Delhi District Court
An Industrial Dispute Between The ... vs State Of Tamil Nadu And Ors.: 2004 Llr 351 ... on 30 April, 2009
ID No. 236/2008/1981
1
IN THE COURT OF SH. S.K. KAUSHIK,
ADDITIONAL DISTRICT & SESSIONS JUDGE,
PRESIDING OFFICER, LABOUR COURT NO. XII,
KARKARDOOMA COURTS, DELHI.
ID No. 236/2008/1981
INDUSTRIAL DISPUTE BETWEEN
Sh. Pradeshi & others.
C/o Rajdhani General Mazdoor Union,
1910, Chowk Sui Walan Darya Ganj,
New Delhi.
.........Workmen
AND
M/s Chopra Electricals Sales Corporation,
B - 65 Naraina Industrial Area, Phase II,
New Delhi.
.........Management
Date of institution : 12.05.1981
Date of argument : 18.04.2009
Date of award : 30.04.2009
AWARD
1. An Industrial Dispute between the management of M/s Chopra
Electricals Sales Corporation, B - 65 Naraina Industrial Area, Phase
II, New Delhi and it's workmen Sh. Pradeshi & others C/o Rajdhani
ID No. 236/2008/1981
2
General Mazdoor Union, 1910 Chowk Sui Walan Darya Ganj, New
Delhi was referred by Secretary (Labour), Government of National
Capital Territory of Delhi for adjudication in exercise of powers
conferred by Section 10 (1) (c) and 12 (5) of the Industrial Dispute Act
1947 (in short Act) vide his Order No. F.24 (426)/ 1981 - Lab./20719
dated 30.04.1981 with the following terms of reference:
"Whether the termination non - employment of the
workmen, as given in Annexure 'A' is illegal and / or
unjustified, and if so, to what relief are they entitled
and what directions are necessary in this regard?"
2. Notice of the reference was issued to the workmen. Out of 116
workmen only 83 workmen namely Joginder Parshad, Jai Ram
Mehta, Vijay Kumar Prasad, Shyam Lal, Katwaru, Pahlwan, Ranjeet
Kumar, Mandhata, Madho Shah, Harbans Singh, Vijay Kumar, Sushil
Kumar Sharma, Sita Ram, Virender Singh, Rakesh Bhardwaj,
Bikaram Singh, Lalita Rani, Pushpa Rani, Kamla, Amarjeet, Sudesh
Anand, Kuldeep Kaur, Manju Ghose, Asha, Vidhya, Prem Lata,
ID No. 236/2008/1981
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Veena Bhatia, Kamla Rani, Lalita, Sudesh, Gurnam Kaur, Police Rai,
Hari Prasad Gupta, Hardev, Swaran Mehta, B.N. Mishra, Darshan
Parsad Sharma, Rajinder Sharma, Jawahar Parshad, Tribhuvan,
Sudarhsna, Virender Bedi, Ram Sewak, Uma Shankar Mohan
Kumar, Kailash, Poonam, Sarvajeet, Veena, Santosh, Janak, Varsha,
Hira Ballabh, Lallan Parshad, Ramji Singh,Pardeeshi, Ram Avadh,
Ram Prakash, Malnu, Ram Dulare, Radhey Sham, Ram Lochan, Firtu
Singh, Rajinder Yadav, Balinder Yadav, Balinder Yadav, Ram Nath,
Ram Roop, Ram Palat, Jai Ram, Ram Prakash, Hari Chand, Ram
Roop, Inderjit Singh, Shyam Lal, Jag Murat, Mohd Ilias, Anita
Malhotra, Madhu Sharma, Hemlata Sharma, Om Prakash, Jagdamba
Singh filed their joint statement of claim alleging that they were in the
employment of the management for a long time as per the details
regarding their length of service, rate of wages, designation as
mentioned specifically in Annexure A to the joint statement of claim;
and were performing their duties to the entire satisfaction of the
management; that management was not providing basic amenities;
ID No. 236/2008/1981
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that they put their demand before the management and requested the
management for providing them permissible amenities but
management did not pay any heed to their demands on one pretext
or the other due to which they joined the union; that instead of
accepting their rightful demand management started victimizing them
and also started adopting unfair labour practice and they were
compelled to leave the union; that when they did not agree,
management brought some hired goondas armed with pistols,
revolvers, lathies, sword and created a terrible atmosphere; that when
management did not succeed then it started terminating the services
of the workmen one by one without assigning any reason and without
issuing notice and without holding a proper enquiry and terminated
the service of the workmen as per the date of termination of their
service given in Annexure A to the statement of claim; that demand
notices were sent to the management by regd. AD post but
management did not pay any heed to their demands; that a complaint
was made to the labour department and management was
ID No. 236/2008/1981
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summoned to appear in the labour office but despite that it did not
reinstate them; that letters were received from the management to the
effect that workmen were absent from duties but it was just an
afterthought of the management in order to cover up its guilt; that as a
protest workmen staged a demonstration at the factory site on
4.11.1980 and this demonstration was being held in a peaceful
manner but despite that management got them attacked through
hired goondas due to which some of the workmen were beaten badly
due to which a complaint was lodged with the police; that
management retaliated in defence by lodging a false complaint with
the police although management was itself guilty of creating violence
at the factory gate; that thereafter management chargesheeted some
workmen and placed them under suspension; that charges were just
an afterthought and were vague and concocted charges which was
refuted by them and a reply to the charges was also sent to the
management; that on the basis of the complaint through union a
Labour Inspector visited the factory and directed the management to
ID No. 236/2008/1981
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reinstate them but the management put a condition that workmen
were to give apology in writing; that it was not proper to tender any
apology as demanded by the management as they were not at fault
but the management refused the Labour Inspector to take them on
duty unconditionally; that Sh. S.C. Dhingra Deputy Labour
Commissioner intervened in the matter and summoned the
management to his office on 18.11.1980 but management again put
the same condition and did not agree to reinstate them
unconditionally; that when they reported for duty at the factory gate,
they were threatened by the hired goondas and were not allowed to
enter in the factory. Workman alleged that their services were
terminated illegally as they were not given any retrenchment
compensation. They claimed that are entitled to reinstatement with
continuity of service and full back wages.
