Delhi District Court
Mr. Vijay Kumar Aggarwal vs M/S D.D. Industries Ltd on 23 July, 2008
ID No. 92/2006
IN THE COURT OF MS. MAMTA TAYAL: PRESIDING OFFICER: LABOUR
COURT-I : ROOM NO.50: KARKARDOOMA COURTS: DELHI.
ID NO.92/2006
DATE OF INSTITUTION: 31.03.2006
RESERVED FOR ORDERS: 21.07.2008
DATE OF DECISION: 23.07.2008
BETWEEN
Mr. Vijay Kumar Aggarwal
R/o J-83, First Floor,
Gali No.5, Flat No. 2,
Laxmi Nagar, Delhi-92.
........ Workman
AND
M/s D.D. Industries Ltd.
Auto Component Division,
DD House, F-1/9,
Okhla Industrial Area,
Phase-1, New Delhi-20.
........ Management
ORDER
1 Vide this order I shall dispose of the following preliminary issue framed by ld. Predecessor vide order dated 04.08.06.
Issue 1 ID No. 92/2006 Whether the enquiry conducted by the management is not proper and fair ? 2 Brief facts as set out by the worker are that he
had been working with management for the last twenty seven years as a Head Cashier Cum Accounts Assistant with great sincerity and honesty. His last drawn wages were Rs. 7000/- p.m. The management was not providing him annual increments and had changed the date of annual increment from 01.10.2000 to April 2001 in an arbitrary manner and did not give him annual increment for the year 2002. The management was also harassing the worker and was forcing him to perform duties of a lower category. A complaint dt. 27.10.03 was made by the worker to the management but the management neither paid any heed to his complaint nor he was paid actual benefits of increment and arrears of the increments. The workman also sent a legal notice to the management. In reply to the said legal notice 2 ID No. 92/2006 management changed its stand and leveled charge of remaining absent and a farcical enquiry was conducted against him after which he was illegally terminated. Aggrieved by his illegal termination, he filed the present petition.
3 WS/reply was filed on behalf of management contending that the workman used to remain unauthorisedly absent from his duties due to which he was directed to hand over the charge of cash to Mr. Narender Aggarwal on 08.09.05. On the same day, he misbehaved with Mr. Narender Aggarwal for which a chargesheet dated 08.09.05 was served upon him and subsequently vide letters dt. 07.10.05, 08.10.05 and 23.11.05 he was asked to tender explanation regarding his unauthorised absence from his duties w.e.f. 09.09.05. Thereafter an enquiry was conducted against him and he was duly informed about the same but he deliberately did not participate in the enquiry 3 ID No. 92/2006 proceedings. In the enquiry, worker was found guilty and was dismissed from the services.
4 In rejoinder the claimant controverted the defence raised by the management and reasserted his own averments as contained in the claimed petition. 5 From the pleadings of the parties, following issue was framed on 04.08.06 :-
i) Whether the enquiry conducted by the management is not proper and fair?
It was ordered that the enquiry issue was to be treated as preliminary issue and the case was posted for evidence on the said issue.
6 Claimant filed his own affidavit towards evidence. Sh. V.K. Diwan, Enquiry Officer appeared as MW1. Evidence was closed. Written arguments on the 4 ID No. 92/2006 enquiry issue were filed on behalf of both the sides. 7 I have carefully considered the matter and gone through the records.
My findings on the enquiry issue are as follows:-
ISSUE NO.1 :-
8 Ld. AR for the workman has strenously urged that claimant was neither served with chargesheet nor he was given any intimation about the enquiry. He was not given the very foundation on which the management proposed to hold an enquiry. He further averred that the original chargesheet was never served on him which was a prerequisite to fair and proper enquiry. It was his right to explain the charges levelled against him by the management before proceeding with the enquiry. The management could have started the enquiry only after his reply to the chargesheet was found unsatisfactory. The argument on the face of it 5 ID No. 92/2006 though appears to be attractive but on closer scrutiny, it falls flat as the worker has in his cross- examination categorically admitted that he was served with the charge sheet along with the letter dated 07.10.2005. Though he averred that the charge sheet was ante dated but in my considered opinion, he was given sufficient time to reply the same and no prejudice whatsoever was caused to him. Not only this, the workman had admittedly filed his reply to the charge sheet on 18.10.05, receipt of which is not disputed by the management.
