Delhi District Court
Sh. Mohan Dass vs M/S Hughes Escorts Communication Ltd on 26 May, 2012
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IN THE COURT OF SH. BHUPESH KUMAR: PRESIDING OFFICER LABOUR
COURT NO. XVI: ROOM NO.10, KARKARDOOMA COURTS : DELHI
ID NO. 315/06/04
Sh. Mohan Dass
s/o Late Sh. Sankaran Nair
r/o 380, Income Tax colony,
Uttri Pitampura,
Delhi110088. ...... Workman
VERSUS
M/s Hughes Escorts Communication ltd.
nd
Nirlac Center, 2 floor,
B25, Qutab Institutional Area,
New Delhi110016. ...... Management
Date of Institution : 29.01.04
Order reserved : 19.05.12
Date of decision : 26.05.12
ORDER ON ENQUIRY ISSUE
1.The National Capital Territory of Delhi, through its Secretary (Labour) vide reference no. F24/(3060)03/Lab.40564060 dated 18.11.03 referred the dispute for adjudication between the Management M/s Hughes Escorts ID No.315/06/04 1/18 2 Communication Ltd. and its workman Sh. Mohan Dass in the following terms of reference:
"Whether the services of Sh. Mohan Dass s/o Sh. Sham Karan Nayar have been terminated illegally and or unjustifiably and if so, what relief is he entitled to and what directions are necessary in this respect?"
2. The workman has filed the statement of claim wherein it has been submitted that he was appointed as an Executive Secretary with the management at Delhi Office with the basic salary of Rs. 3,380/ per month and HRA, Conveyance allowance etc. But irrespective of the designation virtually the workman was assigned duties of Private Assistant/Stenographer. The workman has no managerial/supervisory power like appointing staff or awarding increment etc. The workman had to perform only manual duties i.e. recording of dictation in shorthand from all his bosses. In the month of March to May in the year 1999 the management came to know a sum of Rs. 16,00,000/ has been withdrawn from the bank account of the management. All the employees of finance and accounts department of the management were interrogated. On 05.06.99 Sh. Prithvi Raj Bijlani, Vice President of the management called the workman at the company's guest house at 4 pm. It was Saturday and holiday but even then, the workman went to the guest house of the company where Mr. Prithvi Raj Bijlani introduced certain person to be member of the CBI. But later on the workman came to know that the said persons were employees of some private detective ID No.315/06/04 2/18 3 agency and impersonated themselves as CBI officials. However, the workman was harassed over there for quiet long time and was ultimately thrown out of the car at 10.15 pm at Chanakya Puri. The workman had made complaint in this regard with the higher officials of the management as well as with the police. Thereafter, the workman has even filed a civil suit bearing no.225/99 seeking remedies of Rs. 4,75,000/. The entire staff including the higher officials of finance and accounts staff and even Mr. Prithvi Raj Bijlani were forced to leave the job. But the workman has not left the job and has refused to resign. The police on the complaint filed by the workman started investigating the matter from the management, due to which the management hurriedly suspended the workman on 03.07.99. The domestic enquiry was initiated and Sh. Mohan K.Kukreja, Advocate was appointed as Enquiry Officer on 05.05.00 and Sh. Sanjay Rawat, Advocate as Presiding Officer to represent before the Enquiry Officer. The E.O. submitted his report on 09.09.02 holding that the charges against the workman were duly proved. The intimation in this regard were received by the workman on 12.09.02 against which the workman has made his representation dt. 09.10.02. But the same was dismissed vide letter dt. 18.10.02 and the penalty of dismissal was imposed upon the workman. The workman has attacked the enquiry on number of grounds interalia that the enquiry was biased, partial and against the principle of natural justice. Both the parties before enquiry officer were unequal in all respect. The management were having all financial resources and had engaged a senior lawyer to represent them before enquiry officer. On the other hand, the workman, who was not being paid even ID No.315/06/04 3/18 4 subsistence allowance for the seven months, was not enough competent to engage a competent lawyer to defend his case. The subsistence allowance, paid to the workman, accepted under protest as it was not sufficient to engage good lawyer. The rules of enquiry were not communicated to the workman. The Enquiry Officer has not recorded the correct proceedings on various dates against which the workman has lodged several protests in writing w.e.f. 12.06.00 to 16.01.02. Even though no direct witness or document was produced or proved before the Enquiry Officer, the Enquiry Officer has given the findings in favour of the management and against the workman. The Enquiry Officer has fixed the dates of enquiry only with the consultation of the Presiding Officer with the management. On 12.06.00 when the matter was adjourned for 17.06.00, the workman verbally requested for another date due to eye operation of his mother. But the request was not recorded in the proceedings. But when the workman insisted, the Enquiry Officer asked him to make the request in writing. By incurring the cost of Rs. 17/ the workman has made request in writing by sending the same through post. On number of occasions the workman had to send such protests through registered post. The Enquiry Officer arbitrarily rescheduled the enquiry for 03.08.11 for which he claimed to have dispatch notice