Delhi District Court
Whether The Management Conducted vs Presiding Officer And on 20 March, 2007
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I.D.NO. 97/00.
IN THE COURT OF SHRI GURDEEP KUMAR : PRESIDING OFFICER :
LABOUR COURT NO.1 : ROOM NO. 52 : KARKARDOOMA :
DELHI
BETWEEN
M/s. Pragati Industries, B-10/4, Jhilmil Industrial Area,
Shahdara, Delhi-32.
AND
Its workman Sh. Harish Chander, C/o Bhartiya Kamgar Lal
Jhanda Union, 714/15, Mangolpuri, Delhi.
AWARD :
Vide Notification No. F. 24 (5236)/ 1999 - Lab. 3706 -
10 dated 28.01.2001, Secretary Labour, Delhi Administration,
Delhi has referred this dispute to this court for its adjudication
u/s 10 (1)(c) and 12 (5) of the I.D. Act, 1947. The terms of
reference are as under :-
''Whether the termination of services
of Sh. Harish Chand is illegal and / or
unjustified and if so, to what relief is he
entitled and what directions are
necessary in this respect?"
After receipt of reference and on pleadings as
placed on record by the parties, following issue was framed
on 04.10.2002 :-
1. Whether the management conducted
Contd..
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unfair and improper enquiry against the
claimant, if so, its effect? Onus to prove
on the workman (OPW).
The issue, as framed, was disposed of by my ld.
Predecessor vide orders dated 17.08.2005 (copy enclosed for
ready reference). The issue was decided in favour of the
management and against the claimant and the claimant
was given opportunities to argue on merits of reference /
under Section 11-A of the Industrial Disputes Act, 1947 as no
further evidence was required to be recorded in view of the
decision in the case of UCO Bank Vs. Presiding Officer and
Others reported in 1999 LLR 1036.
2. Both the parties have filed their written submissions
and have also addressed oral arguments. I have gone
through the written submissions filed by them and also
considered oral submissions. I have carefully gone through
the relevant material available on record.
3. For passing appropriate orders on merits of
Contd..
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I.D.NO. 97/00.
reference as well as under Section 11-A of the Industrial
Disputes Act, 1947, reference is made to the charges Ext. M1.
As per charge sheet levelled against the claimant, which
was subject matter of the domestic enquiry and Enquiry
Officer held the claimant guilty of the charges, the charges
are as under :-
"That the claimant had not only
misbehaved with his superiors but also
used abusive and filthy language
against him, remained absent from
duties without intimation and was
putting hindrance in the job as he used
to hide the tools of his machines so that
no other employee can work afterwards.
The aforesaid charges were duly proved by the
management before the Enquiry Officer who submitted the
enquiry report Ext. MW1/3. The charges as stand proved
against the claimant are quite serious. As already held by
my ld. Predecessor vide orders dated 17.08.2005, the enquiry
is fair and proper.
4. A. R. for the workman has argued that the workman
Contd..
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had filed LCA No. 13/89 just after one year of date of
suspension from service and it was decided by the Labour
Court on 25.09.1988. The workman filed the present I.D as per
orders dated 25.09.1988 in the said LCA and, therefore,
delay, if any, was caused by the management and not by
the workman and, therefore, the dispute can be entertained
by this Court. A.R for the workman has further argued that
the management till date has failed to dismiss the claimant
from service because there is no proof of services of the
dismissal letter dated 26.05.1988. It is further argued by the
W.A.R. that there is no proof of service of the said dismissal
order as no postal receipt, A.D card of any post office,
bearing signatures of the workman, is proved by the
management. In the absence of service of letter of dismissal
from services, the workman is deemed to be still in service of
the management and, therefore, he is entitled to
reinstatement with continuity of service and back wages. In
that regard the workman has placed reliance upon a
decision by the Hon'ble Apex Court reported as The
Contd..
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I.D.NO. 97/00.
Management of Ritz Theatre (Private) Ltd. Delhi, Vs. Its
workmen AIR 1963 Supreme Court 295 (V 50 C 28). It is further
argued by A. R. for the workman that the management has
relied upon UPC to show service of the said letter of dismissal
dated 26.05.1988 but the same cannot be relied upon as it is
well known that it is not at all difficult these days to obtain
postal slip of a prior date on a certificate of posting. In that
regard reliance is placed on a decision by our own Hon'ble
High Court in the case of Badri Dass Jain Vs. A.G.F.R. & S.
Consumers Cooperative Stores Ltd. 28 (1985) Delhi Law
Times 149.
5. On the other hand, A.R for the management has
argued that once enquiry is held to be fair and proper and
in the absence of any allegations of victimization or unfair
labour practice, the Labour Court has no power to interfere
with the punishment imposed by the management. Even
otherwise, the charges proved and established against the
claimant are grave and serious in nature which is evident
Contd..