3. Notice of the claim was sent to the management. Management
contested the claim by filing written statement. By way of preliminary
ID No. 236/2008/1981
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objection management alleged that the persons as mentioned in
annexure A to the written statement have left their service after
settling their account in full and final and dispute pertaining to these
persons does not survive. Management also stated that persons
whose names appear in annexure B to the written statement are still
the employees of the management but they were absent from duty
due to strike and they are free to join their duty as their service was
not terminated. It is stated that persons whose names appear in
annexure C to the written statement were not the employees of the
management and there did not exist a relationship of master and
servant and so reference in respect of these persons is not
maintainable. It is also stated that persons whose names appear in
the Annexure D to the written statement were on strike and were
under suspension and their services were terminated vide order
dated 09.7.81. It is stated that persons whose names appear in
annexure E to the written statement were not the workmen of the
management and there was no relationship of master and servant
ID No. 236/2008/1981
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and they also settled their account in full and final with their employer.
It is also stated that Smt. Indira Rani mentioned at serial No. 90 of the
reference did not file statement of claim and so her dispute is not to
be adjudicated upon. It is alleged that the reference as a whole is not
maintainable because of these preliminary objections and for this
reason there is no valid industrial dispute to be adjudicated upon. On
merits management stated that the persons who were under
suspension were dismissed on 09.7.81 after proper enquiry into the
charges of serious misconduct. Management stated that the persons
who have been stated to be absent from duty were absent for a very
long time and did not report for duty despite sufficient opportunity
given to them. Management denied that work and conduct of the
claimants was satisfactory. Management denied that it was not
providing basic amenities and other legal benefits. Management
denied each and every allegation of the workmen. Management
alleged that workmen suddenly started creating a trouble and
management was made a target of violence which broke out
ID No. 236/2008/1981
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suddenly and took all the loyal workers of the management under its
sweep due to which management had to run away for safety and took
shelter within the factory building and case was registered against
perpetrators of this heinous crime and union had planned in advance
a course of action for creating disorder and breach of peace on large
scale. Management controverted the allegations as contained in the
statement of claim and alleged that each workman was served with a
proper chargesheet and was given suitable opportunity to defend and
all the workmen abstained from enquiry and enquiry officer submitted
his report on the basis of which dismissal order dated 09.7.81 was
passed. It is alleged that workmen namely Shama Arora, tendered
her apology in writing and she was taken back on duty on 22.7.81.
Management stated that out of 116 persons management passed the
dismissal order in respect of only 09 persons, in accordance with law
after observing the principles of natural justice and fair play. It is
alleged that the delinquent workmen did not cooperate with the
Enquiry Officer and so the enquiry was proceeded ex.parte.
ID No. 236/2008/1981
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Management also alleged that it was summoned by Deputy Labour
Commissioner at 15 Rajpur Road, Delhi and when management
attended the Labour Office, it was severely beaten up and this matter
was reported to the Police on 18.11.80. Management alleged that it
was not a demonstration by the workmen but it was show of
mobocracy. Management alleged that workmen were suspended on
13.12.80 and charge sheet dated 14.01.81 was served upon them.
Management denied that it attacked the workmen through hired
gundas and that it did not allow them to enter in the factory.
Management accordingly prayed for dismissing the claim.
4. In rejoinder to the written statement, workmen controverted the
averments as contained in the written statement and reaffirmed the
averments as contained in the statement of claim.
5. From the pleadings of the parties the following issues were
framed by the Ld. Predecessor for trial on 03.5.1983:
ID No. 236/2008/1981
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1. Whether the persons mentioned at S.No. 16 and 8 - 17
(16) of the terms of reference are 'workmen' of the management
within the meaning of terms used in the I.D. Act and if not its
effect?
2. Whether the domestic enquiry in the case of persons
mentioned at S.No. 1926 and 28(9) of the terms of reference is
proper and valid and if not its effect?
3. Whether the persons mentioned at S.No. 57 - 59, 61, 63 -
90, 92 - 103 and 105 - 116 (56) of the terms of reference were
absent from duty / on strike as alleged in the W.S. of the
management?
4. Whether the persons mentioned at S.No. 7, 18 and 27 have
since joined duty in the establishment of the respondent
management and have no claim / dispute left outstanding against them?
5. As per term of reference.
6. Vide order dated 28.09.07 Ld. Predecessor reframed the issues as under:
1. Whether the persons mentioned at S.No. 16 and 8 - 17 (total 16 claimants) of the terms of reference are 'workmen' of the management within the meaning of terms used in the I.D. Act and if not its effect? OPW
2. Whether the domestic enquiry in the case of persons ID No. 236/2008/1981 12 mentioned at S.No. 1926 and 28( in total 9 claimants) of the terms of reference is proper and valid and if not its effect? OPM
3. Whether the persons mentioned at S.No. 57 - 59, 61, 63 -
90, 92 - 103 and 105 - 116 (total 56 claimants) of the terms of reference were absent from duty / on strike as alleged in the written statement of the management? OPM
4. As per terms of reference.
7. AR for the workmen submitted that now only 22 workmen namely Hem Lata Sharma, Jagmurat Yadav, Ram Roop Gupta, Mohd. Ilyas, Matnu, Balinder Yadav, Ram Lochan, Shiv Dhan, Ram Awadh Gupta, Sudesh Kapoor, Mohan Kumar, Madho Shah, Pelwan, Uma Shanker, Ranjit Kumar, Indera Rani, Sudesh Anand, Vijay Kumar, Putish Rai, Pushpa Rani, Mandhatta and Hira Bhallabh Gupta are contesting the case. He also submitted that remaining workmen have either not filed their statement of claim or they are not interested in pursuing their claim or they have settled their claim in full and final with the management.
ID No. 236/2008/1981 13
8. As per the case of the management it had instituted enquiry against ten workmen. Out of these ten workmen now only four workmen namely Hem Lata Sharma, Jagmurat Yadav, Ram Roop Gupta and Mohd. Ilyas are contesting the case. Thus in case of these four workmen first point for determination is whether after the order of the Ld. Predecessor whereby it was held that the enquiry stood vitiated, the management has been able to prove the misconduct against them.
9. When the case was at the stage of determination of the fairness of the enquiry, management filed affidavit of its four witnesses namely MW1 Sh. Bal Kishan, MW2 Sh. R.L. Chopra, MW3 Sh. K.L. Chopra and of Sh. Jeeb Lal. Jeeb Lal did not appear for tendering his affidavit in evidence. However other three witnesses appeared and tendered their respective affidavit in evidence and they were also cross examined by AR for the workmen. Contesting workmen filed their affidavits in evidence. They were crossexamined by AR for the ID No. 236/2008/1981 14 management.