to both the parties through courier. But without verifying the report on the courier, the Enquiry Officer presumed the service of the workman and has proceeded exparte against the workman. On one occasions, even the enquiry was fixed for hearing on the day of Diwali. But when the workman went to the venue of enquiry, he found that the date has already been changed. The date ID No.315/06/04 4/18 5 was fixed for Diwali simply to harass the workman. The Enquiry Officer never mentioned the time of start of enquiry and the time of its conclusion. The enquiry was never initiated on the time and the workman used to wait for 30 minutes to one hour for the arrival of management. In this regard, the protest letter was written on 25.09.00 to 09.11.01. The Enquiry Officer unreasonably entertained the witnesses of management in piecemeal so that the management could get opportunity to fill the lacunas in the evidence of its witnesses. Sh. Radha Krishnan, Handwriting Expert, Bank officials having original cheques, internal and statutory auditors, police witnesses etc. were not produced. The workman was not satisfied with the Enquiry Officer and has even written letters in this regard on different dates w.e.f. 12.07.00 to 16.01.02.
The workman has claimed certain amounts totaling a sum of Rs. 10,01,693/ viz. arrears, bonus, gift award, payment for leaves etc. It has been further submitted that the workman has served upon a demand notice dt. 01.11.02 which was not replied correctly by the management and the same reflect that the demands of the workman has been rejected. The prayer was made to reply the reference in favour of the workman holding the termination of the workman as illegal and unjustified and to order for reinstatement and for the other benefits.
3. The management has contested the reference by filing WS wherein the brief facts were mentioned to the effect that the claimant working with the finance department of the management was chargesheeted for committing grave and ID No.315/06/04 5/18 6 serious offence of criminal breach of trust, forgery etc. because due to this act of the workman, the management has suffered a loss of Rs.16,00,000/. A police complaint bearing FIR no.405/99 was registered at PS Kalkaji U/s 405/420/468/471 IPC. The claimant was arrested but was bailed out. Due to the grave and serious allegations, the workman was chargesheeted on 10.08.99. Domestic enquiry was initiated against the workman thereafter. Sh. Mohan Kukreja was appointed as Enquiry Officer vide letter dt. 05.05.00. The claimant has participated the enquiry proceedings and was duly represented through a senior lawyer namely Sh. S.C.Munjal. Both the parties filed their documents, cross examined the witnesses of each other. On 09.09.00 the Enquiry Officer hold the enquiry against the workman. The copy of the enquiry report was sent to the workman. It was duly received by the workman who has submitted his representation against the enquiry report. The disciplinary authority considered the representation and rejected the same. Ultimately, the penalty of dismissal was imposed upon the claimant on 18.10.00.
Further, the management has taken preliminary objections in the WS to the effect that the reference is not maintainable as the penalty was imposed upon the workman after holding proper enquiry. It has been further submitted that the workman does not fall under the purview of workman as per I.D.Act.
On merits, it has been submitted to the effect that the workman was working as Sr. Executive in the Accounts Department and was well acquainted with the various procedures, books and documents relating to the finance, accounts function and was providing complete support to the Vice President ID No.315/06/04 6/18 7 (finance). The nature of his duties cannot be termed as "workman". It was denied that on 05.06.99, the workman was introduced to certain persons by Mr. Prithvi Raj Bijlani by stating them to officials of CBI. It was denied that Mr. Prithvi Raj Bijlani has illegally confined the workman in a room. However, it was submitted since there was concrete evidence against the workman, the management, before filing police complaint, intended to afford opportunity to the workman to explain as his version. Hence, the workman was called at the company guest house. It was denied that the workman was harassed over there till 10.15 pm and at 10.15 pm, the workman was thrown out of the car at Chanakya Puri. In respect of the civil suit file by the workman, it was submitted that it was counter blast to the FIR lodged by the management. It was denied that the management was forced its entire employees of finance and accounts department to leave the job. However, it was submitted that certain employees were resigned and their resignations were duly accepted. On account of enquiry, it was submitted that the fair and free enquiry was conducted by the Enquiry Officer, who has followed the entire procedure. The workman has duly joined the enquiry and after the conclusion, the Enquiry Officer has filed its enquiry report against the workman. It was denied that the workman is entitled to a sum of Rs. 10,01,693/. Interalia on the basis of these submission, prayer
4. Rejoinder to the W.S. of the management was not filed. After completion of pleadings, following issues were framed by my Ld. Predecessor of this court on 22.02.05 :
ID No.315/06/04 7/18
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1. Whether the management conducted unfair and improper enquiry against the claimant, if so, its effect?
