Delhi District Court
I.D. No. 122/16 (Old No. 05/13) vs The on 3 September, 2022
0IN THE COURT OF SH. JITENDRA KUMAR MISHRA:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I, ROUSE
AVENUE DISTRICT COURTS , NEW DELHI.
Ref. No.: F.24/ID(613)/12/NWD/(5)/12/Lab./21-25
Dated : 23.01.2013
I.D. No. 122/16 (Old No. 05/13)
Workman
Sh. Om Prakash
as represented by
Delhi State Electricity Worker Union
H-287, DESU
Tripolia, Gur Mandi
Delhi-110 007
Vs.
The Management of
M/s Tata Power Delhi Distribution Ltd.
Through Chief Executive Officer
Hudson Lane
Kingsway Camp, Delhi
Date of institution : 06.02.2013
Date of reserving award : 03.09.2022
Date of award : 03.09.2022
(MORE THAN 09 YEARS OLD CASE)
AWARD
1. Labour Department, Govt. of the National Capital
Territory of Delhi has referred this dispute arising between the
parties named above for adjudication to this Tribunal vide
notification No. F.24/ID(613)/12/NWD/(5)/12/Lab./21-25 dated
23.01.2013 with following terms of the reference:-
" Whether penalty of 'stoppage of two
I. D. No. 122/16 (Old No. 05/13) Sh. Om Prakash Vs. M/s Tata Power Delhi Distribution Ltd. Page No. 1 of 22
annual increments for a period of two
years with cumulative effect' imposed by
the management on Shri Om Prakash,
Senior Lineman, Employee Code No.
21156 vide order dated 19.08.2010 is
illegal and/ or unjustified; and if yes, what
directions are necessary in this respect?"
2. Statement of claim has been filed by the
claimant/workman, wherein it is claimed:
(a)Workman was working as Lineman, Zone No.519, D
(MGP) having employee no. 21156;
(b)Workman was employed in erstwhile DESU/ DVB and was
active worker of the Union;
(c) On 01.07.2022, the Delhi Vidyut Board was unbundled
into 6 different companies and T.P.D.D.L/ NDPL the
present management in this case was one of the
company to form and the services of the workman had
been transferred to the newly formed company NDPL on
the same terms and conditions, which were applicable
before unbundling;
(d)According to the Tripartite Agreement entered amongst
the Govt. of NCT of Delhi, DVB its employees through
Joint Action committee consisting of recognized union and
Association of all category of employees i.e. officers,
engineers, supervisors and the workmen notified in Extra-
Ordinary Gazette of Delhi defining that the service
conditions of the employees of the DVB to be transferred
to the Successors power utilities i.e. including above
I. D. No. 122/16 (Old No. 05/13) Sh. Om Prakash Vs. M/s Tata Power Delhi Distribution Ltd. Page No. 2 of 22
mentioned company, shall remain the same unchanged
and will be governed as on date of unbundling i.e.
