Delhi District Court
Sudeshwar Prasad S/O Sh. Ramji Lal vs M/S. Sunil Wires Industries Pvt. Ltd on 20 February, 2014
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04
BEFORE SH. ANAND SWAROOP AGGARWAL: POLC - XI :
KARKARDOOMA COURTS : DELHI .
REFERENCE CASE (ID No. 04/04).
UNIQUE CASE ID No. 02402C0010901996.
In the matter of :
Sudeshwar Prasad S/o Sh. Ramji Lal
R/o H. No. 167/09, K Block,
Sangam Vihar, New Delhi 110062.
C/o Engineering Workers Lal Jhanda Union,
47, Amichand Khand, Giri Nagar,
Kalkaji, New Delhi - 110019. ......... Workman.
V/s.
M/s. Sunil Wires Industries Pvt. Ltd.,
X 56, Okhla Industrial Area Phase II,
New Delhi 110020. ..........Management.
Date of Institution : 30.09.1996.
Date of reserving for award : 23.01.2014
Date of award : 20.02.2014
AWARD :
1.TERMS OF REFERENCE:
Vide Order No. F.24 (2010)/96Lab./2635256 dated 21.05.1996 Secretary (Labour), Government of N.C.T. of Delhi, made the following reference for adjudication by the court : "Whether dismissal of Sh. Sudeshwar Prasad from service by the management is illegal and / or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. Workman in the StatementofClaim alleged / pleaded as under :
(i) Workman was working with the management as 'Machine Operator' since 01.10.1988 and his monthly salary was Rs.1806/.
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(ii) Service record of the workman was neat, clean and unblemished.
Management had no complaint(s) regarding the work of the workman.
(iii) Workman was an active member of the union. Management used to take overtime work from the workmen but management was not making payment for the overtime work as per rules (i.e. @ double the salary), on account of which workman raised objection against the management. For this reason, management started to conspire for removing the workman from service.
(iv) Management gave chargesheets dated 27.07.1993 and 28.07.1993 to the workman by labelling false and baseless allegations. During the enquiry principles of natural justice were violated and examples for the same are as under :
(a) Management suspended the workman during enquiry vide letter dated 05.08.1993 and, without giving notice U/S 9 A of the Industrial Disputes Act, 1947, management ordered the workman to mark his attendance daily during the suspension period. Further, management had clarified that if the workman shall not mark his attendance, workman shall not be paid subsistence / suspension allowance for the dates on which workman fails to mark his attendance. This was despite the fact that there is (sic) no provision of marking attendance daily in the service conditions of the workman which were dealt by Model Standing Orders under the Industrial Employment Standing Order. The management had given the aforesaid order because management wanted to put the workman under financial constraints during enquiry by reducing payments towards subsistence / suspension allowance. Sometimes management did not allow the workman to mark his attendance and made deduction from the subsistence allowance. Workman repeatedly requested the Enquiry Officer for Page 2 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 payment of subsistence allowance to the tune of 50% for three months and 75% thereafter as per Model Standing Order, but the Enquiry Officer failed in this regard. Workman could not effectively participate in the enquiry on account of financial constraints and the management failed to fulfill its legal obligation.
(b) Sh. Viresh Kumar Tyagi, who was the Manager, had given chargesheets to the workman and had appointed the Enquiry Officer. Further Sh. Viresh Kumar Tyagi himself presented the case of the management as a management's representative during the enquiry before the Enquiry Officer. Sh. Viresh Kumar Tyagi, who had appointed the Enquiry Officer, used to give orders on behalf of the Enquiry Officer. Further Sh. Viresh Kumar Tyagi kept the Enquiry Officer under his influence and used the services of the Enquiry Officer for his own purposes. In this manner management violated the principle of natural justice that "nobody can be a judge in his own cause.".
(c) Management did not provide copy of the enquiry report before letter dated 06.08.1994 vide which the services of workman were terminated and for this reason workman was deprived of opportunity to give his representation against the enquiry report. The act of supplying the enquiry report alongwith letter terminating the services of the workman is in violation of Model Standing Order.
(d) While preparing the enquiry report the Enquiry Officer did not discuss the evidence recorded during the enquiry. Also the Enquiry Officer did not discuss the charges labelled on 27.07.1993 and 28.07.1993. Also depositions of the witnesses were not discussed in the enquiry report while holding that charges stands proved.
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(e) Management violated the Model Standing Order by terminating the
services of the workman in as much as before punishing the workman with the punishment of dismissal from service, workman was not given opportunity to put his case regarding his past service record.
(v) Workman raised an industrial dispute regarding termination of his services on 06.08.1994 under Section 10 r/w Section 2A of the Industrial Disputes Act, 1947 before the Conciliation Officer but the management did not show any interest to settle the matter and, therefore, present reference has been made by the Delhi Government to this court.
(vi) Workman is unemployed since the date of termination of his services and he has got no source for his livelihood. Despite his best efforts, workman could not get any service.
With these averments in the StatementofClaim, workman prayed that action of the management in terminating his services on 06.08.1994 be declared as illegal and unjustified and, further, workman be reinstated in service with full back wages and continuity of service.
3. WRITTEN STATEMENT OF DEFENCE OF MANAGEMENT:
In its written statement of defence management took the stand that workman was working as a 'Semiskilled' worker since 22.07.1988 and his last drawn wages were Rs.1548/ per month. Further, management alleged that it had no knowledge about the workman being an active member of any union and no overtime work was taken from workman, therefore, the question of workman demanding overtime payment and the management getting annoyed with him for his such demand does not arise. As alleged, it is totally incorrect that management hatched any conspiracy to terminate his services. As per Page 4 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 management the enquiry was conducted in accordance with the principles of natural justice. Further the management took the stand that neither the Industrial Employment (Standing Orders) Act, 1946 nor the Model Standing Orders framed therein were strictly applicable to the establishment since the number of workmen employed in the establishment was much less (i.e. never exceeded 25) than the number required to attract the provisions of the Act. Further, as per management, during suspension of the workman, the relationship of employer and employee did not cease to exist and as such management was within its rights to have required the workman to mark his presence in the factory. Further, as alleged, asking the workman to mark his attendance was not in violation of Section 9A of the Industrial Disputes Act, 1947. Also management took the stand that no real prejudice was caused to the workman in defending the charges in the enquiry by requiring his daily attendance. Due subsistence allowances had been paid to the workman. Also, as alleged, no real prejudice was caused to the workman in defending the charges in the enquiry with the help of his representative on account of payment of any less subsistence allowances. As per management, none of the principles of natural justice were violated by the manager, who issued the chargesheet, by seeking to prove the charges in the enquiry as the management representative and besides final order to dismiss the workman from service was not taken by the Manager, Sh. Viresh Kumar Tyagi, but was taken by his superior Sh. Rishi Kumar, a Director of the company, who had neither acted as prosecutor nor as the judge. The Enquiry Officer was an independent advocate who was not guided in holding the enquiry by Sh. Viresh Kumar Tyagi. Mr. Viresh Kumar Tyagi never acted as a judge. Also, as per management, there was no statutory rule and regulation binding on the management under which Page 5 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 management was legally obliged to first provide a copy of the enquiry report to the workman before imposing the punishment. Also, there was no provision applicable to the management for any appeal against the order of the Director besides no real prejudice was caused to the workman by not providing the enquiry report before his dismissal from service. As per management, Enquiry Officer duly considered the entire evidence after properly appreciating the evidence and he rightly held in his enquiry report that the charges labelled against the workman stood proved. The charges of misconduct proved against the workman were very serious in nature and, as such, even though there was no previous bad record of the workman, the management rightly decided to dismiss the workman from service after considering all the relevant circumstances including his past record and there was no legal requirement of giving opportunity to the workman of showing cause against the punishment or regarding his past record.