2. As per terms of reference.
Issue No.1 was treated as preliminary issue.
5. The workman appeared in the witness box as WW1 and has led his evidence by way of affidavit Ex. WW1/A. He has made similar deposition to that of the statement of claim and has relied upon 67 documents as Ex. WW1/1 to WW1/67 which includes copy of letter of appointment, complaint lodged by the workman of the incident dt. 05.06.99 with the higher officials of management and with the police, the various orders of Enquiry Officer, various protest letters of the workman etc. During cross examination, the witness deposed to the effect that he has received the charge sheet dt. 10.08.99. The Enquiry Officer has communicated him the place, date and time of start of enquiry. The first sitting of the enquiry was 30.05.00 and till 12.01.02, various enquiry proceedings took place. He has signed the enquiry proceedings. He was not given opportunity to defend himself. He was allowed to be represented through Advocate Mr. Munjhal during enquiry proceedings. His witnesses were not present with him before the Enquiry Officer. The Enquiry Officer did not issue any letter to summon these witnesses and officials witnesses could not depose without summon before Enquiry Officer. ID No.315/06/04 8/18
9 He was given opportunity to cross examine the witnesses of the management. Original documents were not produced nor shown to him. One witness appeared on his behalf but thereafter he has not appeared. Vol. it was submitted by the witness that the witness was not allowed to depose before Enquiry Officer. After conclusion of enquiry, he was given copy of the report. He was granted opportunity to make representation. He has received a sum of Rs. 17,000/ per month as subsistence allowance.
6. Sh. Mohan K.Kukreja appeared in the witness box as MW1 and has led his evidence by way of affidavit Ex. MW1/A. He has made similar deposition to that of the WS.
During cross examination, the witness deposed to the effect that the photocopies of the cheques were produced by the management during enquiry proceedings. No Bank Officer has confirmed that the photocopies are true copies of the original cheques lying the bank. The witness voluntarily deposed that Bank Officers were called but they refused to appear before him. He further deposed to the effect that the management did not produce any Handwriting Expert before him. He voluntarily stated that the handwriting expert's report was produced. He admitted to the effect that not a single cheque in question was dishonoured by the bank authorities for want of correct signatures. Photocopies of cheques were got exhibited ruing the enquiry proceedings as the other party had not disputed that these are photocopies of the cheques. ID No.315/06/04 9/18
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7. Arguments on issue no.1 were addressed by both the parties.
It has been submitted by AR for workman that the enquiry has been conducted in violation of principle of natural justice. The sufficient subsistence allowance was not given to the workman and as such, he could not defend his case before Enquiry Officer adequately. The management has engaged senior advocate whereas the workman could not engage the similar footing advocate to that of the advocate engaged by the management due to financial crisis as he was not paid adequate subsistence allowance. It has been vehemently submitted that the findings of the Enquiry Officer are absolutely based on insufficient, inadequate and incomplete evidence. It has been submitted that the original cheques were not called from the bank, nor any bank official was called. Sh. Radha Krishnan in whose account the cheques were deposited, was not examined by the Enquiry Officer. Even the handwriting expert, the other officials of the internal and statutory audits and the police officials were not examined. The reliance has been made on judgment in case Association of Engineering Works, Mumbai v/s Hindustan Motor Manufacturing Company, Mumbai, 2004 Law Suit (Bombay) 46.
On the other hand, AR for management has submitted that the enquiry conducted by the Enquiry Officer was just and fair and there is no violation of any principle of natural justice. On account of non examination of Sh. Radha Krishnan, the Bank Officials, the Handwriting Expert, police officials and non production of the original cheques, it has been submitted that the strict compliance of provisions of Indian Evidence Act are not applicable in the ID No.315/06/04 10/18 11 domestic enquiry.