10. After the Ld. Predecessor held that enquiry stood vitiated management was given an opportunity to lead evidence for proving the misconduct before the court and at this stage management filed the additional affidavit of MW1 Sh. Bal Kishan, MW2 Sh. R.L. Chopra, MW3 Sh. K.L. Chopra and prayed for recalling them for further cross examination on their deposition in the additional affidavit. Management also filed the affidavit of MW4 Sh. Ram Kishore Singh, examined Sh. H.C. Bharam Pal Singh PS Civil Lines as MW5 and examined Const. Narender Kumar of PS Patel Nagar as MW6. Management also filed affidavit of MW7 Sh. Sukdev Singh and MW8 Sh. P.D. Gupta. All these additional witnesses were also cross examined by AR for the workmen.
11. I have heard authorized representatives of the parties and have gone through the record. Findings on the issues are as under:
ID No. 236/2008/1981 15 ISSUE NO.1
12. This issue was framed because as per the management the persons mentioned at serial No. 1 to 6 and 8 to 17 which are in total sixteen were the employees of the contractor and were not the employees of the management. As per the case of the management fifteen claimants excluding Ram Dhan were not its employees but they were employees of contractor Ram Dhan. Such claimants including Ram Dhan are total sixteen in number and now out of these sixteen only five claimants namely Matnu, Balinder Yadav, Ram Lochan, Shiv Dhan and Ram Awadh Gupta are contesting the case.
13. MW2 Sh. R.L. Chopra in para 5 of his additional affidavit deposed that two types of workers were working under the management and one type of workers were the employees of the management and the second type of the workers were the labour of the contractor who were working in the management along with their Contractor but they ID No. 236/2008/1981 16 were not the employees of the management and management did not have direct control over them. He also deposed that such workers were the employees of the contractor and they were getting their dues from the contractor only and there was no relationship of master and servant. Similar is the deposition of MW3 Sh. K.L. Chopra Settled law is that when the existence of relationship of employer and employee is disputed then it is for the claimant to establish such a relationship and in this regard reference can be made to the judgments reported as Workmen of Nilgiri Coop. Marketing Society Ltd. Vs. State of Tamil Nadu and Ors.: 2004 LLR 351 and N.C. John Vs. TTS &CE Workers Union: 1973 LAB IC 398. A careful perusal of the testimony of these contesting workmen of this category shows that they have no document in support of their claim of being the employee of the management. Further contesting workmen namely Matnu, Balinder Yadav, Ram Lochan, Shiv Dhan and Ram Awadh Gupta could not bring any material on record on the basis of which it can be said that they were the workmen of the ID No. 236/2008/1981 17 management. I therefore hold that these five contesting workmen have failed to prove that they were the workmen of the management. Accordingly this issue is decided against these contesting five workmen namely Matnu, Balinder Yadav, Ram Lochan, Shiv Dhan and Ram Awadh Gupta.
ISSUE NO. 2
14. The enquiry issue pertaining to workmen at serial No. 19 to 26 and 28 in the terms of reference was decided by the Ld. Predecessor vide order dated 30.10.07 whereby the Ld. Predecessor held that management has failed to prove that a valid domestic enquiry in case of persons mentioned at serial No. 20, 23, 24 & 28 of annexure A to the terms of reference was conducted. The Ld. Predecessor gave opportunity to the management to prove the misconduct before the court. Management led additional evidence for proving the misconduct. Point for determination now is whether management has proved the misconduct against these workmen namely Hari Chand, ID No. 236/2008/1981 18 Ram Roop, Inderjit Singh, Shyam Lal, Jag Murat, Mohd. Ilias, Anita Sharma, Madhu Sharma and Hemlata Sharma.
15. First witness of the management is MW1 Sh. Bal Kishand who in para 9 of his additional affidavit Ex.MW1/B has deposed as under:
"I say that to my knowledge in the year 1980, approx two week prior to Dushera at the instance of contractors and his labours some of the workers had started slow working followed by extending strike and absence from work; and also instigated workers of other sections of the factory and indulged in slogans and abusive language against the management and later sat on dharna at the entry gate to paralyze the work so that the others may not enter in the factory to do their work. Despite requests of management those striking workers neither desisted of their activities nor came on duty but remained absent, further not allowing the loyal workers to perform their duties, the production suffered manyfold."
16. MW1 in para 11 of his additional affidavit Ex.MW1/B has deposed as under:
"I say that the striking workers had gherao the ID No. 236/2008/1981 19 management on many occasions and had also made physical assault on Sh. R.L. Chopra (MW2). The striking workers had also brought bad elements to agitate their strike. They also attacked with lathies on Sh. R.L. Chopra (MW2) wherein he escaped but his car was damaged. The FIR was lodged. I do not remember the FIR number, however, it is already exhibited in the court. Some of the accused in the said FIR had pleaded guilty in the court the same is matter of record being exhibited document."
17. MW1 in para 12 of his additional affidavit Ex.MW1/B has deposed as under:
"I say that the delinquent not only remained absent from duty but also committed misbehaviour and misconduct in many ways as per the contents of the chargesheet on court record. The strikers had damaged the gate broken the door and window pane by pelting stones. The delinquents also used abusive and unparliamentary language with shouting the slogans and also extended threats to do away the Chopra family and their properties if their demands are not met. The contents of FIR made by Sh. Roshan Lal Chopra at the relevant time are matter of record. The workmen had also extended threats to Mr. Chopra when they had gone to attend case before Labour Commissioner at ID No. 236/2008/1981 20 Rajpur Road. The complaint of the management dated 18.11.1980 at PS Civil Lines is matter of record. The delinquents had committed grave misconduct and the workmen have no right to take law in their hands."
18. MW1 in para 14 of his additional affidavit deposed that in order to let down the management, the striking workers had also brought bad elements from other sources to put pressure and to terrify the management. In para 15 of the affidavit MW1 deposed that he had appeared before enquiry officer Sh. R.L. Batra as a witness during the enquiry proceedings and he had signed his statement, recorded by him.