30.06.2002;
(e)During the time of DVB before unbundling the Delhi State
Electricity Workers Union stood as the only recognized
union by the management as also given in Tripartite
agreement, and as such the Union continued to be
recognized even after unbundling in as much as all the
Successors power utilities continued to negotiate with the
Delhi State Electricity worker union in respect of the
problem and demands of the workmen transferred from
DVB functioning under their respective control and were
being resolved;
(f) Office bearers of the Delhi State Electricity Workers Union
continued to remain the same and unaltered as it was
before 01.07.2002;
(g)After unbundling the newly formed company had started
victimizing the employee of DVB and had started taking
disciplinary action against them on one pretext or the
other with a view to suppress the activities of the worker
union and to unsettle the union;
(h)Worker Union has started a peaceful dharna/ agitation to
safe guard the interest of erstwhile DVB employee and
has given a call to boycott all the functions of the newly
formed company;
(i) To suppress peaceful dharna/ agitation of the union, the
management of NDPL has started victimizing the workers
of the Union by initiating disciplinary proceedings against
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them on false and flimsy grounds and in the process had
issued charge sheets to 12 workmen who were active
workmen of the Union, workman was amongst them;
(j) Workman was given a charge sheet vide memorandum
dated 09.10.2009 under Rule 14 of the CCS (CCA Rules),
1965, which were not applicable to him as he was
governed by Old DESU / (DMC) service Regulations 1976
framed by DESU;
(k) Charge sheet was totally vague, wrong, illegal and
arbitrary and has been given only to victimize the
workman for his trade union activities;
(l) Workman had submitted his reply to the said show cause
notice on 09.08.2010;
(m) However, without considering the reply of the
workman, the management had initiated departmental
inquiry on 23.11.2009 and appointed Sh. V. P. Garg as an
Inquiry Officer and Sh. D. N. Soni as Presenting Officer;
(n)Inquiry officer conducted an inquiry which is illegal and
arbitrary manner and submitted his report proving the
charge against the workman on flimsy and vague ground
and on the basis of no evidence;
(o)Management vide its memorandum dated 02.07.2010,
had forwarded the inquiry report to the workman to
submits his representation against the report, if any;
(p)Workman submitted his reply on 09.08.2010, thereby
pointing out various discrepancies/ short comings in the
Inquiry Report;
(q)Without considering the objections of the workman, the
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management had passed a stereo type non-speaking
order dated 19.08.2010 in the case of the workman
without objectively considering the objections and
imposed a penalty of stoppage of two annual increments
for a period of two years with cumulative effect;
(r) Workman had submitted an appeal on 06.10.2010 against
the penalty order, which was rejected by the appellate
authority vide order dated 28.10.2010;
(s) Workman and Union also approached the management
many times against the said penalty order, but no action
taken by the management;
(t) Union aggrieved by the said action of the management
had resolved in its meeting held on 24.05.2012 vide its
resolution no.13 to take up the matter with the
management;
(u)Union vide its letter dated 29.05.2012 had requested the
management to review the cases of the workmen but no
action was taken;
(v) Thereafter, on failure of the conciliation proceedings, the
present dispute has been referred for adjudication before
this Tribunal.
It is prayed in the Statement of claim to pass an award in
favour of the workman and the management be directed to decide
the terms of reference in favour of the workman and against the
management.
3. Written statement filed by the management, wherein
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objections have been taken:
(a) Present claim is malafide, an afterthought and an
abuse of the process of law;
(b) Present claim has been filed with the sole intention to
harass and cause undue pressure on the management
without there being any cause of action;
(c) Present reference has been made in a totally
mechanical manner. The dispute that is being sought to
be raised does not fall within the matters as provided in
the Schedule III of the Industrial Disputes Act, 1947 and
therefore, this Tribunal does not have the jurisdiction to
adjudicate the present dispute;
(d) Present dispute is barred u/s 10(2) of the Industrial
Disputes Act, 1947 as it has not been sought by a
recognized Union;
(e) Workman was awarded the punishment/ penalty after
having been found and established by way of domestic
inquiry that the charges against the workman were
proved;
(f) Workman fully participated in the inquiry and the same
was carried out in accordance with principles of natural
justice;
Rest of the contentions of the statement of claim more or
less are denied.
4. Rejoinder has been filed by the workman, wherein all
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objections raised in the preliminary objections have been denied
and the contentions made in the statement of claim are reiterated
and affirmed.
5. On the basis of pleadings of the parties, following issues
were framed by Ld. Predecessor vide order dated 15.02.2014:-
"(i) Whether this Tribunal has no
jurisdiction to decide the present
reference in view of preliminary objection
no.2? OPM
(ii) Whether the present dispute is barred
under Section 10 (2) of Industrial Disputes
Act ? OPM
(iii) Whether enquiry conducted by the
management was against principles of
natural justice? OPW
(iv) As per terms of reference."