The fact in respect of Sh. Radha Krishnan came before the Enquiry Officer during the evidence of MW2 Sh. Shashi Ulal examined by the Enquiry Officer. Under these circumstance, in case Mr. Radha Krishnan has not joined to the enquiry, it makes no effect on the plea of the workman. Regarding the non examination of the Handwriting Expert, it has been submitted that the report of the Handwriting Expert was duly proved again by Sh. Shashi Ulal. Further, the Enquiry Officer has made best efforts to assure the presence of the witnesses as desired by the workman but none of the witness appeared. Therefore, it cannot be termed as fault on the part of the Enquiry Officer. AR for management has relief upon judgments i.e State of Haryana & Anr. v/s Rattan Singh AIR 1977 SC 1512, B.C.Chaturvedi v/s Union of India & Ors. 1996 AIR 484, State of Tamil Nadu & Anr. v/s S.Subramaniam 1996 AIR 1232, Baljeet Singh vs. DTC 1996 AIR 1232, Govt. of Tamil Nadu vs. A.Rajapandian 1995 AIR 561, 1995 SCC (1) 216, Divisional Controller, Ksrtc ... v/s A.T.Mane, Union of India v/s Upender Singh 1994 SCC (3) 357, Usha Breco mazdoor Sangh v/s Management of Usha Breco Ltd. & Anr. 2008 (118) FLR 400. While relying upon the said judgments, AR for management submitted that this court has no power to reappreciate the evidence led before the Enquiry Officer and appreciated by the Enquiry Officer. On the basis of these submission, the prayer was made to dismiss the claim.
8. I have heard the arguments of ARs for both the parties at length besides ID No.315/06/04 11/18 12 going through the material on record carefully.
9. On account of non payment of subsistence allowance by the management to the workman, it is found that the workman during cross examination, in unmistakable terms, submitted to the effect that he was paid subsistence allowance to the tune of Rs. 17,000/ alongwith medical reimbursement, telephone reimbursement etc. during the enquiry. Further, the workman has submitted to the effect that he was given a cheque of Rs. 1,00,000/ towards the outstanding arrears of the subsistence allowance at the time of his termination. Whereas, on calling the explanation regarding the payment of the salary, the witness has submitted to the effect that his salary was around Rs. 15,000/ per month during his regular job. It transpires that the workman was paid more subsistence allowance to that of his salary during the enquiry proceedings.
10. On score of legal assistance, as matter of record, the workman was allowed to be represented through advocate Sh. Munjhal. This fact was even deposed by the workman during cross examination. Without any further discussion, it is found that the plea of the workman that he was paid less subsistence allowance and was not provided legal assistance is not tenable and liable to be discarded.
11. Further, there is sufficient material on record which shows that the workman was aware of the charges levelled against him as the chargesheet was ID No.315/06/04 12/18 13 duly received. The workman has joined the entire domestic enquiry proceedings as the workman has not denied this fact and rather admitted that he has signed each proceedings. The copy of the enquiry report was duly served upon the workman as the workman has given representation against the enquiry report. Apparently, there is no material on record, which shows that there was any procedural defect or the workman was not aware of the proceedings or was not allowed to join the proceedings at any stretch of time during the domestic enquiry.
12. One of the line of arguments of the AR for workman was that the proper opportunity has not been granted to the workman to examine witnesses in support of its defence. On this score, it was vehemently submitted that the workman has furnished a list of witnesses to the Enquiry Officer but the Enquiry Officer has not made sincere efforts to summon said witnesses. On this score, in case Tata Oil Mills co. v/s Its workman 1964 (II) LLJ 113 SC, Hon'ble Supreme Court has held to the effect that the Enquiry Officer went out of his way to assist the chargesheeted workman, and if despite, this, the witnesses did not turn up for giving evidence, it was no fault of the Enquiry Officer and it cannot be urged that the reasonable opportunity to show cause had been denied to the workman.
13. In case Telco v/s S.C. Prasad 1969 (II) LLJ 799 SC, Hon'ble Supreme Court has held to the effect that the enquiry officer does not have the power of ID No.315/06/04 13/18 14 the court to summon witnesses, and therefore, if the Enquiry Officer tells the chargesheeted workman that he is unable to compel certain person to come and give evidence on his behalf, there is no illegality committed by him.
14. In the light of said judgments, it is not mandatory for the Enquiry Officer to summon any witness at asking of any of the party. Further, in case the Enquiry Officer has summoned any witness and the witness does not turn up, it cannot be considered to be fault of the Enquiry Officer. Hence, the workman is not entitled for any benefit in case at his asking, the Enquiry Officer has not summoned the witness or if summoned, the witness has not turned up.
15. I have carefully gone through the judgments relied upon by AR for management. In the light of such judgments, this court cannot re appreciate the evidence and cannot sit as an Appellate Court to that of Enquiry Officer. However, in case State of Haryana v/s Rattan Singh ILLJ 1982 Hon'ble Supreme Court has further held to the effect that the essence of judicial approach is objectivity exclusion extraneous material or consideration and observance of rules of natural justice. Of course, fair play is basis and if perversity or arbitrariness or bias or surrender of independence of judgment vitiate the conclusions reaches, such finding, even though of a domestic tribunal, cannot be held good.
