Delhi District Court
Between vs M/S Sawhney Rubber Industries on 11 October, 2007
1 ID NO. 22/2001
IN THE COURT OF MS. MAMTA TAYAL: PRESIDING OFFICER: LABOUR
COURT-I : ROOM NO.50: KARKARDOOMA COURTS: DELHI.
ID NO. 22/2001
BETWEEN
Sh. Gautam Kumar
C/o Sawhney Rubber Indul. Mazdoor Union,
B-417, Gali No. 3,
Meet Nagar, Wazirabad Road,
Delhi - 110094.
........ Workman
AND
M/s Sawhney Rubber Industries
B-1 & 2, Jhilmil Industrial Area,
Shahdara, Delhi - 95.
........ Management
ORDER
1 Vide this order I shall dispose of the following preliminary issue framed by ld. Predecessor vide order dt. 17.09.03. Issue Whether the enquiry conducted by the managmeent against the workman is unfair and improper?
2 Before proceeding to dispose of the above issue, the back drop in which the present issue has arisen may be recapitulated in 2 ID NO. 22/2001 brief.
3 Secretary (Labour), Government of National Capital Territory of Delhi has referred this dispute arising between the parties named above for adjudication to this Labour Court vide notification No. F.24 (3507)/2004-Lab./38724-28 dated 22.11.2000 with the following terms of the reference:-
"Whether the dismissal from services of Sh. Gautam Kumar is illegal and/or unjustified, and if so, to what relief is he entitled and what directions are necessary in this respect?"
4 On receiving a notice from the court, the workman namely Gautam Kumar filed his claim petition contending that he had been diligently and honestly working as a Stitching Operator since 1994 with the management. His last drawn salary was Rs.2348/- per month much below the minimum wages fixed under law. In 1996, Hon'ble Supreme Court of India directed a number of companies to either close down or shift out of Delhi by 30.11.96 on account of violation of pollution norms. The companies were directed to pay wages for six years as compensation to the employees in case of closure and for one year in case of shifting. 3 ID NO. 22/2001 The management to avoid payment of the said compensation illegally terminated the services of about 1700 workers by obtaining their resignations forcibly before the due date of 30.11.96. On a writ filed by some of the employees the Apex Court directed reinstatement of 400 workers w.e.f. 03.10.99 subject to certain conditions. The management however in the meantime indulged in unlawful activities with antisocial elements qua the workers, resulting in registration of criminal cases against the management. The workers were victimised and were illegally transferred, suspended or terminated by the management in colourable exercise of its administrative duties. The management was brazenly indulging in anti labour activities and wanted the workmen to stop their union activities. In this scenario, the management suspended the workman on 17.09.99 during enquiry. Before filing reply to the chargesheet the workman had asked for the documents on the basis of which the chargesheet was framed but neither the documents were supplied nor his reply was awaited but Mr. Jagat Singh Chaudhary, Advocate was appointed enquiry officer. The enquiry itself was bad in law because it was conducted outside Delhi in violation of the rules. The workman vide repeated letter to the management as well as enquiry officer requested for change of 4 ID NO. 22/2001 venue of enquiry but no postive action was taken. He was served a show cause notice to which he replied but without considering the reply, he was terminated. The employee being a layman was not aware of the formalities of enquiry hence he through letters requested the management to allow him to be represented by Sh. Avdesh Singh, Union Leader which was not permitted. It is violation of model standing orders. On 13.03.2000 the management terminated his service after conducting domestic enquiry. The enquiry was conducted in gross violation of all the principles of natural justice and was otherwise in violation of sec. 33 (2) (b) as at the relevant time another proceeding before the conciliation officer for designation was also pending.