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I.D.NO. 97/00.
from the perusal of the charge sheet Ext. M1. In that regard
reliance is placed on a decision by Hon'ble Apex Court
reported as Mahindra and Mahindra Ltd. Vs. N.B. Naravade
etc. 2005 LLR 360. A.R for the management has further
argued that the services of the claimant were terminated
vide dismissal order dated 26.05.1988, copy of which is Ext.
WW1/14 and it was sent to the claimant by registered post
and UPC. Due to lapse of 18 years, the postal receipt is not
available but the same was served by UPC and registered
post. Besides in reply to workman's LCA No. 13/89 for
suspension allowance for the period from 15.01.1989 to
18.09.1989, the management had filed written statement
dated 19.09.1989 in the Labour Court specifically stating that
claimant had been dismissed from service vide letter dated
26.05.1988. In another subsequent LCA No. 410/89 for
suspension allowance for the subsequent period, the
management reiterated its earlier stand that services of the
claimant had been terminated on 26.05.1988. All these facts
have been admitted by the claimant in the statement of
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I.D.NO. 97/00.
claim. Therefore, the claimant was aware and duly
informed of the fact that he had been dismissed from the
service by the management, vide letter dated 26.05.1988.
Since the workman remained silent almost 11 years,
therefore the dispute has become stale and cannot be
entertained. Reliance in that regard is placed on a recent
decision by the Hon'ble Apex Court reported as Manager
(Now Regisional Director), R.B.I Vs. Gopinath Sharma and
another 2006 (110) FLR 803.
6. I have gone through the case law relied upon by
both the parties and considered the submissions made by
them. Admittedly, the management did not file postal
receipt to prove dispatch of letter of dismissal dated
26.05.1988 to the workman by registered post. The A.D card
placed on record by the management does not bear
signatures of the workman or anybody on his behalf.
Therefore, there is no proof of service of the said letter by
registered post. However, I am of the considered view that
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I.D.NO. 97/00.
the management has proved service of the letter dated
26.05.1988 dismissing the workman from the service vide
letter dated 26.05.1988 by UPC Ext. MW1/4. Relying upon a
decision by our Hon'ble High Court in the case of Badari Dass
Jain Vs. A.G.F.R & S. Consumers Cooperative Stores Ltd.
(supra), A. R. for the workman has argued that service by
UPC is of no consequence as even observed by Their
Lordships in the said case that it is well known that it is not at
all difficult these days to obtain a postal seal of a prior date
on a certificate of posting.
I have gone through the said case law and with due
respect to Their Lordships, it does not help the workman as its
facts are entirely different from the facts of the case in hand.
In that case on appeal by the petitioner, ld. Additional
District Judge, Delhi on 22.02.1980 passed a decree for
recovery of Rs. 7,750/- with costs of the suit and appeal and
interest @15 per cent per annum from the date of the suit till
payment in favour of the petitioner and against the
respondent. The judgment debtor-respondent failed to pay
Contd..
9I.D.NO. 97/00.
that decretal amount. The petitioner took out execution wherein on 14.01.1981 a compromise was arrived at between the decree-holder and the judgment debtor whereby the judgment debtor agreed to pay a sum of Rs. 1,2000/- by monthly installment of Rs. 1,000/-. The first installment was payable at the time of recording of compromise by the court and the second installment was payable on 10th February, 1981 and the subsequent monthly installments were payable on 10th of each English Calender month. It was further provided that in case of default in payment of any installment, the entire balance of decretal amount was payable at once. The decree-holder alleged that monthly installments due on 10.12.1981 had not been paid as per terms of settlement. On these allegations, the execution application was filed on 16.12.1981 for recovery of the decretal amount after adjusting the amount of Rs. 11,000/- paid by the judgment debtor. The judgment debtor took the plea that vide his letter dated 05.12.1981 the decree-holder was requested to collect the last installment in Contd..
10I.D.NO. 97/00.
December, 1981 against receipt of full and final settlement but the decree-holder failed and, therefore, a cheque of Rs. 1,000/- along with a letter dated 10.12.1981 was sent to the decree holder and, therefore, he had not violated the terms of compromise and, therefore, there was no default in payment of any of the installments. The decree-holder denied having received any letter dated 05.12.1981. He further pleaded that a cheque of Rs. 1,000/- along with a letter dated 10.12.1981 was received by him on 29.12.1981 and both the letter and the cheuqe were ante dated purporting to be dated 10.12.1981. He returned that cheque along with the reply dated 06.01.1982. In the light of the above fact, Their Lordships held as under :-
"The next question for decision is whether the letter dated 10.12.1981 was ante dated. A perusal of the envelope Ext. DH 2 reveals that it bears the postal seal dated 10.12.1981 of Ghaziabad post office, and a postal stamp dated 28.12.1981 of Delhi post office. The certificate of posting is Ext. DH1 which also bears the seal dated 10.12.1981. Similar is the seal on the Ext. DH 2. If this letter was posted on 10.12.1981 from Ghaziabad it ought to have reached Contd..11
I.D.NO. 97/00.