6. To prove his case, workman examined Sh. Kuldeep
Kumar, General Secretary of the Union as WW1. He tendered his
evidence by way of affidavit, Ex.WW1/A in which he has deposed
that Delhi State Electricity Workers Union was registered and
recognized majority union since 1950. He has further deposed that
Delhi State Electricity Board was converted to Delhi Vidyut Board on
01.04.1997 and the position of the workers Union remained
unchanged as it continues to be recognized union. He has further
deposed that on 01.07.2022, the Delhi Vidyut Board was unbundled
into 6 different companies. He has further deposed that the
workman was active worker of the Union. He has further deposed
that during the time of DVB before unbundling the Delhi State
Electricity Workers Union stood as the only recognized union by the
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management as also given in Tripartite agreement, and as such the
Union continued to be recognized even after unbundling in as much
as all the Successors power utilities continued to negotiate with the
Delhi State Electricity worker union in respect of the problem and
demands of the workmen transferred from DVB functioning under
their respective control and were being resolved. He has further
deposed that office bearers of the Delhi State Electricity Workers
Union continue to remain the same and unaltered as it was before
01.09.2002. He has also relied upon a document Ex.WW1/1, which
is copy of a Tripartite agreement dated 28.10.2000.
On 29.08.2014, cross-examination of WW1 was recorded
as Nil despite opportunity given.
On 29.11.2014 an application was moved on behalf of the
management u/s 151 CPC for recalling of order dated 29.08.2014.
Thereafter, vide order dated 05.06.2015, the said application was
allowed and the case was listed for workman evidence.
On 21.08.2015, Ld. AR for the management had cross
examined WW1.
7. To prove his case further, workman examined himself as
WW2. He tendered his evidence by way of affidavit, which is
Ex.WW2/A, in which he has affirmed the contents of his statement
of claim. He has also relied upon documents Ex.WW2/1 to Ex.
WW2/8, which are:-
i. Ex.WW2/1 (colly.) being copy of memorandum dated
09.10.2009;
ii. Ex.WW2/2 being copy of reply to the memorandum;
iii. Ex.WW2/3 being copy of order dated 28.11.2009;
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iv. Ex.WW2/4(colly) being copy of Inquiry Report;
v. Ex.WW2/5 being copy of letter written by workman to the
management dated 09.08.2010;
vi. Ex.WW2/6 being copy of order dated 19.08.2010;
vii. Ex.WW2/7 is the appeal against the HOD (G)'s order No.
NDPL/Discp/HOD(G)/10-11/101 dated 19.08.2010
imposing penalty of stoppage of two annual increments
for a period of two years with cumulative effect.
viii. Ex. WW2/8 is the copy of Order No.
NDPL/DC/Head(HR)/10-11/55 dated 28.10.2010
On 02.02.2019, cross-examination of WW2 was recorded
as Nil despite opportunity given to the management.
Thereafter, on the same day i.e. on 02.02.2019, vide
separate statement Ld. AR for the workman closed workman
evidence.
8. On 18.10.2019, an application was moved on behalf of
the management for setting aside of order dated 02.02.2019 and
management was allowed to cross-examine WW2.
9. Accordingly, on 24.03.2021, Ld. AR for the management
had cross examined WW2.
Thereafter, on the same day i.e. on 24.03.2021, vide
separate statement Ld. AR for the workman closed workman
evidence.
10. To prove its case, management examined Sh. Sanjeev
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Kaushik, Authorized Representative of the management as MW1.
He tendered his evidence by way of affidavit Ex.MW1/A in which he
has affirmed the contents of the written statement.
On 26.05.2022, Ld. AR for the workman cross-examined
MW1.
Thereafter, on the same day i.e. on 26.05.2022 vide
separate statement, Ld. AR for the management closed
management evidence.
11. Final arguments have been heard at length as advanced
by Ms. Avtar Kaur Dhingra, Ld. AR for workman and Sh. Sujit Kr.
Singh, Ld. AR for management.
12. I have gone through the entire record of the case
including pleadings of the parties, evidence led and documents
proved during evidence.
13. Written arguments have been filed on behalf of the
management, which have been considered.