16. B.C.Chaturvedi v/s Union of India & Ors. AIR 1996 SC 484, Hon'ble ID No.315/06/04 14/18 15 Supreme Court has held to the effect that the court/tribunal may interfere where the authority held proceedings against the delinquent officer in a manner in consistence with a rule of natural justice or in violation of statutory rules prescribed the mode of enquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or findings be such as no reasonable person would have ever reached, the court/tribunal may interfere with the conclusion or the finding and mold the relief so as to make it appropriate to the facts of each case.
17. In case State of Tamil Nadu v/s S.Subramanayam 1996 SC 1232, Hon'ble Supreme court has held to the effect that the only consideration the court/tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the findings or whether the conclusion is based on no evidence.
18. Before proceeding ahead, here it is necessary to reproduce the brief facts of the matter as emerged from the facts and the evidence on record. The allegations against the workman, are that he was in control of the cheques of the management and has forged the signatures of his senior on the cheques. One Mr. Radha Krishnan was having saving account in SBI, Kalkaji. The workman took Mr. Radha Krishnan in confidence and has obtained eight signed blank cheques from him. The workman has withdrawn a sum of Rs. 16,00,000/ through the forged cheques from the account of management and deposited the ID No.315/06/04 15/18 16 same in the account of Mr. Radha Krishnan. The workman, thereafter, has withdrawn the amount from the account of Mr. Radha Krishnan by presenting the blank cheques earlier taken by him from Mr. Radha Krishnan. When the management has found the discrepancies in its account, the preliminary enquiry was conducted. During the preliminary enquiry, handwriting expert report was called which shows that the cheques of the management were in handwriting of the workman and with forged signatures, the cheques of Radha krishnan were also in handwriting of the workman. On this ground, the domestic enquiry was held which consequently culminated into the dismissal of the workman.
19. As a matter of record, interalia, Handwriting Expert was not examined by the Enquiry Officer and one Mr. Shashi Ulal was examined by the Enquiry Officer, who has brought on record the handwriting expert report which was relied upon by the Enquiry Officer. Here the question arises, whether the non examination of handwriting expert caused any prejudice to the interest of the workman and violates the principle of natural justice in the facts and circumstances of the matter.
20. In case Sawai Singh v/s State of Rajasthan 1986 AIR SC 995, Hon'ble Supreme court has interalia hold as under:
"The handwriting expert was not available for cross examination on the ground that at that time he was dead. But if evidence of handwriting expert was necessary to ID No.315/06/04 16/18 17 prove the guilty of the appellant then it was necessary on the part of the department to adduce evidence to call another handwriting expert to corroborate their charge...............................Having regard to the consequences of the offences with which the delinquent officer was charged and having regard to the nature of charge and the evidence of handwriting expert and the absence of opportunity for cross examination and the conflicting nature of evidence of , we are of the opinion that the report of the Enquiry Officer finding the appellant guilty should not have been sustained and the government should not have acted upon it.
21. Coming to the present matter, as came earlier, the cheques which the management claimed to be forged deposited in the account of Radha Krishnan were duly honoured and the amount was transferred to the account of Sh. Radha Krishnan. As general rule, the bank honors the cheque only after verifying the signatures on the same. Under these circumstances, when the eight cheques were duly honored by the bank, then it becomes necessary for the management to examine the handwriting expert to afford proper opportunity to the workman to call explanation of handwriting expert that under what circumstances he has opined the signatures on the cheques to be forged when the cheques were duly encashed. Since the primary allegation against the workman is that he has forged the eight cheque, therefore, non examination of handwriting expert in these circumstances amounts to violation of principle of natural justice. Under these peculiar circumstances, the non examination of Mr. Radha Krishnan and ID No.315/06/04 17/18 18 any witness from the SBI, Kalkaji Branch and non production of original cheque also vitiate the enquiry. In the absence of evidence of handwriting expert, Mr. Radha Krishnan, any witness from SBI and non production of original cheques shows that the Enquiry Officer has given findings against the workman without any evidence.
22. In the light of reasons and discussions as above, it is held that enquiry was not conducted in fair and proper manner. Hence, the enquiry issue is decided against the management and in favour of workman.
Announced in the Open Court (BHUPESH KUMAR)
th
on 26 May, 2012 Additional District & Session Judge
Presiding Officer labour Court XVI
Karkardooma Courts : Delhi.
ID No.315/06/04 18/18