Further, management denied the averments made by the workman regarding his being unemployed. As per management in the absence of any details having been given by the workman regarding the efforts, if any, made by him to seek alternative employment, it can be legitimately presumed that workman has been gainfully employed elsewhere and the workman has deliberately suppressed such facts from the court. As alleged, workman has been gainfully selfemployed in selling bread and eggs ever since his dismissal from service on a rehari in Sangam Vihar.
Also, management took the stand that the factory stands permanently closed down w.e.f. 31.01.1997 and for this reason workman cannot be reinstated in service with full back wages. At last management prayed for dismissal of the claim of the workman.
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Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04
4. REJOINDER:
Workman filed rejoinder to the written statement of defence of the management taking a specific stand that the management has not been closed down and it is still running and only the name of establishment has been changed. The stand of the management has been denied by the workman in the rejoinder. As alleged, workman was a skilled 'Machine Operator'.
5. ISSUES:
Vide order dated 09.09.1999 following issues were framed by the ld. predecessor of this court :
(i) Whether the Management has closed down since January, 1997?
(ii) As per terms of reference.
(iii) Relief.
Also, on 08.11.2001 the ld. predecessor of this court framed the following issue :
1. Whether fair and proper enquiry had not been held?
6. EVIDENCE ON ENQUIRY ISSUE & ORDER ON ENQUIRY ISSUE:
In the evidence on the enquiry issue, workman appeared in the witness box as WW1 Sudeshwar Prasad. Management examined MW1 Sh. Raju Gupta. Vide order dated 28.02.2011 ld. predecessor of this court decided the preliminary issue regarding fairness and properness (propriety) of the enquiry against the management and held that the enquiry stood vitiated.
7. EVIDENCE FOR PROOF OF MISCONDUCT BEFORE THE COURT:
Vide order dated 28.02.2011 case was fixed for management's evidence Page 7 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 to prove the misconduct on the part of the workman before the court. Management examined MW2 Sh. Sandeep Chaudhary. Management relied upon following documents : Ex. MW2/1: Copy of Board Resolution dated 10.12.1990 appointing MW2 Sh.
Sandeep Chaudhary as Engineer Production Incharge of the management;
Ex. MW2/2: Copy of Board Resolution dated 02.05.2011 authorizing MW2 Sh. Sandeep Chaudhary to give evidence and depose before this court on behalf of management;
Ex. MW2/3: Photocopy of a letter dated 26.02.1997 intimating Provident Fund Commissioner about closure of factory;
Ex. MW2/4: Copy of a letter dated 26.02.1997 to the Chief Inspector of Factories regarding closure of the factory;
Ex. MW2/5: Copy of the letter dated 01.11.1999 intimating the Chief Inspector of Factories regarding full and final settlement with all employees on rolls at the time of closure;
Ex. MW2/6: Photocopy of a letter dated 26.02.1997 informing the ESI Corporation regarding closure of the factory;
Ex. MW2/7 (Collectively): Photocopy of the letter dated 14.01.1997 to the Superintendent, Central Excise informing him about the closure of the management / stoppage of all manufacturing activities and letter dated 29.01.1997 surrendering the Excise Registration Certificate;
Ex. MW2/8 (Collectively): Copies of six vouchers signed by all the six workmen working with the management at the time of closure accepting payment of their full and final dues / settlement of Page 8 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 their account;
Ex. MW2/9: Photocopy of chargesheet dated 27.07.1993 issued to the claimant;
Ex. MW2/10: Photocopy of the letter addressed to all seven workers who went on illegal and unjustified strike w.e.f. 29.07.1993 after receiving chargesheet dated 27.07.1993 regarding tool down strike; Ex. MW2/11: Photocopy of letter dated 29.07.1993 written by management to Labour Commissioner intimating him about the strike; Ex. MW2/12: Photocopy of undertaking dated 29.07.1993 given by workman for not going on any strike;
Ex. MW2/13: Photocopy of letter dated 05.08.1993 informing the workman about the charges dated 27.07.1993 and 28.07.1993 and suspending the workman &, further, requiring the workman to mark his attendance in the morning and after the lunch; Ex. MW2/14: Photocopy of settlement of management with worker Jeet Singh; Ex. MW2/15: Photocopy of a letter dated 06.08.1994 vide which services of workman were terminated by management.
Workman examined himself as WW1/R1 Sudeshwar Prasad. Workman relied upon following documents: Ex. WW1/R1: Photocopy of letter dated 30.03.1992 sent to the Assistant Labour Commissioner regarding General Checking; Ex. WW1/R2: Photocopy of Demand Notice dated 11.04.1992 sent to the management by the union;
Ex. WW1/R3: Photocopy of postal receipt;
Ex. WW1/R4: Photocopy of acknowledgment card;
Ex. WW1/R5: Photocopy of the claim petition filed before the Conciliation Page 9 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 Officer by the union;
Ex. WW1/R6: Photocopy of letter dated 07.05.1992 sent to the Assistant Labour Commissioner by the union;
Ex. WW1/R7: Photocopy of notice dated 12.05.1992 sent to the management by the Assistant Labour Commissioner/ Conciliation Officer; Ex. WW1/R8: Photocopy of letter / report dated 28.05.1992 written by the labour inspector to the union;
Ex. WW1/R9: Photocopy of letter dated 22.10.1992 written to the Assistant Labour Commissioner by the union;
Ex. WW1/R10: Photocopy of letter dated 03.08.1993 written to the union by the labour inspector;
Ex. WW1/R11:Carbon copy of demand notice dated 03.10.1994 sent to the management by the workman for reinstatement in service; Ex. WW1/R12: Original postal receipt;
Ex.WW1/R13: Carbon copy of letter sent to the Assistant Labour Commissioner by the union;
Ex. WW1/R14: Original letter dated 17.10.1994 sent to the union by the labour inspector;
Ex. WW1/R15: Carbon copy of the claim petition filed by the workman before the Conciliation Officer.
