Delhi District Court
Sh. Vinod Sharma vs M/S Hindustan Times Ltd on 18 July, 2013
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER LABOUR COURTX
KARKARDOOMA COURTS, DELHI.
D.I.D. No. : 44/2009
Date of Institution of the case : 22.11.2006
Date on which reserved for order on enquiry issue: 23.05.2013
Date on which order on enquiry issue is passed :18.07.2013
Unique DID No. 02402C0657242006
Sh. Vinod Sharma, S/o Sh. Bans Raj Sharma,
R/o C312, Brij Vihar, Ghaziabad, U.P.,
C/o Hindustan Times Employees Union,
Flat29, Shanker Market, Connaught Circus,
New Delhi110001 .................Workman
Versus
1. M/s Hindustan Times Ltd.,
Hindustan Times House,
1820, Kasturba Gandhi Marg,
New Delhi.
2. M/s H.T. Media Ltd.,
Hindustan Times House,
1820, Kasturba Gandhi Marg,
New Delhi. ...............Managements
ORDER ON THE ENQUIRY ISSUE
The workman Sh. Vinod Sharma, raised an industrial dispute
regarding the termination of his services by the managements of M/s
Hindustan Times Ltd. and M/s H.T.Media Ltd.. Direct statement of
claim was filed by the workman in the Court. In the statement of
claim, it was stated by the workman that the workman had been in the
D.I.D. No. 44/09 Page 1 out of 54
employment of M/s Hindustan Times Ltd. since July, 1986 as a
Senior Clerk/Railway Dispatcher; that the workman was a regular and
confirmed employee and had been drawing the salary of Rs. 18,000/
per month at the time of termination of service; that his service record
was clean, despite which the management of M/s Hindustan Times
Ltd. vide its chargesheet dated 24.10.2005 had made false allegation
of habitual absenteeism against him belatedly to which the workman
had replied vide reply dated 28.10.2005 whereby the alleged charges
had been denied being wrong and baseless since the workman
whenever availed leave had given the leave application; that
moreover, explanations given earlier in response to memos had been
accepted as such there was no basis of holding enquiry in this regard
except for malafide considerations; that at no stage the workman
accepted the alleged charges as made known vide enquiry officer's
report and dismissal order dated 18.02.2006; that the enquiry officer
held the enquiry against the workman in a mechanical manner as
neither documents were supplied to the workman along with the
charge sheet nor the workman could have any defence assistance
during enquiry owing to which enquiry was vitiated, as such the
findings of the same may be set aside; that the management served a
show cause notice dated 02.02.2006 which the workman had replied
to vide reply dated 07.02.2006 but the management had also not
D.I.D. No. 44/09 Page 2 out of 54
considered the same properly and dismissed the workman from
services vide order dated 18.02.2006; that on account of illness vide
letter dated 08.08.2006, the workman had protested against the
dismissal order so made and following which the Hindustan Times
Employees Union had also vide its letter dated 08.09.2006 had
demanded for withdrawal of said dismissal order and reinstatement in
service with the back wages and consequential benefits arising
therefrom; that the management had not replied to above said letters
of the workman as well as of the Hindustan Times Employees Union
due to which the present industrial dispute had arisen for holding the
said dismissal order as wrong and illegal and for reinstatement of the
workman in service; that in the given facts and circumstances of the
case the alleged charge sheet as leveled vide charge sheet dated
24.10.2005 cannot be said to had been proved, accordingly, dismissal
order so made was wholly malafide, wrong, illegal, unfair and
unjustified; that the workman was a protected workman being an
activist and office bearer of the Hindustan Times Employees Union as
such the management ought to had taken approval or permission as
required in terms of section 33 (2) (b) of the Industrial Disputes Act
which also had not been done, accordingly, the order of dismissal so
made was not sustainable; that in fact the workman had been harassed
and victimized by way of suspension, leveling false charges, holding
D.I.D. No. 44/09 Page 3 out of 54
enquiry in an unfair and illegal manner against the principles of
natural justice and thereafter, imposing the penalty of dismissal,
which was wholly disproportionate as such merits to be set aside; that
the enquiry had been held with a biased and prejudicial mind in
collusion with the management, which resorted to such an act of
unfair labour practice with a view to reduce the staff which was a
colorable exercise of power; that the workman had been wrongly and
illegally charge sheeted with malafide intention and ulterior motives
despite commission of no misconduct or misconducts by the
workman; that the workman had also not accepted the dismissal order
as well as the amount as calculated against gratuity or other dues
although the workman remained unemployed since the passing of the
dismissal order. Hence, the workman has claimed for setting aside of
the dismissal order dated 18.02.2006 as also reinstatement in service
with full back wages, continuity of his services and all consequential
benefits.