9 The next contention of AR for workman is that the delinquent was not allowed to participate in the enquiry and the whole exercise of enquiry was a farce as the enquiry officer was actually an advocate on panel of the management for last several years. Appreciating this argument in light of the documents filed by the workman himself, it is apparent that prior to 02.12.2005, 6 ID No. 92/2006 the worker never complained to the management, enquiry officer or to any other authority alleging that he was being physically prevented from joining the enquiry. He admits the receipt of all the letters of the management as well as enquiry officer, informing him about the appointment of enquiry officer and also about the dates fixed in enquiry starting from 12.11.05. Instead of taking part in enquiry by remaining present in the proceedings, the worker elected to send letters to the enquiry officer demanding some papers and raising other grievances. Once he was aware of the date of enquiry, it was incumbent upon him to approach the enquiry officer in person on date fixed and make request for documents and present his case. It was not duty of the management or the enquiry officer thereafter to send him notices again or reply to his letters. Still both the management and the enquiry officer not only replied the letters of the workman but also sent him copies of the enquiry proceedings again asking him to 7 ID No. 92/2006 participate in the proceedings on the next date i.e. 02.12.05. The delinquent instead of joining enquiry on that date again sent a letter contending that he was not allowed by the management to enter the premises on 02.12.2005. In cross, he however could not sustain his claim in this regard and deposed that the letter dated 02.12.2005 was actually got drafted by him from his counsel on 01.12.05. It means that his statement about being prevented from entering the premises on 02.12.05 is a blatant lie and on 01.12.05 itself he had made up his mind to evade the enquiry for which he concocted this false story. Not only this, the workman has admitted in his cross- examination that he has all along been assisted and guided by his advocate and all his letters were actually drafted by his counsel. In this scenario, had the worker been actually prevented by the management from joining enquiry, he would have immediately approached the police or labour authorities which is not done here. Further, the claimant could have requested 8 ID No. 92/2006 the enquiry officer for change of place of enquiry if the security guards were not allowing him to enter this premises. But again there is no such request. Likewise, his allegation that the enquiry officer was on panel of the management and he was representing the management in other court cases is devoid of any force as there is nothing on record to substantiate this claim. The workman could not disclose even a single case where the enquiry officer allegedly represented the management. No suggestion was given to the enquiry officer MW1 either in his cross- examination in this regard. The plea is apparently a hollow excuse invented by the workman just to buttress his cause.
10 From above narration of facts, it is apparent that the workman had complete knowledge about pendency of the enquiry proceedings. There is no justification as to why he did not join the enquiry proceedings despite knowledge. It is only when the workman despite repeated notices failed 9 ID No. 92/2006 to appear to present his side of story that the enquiry was proceeded ex-parte against him.
11 It is no longer res integra that while holding a domestic enquiry rules of natural justice are of supreme importance. These principles though not codified canons are nonetheless principles engrained into the conscience of every man and have been well settled through judicial decisions. The rule of audi alteram partem i.e. hear the other side, constitutes one of the basis elements of fair hearing. However, equally well propounded is the rule that principles of natural justice cannot be put in straight jacket formula and cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. In the present case, the workman though alleges that the enquiry is unjust and unfair on account of denial of an opportunity to him to participate and defend himself and for violation of principles of fair hearing, but as discussed above in detail, actually the workman had due notice of the enquiry proceedings being conducted against him. He had already 10 ID No. 92/2006 been served with charge sheet. His admission of getting the letter dated 02.12.05 prepared on 01.12.05, constitutes a prime factor indicating that since beginning the workman was not inclined to participate in the enquiry. 12 In a recent case Hon'ble High Court of Delhi in the case reported as 'Ramesh Kumar Vs. Punjab National Bank, 2000 LLR 682' observed that "An enquiry which has been held ex-parte is not violative of principles of natural justice when the delinquent officer despite information did not participate in the proceedings."
13 Same was the view of Hon'ble Apex Court of India in the case of 'New India Insurance Company Ltd. Vs. S.M.I Kazib and Ors. 2001 LLR 825' 14 In the case of 'Mohan Singh Vs. Jaipur Metals and Electricals Ltd. 1996 LLR 448', it was held that "When a delinquent does not participate in an enquiry it is not 11 ID No. 92/2006 open to him to raise the objection that he has been deprived of the opportunity to defend himself."
15 In 'Bank of India Vs. Apurba Kumar Saha (1994) 2 SCC 615', it was laid down that "On refusal of the workman to participate in enquiry without any valid reason, violation of natural justice cannot be pleaded at a later stage."
16 From above discussion, it is established that workman was fully aware of chargesheet as well as enquiry proceedings and that he deliberately avoided participation in enquiry. In such scenario, the enquiry officer had no option but to proceed exparte against him and the workman having himself elected not to participate in the enquiry cannot take shelter of violation of rule of hearing. 17 Lastly, it is pleaded by worker that the finding of the enquiry officer is not based on facts and material on record and is totally perverse. It is settled law that a finding 12 ID No. 92/2006 arrived at in a domestic enquiry can be held to be perverse only if it is based on no evidence or is entirely against the evidence on record or is based on irrelevant evidence. It is also emphasized by the Superior Courts repeatedly that even if there is some evidence on record, however little it may be to support the findings there is no perversity. Reliance is placed on Delhi Cloth and General Mills Co. Vs. L.B. Singh 1972 (1) SCC 595 and Parry & Co. Ltd. Vs. P.C. Pal 1970 90 LLJ 429 SC.
18 In a recent case of Vasant P. Patil Vs. IIT Powai, Mumbai & Ors. 2006 LLR 452, it was held that where the documentary evidence on record is considered by enquiry officer, the findings cannot be perverse or legally untenable. I have perused the entire enquiry proceedings alongwith the report of the enquiry officer. In the course of enquiry proceedings, the management has examined all the material witnesses who have deposed against the workman. The enquiry report shows that it is based on unrebutted testimony of witnesses of fact and therefore it cannot be 13 ID No. 92/2006 called perverse or based on no evidence. The enquiry officer has neither misconducted himself nor the enquiry has been conducted in violation of the principles of natural justice. Accordingly, the issue is decided in favour of the management and against the workman. I hereby hold the enquiry to be fair and proper.
Announced in the open court (MAMTA TAYAL) on 23 July, 2008 rd PRESIDING OFFICER LABOUR COURT-I KARKARDOOMA COURTS, DELHI 14