8. ARGUMENTS:
I have heard Sh. Neeraj Chaudhary, AR for the workman and Ms. Deepti Singh Sodhi, Advocate for the management. Written submissions have also been filed by both the parties. Ld. ARW relied upon case law reported as Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. ED) Page 10 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 & ors. MANU/SC/0942/2013. Ld. counsel for the management relied upon the following case laws: (i) Om Prakash Mann Vs. Director of Education (BASIC) & Ors. (2006) 7 SCC 558; (ii) Krishna Chandra Tandon Vs. The Union of India (1974) 4 SCC 374; (iii) J.K. Iron and Steel Company Ltd. Vs. Iron and Steel Mazdoor Union & Ors. (1956) 1 LLJ 227; (iv) R. Thiruvirkolam Vs. Presiding Officer & Anr. (1997) 1 SCC 9; (v) Engineering Laghu Udyog Employees' Union Vs. Judge Labour Court and Industrial Tribunal & Anr. 2004 (100) FLR 843; (vi) Kendriya Vidyalaya Sangathan & Anr. Vs. S.C. Sharma (2005) 2 SCC 363; (vii) L.K. Verma Vs. HMT Ltd. & Anr. (2006) 2 SCC 269; (viii) Biecco Lawrie & Anr. Vs. State of West Bengal & Anr. 2009 (4) LLN 91. (ix) Haryana Financial Corporation And another Vs. Kailash Chandra Ahuja (2008) 9 SCC 31. (x) Usha Breco Mazdoor Sangh Vs. Management of M/s. Usha Breco Ltd. & Anr. 2008 LLR 619.
9. My ISSUEWISE findings are as under : ISSUE NO. 1 "Whether the Management has closed down since January, 1997?"
Management in this case is M/s Sunil Wires Industries Pvt. Ltd. It is not the case here that M/s Sunil Wires Industries Pvt. Ltd. stands wound up. The specific stand of the management is that it has permanently closed down its factory. MW2 Sh. Sandeep Chaudhary in para. no. 3 of his affidavit Ex.MW2/A deposed that management stopped all its manufacturing activities and factory was permanently closed down on 31.01.1997. In this regard management is relying upon documents exhibited as Ex.MW2/3 (Photocopy of a letter dated 26.02.1997 intimating Provident Fund Commissioner about closure of factory); Ex.MW2/4 (Copy of a letter dated 26.02.1997 to the Chief Inspector of Factories regarding closure of the factory); Ex.MW2/5 (Copy of Page 11 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 the letter dated 01.11.1999 intimating the Chief Inspector of Factories regarding full and final settlement with all employees on rolls at the time of closure); Ex. MW2/6 (Photocopy of a letter dated 26.02.1997 informing the ESI Corporation regarding closure of the factory); Ex.MW2/7(collectively) (Photocopy of the letter dated 14.01.1997 to the Superintendent, Central Excise informing him about the closure of the management / stoppage of all manufacturing activities and letter dated 29.01.1997 surrendering the Excise Registration Certificate) and Ex.MW2/8 (collectively) (Copies of six vouchers signed by all the six workmen working with the management at the time of closure accepting payment of their full and final dues / settlement of their account). Stand of the workman is that management has never been closed down but only the name of the management has been changed. With regard to issue of closure MW2 Sh. Sandeep Chaudhary deposed as under in his cross examination: "...It is correct that the Management has not taken the plea of closure of its establishment in the written statement filed by the Management. There is no orders of the Hon'ble High Court of Delhi with respect to the closure of Management establishment.
It is wrong to suggest that the documents filed by me regarding closure of the Management establishment i.e. documents Ex.MW2/1 to Ex. MW2/7 all are false and fabricated documents. I am presently working with M/s. N.C. Cables Limited situated at K51, Connaught Place, New Delhi - 110 001. The factory of this establishment is situated at 3A, Sector 31, Greater Noida, U.P. It is wrong to suggest that an industry under the name and style of M/s. National Cables is being run at the address at X56, Okhla Industrial Area, PhaseII, New Delhi. Again said Unit - II of M/s. N.C. Cables Limited is also running at X56, Okhla Industrial Area, PhaseII, New Delhi. It is wrong to suggest that the Management establishment has never been closed and only its name has been changed.
It is correct that a few Directors are common in the Managements M/s. N.C. Cables Limited and M/s. Sunil Wires Industries Private Limited. Vol. These two are separate entities. M/s. N.C. Cables Limited is a limited establishment and M/s. Sunil Wires Industries Page 12 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 Private Limited is a private limited company.
It is correct that the Management as well as M/s. N.C. Cables Limited use to manufacture wires. Vol. The Management in the present case used to manufacture telephone wires for Department of Telephone and M/s. N.C. Cables Limited is manufacturing industrial wires and cables for industrial departments. It is correct that the machinery of the Management is being used by the M/s. N.C. Cables Limited. Vol. Some new machinery has also been added...."
Management in its WS in Preliminary Objections no.1 has specifically pleaded about closure of the factory of management. Except giving bald suggestions to MW2 Sh. Sandeep Chaudhary no positive evidence has been led by workman that management is still running its factory and carrying out manufacturing unit / activities. As per workman, management has only changed its name. But above depositions of MW2 Sh. Sandeep Chaudhary suggest that M/s Sunil Wires Industries Pvt. Ltd. and M/s N. C. Cables Limited are two separate entities. M/s N. C. Cables Limited is a limited establishment and M/s Sunil Wires Industries Pvt. Ltd. is a private limited company. There is also change in the nature of business / manufacturing activity (i.e. M/s Sunil Wires Industries Pvt. Ltd. used to manufacture telephone wires for Department of Telephones and M/s N. C. Cables Limited is manufacturing industrial wires and cables for industrial departments). The mere facts that (i) few directors are common in both the companies; (ii) M/s N. C. Cables Limited is, interalia, using the premises (i.e. X56, Okhla Industrial Area, PhaseII, New Delhi) of M/s Sunil Wires Industries Pvt. Ltd. and that (iii) machinery of M/s Sunil Wires Industries Pvt. Ltd. is being used by M/s N. C. Cables Limited besides purchasing new machinery do not and cannot mean that both the companies (i.e. M/s Sunil Wires Industries Pvt. Ltd. and M/s N. C. Cables Limited) are one and the same. Undoubtedly, each company is a separate legal entity in law Page 13 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 and, thus, M/s Sunil Wires Industries Pvt. Ltd. and M/s N. C. Cables Limited are also two separate legal entities. Here no case for lifting the corporate veil is made out in as much as it is not the case of even the workman that corporate personality of the company is / was being used to commit frauds or improper or illegal acts. There is no crossexamination of MW2 Sh. Sandeep Chaudhary on these lines (i.e. factory is being closed to commit frauds or improper illegal acts). The documents exhibited as Ex.MW2/3 to Ex.MW2/8 are sufficient to make anyone to conclude that management M/s Sunil Wires Industries Pvt. Ltd. has closed all its manufacturing activities.