Notice of the filing of statement of claim was sent to the
managements who had appeared and contested the case of the
workman by filing their written statements. In the written statement
filed by the management no.1, it has taken the preliminary objections
that the claim statement had been filed against two companies without
disclosing who was the employer in relation to the claimant; that the
D.I.D. No. 44/09 Page 4 out of 54
claim statement, thus, filed was legally incompetent and was liable to
be dismissed on this short ground itself; that the claimant had been
dismissed from service after holding a proper enquiry and the
management relied upon the same in the first instance; that in case,
this Hon'ble Court came to the conclusion that the enquiry conducted
by the management suffered from any infirmity, in that event, the
management would lead fresh evidence and substantiate the charges
before this Hon'ble Court; that the claimant was issued a charge sheet
dated 24.10.2005; that having examined the attendance record of the
claimant for the year 2005, it was found that the claimant had taken to
the habit of absenting from duty without prior permission/intimation;
that it was also alleged that the claimant was a habitual late comer;
that the claimant was called upon to submit his explanation as to why
disciplinary action be not taken against him; that the explanation
tendered by the claimant having been found unsatisfactory, the
management decided to hold an enquiry; that the enquiry was
conducted in accordance with principles of natural justice and full
opportunity was given to the claimant to defend the charges; that
based on evidence on record, the Enquiry Officer found the claimant
guilty of the charges leveled against him; that a copy of the report of
the Enquiry Officer was also sent to the claimant for his comments, if
any; that on receipt of the enquiry report, the claimant submitted his
D.I.D. No. 44/09 Page 5 out of 54
representation; that having examined the enquiry proceedings, the
management came to the conclusion that the enquiry had been
conducted in accordance with principles of natural justice and that the
claimant had been afforded full opportunity to defend the charges;
that the management, accordingly, issued a second Show Cause
Notice dated 03.02.2006 bringing to the notice of the claimant that the
charges leveled against him stood established in the domestic enquiry
and that the charges leveled and found proved against him were
extremely grave and merited stern disciplinary action; that it was
pointed out to the claimant that having examined his personal file, the
management found that his past record of service had also been most
unsatisfactory inasmuch as a Memo dated 01.09.1990 was issued to
him for not dispatching the supplies of newspapers and, as such,
punishment of stoppage of a next grade increment was imposed upon
him vide letter dated 10.10.1990; that subsequently, another letter
dated 23.01.1992 was issued to him for remaining absent from duties
without information and a warning was issued to him for the same
vide letter dated 15.02.1992; that despite the aforesaid two Show
Cause Notices, the claimant showed no improvement and yet another
Charge Sheet dated 21.01.1994 was issued to him for absenting from
duty without any authorization on different occasions for which he
was awarded the punishment of stoppage of next grade increment
D.I.D. No. 44/09 Page 6 out of 54
vide letter dated 14.03.1994; that another Show Cause Notice dated
28.04.1994 was issued to the claimant for absenting from duty
without any authorization for which a final opportunity was given to
the claimant vide letter dated 02.05.1994 for improving his conduct
and two days wages were deducted from his salary for certain acts of
omission committed by him vide letter dated 27.08.1994; that despite
the above, however, the claimant showed no improvement in his
conduct and he was placed under suspension for disrupting the work
vide letter dated 15.05.1999 and subsequently the suspension order
was revoked and a letter of warning was issued to him; that another
Show Cause Notice dated 30.07.1999 was issued to the claimant for
beating up a colleague under the influence of liquor; that yet another
Show Cause Notice dated 28.05.2001 was issued to the claimant for
absenting from duty without any permission or information; that the
claimant, however, showed no improvement in his conduct and yet
another Charge Sheet dated 13.02.2003 was issued to him for having
absented from duty for 115 days during the year 2002; that after
adjusting his period of leave, the claimant was marked absent for 73
days and which period was treated as leave without pay and a warning
was issued to him vide letter dated 20.02.2003; that yet another
Charge Sheet dated 13.05.2003 was issued to the claimant for not
doing the work assigned to him and for which act, he was issued
D.I.D. No. 44/09 Page 7 out of 54
another warning; that it is thus, established from the above that the
claimant had become a habitual offender and incorrigible; that he
showed no improvement in his work and conduct despite numerous
show cause notices, punishments awarded and warnings issued from
time to time; that in the circumstances, therefore, the management
came to the conclusion that retention of the claimant in employment
was not conducive to the interest of the organization in general and
discipline in particular and that no confidence could be reposed in
him; that the claimant was accordingly, called upon to show cause as
to why he should not be dismissed from service; that since the
claimant did not submit any reply to the second show cause notice,
the management vide letter dated 18.02.2006 dismissed the claimant
from service and remitted all his legal dues; that from the facts and
circumstances stated above, it was established beyond any doubt that
the termination of services of the claimant was valid and in
accordance with law, hence he was therefore not entitled to any relief,
much less the relief of reinstatement with full back wages and
continuity of service; that the claimant was otherwise also gainfully
employed elsewhere. On merits, it was denied that the service record
of the claimant had been clean or that the Charge Sheet dated
24.10.2005 contained false allegations; that the resume of the past
record of service as set out above, clearly goes on to prove that the
D.I.D. No. 44/09 Page 8 out of 54