19. MW1 was cross examined by AR for the workmen. It is significant to note that AR for the workmen did not give a serious challenge to the deposition of MW1 reproduced as above except that he gave a general suggestion that the affidavit filed by him was false. MW1 denied this suggestion but there is nothing on record on the basis of ID No. 236/2008/1981 21 which it can be held that this suggestion of the AR for the workmen merits any consideration. However AR for the workmen raised some contentions which would be discussed while appreciating the management evidence.
20. The next witness is MW2 Sh. R.L. Chopra who in para 6 of his additional affidavit deposed that in the year 1980 about two week prior to Dusshera workers started working very slow followed by strike in the factory and striking workers also extended threats to the co workers working in other sections to join them in the strike.
21. In para 7 of his additional affidavit Ex.MW2/B, this witness has deposed as under:
"I say that some of the workers besides remaining absent committed grave misconduct by extending threats of dire consequences, assaulting me and damaging the property of factory and damaged the window panes etc. by pelting stone and for the same they were issued show cause memo ID No. 236/2008/1981 22 and charge sheet on individual worker as served upon dated 14.01.1981. The chargesheet and postal receipt are matter of record being exhibited documents. For specimen copy of the charge sheet dated 14.01.1981 addressed to delinquent Sh. Roop Ram is exhibited as MW1/1. Similarly the chargesheet were served upon other delinquent workers. Each charge sheet explains the specific allegations / charges against the delinquent workers. The charges and charge sheet are matter of record (for Example MW1/1). The misbehaviour and misconduct committed by the workers were of the nature as per the chargesheet were that they struck work in contravention of the provisions of law; breach of discipline and riotous and disorderly behaviour on 04.11.1980; organizing / holding meetings within the factory premises during working hours without permission of the management; carrying personal lethal weapons and other articles which were not permissible during working hours; assault and manhandling the Security Guard on 04.11.1980; badly causing injuries to the Security Guard and one of the worker named (P.D. Gupta), besides acts likely to harm and endanger the property of management; interfering with the functioning of the management thereby causing production loss; working in a manner which was prejudicial to the interest and reputation of the management; gained forcible ID No. 236/2008/1981 23 occupation of an entry into the premises of the management and destroying the record of the management on 04.11.1980 and also causing disturbance, nuisance and making a noise, causing physical assault; harassment pain and injury to the employers (including physical assault on me); visitors and the members of the management also misbehaved with the superiors besides extending threats of dire consequences in cases disciplinary action if taken against them and of preventing loyal workers of the factory of their entry into the factory and obstructing them to do the work/job, caused obstructions and prevented smooth and peaceful movement of men and material; promoted to the violence against management making false complaints to the various authorities and also made murderous assault on me (on the management) on 04.11.1980 from which the management had escaped providentially, shouting slogans using abusive; derogatory and defamatory language and inflaming the feelings of workers against the management etc. All these acts of the workmen/delinquent were amounted to grave misbehaviour and misconduct."
22. In para 8 of his additional affidavit Ex.MW2/B, this witness has deposed as under:
"I say that at about 10.00 a.m. on 04.11.1980 when I had reached at the factory a ID No. 236/2008/1981 24 murderous attack was made on me wherein I had a narrow escape, my car No. DEA 4962 was badly damaged had I not rushed away from the site I would have been murdered therefore, to save my life and my property and I had to seek police protection for my safety an FIR No. 792/80 was registered at PS Patel Nagar under Section 147/148/149/323/427/506/452/34 IPC (State through Roshan Lal against Ms. Shyama Arora, and others, copy of the FIR is already exhibited. Further some of the named accused (delinquents) had pleased guilty in the court of Metropolitan Magistrate Sh. R.K. Yadav."
23. In para 9 of his additional affidavit Ex.MW2/B, this witness has deposed as under:
"I say that the workers as named in the FIR beside raising slogans and abusing against me and other partners had also instigated other workers. The male striking workers had hurled lathi blows on me and my car wherein Sh. Hari Chand, Mohd. Illyas, Inder Jit Singh, Shyam Lal, Jag Murat, Ram Rup and Shiv Dhan were at the forefront in the attack."
24. In para 10 of his additional affidavit Ex.MW2/B, this witness has deposed as under:
"I say that the delinquent workmen had even ID No. 236/2008/1981 25 not allowed the Security personnel at Gate to do their duty besides misbehave with them. I say that one of the Security Guard named Sh. Om Prakash Singh had appeared before the Enquiry Officer and made his statement as management witness. Later because of the fear of delinquents the said security guard left settling his dues and his whereabout is not known."
25. In para 14 of his additional affidavit Ex.MW2/B, this witness has deposed as under:
"I say that the management had suspended few of the workmen and initiated proper disciplinary proceedings against them. I say that in order to maintain the principles of natural justice, the delinquent were duly served with charge sheet as already exhibited specifically giving the details of allegations / charges. The workmen despite receipt of charge sheet did not file their reply to the charge sheet and the management was left with no option but to appoint an Enquiry Officer and vide exhibited letter Sh. R.L. Batra was appointed Enquiry Officer to investigate the matter. The Enquiry Officer had also issued notices to the delinquent to appear before him and to join the investigation, but for the reasons best known to the workers (delinquent) despite receipt of charge sheet and notice from the E.O. the delinquents ID No. 236/2008/1981 26 preferred not to appear and they were proceeded ex.parte. I say that the deposition made by the workers in cross examination before this Hon'ble court on 23.4.2003 WW1/A,
a) Hem Lata Sharma has stated in her cross examination. "The claim statement bears my signature................It is wrong that I was issued chargesheet about absent from duty. It is correct that Enquiry Officer was appointed to help domestic Enquiry. Vol. The Enquiry Officer was the employee of the management. It is wrong that Enquiry Officer had sent 3/4 letters to participate in the enquiry. I had received only one letter, stating that the management is going to terminate my services. The union might have reply to the said notice. I do not remember if I had given reply to the charge sheet.
b) 23.4.2003 cross examination of WW1/B Mohd. Illyas:
I do not remember the year of my joining the management. I do not remember the date on which I lastly worked with the management..................... It is wrong that I remained absent from my duty from 24.10.1980.
ID No. 236/2008/1981 27 The management had served me one charge sheet which I duly replied. I had received letters from the Enquiry Officer for participating in the enquiry but I did not participate in the enquiry on account of danger of my life and apprehension. It is wrong that I did not participate in the inquiry initially.......
c) WW1/C Jag Murat Yadav:
23.04.2003 during cross examination This witness had earlier appeared before this court as WW24 on 01.11.2006. During cross examination he is specifically admitted that...........A disciplinary case was instituted against me, there was also an FIR against me.