Here provisions of section 25 F F A of the Industrial Disputes Act, 1947 do not apply. Workman nowhere pleaded in the statementofclaim that management employed more than 50 employees. Management in its WS specifically pleaded that it never employed more than 25 workmen. Workman also did not specifically plead that management employed one hundred or more workmen at any point of time. Without pleading / satisfying the requirements for the applicability of the Industrial Employment (Standing Orders) Act, 1946 workman directly pleaded that service conditions of workman were governed by Model Standing Order. In reply, management specifically pleaded that Model Standing Orders were not strictly applicable to the management since number of workmen employed was much less (never exceeded 25) than the number required to attract the provisions of the Industrial Employment (Standing Orders) Act, 1946. Workman even himself did not depose that management employed one hundred or more workmen at any point of time. No other evidence has also been brought by workman that management at any point of time employed one hundred or more workmen at any point of time. In this background, stand of the management that the provisions of the Model Page 14 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 Standing Order were not strictly applicable to the management can be said to be true and correct. Merely because MW1 Raju Gupta in his cross examination at the time of evidence on enquiry issue deposed that, "....... factory me model standing order bhee lagu tha....." does not mean that management employed requisite number of employees as is required to attract, strictly, the provisions of the Industrial Employment (Standing Orders) Act, 1946. To prove that management employed fifty or one hundred or more than one hundred workmen at any point of time, workman has to so plead specifically and prove by leading cogent and convincing evidence and no such inference can be drawn from the mere fact that management had adopted the Model Standing Order. There is no suggestion to MW2 Sh. Sandeep Chaudhary that management at any point of time employed fifty, one hundred or more than one hundred workmen at any point of time. Thus, provisions of section 25 F F A of the Industrial Disputes Act, 1947 read with Rule 76 B of the Industrial Disputes (Central) Rules, 1957 have no application in this case. Here workman has been dismissed from service by way of punishment inflicted by way of disciplinary action and, hence, management was not supposed to follow the provisions of Rule 76 of the Industrial Disputes (Central) Rules, 1957. Whether or not dismissal is found to be proper / justified by the Court is a different aspect. Obviously, for closure of its factory, management need not to have winding up orders under the provisions of the Companies Act, 1956. Management as a company namely M/s Sunil Wires Industries Pvt. Ltd. is admittedly still existing and it has only / simply closed its factory / manufacturing activities. Once this Court finds that management has closed its factory / manufacturing activities, this Court is not concerned to go into the question as to the motive which guided the management company to close down its factory / Page 15 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 manufacturing activities. Also, section 9A of the Industrial Disputes Act, 1947 has no application in the facts and circumstances of this case. Here is a case of closure of factory / stopping of manufacturing activities and in such an eventuality neither the provisions of section 9A read with Fourth Schedule nor 25 F of the Industrial Disputes Act, 1947 are applicable. Provisions of section 25 F of the Industrial Disputes Act, 1947 have no application to a closed or dead industry. (Hariprasad Vs A. D. Divelker AIR 1957 SC 129 relied.) In any case, workman herein was not an employee of management as on 31.01.1997 when management closed its factory / manufacturing activities as workman herein stood already dismissed from his services on 06.08.1994. Workman herein cannot be said to be a workman likely to be affected by the change, even if it is so, contemplated under the provisions of section 9A read with Fourth Schedule of the Industrial Disputes Act, 1947. As per Ex.MW2/8 (colly.) all the workmen of management employed at the time of closure of factory settled their accounts. As the facts, suggest they raised no dispute / issue as to compliance / noncompliance with the provisions of section 9A read with Fourth Schedule of the Industrial Disputes Act, 1947. In any case, in these proceedings initiated on a reference regarding termination of services of workman, this Court is not concerned with the compliance of provisions of section 9A read with Fourth Schedule of the Industrial Disputes Act, 1947 qua the workmen employed by the management at the time of its closure on 31.01.1997.
In my considered opinion, section 9A read with Fourth Schedule of the Industrial Disputes Act, 1947 has no application in this case and its compliance / non - compliance has no bearing on the fate of this case. It is not the case here that management (i.e. Sunil Wires Industries Pvt. Ltd.) still Page 16 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 continued with the manufacturing activities even after 31.01.1997 with rationalisation, standardisation or improvement of plant or technique which is likely to lead to retrenchment of workman. As the facts suggest management settled accounts with its existing workmen vide Ex.MW2/8 and, in such circumstances, it cannot be said that workmen were retrenched. In any case, now manufacturing activity is being carried out by M/s N. C. Cables Limited which is a separate and distinct legal entity different from M/s Sunil Wires Industries Pvt. Ltd. Thus, this issue is decided in favour of management and it is held that management M/s Sunil Wires Industries Pvt. Ltd. closed its factory / manufacturing activities on 31.01.1997 without violating legal provisions.
ISSUE No. 2 : As per terms of reference.
("Whether dismissal of Sh. Sudeshwar Prasad from service by the management is illegal and / or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?") As regards alleged misconduct on the part of workman, MW2 Sh. Sandeep Chaudhary in his evidence affidavit deposed as under: "5. That on 24.07.1993, the claimant along with six other co workers, resorted to tool down strike at 9 am without any justification or legal demand and created trouble in the work of other workers. The immediate provocation for the strike, which was observed by seven workers, appeared to be the suspension of one coworker Sh. Jeet Singh, on allegations of serious misconduct, which suspension was legal and justified.