5 The claim of the workman was contested by the management by filing written statement. Succinctly stated, the defence of the management is that the claimant who was an unskilled worker of the management was indulging in serious acts of misconduct. He was duly chargesheeted and an enquiry as per law was held wherein he was found guilty and thereafter he was terminated after giving him due opportunity. The management has clarified that there was no occasion for it to dismiss any employee to 5 ID NO. 22/2001 evade payment of compensation because Hon'ble Supreme Court had already permitted the management to continue its operation of the factory on fulfillment of the norms of pollution. The employees were also directed by the Apex Court to report for duty and all those who resumed their responsibility, were paid full wages. Even their attendance was being monitored by the Labour Authorities w.e.f. 01.09.97. It was further averred that the enquiry was held outside the factory premises because of serious law and order problem prevailing at the factory at that time. The place of enquiry was in a close proximity to Delhi border and the workman was offered to and fro bus fare for attending the enquiry. All the principles of natural justice were followed at every stage in respect of the action taken against the workman. The management further traversed all the contentions of the workman contained in the claim petition. 6 No rejoinder was filed on behalf of the workman despite specific opportunity.
7 On the pleadings of the parties, following issues came to be framed on 17.09.2003 :-
1) Whether the enquiry conducted by the
6 ID NO. 22/2001
management against the workman is unfair and
improper? OPW.
2) As per terms of reference.
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.
8 Claimant filed his own affidavit towards evidence. Mr. Jagat Singh Chaudhry, Enquiry Officer appeared as MW-1 and Mr.Anoop Kumar Sethi, Manager (Administration) was tendered as MW-2 on behalf of management. Evidence was closed. Oral arguments were advanced by both the parties. Written arguments were also filed alongwith the case law in support of their submissions. 9 I have carefully considered the matter and gone through the records.
My findings on the enquiry issue are as follows:-
ISSUE NO.1 7 ID NO. 22/2001
10 The workman has specifically admitted the receipt of the chargesheet and the knowledge of the enquiry proceedings in his claim petition as well as evidence. He has also not denied the service of show cause notice alongwith enquiry report and thereafter service of termination letter. The main plank of argument of AR for the workman is that the claimant's letters to the management for supplying documents, for change of venue and for representation by Avdesh Singh Union Leader were not considered and the enquiry was held in gross violation of principles of natural justice. So far as, non supply of documents is concerned, the workman has himself proved the chargesheet in his evidence. The perusal of the same reveals that it is a comprehensive document detailing all the charges against the workman on which enquiry was ordered. Besides this, the workman has proved reply sent by the management to the letter of the workman demanding the documents as WW-1/3 wherein the workman was asked to file his reply to the chargesheet first, so as to enable the management to decide whether the enquiry was to be conducted or not. The workman was informed by the said letter that in case his reply is found unsatisfactory only then the enquiry shall be proceeded with 8 ID NO. 22/2001 and in that eventuality he shall be supplied all the documents. Admittedly, the workman despite this neither submitted any reply to the chargesheet nor participated in the enquiry. It is not the contention of the workman that any prejudice has been caused to him on account of non supply of the documents at that stage. It is also not the case of the workman that he could not have prepared his reply for want of those documents. It is an established fact that the workman was repeatedly served with the notices of the enquiry through letters as well as through publication. He elected not to participate in the proceedings despite the service of the notices. The excuse taken by workman for non participation is that the enquiry was held at Faridabad, away from the factory premises in violation of rules. The workman was not secure and safe there and the management wanted to hold an enquiry in such an atmosphere to overawe the employee which shows that its only interest was to dismiss the workman. The argument though attractive is unsustainable in view of the admitted facts of the case. Till date the workman has not been able to show any rule that has been allegedly violated by holding the enquiry outside the factory premises. The management has categorically stated that the place of enquiry was in vicinity of the border and the workman was offered 9 ID NO. 22/2001 to and fro bus charges to attend the enquiry. No suggestion has been given to any of the management witnesses that enquiry in Faridabad was against rules. Nor the workman in his own evidence has clarified as to under which standing order it was mandatory to hold the enquiry in factory premises. He has nowhere contended that any prejudice has been caused to him by holding enquiry outside Delhi. It has been admitted by the claimant that the management offered to pay the conveyance charges