14. Ld. AR for the management has also relied upon following
judgments:
(a)Divisional Manager, Plantation Division Vs. Munnu
Barrick, (2005) 2 SCC 237;
(b)South Indian Cashew Factories Workers' Union Vs. Kerala
State Cashew Development Corpn. Ltd., (2006) 5 SCC
201;
(c) Kumaon Mandal Vikas Nigam Ltd. Vs. Girja Shankar Pant,
(2001) 1 SCC 182;
(d)Pravin Kumar Vs. Union of India, (2020) 9 SCC 471;
I. D. No. 122/16 (Old No. 05/13) Sh. Om Prakash Vs. M/s Tata Power Delhi Distribution Ltd. Page No. 10 of 22
(e)Mazdoor Sangh Vs. Usha Breco Ltd., (2008) 5 SCC 554;
(f) West Bokaro Colliery (Tisco Ltd.) Vs. Ram Pravesh Singh,
(2008) 3 SCC 729;
(g)State Bank of Bikaner & Jaipur Vs. Nemi Chand Nalwaya
(2011) 4 SCC 584;
(h)Workmen Vs. Balmadies Estates, (2008) 4 SCC 517;
(i) Coimbatore District Central Coop. Bank Vs. Employees
Assn., (2007) 4 SCC 669;
Ld. AR for management has also relied upon para no. 12 of South
Indian Cashew Factories Workers' Union Vs. Kerala State
Cashew Development Corporation Ltd and ors (2006) 5
Supreme Court Cases 201 wherein it has been held:
"12. In Saran Motors (P) Ltd Vs. Vishwanath this Court held as Follows:
"It is well known that enquiries of this type are generally conducted by the
officers of the employer and in the absence of any special individual bias
attributable to a particular officer, it has never been held that the enquiry is
bad just because it is conducted by an officer of the employer."
Ld. AR for management has further relied upon paras no. 10 and
35 in Kumaon Mandal Vikas Nigam Ltd Vs. Girja Shankar Pant
(2001) 1 SCC 182 as:
"10. The word "bias" in popular English parlance stands included within the
attributes and broader purview of the word "malice" which in common acceptation
means and implies "spite" or "ill- will" (Stroud's Judicial dictionary, 5th Edn., Vol 3)
and it is now well settled that mere general statements will not be sufficient for
the purposes of indication of ill-will. There must be cogent evidence available on
record to come to the conclusion as to whether in fact there was existing a bias
which resulted in the miscarriage of justice.
35. The test, therefore, is as to whether a mere apprehension of bias or there
being a real danger of bias and it is on this score that the surrounding
circumstances must and ought to be collated and necessary conclusion drawn
therefrom- in the event however the conclusion is otherwise inescapable that there
is existing a real danger of bias, the administrative action cannot be sustained: If on
the other hand, the allegations pertaining to bias is rather fanciful and otherwise to
avoid a particular court, Tribunal or authority, question of declaring them to be
unsustainable would not arise. The requirement is availability of positive and cogent
evidence and it is in this context that we do record our concurrence with the
view expressed by the Court of Appeal in Locabail case."
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Ld. AR for management has further relied upon para no. 32 of
Pravin Kumar Vs. Union of India and ors (2020) 9 Supreme
Court Cases 471 wherein it is observed that:
"32. Rather it appears that the delinquent person received a fair trial,
which can illustratively be determined by analysing whether he received
an opportunity of adducing evidence, cross-examining witnesses and
whether depositions were recorded in his presence. The record clearly
elucidates that all these essentials had been duly observed in the present
proceedings. Opportunity to seek assistance of another officer was accorded,
right of making representation was granted before each authority, multiple
opportunities were granted to lead evidence, cross-examine witnesses,
and raise objections. The appellant exercised most of these options,
though some were given up despite reminders. Minor delays on part of the
appellant were ignored and each concern of his had been addressed
through detailed reasons."