I did not appear before the Enquiry Officer. I had not given any letter to the Enquiry Officer for not joining the enquiry. Sh. R.L. Batra was the Enquiry Officer.......................He has further stated that the letter dated 19.03.1981 there was no concealment of facts...............
The said letter was written at the instance of the said advocate Sh.
Pandey at the advise of the union.
.......................Vol. my previous ID No. 236/2008/1981 28 AR had told me that my previous enquiry against me already complete and on the basis of enquiry my services were terminated. it is correct that I have filed two cases. Further said...............Vol. there are cross FIRs from both the sides at that time there were owners / partners of the company. It is wrong to suggest that I had attacked by any means upon Sh. Roshan Lal Chopra one of the partners of the company.
I do not remember the exact date on which I joined management. I lastly worked with the management on 20.4.1980. I cannot say if I joined the management on 10.4.1980. I worked with the management for about 08 months...............I was issued the charge sheet by the management. I had received the copy of the charge sheet which I replied. I do not possess the reply at this stage. I had received the letter of the E.O. and had also informed the E.O. that some outsiders has been appointed in the enquiry.......it is wrong that I intentionally participated in the enquiry.
ID No. 236/2008/1981 29
d) WW1/D Ram Roop:
23.4.2003 I joined the management in May 1979................It is correct that management served me chargesheet which I replied. I received the letter from E.O. for participating in the enquiry. But I did not appear as E.O. was biased person being employee of the management."
26. In para 15 of his additional affidavit Ex.MW2/B, this witness has deposed as under:
"I say that I had lodged two FIRs against these striking workers including delinquents. One dated 04.11.1980 at PS Patel Nagar, and the other on 18.11.1980 at PS Civil Lines, Raj Pur Road, Delhi. As a counter blast the workers had also filed an FIR against the management in order to harass me so that the management may come to the terms of the workmen. I say that the workers paid wages as per the Minimum Wages Act applicable at the relevant time, besides other benefits. All the workers were duly protected by the management under ESI Act, PF Act, payment of Bonus Act, payment of Gratuity Act. Central Excise Act, Sales Act etc. etc. Therefore, the alleged demands raised by these striking workers were absolutely illegal and unlawful. The ID No. 236/2008/1981 30 absence of the workers from duty was an unauthorized and illegal besides, they had assaulted and attacked me and on the property of the management on various dates including on 02.11.1980, 04.11.1980 and 18.11.1980 such conduct of the workmen is a grave misconduct on their part and they are liable to face the consequences. I further say that the conduct of the worker for bringing any lethal weapon within the factory premises, inciting and instigating fellow workers, willfully damaging the property of the management by pelting stones, brick battings on 04.11.1980 and illegally striking the work, breaching the discipline at the work place by riotous and disorderly behaviour on 04.11.1980, organizing, holding and attending meeting within the factory premises without permission of the management and carrying weapons (not allowed) within the factory premises, making assault on Security Guards on 04.11.1980 and manhandling causing injury to the Security Guard and other loyal worker caused danger and threat to the property of the management, besides, interfering in the production, causing damage/loss and harming the reputation and goodwill of the management, forcible entry into the premises belonging to the management on 04.11.1980 and destroying some record of the management caused disturbance, nuisance, annoyance, tension and physical assault harassment, pain and injury to the employers ID No. 236/2008/1981 31 and visitors. Further the workmen extended threat to me and to other partners that if the management would initiate action against them they (workmen) shall further misbehave with the superiors and also extended threats to me of the dire consequences for taking disciplinary action against them. They also prevented the loyal workers from entering the factory so the work of the management be paralysed and to stop the smooth and peaceful working of management. My FIRs are the matter of record as on 04.11.1980, I had a narrow escape but my car was badly damaged because the blows of lathies, shouting slogans, using abusive and derogatory and defamatory language etc. have damaged the reputation and goodwill of the management, as such all the conduct of the workmen are misconduct on their part."
27. In para 18 of his additional affidavit Ex.MW2/B, this witness has deposed as under:
"I say that 10 of the workers were charge sheeted out of them one had submitted her written apology and she was taken on duty whereas the services of other 9 delinquent were dismissed on 09.7.1981 after the finding of EO report dated 07.7.1981. The action of the management was a due process of law and there was no violation of principle of natural justice. The same are exhibited vide ID No. 236/2008/1981 32 MW1/13, MW1/14, MW1/15 and are matter of record. Each of delinquent was issued separate letters."
28. During cross examination MW2 deposed that workmen sat on dharna for 1520 days and he had to call for the police during the period of dharna by the workmen because workmen pelted stones on the factory, obstructed loyal workers from entering the factory and damaged his car as they resorted to violence. He deposed that he called police twice and once on 04.11.80 and for second time before 18.11.80. He also deposed that on 04.11.80 he reached the factory gate at 9.30AM and on seeing him workers present over there gheraoed him and his car and damaged the car by lathi blows. He also deposed that Mohd. IIlyas and others had a lathi blow on him but he escaped but his car was damaged. He deposed that from there he went to the police station for lodging the FIR. He also deposed that police came after 1520 minutes and recorded his statement and of his brother in the factory. He deposed that police also took away ID No. 236/2008/1981 33 the broken glasses / window panes along with them in 23 gunny bags. It is significant to note that AR for the workmen did not counter the deposition of MW2 in his affidavit as well as during his cross examination through a suitable suggestion to the contrary. AR for the workmen could not elicit any material on record which can create any doubt on the veracity of the deposition of MW2 in his affidavit as well as during cross examination. In my considered view there is no reason to disbelieve the testimony of MW2. His testimony that police took away broken glasses along with them in 23 gunny bags itself shows as to what extent the workmen had gone violent.
