra & Nagar Haveli Vs. Gulabhia M. Lad (2010) 5 SCC 775) In exercise of power of judicial review, however, the Court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited ID No.194/10/98. 19/23 scope of judicial review is permissible and interference is available only when punishment is shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the opinion of the Court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the department authorities.
16. It may also be noticed that in Orissa Cement Ltd. V. Adikanda Sahu and in New Shorrock Mills v. Maheshbhai, the Apex Court held that use of abusive language against a superior, justified punishment of dismissal. The Apex Court ruled "punishment of dismissal for using abusive language cannot be held to be disproportionate". If that be the position regarding verbal assault, the position regarding dismissal for physical assault, must be found all the more justifiable. In Muriadhi Colliery BCC Ltd. v. Bihar Colliery Kamgar Union the Hon'ble Supreme Court, after referring to and quoting the relevant passages from Krishnakali Tea Estate V. Akhil Bharatiya Chah Mazdoor Sangh (2004) III LLJ 772SC and Tournamulla Estate V. Workmen held: ID No.194/10/98. 20/23 "The Courts below by condoning an act of physical violence have undermined the discipline in the organisation, hence, in the above factual backdrop, it can never be said that the Industrial Tribunal could have exercised its authority under Section 11A of the Act to interfere with the punishment of dismissal".
17. In Usha M. Mahadik Vs. Parle Products Ltd. & Anr., 2006 LLR 1086 Bombay, the allegations against the worker was that he assaulted, abused and threatened a coworker. Hon'ble Bombay High Court held that it was a serious matter and that punishment of dismissal from service was not disproportionate to the misconduct.
In Hari Om Vs. Delhi Transport Corporation WP (C) No. 16404/2006, decided by Hon'ble High Court of Delhi on 23.04.2009, the allegations against the worker were that he had abused in abusive language, assaulted superior and tore of official record. The High Court held that it was in act of gross misconduct impinging on overall discipline and decorum of organization and if visited with punishment other than removal or dismissal will give ID No.194/10/98. 21/23 impetus to others with similar proclivities to act in the same manner.
18. In above citations, the Hon'ble Apex Court and various High Courts held that an act of violation by workman was not pardonable and that his services should be dispensed with if those allegations are proved. To the same effect are the facts on the case in hand. Proved misconduct was sufficient enough for the management to terminate the services of the claimant. It may be possible that the management was harboring some grudge against them for raising demand of workers before it. It may be possible that due to such grudge, the management might have also taken action against them. But it is also true that misconduct proved against them was of grave nature which was sufficient itself to terminate their services.
19. In view of above discussion, this issue is decided in favour of management and against claimant.
Relief :
ID No.194/10/98. 22/23
20. Consequent to decision on issue nos. 1 & 2, it is held that claimant is not entitled to any relief. Statement of claim is dismissed. Parties to bear their own costs. Reference is answered accordingly. Award is passed accordingly.
21. The requisite number of copies be sent to the Govt. of NCT of Delhi for publication of the award. File be consigned to record room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 04.01.2016. POLCXVII/KKD, DELHI. ID No.194/10/98. 23/23