6. That on 27.07.1993 at around 10.00 am, charge sheet was being served upon Sh. Jeet Singh, who was suspended and was present at the gate for marking his attendance. Jeet Singh was being accompanied inside the factory by Mr. Viresh Tyagi, who advised Sh. Jeet Singh to admit his mistake and put an end to the matter. Upon hearing this Page 17 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 communication between Mr. Viresh Tyagi and Sh. Jeet Singh, the present claimant along with one Sh. Chottey Lal left their place of work and came to the place where this discussion was taking place and the chargesheet was to be served and started loudly abusing the management.
7. That accordingly, Chargesheets for misbehaviour were prepared against these two workmen also alongwith the earlier chargesheet to Sh. Jeet Singh, who received it. The claimant and Sh. Chottey Lal said that they would not receive any chargesheet and challenged the management to do whatever it could do. I had seen and heard this incident happening from my place of working on the ground floor of the factory. Sh. Tyagi was asked to serve the chargesheet upon the claimant and Chottey Lal but service could not be affected as both of them refused to receive the chargesheet.
8. That following the strike which commenced on 24.07.1993, Charge sheets were also issued on 27.7.1993 to all seven striking workers. A copy of the chargesheet dated 27.7.1993, issued to the claimant may be read as Ex.MW2/9.
9. That after receiving the chargesheet dated 27.7.1993, regarding tool down strike, the seven workers went on illegal and unjustified strike w.e.f. 29.7.1994. A copy of the letter addressed to all seven workers may be read as Ex.MW2/10. The Labour Office was informed about this strike vide the management's letter dated 29.07.1993. A copy of the letter dated 29.7.1993 may be read as Ex.MW2/11.
10. That upon the intervention of the Labour Officer who visited the factory, the striking workers, including the present claimant, had given undertakings of not going on any strike. The claimant gave his signed undertaking on 29.7.1993 Copy of the undertaking may be read as Ex.MW2/12. The management, vide its Regd. A. D. letter dated 5.8.1993 again informed the claimant about the charges dated 27.7.1993 and 28.07.1993, which the claimant had refused to accept and he was suspended from service. A copy of the letter dated 5.8.1993 may be read as Ex.MW2/13.
11. That enquiry was initiated against the charge sheeted Page 18 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 workers including the claimant and Chottey Lal with respect to the charges dated 27.07.1993 and 28.07.1993. During the course of enquiry, the other worker, i.e. Chottey Lal settled the matter with the management by accepting his mistake. Even Jeet Singh settled his dispute with the management and a copy of his settlement may be read as Ex.MW2/14. The claimant did not admit the charges. After completion of enquiry proceedings, the enquiry officer had held the claimant guilty of the charges and accordingly the services of the claimant were terminated on 06.08.1994. A copy of the letter dated 06.08.1994 may be read as Ex.MW2/15."
In civil cases the standard of proof is satisfied on a balance of probabilities. However, even within this formula variations in subject matter or in allegations will affect the standard required; the more serious the allegation, for example fraud, crime or professional misconduct, the higher will be the required degree of proof, although it will not reach the criminal standard.
Hon'ble Supreme Court of India in case law reported as Maharashtra State Board of Secondary and Higher Secondary Education Vs K. S. Gandhi & Ors. (1991) 2 SCC 716 observed / ruled as under:
"37. It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inference in proof of the facts in issue. There can be no inferences unless there Page 19 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. In some cases the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made the method of inferences fails and what is left is mere speculation or conjecture. Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which such an inference could be drawn. The standard of proof is not proof beyond reasonable doubt "but" the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a straitjacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries."
In this case domestic enquiry conducted by the management for enquiring into the alleged misconduct of the workman has already been held to have been vitiated vide order dated 28.02.2011. It is noted that enquiry conducted by the management has been held to have been vitiated on technical ground (i.e. the person who had appointed the enquiry officer also appeared before the enquiry officer as management's representative and, thus, there was violation of principles of natural justice that nobody can be an arbiter in his own case) and it is not the case that record of the enquiry proceedings otherwise did not properly reflect the actual proceedings conducted by the enquiry officer.
Management is supposed to prove alleged misconduct on the part of workman on the yardstick of preponderance of probabilities. Management is supposed to maintain consistency in all material aspects as regards its stand / version during the enquiry proceedings conducted by it as well as before this Page 20 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 Court while proving the misconduct on the part of the workman. Minor deviations, however, may not have any effect. Thus, the record of the enquiry proceedings is also relevant while deciding as to whether management has been able to prove alleged misconduct on the part of the workman by leading evidence before the Court after the enquiry issue stands decided against the management. At this juncture, it would be appropriate to refer to a case law reported as Idukki District Estate Workers' Union Vs Labour Court and Anr. MANU/KE/0174/1988 wherein it has been observed as under: "3. ......Section 11A of the Industrial Disputes Act provides that the Labour Court shall rely only on the material on record. What is 'material on record' came up for consideration in workmen of Firestone Tyre and Rubber Co. of India P. Ltd. v. Firstone Tyre and Rubber Co. of India P. Ltd. MANU/SC/0305/1973. In the said decision (paragraph 46), the Court observed that 'material on record' takes in (at page 298):
(i) the evidence taken by the management at the enquiry and proceedings of the enquiry; or
(ii) the above evidence and, in addition, any further evidence led before the Tribunal; or
(iii) evidence placed before the Tribunal for the first time in support of the action taken by an employer as well as the evidence adduced by the workmen contra.
4. Category (i) refers to evidence taken by the management at the enquiry. This is clear indication that evidence at the domestic enquiry is "material on record". The fact that the domestic enquiry was found to be vitiated will not have the effect of obliterating whatever was done in the course of the enquiry. The language of Section 11A, as interpreted b y the Supreme Court, leaves no room for doubt that evidence already recorded at the domestic enquiry is material on record that could be and should be considered. There are no rules of evidence or procedure governing this area. In the absence of rules, there is no warrant to think that such evidence should be excluded from consideration......."
As per enquiry report charges were labelled against the workman and one Mr. Chotey Lal vide chargesheet dated 27.07.1993 and 28.07.1993. The Page 21 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 perusal of the enquiry proceedings goes to show that contents of both these chargesheets of different dates are absolutely the same. Infact, both the chargesheets dated 27.07.1993 and 28.07.1993 are photocopies of same paper containing absolutely the same contents and the only difference is that of the date and in manner of mentioning the address of workman as the addressee. The letter dated 05.08.1993 exhibited as Ex.MW2/13, dated 05.08.1993, in the course of evidence to prove the misconduct of the workman before the Court is not, as such, found to be part of the enquiry proceedings. The chargesheets dated 27.07.1993 and 28.07.1993 do not mention the incident mentioned in para. 1 of letter Ex.MW2/13. Order of termination of services of workman Ex.MW2/15 also does not mention the letter Ex.MW2/13 and it only mentions about chargesheets dated 27.07.1993 and 28.07.1993 which do not contains contents as alleged in para. 1 of Ex.MW2/13. The Enquiry Report also does not mention letter dated 05.08.1993, Ex. MW2/13. It does not mention that the charges vide first paragraph of letter Ex.MW2/13 (dated 05.08.1993) were also enquired into. As per report chargesheets were dated 27.07.1993 and 28.07.1993 only. It is pertinent to note that chargesheet dated 27.07.1993 mentions the residential address of the workman whereas chargesheet dated 28.07.1993 mentions the official address (i.e. address of the management itself) of the workman.