29. The next witness of the management is MW3 Sh. K.L. Chopra who in para 6 of his additional affidavit Ex.MW3/B deposed that in October 1980 two weeks prior to Dusheera workers started working very slow followed by strike in the factory and they continued the illegal strike extended threats to coworkers working in the other sections to join them in the strike. In para 7 of his affidavit MW3/B, ID No. 236/2008/1981 34 MW3 has deposed as under:
"I say that some of the workers including the delinquent, besides remaining absent committed grave misconduct and had extended threats of dire consequences, assault on management and also damaged the property of factory. They also broke the Main Gate and pelted stones on window panes etc. giving huge loss and damage. The loyal workers worked under tension and fear. I say that in the first week of November 1980 more particularly on 02.11.1980 and 04.11.1980 the named workers delinquents with their associates pelted stones damaging the window panes, FIR was lodged, some were suspended, subsequently on 14.01.1981 they were issued charge sheet a specimen copy of charge sheet is exhibited MW1/1 (Roop Ram), the same is a matter of record. The contents of chargesheet are relevant, the same be read / explained with specific allegations/charges against the delinquent workers. The misbehaviour and misconduct committed by the workers were of grave and very serious nature, besides striking the work was in contravention of the provisions of law; breach of discipline and riotous and disorderly. On 04.11.1980; organizing / holding meetings within the factory premises and shouting slogans inside; without permission of the management carrying personal and lethal weapons and other articles which were not ID No. 236/2008/1981 35 permissible during working hours; assault and manhandling to the Security Guard on 04.11.1980. The injuries caused to the Security Guard and also to another loyal worker named (P.D. Gupta). The striking workers had caused damage to the production and property and their working in a manner was prejudicial to the interest and reputation of the management. They also forcibly entered in the area of management and destroyed the record of the management on 04.11.1980 and also caused disturbance, nuisance and making a noise, causing physical assault; harassment pain and injury to the employers. I say that I and my brother (other partner named Sh. R.L. Chopra) were assaulted by the delinquent workmen and their associates, they also misbehaved with the visitors and the members superiors - besides extended threats of dire consequences to the employers in case disciplinary action taken against them. These also prevented the loyal workers of the factory while their entry into the factory gate and obstructed them in doing their work / job, caused obstructions and prevented smooth and peaceful movement of men and material. These promoted to the violence and made false complaints to various authorities, besides, murderous assault on the partner (Sh. R.L. Chopra ) on 04.11.1980, wherein, he had a narrow escape, however, his car was badly damaged with the blow of lathies by these delinquent and their associates. The ID No. 236/2008/1981 36 delinquents also misbehaved by shouting slogans with abusive derogatory and defamatory language against the management with a view to inflaming the feeling of workers against the management etc. The management in order to protect their life and property had to lodge FIR on 18.11.1980 at Civil Lines Police Station when they were summoned to appear in the office of Labour Commissioner at 15 Rajpura Road, Delhi, whereas, the other FIR was already registered as FIR No. 972/1980 (DD No. 17A dated 04.11.1980) at police station Patel Nagar. This FIR in original was in Urdu (copy of FIR has also been exhibited WW6/1. The names of accused workers is mentioned in the FIR and the same are matter of record. A few workers had pleaded guilty and sentenced by the court, whereas, few other contested. A copy of the court proceedings have also been placed on record by MW6 Exhibited MW6/2. This FIR was under Sections 147/148/149/323/427/506/452/34 IPC. These FIRs were registered at the complaints of the management (partner Sh. R.L. Chopra) as complainant. My statement was also recorded. I say that the acts of the workmen / delinquent were amounted to grave misbehaviour and misconduct."
30. In para 11 of the affidavit Ex.MW3/B, MW3 deposed that workmen ID No. 236/2008/1981 37 pleaded guilty before the court which proves both the FIRs and contents of the FIRs. In para 14 of the affidavit Ex.MW3/B, MW3 has deposed as under:
"I say that since delinquent and their associates had not desisted of their ill design motives and had taken law in their hands and indulged in criminal assault on the management and damaged the property of the management as such, our complaints and FIRs before SHO Patel Nagar on 02.11.1980 for protection of life and property and also on 04.11.1980 for damaging the property and criminal and physical assault on Sh. R.L. Chopra are relevant. During trial before the court of Sh. R.K. Yadav, Ld. MM (the then was) few workers had plead guilty and were sentenced. The FIR dated 18.11.1980 at PS Civil Lines is also matter of record. I say that the accused workers had admitted the allegation against them as such the behaviour and misconduct committed by the workmen have been proved beyond doubt."
31. In para 24 of the affidavit Ex.MW3/B, MW3 deposed as under:
"I say the admission / statement of delinquent workers deposed during cross examination before this court are: 23.04.2003 WW1/A
a) Hema Lata has stated in cross ID No. 236/2008/1981 38 examination that .....................It is correct that Enquiry Officer was appointed to held domestic enquiry. Vol. the Enquiry Officer was the employee of the management. It is wrong that Enquiry Officer had sent 3/4 letter to participate in the enquiry. I had received only one letter, stating that the management is going to terminate my services. The union might have replied to the said notice. I do not remember if I had given reply to the charge sheet.
b) 23.4.2003 cross examination of WW1/B Mohd. Illyas:
I do not remember the year of my joining the management. I do not remember the date on which I lastly worked with the management...............It is wrong that I remained absent from my duty from 24.10.1980. The management had served me one charge sheet which I duly replied.
I had received letter from the Enquiry Officer for participating in the enquiry but I did not take part in the enquiry on account of danger of my life and apprehension. It is wrong that I did not participate in the enquiry initially.....
ID No. 236/2008/1981 39
c) WW1/C Jag Murat Yadav:
23.4.2003 during cross examination This witness had earlier appeared before this court as WW24 on 01.11.2006. During cross examination he specifically admitted that...........A disciplinary case was instituted against me, there was also an FIR against me.
I did not appear before the Enquiry Officer. I had not given any letter to the Enquiry Officer for not joining the enquiry. Sh. R.L. Batra was the Enquiry Officer...............
...........He has further stated that the letter dated 19.03.1981 there was no concealment of facts..............The said letter was written at the instance of the said advocate Sh. Pandey at the advice of the union...............................Vol. my previous AR had told me that my previous enquiry against me already complete and on the basis of enquiry my services were terminated. It is correct that I have filed two cases. Further said.................. Vol. there are cross FIRs from both the sides at that time there were owners / ID No. 236/2008/1981 40 partners of the company. It is wrong to suggest that I had attacked by any means upon Sh.
Roshan Lal Chopra one of the partner of the company. I do not remember the exact date on which I join management. I lastly worked with the management on 24.10.1980. I cannot say if I join the management on 10.4.1980. I worked with the management for about 08 months................I was issued the charge sheet by the management. I had received the copy of the charge sheet which I replied. I do not posses the reply at the stage. I had received the letter of E.O. and had also informed the E.O. that some outsiders has been appointed in the enquiry......it is wrong that I intentionally participated in the enquiry.
d) WW1/D Ram Rup:
23.04.2003 I joined the management in May 1979..........It is correct that management served me charge sheet which I replied. I received the letter from E.O. for participating in the enquiry. But I did not appear as E.O was biased person being employee of the ID No. 236/2008/1981 41 management."