for attending the enquiry at Faridabad, still he did not join. It remains a mystery as to why and how the workman did not feel secure and safe during enquiry in Faridabad. In fact, the workman has in his petition himself admitted that the law and order situation in the factory premises was grave and there were repeated incidents of violence. In such circumstances, I find force in the submissions of AR for the management that it was not reasonably practical and feasible to hold the enquiry in the factory premises. In fact, workman as WW-1 in his cross examination gave another reason for not attending the enquiry i.e. the failure of the enquiry officer to give reply to his letter seeking permission to be represented by the Union Leader in the enquiry proceedings. But then, he failed to prove that any such letter was duly served on the enquiry officer. He has relied upon 10 ID NO. 22/2001 one letter Ex. WW-1/9 in this regard. No doubt it is addressed to the enquiry officer but the postal certificate attached with the copy of the said letter on record shows that it was sent to the management and not the enquiry officer. In circumstances, there was no occasion for enquiry officer to reply to the said letter. Needless to mention that, if workman wanted any such representative, the proper course for him was to appear before enquiry officer in person and to make this request which he failed to do without any reasonable excuse. Even otherwise, the workman has not adduced any evidence to show that he was entitled under any rules or certified standing orders to be represented by any Union Leader. The management was being represented by its employee and the workman was also permitted to be represented by another employee of the management. In a recent case reported as Management of National Seeds Corporation ltd. Vs. K.V. Ramareddy 2007, LLR 73, Hon'ble Supreme Court of India has in a similar situation, taking note of a catena of judgments, held that an employee has no right to representation in the departmental proceedings by another person or a lawyer unless the service rules specifically provide for the same. In Meemansa Dixit (Ms) Vs. Director of 11 ID NO. 22/2001 Education 2007 LLR 60, Delhi High Court followed Management of National Seeds Corporation ltd. Vs. K.V. Ramareddy 2007, LLR 73 case Supra that no agent can represent unless service rules specifically provide for the same. In the case in hand, the workman has neither pleaded nor exhibited on record anything to show that the service rules allowed him to be represented through Union Leader. It is admitted fact that the respondent is having its own certified standing orders and is therefore not governed by model standing orders.
11 The AR for workman has though made an earnest endeavour to convince that the enquiry was unfair, improper and lopsided, however, to decide whether an enquiry was unfair and improper the ultimate test is the test of prejudice or the test of fair hearing. In the present case it cannot be said that workman was not granted a fair opportunity to put forth his case. In fact, sufficient notices were sent and served on the workman about the enquiry. He was granted repeated opportunities to participate but he refused to join. The case law viz. Arasu Viraivy Pokkuvarathu Oozhiyar Sangam Rep. By its General Secretary, Chennai Vs. State Express Transport Corporation Ltd, Chennai & Ors. 2306-III-LLJ Page 12 ID NO. 22/2001 245, Punjab National Bank Ltd. Vs. Employees of the Bank and Director (Marketing) Civil Appeal No. 181 of 1952 decided on April 10, 1953 and Indian Oil Corporation Ltd. and Anr. Vs. Santosh Kumar 2006-II-LLJ Page 1043, relied upon by AR for the workman in support of his contentions is distinguishable on facts of the present case and does not render any assistance to the workman to further his cause.
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 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 13 ID NO. 22/2001 When a delinquent does not participate in an enquiry it is not 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 AR for workman has also submitted that the order of termination is bad being violative of section 33(2) (b) of Industrial Disputes Act. He, it seems lost sight of the fact that the application of the workman on the same point was considered by the ld. Predecessor at length and was dismissed vide detailed order dt. 26.04.03.
17 Lastly, it is pleaded 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 arrived at in a domestic enquiry can be held to be perverse only if it is based on no evidence or on irrelevant evidence or is entirely against the evidence on record. 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 14 ID NO. 22/2001 findings there is no perversity. Reliance is placed on Delhi Cloth and General Mills Co. Vs. L.B. Singh 1972 (I) SCC 595 and Parry & Co. Ltd. Vs. P.C. Pal 1970 9ii0 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 the material witnesses who have deposed against the workman and their statements have been considered by the enquiry officer while giving his report. The enquiry report shows that it is based on unrebutted testimony of witnesses of fact and therefore it cannot be 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 and the enquiry is held to be fair and proper.
Announced in the open court (MAMTA TAYAL)
on 11th October, 2007 PRESIDING OFFICER LABOUR COURT-I
KARKARDOOMA COURTS, DELHI
(SIX COPIES ATTACHED)