As per letter Ex.MW2/13 the alleged incident of workman Sudeshwar Prasad and Chotey Lal leaving their place of work and coming to the place where Mr Jeet Singh and Mr. Viresh Kumar Tyagi were present and using / uttering abuses ('burabhala') towards the management had taken place in the premises of the management. As per letter Ex.MW2/13 after the abovesaid incident chargesheet(s) was / were prepared against all the three persons Page 22 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 namely Jeet Singh, workman Sudeshwar Prasad and Chotey Lal. Mr. Jeet Singh, as mentioned in letter Ex.MW2/13, received the chargesheet but Chotey Lal and workman Sudeshwar Prasad refused to receive the chargesheet and stated that 'jo karna hai kar lo'. What is pertinent to note is that the chargesheets as were allegedly prepared after the abovesaid incident and were sought to be served upon the workman and Chotey Lal have not at all being brought on record by the management. None of the chargesheet dated 27.07.1993 and 28.07.1993 which formed part of the enquiry proceedings mentioned about the above referred alleged incident of workman Sudeshwar Prasad and Chotey Lal leaving their place of work and coming to the place where Mr. Jeet Singh and Mr. Viresh Kumar Tyagi were present and using / uttering abuses ('burabhala') towards the management. Even as per the version of the management workman was available at the management's place on 27.07.1993 and in normal course of human behaviour the chargesheet dated 27.07.1993 should have been addressed to workman by mentioning his official address rather than his residential address. The need for dispatching the same chargesheet dated 27.07.1993 would have arisen subsequently and in such circumstances the chargesheet dated 28.07.1993 might have been required to be dispatched to the workman at his residential address but surprisingly the chargesheet dated 28.07.1993 mentions the official address of the workman (i.e. address of the management itself). The fact that in the chargesheet dated 28.07.1993 there is no mention of above referred incident happening at about 10.00 AM, as deposed by MW2 Mr. Sandeep Chaudhary, as is referred to in para. no. 1 of the letter Ex.MW2/13, casts a serious doubt about the truthfulness of the averments of the management as regards the incident referred to in first para. of letter Ex.MW2/13. Infact, no chargesheet dated Page 23 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 28.07.1993 has been proved during evidence led to prove charges before the Court.
The chargesheets dated 27.07.1993 and 28.07.1993 mentions that workman resorted to tooldown strike w.e.f. 24.07.1993. MW2 Mr. Sandeep Chaudhary in his cross examination deposed that, "...... The tool down strike commenced on 24.07.1993 and continued till the time they were suspended on 07.08.1993....". In his further cross examination MW2 Mr. Sandeep Chaudhary also deposed that, "...... The claimant / workman used to work on the Laying / armoured machine.... I do not remember whether claiman / workman was operating the aforementioned machines or not on 27.07.1993...". The version of the management that workman had resorted to tooldown strike w.e.f. 24.07.1993 till 07.08.1993 looses much of its substance/truthfulness, if any, in view of depositions made by MW2 Mr. Sandeep Chaudhary that he do not remember whether claimant/workman was operating the machines on 27.07.1993 or not. If as a matter of fact workman had resorted to tooldown strike w.e.f. 24.07.1993 which continued till 07.08.1993, in such an eventuality, MW2 Mr. Sandeep Chaudhary must have specifically deposed that workman was not operating the machine on 27.07.1993. Also, during enquiry before the Enquiry Officer Mr. Viresh Kumar Tyagi deposed as under: "Q. 27.07.1993 ko Sudeshwar kahan kaam kar raha tha?
A. Ground Floor par.
Q. 27.07.1993 ko Chotey Lal kahan kaam kar raha tha?
A. Ground Floor par."
Notably Mr. Viresh Kumar Tyagi did not depose that on 27.07.1993 both Mr. Chotey Lal and Mr. Sudeshwar were on tool down strike and were not doing their work.
In my considered opinion, this Court while adjudicating the reference in question can very well decide the issue as to whether workman resorted to tool Page 24 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 down strike or not as a part of 'misconduct' on the part of workman and decision on such an issue does not involve the issue of legality / illegality of the strike as contemplated item no. 5 of the SECOND SCHEDULE to the Industrial Disputes Act, 1947. Here workman is nowhere admitting that he resorted to strike. The question of reference in terms of item no. 5 of the SECOND SCHEDULE to the Industrial Disputes Act, 1947 would arise where admittedly there is a strike / lockout and its legality / illegality, as such, is to be decided and not otherwise.
So far as proof of alleged misconduct on the part of workman Sudeshwar Prasad in terms of contents of para. 1 of letter dated 05.08.1993 Ex.MW2/13 (to the effect that workman Sudeshwar Prasad and Chotey Lal left their place of work and came to the place where Mr. Jeet Singh and Mr. Viresh Kumar Tyagi were present and used / uttered abuses ('burabhala') towards the management) is concerned, it is pertinent to note that Mr. Viresh Kumar Tyagi with whom said incident had taken place has not been examined by the management before this Court to prove the said alleged misconduct against the workman. MW2 Mr. Sandeep Chaudhary in his cross examination deposed that, "..........The management keeps residential addresses of all its employees........". Even then no effort whatsoever were made by the management to examine Mr. Viresh Kumar Tyagi in the Court to prove misconduct on the part of the workman. It is not the case here that as a matter of fact Mr. Viresh Kumar Tyagi is no more alive in as much as MW2 Mr. Sandeep Chaudhary has also deposed that, "........ Sh. Viresh Kumar Tyagi may be alive. Vol. I am not in his touch....". In my considered opinion the management must have atleast attempted to get Mr. Viresh Kumar Tyagi served with the summons from this Court at his last known address available with the Page 25 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 management so that Mr. Viresh Kumar Tyagi could have appeared as a witness and deposed to prove the contents of Ex.MW2/13. The affidavit of MW2 Mr. Sandeep Chaudhary is absolutely silent as regards the attempts, if any, made by the management to get in touch with Mr. Viresh Kumar Tyagi so that Mr. Viresh Kumar Tyagi could have appeared as a witness before the Court to prove alleged misconduct on the part of the workman.