the decree holder at Delhi in a day or two but it reached Delhi post office. The peon Subash DW 2 who is alleged to have posted this envelope containing the letter and cheque from the post office at Ghaziabad admittedly is not a resident of that place. In any case it is apparent that this letter was not posted on 10.12.1981 but it was posted a day or two before 28.12.1981. It is not known why the judgment debtor who has an office at Delhi could not deliver the cheque in person to the decree holder on 10.12.1981 itself. The judgment debtor further has not placed on record the day book or cash book showing the issue of any cheque on 10.12.1981. It is well known that it is not at all difficult these days to obtain a postal seal of a prior date on a certificate of posting. In the present case as observed above there is no explanation as to how the envelope DH
2 bears the date 28.12.1981 of Delhi Post Office.
As mentioned earlier, the facts of the case in hand are entirely different from the said case and, therefore, it does not help the workman in any manner whatsoever. The workman has not pointed out even a single circumstance due to which doubt of any kind whatsoever, regarding service of the said letter of dismissal by UPC can be Contd..
12I.D.NO. 97/00.
entertained. It is not in dispute that the said UPC is properly addressed and dispatched. The workman has not disputed correctness of his address on the said UPC. It also bears postal seal. Therefore, the workman is deemed to have received the said letter of dismissal from his services w.e.f. 26.05.1988 by UPC. This is a rebuttal presumption but the workman has failed to bring on record any circumstance to show that the letter sent under the said UPC could not have been delivered at his address. Therefore, the management has duly proved service of the said letter of dismissal of service w.e.f. 26.05.1988 under certificate of posting.
As rightly argued by the management A.R, the workman did not dispute his filing LCA No. 13/89 and 410/89 claiming suspension allowance for the period after he was placed under suspension. He also did not dispute that in those LCA the management had filed Written Statement for the first time on 19.09.1989 stating that claimant had been dismissed from service w.e.f. 26.05.1988. Therefore, it is proved on record that the workman acquired the Contd..
13I.D.NO. 97/00.
knowledge of his dismissal from service w.e.f. 26.05.1988 after having received letter dated 26.05.1988, for the first time on 19.05.1989. Therefore, the workman was aware of factum of his dismissal from the service on or around 28.05.1988 when served by UPC and again on 19.09.1989 when the management so stated in its Written Statement on 19.09.1989 in his LCA No. 13/89 and reiterated the same in the Written Statement in subsequent LCA No. 410/89. As borne out from the record, the workman claims to have sent the demand notice dated 05.01.1999 to the management alleging termination of his services illegally and unjustifiably. Thereafter, he filed a statement of claim before the Conciliation Officer. These facts go to show that he sent the demand notice to the management and filed claim before the Conciliation Officer after more than 11 years of acquiring knowledge of his dismissal from the service by the management. Applying the proposition of law laid down by the Hon'ble Apex Court in the case reported as Manager (Now Regional Director), R.B.I Vs. Gopinath Sharma and Contd..
14I.D.NO. 97/00.
another (supra), I of the considered view that dispute sought to be raised by the workman has become stale and the workman cannot be said to be entitled to any claim whatsoever.
7. W.A.R. has argued that the workman had filed LCA NO. 13/89 just after one year from the date he was placed under suspension but the same was decided by the Court on 25.09.1998. He filed the present industrial dispute as per orders dated 25.09.1998 in the said LCA and the delay has been caused by the management and in the light of these facts, there is no delay at his part and the dispute raised by him can be adjudicated by this Court. In that regard reliance has been placed upon a decision dated 13.01.1960 by the Hon'ble Apex Court in CA NO. 7/1957 titled Swadeshi Industries Limited Vs. Their Workmen. Therein it was held by Their Lordships that termination of services itself bad, reinstatement not ordinarily to be refused because a long time has elapsed. With due respect to Their Lordships, this is Contd..