32. MW3 Sh. K.L. Chopra was cross examined at length by AR for the workmen. During cross examination he deposed that on 2.11.1980 some of the striking workers pelted stones on the window panes of the factory and they also obstructed loyal workers. He also deposed that four / five workers namely Hem Lata, Shiv Dhan, Ram Murat etc. were in the front and other were behind them. He also deposed that on 04.11.80 the striking workers in a well organized manner pelted stones on the factory and when he objected, the workers damaged the window screen of his car by one lathi blow and by another lathi blow they made a dent in the car. He also deposed that Mohd. Ilyas made these two lathi blow on the car of Sh. R.L. Chopra. He deposed that he could see from his cabin and also from outside that striking workers were obstructing the loyal workers from entering the factory. He also deposed that on 04.11.80 when striking workers were pelting stones, broke the glasses and entered the reception and tore off some registers, he informed the police on phone and then he ID No. 236/2008/1981 42 along with R.L. Chopra went to Police Station and lodged an FIR and thereafter the striking workers left. He also deposed that after 04.11.80 striking workers did not come to the factory any more. He denied the suggestion that contents of his affidavit are false.
33. MW8 Sh. P.D. Gupta in para 8 of his affidavit deposed that he did not remember the name of the persons on strike and damaging the property and attacking the management but the imporant amongst them were Mohd. Illyas, Shyam Lal, Inder Jit Singh, Hari Chand, Ram Roop, Jag Murat, Shiv Dhan, Anita Malhotra, Madhu Sharma, Hem Lata and others had raised the slogans, damaged the property of the factory premises and also abused the management. He also deposed that he did not remember the exact wording used by them but he remembered that striking workers had attacked and assaulted the partner Sh. R.L. Chopra with lathies wherein his car was badly damaged.
ID No. 236/2008/1981 43
34. During cross examination MW8 deposed that he did not know what is written in his affidavit but he could answer the questions. He stated that he worked with Sh. R.L. Chopra and he was asked to be a witness in this case. He deposed that he knew when some of the workers went to strike. He stated that he could remember that one Shri Dhan went on strike who was a contractor in Bakelite Section. He also deposed that the striking workers tried to stop all the workers including him to enter inside. He deposed that he heard that workers went on strike for the demand of increase in their salary. He stated that no worker of his department went on strike. He stated that on the day when the factory gate was broken and the striking workers pelted stones on the factory broke the glasses, only Kishan Lal Chopra was inside the factory. He stated that workers were outside when factory gate was broken and after that 5/6 workers entered inside and asked other workers to stop work and to join them. He deposed that they came inside in his presence and told them "parinam bura hoga". He stated that striking workers went in the basement. He denied that he ID No. 236/2008/1981 44 did not witness anything.
35. AR for the workmen submitted that the management recalled some of its witnesses for proving the alleged misconduct and so the statement of the witnesses who were recalled is to be read and understood in the light of their earlier statement made before this court. He submitted that if the previous statement of these witnesses is carefully perused then it would be clear that whatever was stated by these witnesses in their respective additional affidavit was not stated earlier and so their deposition in their respective additional affidavit cannot be taken into consideration. In reply to this contention AR for the management submitted that these witnesses did previously make a statement through their respective affidavit but at that time they were not required to depose about the misconduct as the court had framed an issue on the enquiry and the court was to decide only the fairness of the enquiry and so these witnesses naturally were not required to depose about the misconduct and for ID No. 236/2008/1981 45 this reason they did depose about the misconduct of the workmen but not in detail as was deposed subsequently in the additional affidavit because the additional affidavit was filed by them for proving the misconduct before the court.
36. I have carefully considered the rival contentions. In my considered view the submission of the AR for the workman is without any merit because previously the court was not required to take evidence of the witnesses of the management on the misconduct but on the point whether the enquiry was fair or not.
37. AR for the workmen also submitted that MW2 Sh. R.L. Chopra was examined as PW1 as a prosecution witness in criminal case vide FIR No. 972/80 PS Patel Nagar but he nowhere deposed before the court of the Matropolitan Magistrate that he was attacked by workers or his car was damaged or he went to the Police Station and lodged the FIR and in fact what he stated in that case was that he ID No. 236/2008/1981 46 telephoned the police. AR for the workman also submitted that the Ld. Metropolitan Magistrate acquitted all the accused persons in that case which clearly shows that there was no misconduct on the part of the workmen as alleged by MW2 and other witnesses of the management. I have carefully considered this contention of the AR for the workmen.
38. A perusal of the judgment of the Ld. Metropolitan Magistrate referred by AR for the workmen, shows that the Magistrate acquitted the accused persons by giving them a benefit of doubt. It is also to be noted that two accused including Ms. Shama Arora had pleaded guilty in that very case before the Metropolitan Magistrate and other accused persons had contested the case. Settled law is that a criminal case is to be proved beyond reasonable doubt whereas in civil cases, issues can be established on the basis of preponderance of possibilities and in Domestic Enquiries even hearsay evidence is admissible. I therefore hold that the contention of the Ld. AR for the ID No. 236/2008/1981 47 workmen does not help him in creating a reasonable doubt on the veracity of the deposition of witnesses of management.
39. A careful perusal of the testimony of MW1 Sh. Balkishan, MW2 Sh. R.L. Chopra, MW3 Sh. K.L. Chopra and MW8 Sh. P.D. Gupta shows that from their testimony it stands proved that the four contesting workmen namely Jagmurat Yadav, Ram Roop, Mohd. Illyas and Hemlata Sharma alongwith other coworkers incited and instigated fellow workers to go on strike, committed disorderly behaviour, damaged property of the management, raised slogans and used abusive language against the management.
40. In view of the foregoing discussion I hold that management has proved that these four contesting workmen namely Mohd. Illyas, Ram Roop, Jagmurat, Hemlata alongwith other workmen committed the misconduct. This issue stands decided accordingly in favour of the management and against the workmen.