Ld. AR for management has further relied upon Cipla Ltd and ors
Vs. Ripu Daman Bhanot and anr. (1999) 4 Supreme Court
Cases 188, wherein para no. 13 it is held as:
"13. In N. Kalindi Vs. Tata Locomotive & Engg. Co. Ltd it was held that a
workman against whom a departmental enquiry is held by the
management has no right to be represented at such enquiry by an outsider,
not even by a representative of his union though the management may in its
discretion allow the employee to avail of such assistance. So also in Dunlop
Rubber Co. (India) Ltd Vs. Workmen it was laid down that an employee
has no right to be represented in the disciplinary proceedings by another
person unless the Service Rules specifically provided for the same.
A three-Judge Bench of this Court in Crescent Dyes and Chemicals Ltd Vs.
Ram Naresh Tripathi laid down that the right to be represented in the
departmental proceedings initiated against a delinquent employee can be
regulated or restricted by the management or by the Service Rules. It was
held that the right to be represented by an advocate in the departmental
proceedings can be restricted and regulated by statutes or by the Service
Rules including the standing orders, applicable to the employee
concerned. The whole case law was reviewed by this Court in Bharat
Petroleum Coporation Ltd Vs. Maharashtra General Kamgar Union and it was
held that a delinquent employee has no right to be represented by an
advocate in the departmental proceedings and that if a right to be
represented by a co-workman is given to him, the departmental proceedings
would not be bad only for the reason that the assistance of an advocate was
not provided to him."
In para no. 33 of Usha Breco Mazdoor Singh Vs.
I. D. No. 122/16 (Old No. 05/13) Sh. Om Prakash Vs. M/s Tata Power Delhi Distribution Ltd. Page No. 12 of 22
Management of Usha Breco Ltd and another (2008) 5 Supreme
Court Cases 554, it has been held that:
"33. Before a departmental proceeding, the standard of proof is not that the
misconduct must be proved beyond all reasonable doubt but the standard of proof
is as to whether the test of preponderance of probability has been met. The
approach of the Labour Court appeared to be that the standard of proof on the
management was very high. When both the parties had adduced evidence, the
Labour Court should have borne in mind that the onus of proof loses all its
significance for all practical purpose."
In West Bokaro Colliery (Tisco Ltd) Vs. Ram Parvesh
Singh, (2008) 3 Supreme Court Cases 729 in paras no. 20 and
21 it has been held as:
"20. The Tribunal has set aside the report of the enquiry officer and the order
of dismissal passed by the punishing authority by observing that the charges
against the respondent were not proved beyond reasonable doubt. It has
repeatedly been held by this Court that the acquittal in a criminal case would not operate as a bar for drawing up of a disciplinary proceeding against a delinquent. It is well settled principle of law that yardstick and standard of proof in a criminal case is different from the one in disciplinary proceedings. While the standard of proof in a criminal case is proof beyond all reasonable doubt, the standard of proof in a departmental proceeding is preponderance of probabilities.
21. Learned Counsel for the respondent cited two cases Workmen Vs. Firestone Tyre and Rubber Co. of India (P) Ltd and South Indian Cashew Factories Workers' Union vs. Kerala State Cashew Development Corporation Ltd to contend that the Labour Court in exercise of its jurisdiction under Section 11-A could have come to a different conclusion. There is no quarrel with this preposition of law. The Labour Court could have awarded lesser punishment in the given facts and circumstances of the case. In a case where two views are possible on the evidence on record, then the Industrial Tribunal should be very slow in coming to a conclusion other than the one arrived at by the domestic Tribunal by substituting its opinion in place of the opinion of the domestic tribunal".
In (2011) 4 Supreme Court cases 584, titled as State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya, it has been held in para no. 7 as :
"7. It is now well settled that the courts will not act as an appellate Court and reassess the evidence laid in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, I. D. No. 122/16 (Old No. 05/13) Sh. Om Prakash Vs. M/s Tata Power Delhi Distribution Ltd. Page No. 13 of 22 the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a Tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations."