15I.D.NO. 97/00.
of no help to the workman because in this case, the workman has failed to prove that his dismissal from service is illegal and unjustifiable. Workman's contention regarding the delay on his part in raising industrial dispute is without any substance because as per settled law, question of legality / illegality of termination of services / dismissal from the services could not be adjudicated by the Labour Court in exercise of its jurisdiction under Section 33-C(2) of the Industrial Disputes Act, 1947. Therefore, it was incumbent upon the workman to challenge his dismissal from the services as soon as he received the letter dated 26.05.1988 by UPC and also acquired knowledge of those facts on 19.09.1989 vide Written Statement filed by the management in his LCA No. 13/89. His plea that disposal of the LCA was delayed by the management and, hence the delay on his part, to challenge dismissal from the service, is devoid of any merits, because dismissal could be challenged only in a reference under Section 10 of the Industrial Disputes Act, 1947. As soon as the workman received letter dated Contd..
16I.D.NO. 97/00.
26.05.1988 he was not required to wait for decision by the Labour Court on his own LCA.
8. In the light of the above discussion, it cannot be said that the workman was not served with order dated 26.05.1988 of his dismissal from the services w.e.f. 26.05.1988. Therefore, there is no question of his being deemed to be continued in the service of the management and being entitled to reinstatement with continuity of service and back wages for the intervening period.
9. Therefore, the only question to be considered is whether the quantum of punishment inflicted by the management is disproportionate to the charges alleged and proved against him. A.R. for the management has argued that once the enquiry is held to be fair and proper, then in the absence of any allegations of victimization or unfair labour practice, the Labour Court has no power to interfere with the punishment imposed by the management. He has Contd..
17I.D.NO. 97/00.
further argued that even otherwise the charges proved and established against the claimant are grave and serious in nature and in the light of this, quantum of punishment cannot be said to be disproportionate to the charges alleged and proved against the workman. In that regard reliance is placed on the case law reported as Mahindra and Mahindra Ltd. Vs. N. B. Naravade etc. 2005 LLR 360, General Secretary, South Indian Cashew Factories Worker's Union Vs. Managing Director, Kerala State Cashew Development Corporation Ltd. and others 2006 (110) FLR 492 and L.K. Verma Vs. H.M.T. Limited and Another 2006 LLR 296.
10. In the case of L.K. Verma Vs. H.M.T. Ltd. (supra), the Hon'ble Apex Court has held as under :-
"Even verbal abuse of an employee had been held to be sufficient for inflicting a punishment of dismissal from service".
In the General Secretary, South Indian Cashew Factories Worker's Union and Managing Director, Kerala State Cashew Development Corporation Ltd. and others Contd..
18I.D.NO. 97/00.
(supra), the Hon'ble Apex Court held as under :-
"If enquiry is fair and proper, in the absence of any allegations of victimization or unfair labour practice, the Labour Court has no power to interfere with the punishment imposed.
The Hon'ble Apex Court in Mahindra and Mahindra Ltd. Vs. N.B. Naravade etc. (supra) has held as under :-
"Dismissal of a workman for using abusive language cannot be held to be disproportionate when the Labour Court and the High Court have held that the language used by the workman was filthy which cannot be tolerated by any civilized society hence the use of such abusive language against a superior officer, that too no once but twice, in the presence of his subordinates cannot be termed to be indiscipline calling for lesser punishment."
Their Lordships have further held as under :-
"The Labour Court can exercise its discretion under section 11A of Industrial Disputes Act only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any Contd..19
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mitigating circumstances which requires the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment hence in the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power and reduce the punishment as imposed by an employer upon a workman."
The proposition of law laid down by the Hon'ble Apex Court in the above noted cases is squarely applicable to the facts of this case. As already mentioned above, the charges referred above were duly proved by the management against the workman before the Enquiry Officer who submitted his aforesaid report. The charges, as stand proved against the claimant, are quite grave and serious in nature. The punishment of his dismissal from the service is neither shocking to the conscience of the Court, which expresses the opinion of the public, nor the same is disproportionate to the charges as were levelled against him by the management. In similar facts and circumstances in Uranium Corporation of India Ltd. Vs. The Presiding Officer, Contd..
20I.D.NO. 97/00.
Central Government Industrial Tribunal No. 1 and Ors 2006 LLR 735 Hon'ble Jharkhand High Court in has held as under
:-
"Dismissal of a workman, guilty of serious misconducts like slowing down the production, insubordination, willfully causing loss to the management and negligence as stipulated by certified standing orders, will not be disproportionate to the misconduct".
11. This Court is accordingly, not inclined to exercise the jurisdiction under Section 11-A of the Industrial Disputes Act, 1947 so as to award lesser punishment to the claimant. Accordingly, I hold that the services of the claimant were terminated legally and justifiably by the management and the claimant is not entitled to any relief or directions in the matter under reference.
The reference is answered accordingly. Dated : 20.03.2007. (GURDEEP KUMAR) Encl. : One (order dated 17.08.05 PRESIDING OFFICER:
9 pages) LABOUR COURT NO.I. Contd..21
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Typed 1+6 copies K.K.RDOOMA:DELHI.
Contd..