ID No. 236/2008/1981 48 ISSUE NO. : 3
41. Out of the remaining ninety workmen against which management neither instituted enquiry nor are stated to be the workers of the contractor but about whom management stated that they were on illegal strike and could resume their duties, now only thirteen workmen namely Sudesh Kapoor, Mohan Kumar, Madho Shah, Pelwan, Uma Shanker, Ranjit Kumar, Indera Rani, Sudesh Anand, Vijay Kumar, Putish Rai, Pushpa Rani, Mandhatta and Hira Bhallabh Gupta are contesting the case. All these thirteen workmen have alleged termination of their service which management has denied by alleging that they themselves did not report for duty despite letters sent to them. Onus to prove this issue was upon the management. Management has led evidence that has been discussed threadbare while deciding issue no.2. It is significant to note that workmen in their joint statement of claim have stated that letters were received from the management to the effect that workmen were absent from ID No. 236/2008/1981 49 duties but it was an afterthought of the management in order to cover up its guilt. From this pleading of the workmen it is clear that they have admitted that they were absent from their duties.
42. WW16 Mohan Kumar during crossexamination admitted that he had stopped to work with the management w.e.f. 1.11.1980. WW3 Pushpa Rani during crossexamination deposed that she received 3 - 4 letters from the management. She also deposed that she did not remember that management had asked them to come and join duty. This deposition of WW3 Pushpa Rani shows that she was not reporting for duty otherwise she would not have deposed that she did not remember that management had asked them to come and join duty. WW9 Kamla Rani during crossexamination admitted that before the conciliation officer an offer was made by the management in the written statement to take back in the employment. She also admitted that management sent some letters to her at her residence. She also admitted that in those letters management denied having ID No. 236/2008/1981 50 terminated her service and that management had asked her to come on duty. WW11 Mrs. Sudesh Kapoor during crossexamination deposed that she had been attending the conciliation proceedings in Labour Office, Karampura and admitted that the management had taken the stand in reply that it had not terminated their services. WW 20 Uma Shanker during crossexamination deposed that some letters of the management came to them but they replied all those letters. Workman Jagmurat Yadav during cross examination deposed that he lastly worked with the management on 24.10.1980. The plea of the workmen in their joint statement of claim that letters were received from the management to the effect that they were absent from duties when considered in the light of the material elicited during cross examination of the workmen by management as noted herein above clearly proves that these contesting 13 workmen were absent from duty and they did not report for duty despite the letters written to them by the management. Accordingly this issue is decided against these 13 contesting workmen.
ID No. 236/2008/1981 51 RELIEF
43. In view of the foregoing findings on issue no.1, I hold that five contesting workmen namely Matnu, Balinder Yadav, Ram Lochan, Shiv Dhan and Ram Awadh Gupta are not entitled to any relief as they have failed to establish that they were the employees of the management.
44. In view of the foregoing findings on issue no.3, I hold that thirteen contesting workmen namely Sudesh Kapoor, Mohan Kumar, Madho Shah, Pelwan, Uma Shanker, Ranjit Kumar, Indera Rani, Sudesh Anand, Vijay Kumar, Putish Rai, Pushpa Rani, Mandhatta and Hira Bhallabh Gupta are not entitled to any relief as management has established that they were not reporting for duty.
45. Now coming to the claim of remaining four contesting workmen namely Mohd. Illyas, Ram Roop, Jagmurat and Hemlata against ID No. 236/2008/1981 52 whom management has proved that they committed the misconduct. Management terminated their services on the ground that they committed serious misconduct. The point for consideration is whether facts and circumstances of this case call for an interference in the punishment awarded by the management. In my considered view the facts and circumstances of the case are not such as call for an interference by this court in the choice of the punishment made by the management. I therefore hold that these four contesting workmen are not entitled for any relief.
46. So far as the claim of remaining 61 workmen namely Joginder Parshad, Jai Ram Mehta, Shyam Lal, Katwaru, Harbans Singh, Vijay Kumar Parshad, Sushil Kumar Sharma, Sita Ram, Virender Singh, Rakesh Bhardwaj, Bikaram Singh, Kamla, Amarjeet, Kuldeep Kaur, Manju Ghose, Asha, Vidhya, Prem Lata, Veena Bhatia, Kamla Rani, Lalita, Gurnam Kaur, Hari Prasad Gupta, Hardev, Swaran Mehta, B.N. Mishra, Darshan Parsad Sharma, Rajinder Sharma, Jawahar ID No. 236/2008/1981 53 Parshad, Tribhuvan, Sudarhsna, Virender Bedi, Ram Sewak, Kailash, Poonam, Sarvajeet, Veena, Santosh, Janak, Varsha, Lallan Parshad, Ramji Singh, Pardeshi, Ram Roop, Ram Prakash, Ram Dulare, Radhey Sham, Firtu Singh, Rajinder Yadav, Ram Nath, Ram Palat, Jai Ram, Ram Prakash, Hari Chand, Inderjit Singh, Shyam Lal, Anita Malhotra, Madhu Sharma, Om Prakash, Jagdamba Singh (Lalita Rani), is concerned, their claim is dismissed as according to the AR for the workmen they are not contesting their claim.
47. Thirty three workmen namely Teju Prashad, Shiv Nath, Satyadev, S.P. Mishra, Kalicharan, Punni Lal, Kalika Parshad, Udai Pratap Singh, Bahadur Singh, Sunil Lamba, Pradeep Khanna, Kuber Singh, Sunil Pushkaran, Shashi, Anita Luthra, Saraswati, Raj Rani, Vijay Kumar Sharma, Sohan Kumar, Pawan Kumar, Kailash, Jai Pratap Singth, Usha, B.C. Joshi, Geeta Ram Jatan, Harvinder Kaur, Rajinder, Ram Swaroop, Jaimal Singh, Babban Shah, Rajinder, Shama Arora did not file their statement of claim. Accordingly a ID No. 236/2008/1981 54 presumption is raised that no dispute subsists between these thirty three workmen and the management and a no dispute award is passed in case of these thirty three workmen.
48. Award stands passed as per hereinabove findings on the issues and reference stands answered accordingly.
49. Copy of the award be sent to learned Secretary (Labour) Government of National Capital Territory of Delhi for necessary action. Award be also sent to server (www.delhicourts.nic.in). File be consigned to record room.
Announced in Open Court on this 30 day of April 2009 th S.K. Kaushik Presiding Officer Labour Court No. XII, Karkardooma Courts, Delhi.