In (2008) 4 Supreme Court cases 517 titled as Workmen of Balmadies Estates Vs. Management, Balmadies Estates and ors in para no. 10 it is held as:
"10. It is fairly well settled now that in view of the wide power of the Labour Court it can, in an appropriate case, consider the evidence which has been considered by the domestic tribunal and in a given case on such consideration arrive at a conclusion different from the one arrived at by the domestic Tribunal. The assessment of evidence in a domestic enquiry is not required to be made by applying the same yardstick as a civil court could do when a lis is brought before it. The Evidence Act, 1872(in short "the evidence Act") is not applicable to the proceeding in a domestic enquiry so far as the domestic enquiries are concerned, though principles of fairness are to apply. It is also fairly well settled that in a domestic enquiry guilt may not be established beyond reasonable doubt and the proof of misconduct would be sufficient. In a domestic enquiry all materials which are logically probative including hearsay evidence can be acted upon provided it has a reasonable nexus and credibility."
In (2007) 4 Supreme Court Cases 669 titled as Coimbatore District Central Co-operative Bank Vs. Coimbatore District Central Co-operative Bank Employees Association and another it has been held in para no. 29 as:
"29. From the above decisions, it is clear that our legal system also has accepted the doctrine of proportionality. The question, however, is whether in the facts and circumstances of the present case, the High Court was justified in invoking and applying the doctrine of proportionality. In our judgment, the answer must be in the negative. Normally, when disciplinary proceedings have been initiated and finding of fact has been recorded in such inquiry, it cannot be interfered with unless such finding is based on "no evidence" or is perverse, or is such that no reasonable man in the circumstances of the case would have reached such finding. In the present case, four charges had been levelled against the workman. An inquiry was instituted and findings recorded that all the four charges were proved. The Labour Court considered the grievances of the workmen, negatived all the contentions I. D. No. 122/16 (Old No. 05/13) Sh. Om Prakash Vs. M/s Tata Power Delhi Distribution Ltd. Page No. 14 of 22 raised by them, held the inquiry to be in consonance with principles of natural justice and findings supported by evidence. Keeping in view the charges proved, the Labour Court, in our opinion, rightly held that the punishment imposed on workmen could not be said to be harsh so as to interfere with it. ...."
15. My issue wise findings are:-
Issue no.1:
"(i) Whether reference is without jurisdiction as per preliminary objection of written statement ? OPM"
Issue no.2:
"(ii) Whether the present dispute is barred under Section 10 (2) of Industrial Disputes Act ? OPM"
With respect to these issues, ld.AR for management during arguments made submission that this Tribunal may decide other/remaining issues as management is not pressing upon issues no. 1 and 2.
In view of such submission made by ld. AR for management, issues no 1 and 2 are answered against the management as management has not pressed both these issues.
16. Issue no.3:
Whether the management has violated the principles of natural justice while conducted enquiry against the workman ?
OPW The onus to prove this issue was on the workman. In para no. 18 of Ex. WW2/A it is deposed by WW-1 that without I. D. No. 122/16 (Old No. 05/13) Sh. Om Prakash Vs. M/s Tata Power Delhi Distribution Ltd. Page No. 15 of 22 considering the objections of the workman against the inquiry in his representation dated 09.08.2010, management passed a stereo type non-speaking order. Prior to that workman in paras no. 13, 14, 15 and 16 deposed that inquiry was illegal, in arbitrary manner and report was submitted on the charge against the workman on flimsy and vague grounds on the basis of no evidence.
Ex WW2/1 (colly) is perused. This is a document dated 09.10.2009 and it is Memorandum issued to the workman wherein charges upon the workman was informed. There is another document i.e. Article of Charge. Workman has submitted his representation in respect of Memo dated 09.10.2009. Thus, the workman has duly received the Memorandum. Therefore, the workman has duly participated in the inquiry.