Also, it is pertinent to note that letter Ex.MW2/13 was prepared by Mr. Viresh Kumar Tyagi as 'Prabandhak'. The said letter mentions that workman and Chotey Lal used / uttered abuses ('burabhala') towards 'Prabandhak'. In his evidence before the enquiry officer Mr. Viresh Kumar Tyagi deposed that Chotey Lal and workman Sudeshwar Prasad started to speak loudly while favouring the Jeet Singh and starting abusing ('gandi gandi galiyan') towards the management and Mr. Viresh Kumar Tyagi. The contents of first para. of Ex.MW2/13 and above referred depositions of Mr. Viresh Kumar Tyagi himself while appearing as a witness before the enquiry officer cannot be said to be consistent with each other in as much as in the first para. of Ex.MW2/13 it is not specifically mentioned that Chotey Lal and Sudheshwar Prasaed used / uttered abusive language both against the management as well as Mr. Viresh Kumar Tyagi who was working as manager with the management. If incident would have happened in the manner as deposed by Mr. Viresh Kumar Tyagi before the enquiry officer, the contents of letter Ex.MW2/13 must have been consistent with above referred depositions of Mr. Viresh Kumar Tyagi.
Further, it is noted that as per depositions of MW2 Mr. Sandeep Chaudhary which have been reproduced hereinabove at the time of alleged misconduct on 27.07.1993 at around 10.00 AM chargesheet was being served upon Jeet Singh who was suspended and was present at the gate for marking of Page 26 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 his attendance. The Jeet Singh was being accompanied inside the factory by Mr. Viresh Kumar Tyagi at the time alleged misconduct was committed by Chotey Lal and workman Sudeshwar Prasad. These depositions suggests that chargesheet dated 27.07.1993 was being served upon the Jeet Singh at the gate / nearby the gate of the factory while he was being accompanied inside the factory with Mr. Viresh Kumar Tyagi. However, in the course of his evidence before the enquiry officer Mr. Viresh Kumar Tyagi deposed as under:
"....... Q. Jeet Singh ko dinank 27.07.1993 ko kis jagah patra diya ja raha tha? A. Lab mein ground floor par.....".
MW2 Mr. Sandeep Chaudhary, on the other hand deposed that, "..... workers alongwith claimant misbehaved with Sh. Viresh Tyagi in my presence in the corridor on the ground floor of the Management's premises.............". Also during evidence before the Enquiry Officer Mr. Viresh Kumar Tyagi deposed as under: ".......... Hum ne 27.07.1993 ko Jeet Singh ko ek aarop patra diya tha or us ne lene se mana kar diya. Us waqt Chotte Lal or Sudeshwar apna kam chhod kar wahan aa gaye or Jeet Singh ka paksh le kar jor jor se bolne lagey. Tatha prabandhko or mujhe gandi gandi galiyan di.................".
These depositions are not on the same lines as deposed by MW2 Mr. Sandeep Chaudhary in para. 6 & 7 of his evidence affidavit Ex.MW2/A. In the above referred depositions of Mr. Viresh Kumar Tyagi there is no reference to the place of the alleged incident which as per evidence of MW2 Mr. Sandeep Chaudhary occurred at / nearby gate of factory. As per evidence of Mr. Viresh Kumar Tyagi, Mr. Jeet Singh refused to take the chargesheet dated 27.07.1993 but as per para. 7 of affidavit of Mr. Sandeep Chaudhary Mr. Jeet Singh received the chargesheet. It is pertinent to note even at the cost of repetition Page 27 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 that Mr. Viresh Kumar Tyagi before the Enquiry Officer deposed that on 27.07.1993 chargesheet was being given to Mr. Jeet Singh in the lab. on the ground floor. In the above referred depositions of Mr. Viresh Kumar Tyagi before the Enquiry Officer there is no mention that Mr. Viresh Kumar Tyagi advised Mr. Jeet Singh to admit his mistake and put an end to matter and upon hearing this communication between Mr. Viresh Kumar Tyagi and Sh. Jeet Singh, Mr. Chotey Lal and Mr. Sudeshwar came to the said place. Mr. Viresh Kumar Tyagi in his examinationinchief before the enquiry officer deposed that Mr. Jeet Singh refused to take the chargesheet dated 27.07.1993 but in his cross examination he deposed that Mr. Jeet Singh received the chargesheet.
Also, it is pertinent to note that inconsistent with the deposition of MW2 Mr. Sandeep Chaudhary vide his affidavit Ex.M W2/A it has been suggested to Mr. Jeet Singh who appeared as a witness for workman during enquiry proceedings as under: "..... yeh hum ko nahin malum ki jab mujhe gate par patra dinak 27.07.1993 diya ja raha tha to lab. main Sudheshwar or Chotte Lal ne manager ko gandi gandi galiyan dene lage......".
It is further pertinent to note that name of MW2 Mr. Sandeep Chaudhary was not mentioned in the list of witnesses filed by management before the enquiry officer. It is alright that management was not required to examine all the witnesses of the incident in question but names of all such witnesses, at least, deserved to be mentioned in the list of witnesses submitted before the enquiry officer. Very surprisingly MW2 Mr. Sandeep Chaudhary has filed a detailed affidavit Ex.MW2/A giving minute details of the alleged misconduct on the part of workman but, at the same time, MW2 Mr. Sandeep Chaudhary deposed that, "............. I do not remember whether I had deposed Page 28 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 in evidence during the enquiry proceedings conducted against the workman.....". The enquiry proceedings conducted against the workman are subject matter of proceedings before this Court wherein MW2 Mr. Sandeep Chaudhary has filed his detailed affidavit mentioning all the minute details of this case. In such circumstances, MW2 Mr. Sandeep Chaudhary must have specifically deposed as to whether he appeared or not appeared as a witness in the course of enquiry proceeding before the Enquiry Officer. But MW2 Mr. Sandeep Chaudhary did not so depose. This to some extent casts doubts on the knowledge of MW2 Mr. Sandeep Chaudhary about the contents of his evidence affidavit Ex.MW2/A. Also MW2 Mr. Sandeep Chaudhary in his cross examination deposed that, "............... I do not remember if the services of claimant were terminated on 06.08.1994 due to the aforementioned union activity...............". To be knowledgeful about the entire contents of his affidavit Ex.MW2/A, he must have specifically deposed that services of workman were terminated on account of proof of misconduct against him and not on account of union activity.