MW-1 in para no. 5 duly explained about all such documents for the purpose of inquiry. In para no. 7 of Ex. MW1/A it is deposed by MW-1 that workman has submitted his reply to the charge-sheet on 12.11.2009. However, considering the same to be unsatisfactory, the Competent Disciplinary Authority ordered initiation of inquiry vide letter dated 23.11.2009. In para no. 8 of Ex. MW-1/A it is deposed by MW-1 that workman duly participated in the inquiry which was conducted following all principles of natural justice. Two witnesses were produced. Witnesses were duly cross- examined by the workman. The workman did not produce any defence witness in his favour although opportunity for the same was given to him. During cross-examination MW-1 deposed that Sh. V. P. Garg was the Inquiry Officer and Sh. D.N. Soni was the presenting officer. During cross-examination there is no serious challenge to the inquiry proceedings by ld.AR for workman. There is no challenge I. D. No. 122/16 (Old No. 05/13) Sh. Om Prakash Vs. M/s Tata Power Delhi Distribution Ltd. Page No. 16 of 22 by ld. AR for workman that workman was not given opportunity to defend during inquiry proceedings or the workman was denied fair chance to submit his case. Even no suggestion during cross- examination was given by ld. AR for workman to MW-1 that principles of natural justice during inquiry against the workman were violated in any manner. No such case was presented or even no suggestion has been given as such.
It is deposed by MW-1 that the workman was granted full opportunity to defend himself in the domestic inquiry in which he fully participated and the same was carried out in accordance with principles of natural justice. The workman was provided with all documents and even additional documents as per his request were taken on record. It is further deposed by MW-1 that workman duly cross-examined all the witnesses and did not present any defence witness despite opportunity.
It is further deposed by MW-1 that vide Memo No. NDPL/Discip/HOD (G)/09-10/240 dated 09.10.2009, the workman was issued charge-sheet along with Article of Charge, statement of imputation of misconduct, list of documents and list of witnesses. The charge against the workman was that on 06.10.2009 at about 11:40 am the workman along with some other employees reached to District Office Mangol Puri in a bus bearing registration number DL-1PA-3783. He then went to Consumer Care Centre and Cash Collection Centre of the said district and loudly gave a call to the employees that none of them will attend their work and that if any one of them will attend to his work, he will have to face dire consequences. In response to his call and the threat, the employees of customer care centre and cash collection centre of District I. D. No. 122/16 (Old No. 05/13) Sh. Om Prakash Vs. M/s Tata Power Delhi Distribution Ltd. Page No. 17 of 22 Mangol Puri had stopped their official work which not only reflected an adverse image of the company in the eyes of consumers present there but also disturbed the smooth functioning of work.
It is further deposed in para no. 7 of Ex. MW1/A that workman submitted his reply to the charge-sheet on 12.11.2009. However, considering the same to be unsatisfactory, the competent Disciplinary authority ordered initiation of inquiry vide letter dated 23.11.2009 whereby Sh. V. P. Garg was appointed the Inquiry officer and Sh. D. N. Soni was appointed the Presenting Officer. It is also deposed in para no. 8 that the workman duly participated in the said inquiry which was conducted following all principles of natural justice. The management produced two witnesses during inquiry who gave their evidence and were duly cross-examined by the workman. The workman did not produce any defence witness in inquiry proceedings in his favour although opportunity for the same was given to him.
During cross-examination, MW-1 denied the suggestion that no witnesses were crossed by the workman and no defence assistant was provided to the workman. MW-1 further denied the suggestion that the intention of the management was malafide so they impose major penalties. MW-1 denied the suggestion that the charges were not proved.
Now, inquiry report Ex. MW2/4(colly) is perused. This Tribunal has come to the conclusion that despite opportunities given to the workman during inquiry proceedings as well as before this Court, he could not explain the reasons for the report against him as observed by Inquiry Officer in Inquiry Report.
I. D. No. 122/16 (Old No. 05/13) Sh. Om Prakash Vs. M/s Tata Power Delhi Distribution Ltd. Page No. 18 of 22 In Saran Motors (P) Ltd Vs. Vishwanath, (1964) 2 LLJ 139 SC, Hon'ble Apex Court has specifically held that:
"It is well known that enquiries of this type are generally conducted by the officers of the employer and in absence of any specific individual bias attributable to a particular officer, it has never been held that the enquiry is bad just because it is conducted by an officer or the employer."
This Tribunal has further relied upon (2008) 4 Supreme Court cases, 517 titled as Workmen of Balmadies Estates Vs. Management, Balmadies Estates and ors, in which it has been held that the assessment of evidence in a domestic enquiry is not required to be made by applying the same yardstick as a civil court could do when a lis is brought before it. The Evidence Act, 1872 is not applicable to the proceeding in a domestic enquiry so far as the domestic enquiries are concerned, though principles of fairness are to apply. It is also fairly well settled that in a domestic enquiry guilt may not be established beyond reasonable doubt and the proof of misconduct would be sufficient. In a domestic enquiry all materials which are logically probative including hearsay evidence can be acted upon provided it has a reasonable nexus and credibility.
Keeping in view the referred case law, this Tribunal is of the considered view that Inquiry Officer has duly considered the statements of management witnesses and thus come to the conclusion that the Inquiry Officer has not violated the principles of natural justice while conducting inquiry against the workman. Hence, issue no. 3 is answered in favour of the management and against the workman.
I. D. No. 122/16 (Old No. 05/13) Sh. Om Prakash Vs. M/s Tata Power Delhi Distribution Ltd. Page No. 19 of 22
17. Issue No. 4. If the answer to issue no 3 is in affirmative, whether the workman committed the misconduct imputed to him by the management ? OPM The onus to prove this issue was on the management. MW-1 in Ex. MW-1/A in para no. 5 deposed that workman was issued charge-sheet along with Article of Charge, Statement of imputation of misconduct, list of documents and list of witnesses. The charge against the workman was that on 06.10.2009 at about 11:40 am the workman along with some other employees reached to District Office Mangol Puri in a bus bearing registration number DL-1PA-3783. It is further deposed that he then went to Consumer Care Centre and Cash collection centre of the said district and loudly gave a call to the employees that none of them will attend to their work and further threatened that if any of them will attend to his work, he will have to face dire consequences. In response to his call and the threat, the employees of consumer care centre and cash collection centre of District Mangol Puri had stopped their official work which not only reflected an adverse image of the company in the eyes of consumers present there but also disturbed the smooth functioning of work.
In para no. 6 of Ex. MW1/A, MW-1 deposed that such act on behalf of workman adversely affected the smooth functioning of the work. Workman has submitted his reply to the charge-sheet, however, same was found to be unsatisfactory, the Competent Disciplinary Authority ordered initiation of inquiry vide letter dated I. D. No. 122/16 (Old No. 05/13) Sh. Om Prakash Vs. M/s Tata Power Delhi Distribution Ltd. Page No. 20 of 22 23.11.2009 whereby Sh. V. P. Garg was appointed the Inquiry Officer and Sh. D. N. Soni was appointed the Presenting Officer. There is no challenge during cross-examination to this part of testimony of MW-1. Thus Tribunal is of the considered view that the inquiry conducted against the workman was proper as the workman has committed the misconduct imputed against him by the management. Such misconduct has been duly proved. The penalty imposed upon the workman is:
"Penalty of stoppage of two annual increments for a period of two years with cumulative effect is imposed upon him and orders accordingly."
Keeping in view the fact that the incident is very old, therefore, this Tribunal is taking lenient view in favour of the workman and reduced the penalty as:
"Penalty of stoppage of one annual increment for a period of one year with cumulative effect is imposed upon him and orders accordingly."
18. The award is passed accordingly and the reference is answered in these terms.
19. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room. Announced in open Tribunal on this 03rd day of September, 2022 (Jitendra Kumar Mishra) POIT-I/Rouse Avenue Courts, New Delhi I. D. No. 122/16 (Old No. 05/13) Sh. Om Prakash Vs. M/s Tata Power Delhi Distribution Ltd. Page No. 21 of 22