In view of above detailed discussion, in my considered opinion, management can be said to have failed to prove the charges vide chargesheets dated 27.07.1993 or 28.07.1993 or letter dated 05.08.1993 Ex. MW2/13 against the workman even on the basis of principle of preponderance of probabilities. Even this principle requires that there has to be some positive / specific / cogent evidence from which inference as to misconduct on the part of the workman can be drawn. When there are vital variances in the depositions of MWs (i.e. Mr. Viresh Kumar Tyagi appearing before Enquiry Officer and Mr. Sandeep Chaudhary appearing as witness to prove misconduct before the Court) such positive / specific / cogent evidence cannot be said to be existing. Even in the Page 29 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 application of principle of preponderance of probabilities conjectures / speculations / surmises have no place / role to play. Misconduct on the part of workman is to be proved by cogent / convincing evidence. When management has failed to prove charges against the workman, termination of services of workman by the management is bound to be declared as illegal and unjustified. ORDERED ACCORDINGLY.
ISSUE No. 3: Relief NOW QUESTION ARISES AS TO WHAT RELIEF DESERVES TO BE GRANTED TO THE WORKMAN IN VIEW OF ABOVE FINDING AS TO THE ILLEGAL / UNJUSTIFIED TERMINATION OF HIS SERVICES BY THE MANAGEMENT.
While dealing with issue no.1, this Court has observed that management has closed its factory / manufacturing activities w.e.f. 31.01.1997. Thus, question of reinstatement of workman does not at all arises. Workman while appearing as WW1/R1 Mr. Sudeshwar Prasad deposed that, " ......It is wrong to suggest that I am gainfully employed. Since my dismissal I have not been able to find any alternate employment. My family comprises of mywife, three daughters and one son. My wife and daughters live in my village in Distt Aara, Bihar. I stay in Delhi with my son. I have my own house in village. I do not have agricultural land. I have two cows and buffalows. My son runs a television shop and he bears the expenditure of my family including me. The shop was established in 1995 - 1996 since then my son is bearing the expenditure of myself and my family from the income he draws from the shop. Prior to 19951996 I used to run the family expenses through my wages since I was terminated on 16.08.1994. The age of my son is around 28 years today. It is Page 30 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 wrong to suggest that I am working at the TV shop which is stated to be run by my son. The shop is at sangam vihar gali no.8.....".
Workman deposed that age of his son as on the date of recording of his evidence (i.e. on 20.09.2012) was around 28 years. Thus, age of his son in the year 1995 - 1996 when the shop was established comes out to be 11 - 12 years. It is highly improbable that any child of the age of 11 - 12 years can run a television shop. The preponderance of probabilities in the facts and circumstances of this case suggest that shop might have been opened by workman after termination of his services by the management. Thus, it is not the case here that workman remained unemployed after termination of his services. Even after termination of his services by the management, workman was, admittedly, able to meet out his expenses and that of his family from the abovesaid shop. At this juncture, it would be appropriate to refer to observations made by Hon'ble Supreme Court of India in case law reported as Novartis India Ltd. Vs. State of West Bengal and Ors. JT 2008(13) SC12 in the following terms: "30. Even if some income was derived by the employee, the same should be taken into for consideration for the purpose of consideration in regard to grant of entire back wages. Our attention has been drawn to a decision of the Bombay High Court in Navin J. Surti V. Modi Rubber Ltd. and Anr. 2004 II CLR 46 wherein it was observed:
Eventually, there would be a burden case upon the employee to disclose the efforts made by him to secure another job during the time he was out of employment on account of termination of the service, in order to justify the claim for the back wages in its entirety. Indeed, the Division Bench in Sadanand Patankar's case (supra) has clearly ruled that "Since the facts about the employment or nonemployment and/or the efforts made or not made Page 31 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 to secure an alternative employment during the period of enforced idleness are within the special knowledge of the employee, it is only fair and proper that he should first state whether, he was employed or not and during what period, the amount of income earned by him if any, the nature of efforts made by him for securing alternate employment or the circumstances which prevented him from making such efforts." It has also been clearly held that once such burden is discharged by the employee, it would be for the employer to prove facts to the contrary. Similarly is the decision of the learned Single Judge, as he then was (Sri Justice B. N. Srikrishna), in Indiana Engineering Works (Bombay) Pvt. Ltd. v. The Presiding Officer 5th Labour Court and Ors. 1995 (II) C.L. R. 890 where it has been clearly held that "I am of the considered view that the dismissed workman also owes a duty to the industrial adjudicator to honestly disclose full particulars of the facts which are purely within his knowledge and that any attempt to mislead the Tribunal must surely be looked at askance, It was furthermore observed:
Apart from the obligation on the part of the employer to establish gainful employment of the employee during such period, it would also be necessary for the employee to disclose the efforts made by him to get. some other job or employment during such period as well as about the source of income during the said period and it so, to what extent. Mere silence on the part of the employee in that regard cannot, in any manner, enure to the benefit of the employee to justify the claim for back wages in entirety. It cannot be forgotten that the order for payment of back wages has to be from the point of view of compensating the employee for the loss suffered during the time he was out of the employment and not a reward for having succeeded in establishing the action of termination of the service by the employer to be illegal." It is also to be kept in mind workman is entitled, to such back wages Page 32 to 33 (ANAND SWAROOP AGGARWAL) POLC - XI : KKD. : DELHI.
Sudeshwar Prasad Vs. M/s. Sunil Wires Industries Pvt. Ltd. ID No. 04/04 only upto 31.01.1997 since the date of illegal termination of his services w.e.f. 06.08.1994 and on 31.01.1997 workman was entitled to receive compensation under section 25 F F F of the Industrial Disputes Act, 1947 on account of closure of factory of management. When so understood / guided, in my opinion, in the totality of facts and circumstances of case, grant of lump sum compensation to the tune of Rs.3,50,000/ (Rupees Three Lacs and Fifty Thousand only) to the workman from the management for illegal / unjustified termination of his services would meet the ends of justice. If this amount of Rs.3,50,000/ (Rupees Three Lacs and Fifty Thousand only) is not paid to workman within one month of publication of this award, management shall be liable to pay interest @ 9% per annum on this amount from the date of the award till its payment. A sum of Rs. 25,000/ (Rupees Twenty Five Thousand only) is also awarded to workman as costs of litigation payable by the management.
10. Reference is answered accordingly.
11. A copy of the award be sent to the concerned Office of the Deputy Labour Commissioner for further necessary action.
12. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 20.02.2014
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi
Page 33 to 33 (ANAND SWAROOP AGGARWAL)
POLC - XI : KKD. : DELHI.