claimant had become a habitual offender and incorrigible; that he was
a bad influence over the other employees; that the charges of habitual
absenteeism had been established in the domestic enquiry; that the
explanation submitted by the claimant having been found
unsatisfactory, the management decided to hold an enquiry in order to
give further opportunity to the claimant to defend the charges; that it
was denied that the enquiry was instituted for malafide
considerations; that the charges leveled against the claimant had been
proved in the enquiry; that the order of dismissal, thus, issued was
valid and in accordance with law; that the past record of service of the
claimant which was clearly set out in the second show cause notice
elaborately showed that the claimant was not worthy of retention in
employment; that numerous opportunities were given to the claimant
in the form of warnings and punishments but he showed no
improvement and continued to indulge in nefarious acts of gross
misconduct one after the other; that it was denied that the Enquiry
Officer conducted the enquiry in a mechanical manner or that the
copies of documents were not provided to the claimant; that the
Enquiry Officer gave full opportunity to the claimant to defend the
charges and to cross examine management witnesses and to produce
evidence in defence; that copies of all documents relied upon in the
enquiry were duly furnished to the claimant; that the claimant was
D.I.D. No. 44/09 Page 9 out of 54
issued a second Show Cause Notice but he did not submit any reply
despite due opportunity given and he was ultimately dismissed from
service; that the dismissal of the claimant was valid and in accordance
with law and the purported protest , is therefore, of no consequence;
that the claimant had been found guilty of the charges; that while
dismissing him from service, his past record of service had also been
taken into consideration, which was an aggravating circumstance
against the claimant; that assuming without admitting that the
claimant was a protected workman, the management was under no
obligation to make an application under section 332 (b) of the
Industrial Dispute Act as there was no pendency of an industrial
dispute of a general nature before any authority or court of law at the
time when he was dismissed from service; that the dismissal of the
claimant, therefore, was valid and could not be allowed to be assailed
on the flimsy ground urged; that it was denied that the claimant had
been harassed or victimized; that the dismissal of the claimant on the
facts and circumstances stated above, was valid and in accordance
with law; that it was denied that the enquiry had been held with a
biased and prejudicial mind in collusion with the management; that it
was denied that the action of the management amounts to unfair
labour practice; that the dismissal of the claimant was valid and in
accordance with law, hence the claimant was not entitled to any relief
D.I.D. No. 44/09 Page 10 out of 54
much less the relief claimed; that the management had remitted all the
legal dues of the claimant; that it is denied that the claimant is
unemployed. All other allegations are denied. Hence, it is prayed that
the statement of claim be dismissed.
In the written statement filed on behalf of the management
no. 2, it was stated that the answering respondent had wrongly been
impleaded as a party in the present dispute and therefore, its name should be dropped from the present proceeding; that no relationship of employer and employee existed between the claimant and the answering respondent at any point of time and therefore, the claimant, under law cannot raise any dispute much less an industrial dispute against the answering respondent; that the answering respondent was a separate legal entity; that the claimant was neither employed by this company nor his services were terminated by it; that thus, the claimant cannot have any cause of action against the answering respondent nor any relief can be granted against the answering respondent under the law; that the impleadment of the answering respondent in the present proceedings was legally incompetent and untenable. All other allegations are denied. Hence, it is prayed that the Hon'ble Court may drop/delete the name of the answering respondent from the present proceeding as it had wrongly been made a party to this proceedings and the purported claim against the D.I.D. No. 44/09 Page 11 out of 54 answering respondent be dismissed with costs.
No rejoinder to the written statement of the management no. 1 has been filed by the workman, on record.
In rejoinder to the written statement of the management no. 2, all the averments of the management no. 2 are denied and that of the statement of claim are reaffirmed by the workman.
On the pleadings of the parties, vide order dated 20.08.2007 the following issues were framed:
(i) Whether the enquiry against the workman was not legally conducted and consequential dismissal order dated 18.02.2006 is legal and binding?
(ii) Whether the workman is entitled to reinstatement as per the rules?
(iii) Relief.
No other issue arose or pressed and the case was adjourned for workman evidence on the enquiry issue.
In support of his case workman himself appeared as WW1, tendered his affidavit by way of evidence Ex. WW1/A as also relied upon the documents Exts.WW1/1 to WW1/9 as also relied upon letter dated 07.02.2006 as Mark A in his workman evidence, on record. In his affidavit by way of evidence Ex. WW1/A, he has reiterated the contents of his statement of claim.
D.I.D. No. 44/09 Page 12 out of 54 After examining WW1, evidence on behalf of workman on enquiry issue has been closed, on record.
In support of its defence, the management has examined Sh. Satish Ahuja, Enquiry Officer as MW1 in management evidence on enquiry issue, who has tendered his affidavit by way of evidence Ex. MW1/A as also relied upon documents Ex. MW1/1 Colly, Ex. MW1/2 and Ex. MW1/3, on record.
After examining MW1, evidence on behalf of the management on enquiry issue has been closed, on record.
Arguments on the enquiry issue have been heard. Parties have also filed written submissions in support of their submissions as also the management has relied upon citations viz. Delhi Transport Corporation Vs. Shyam Lal, 2004 Vol. III LLJ 532; Judgment of a Division Bench of Hon'ble High Court of Delhi in case Engineering Projects (I) Ltd. Vs. S.K. Malhotra and Others, INDLAW, DEL 391; The Union Bank of India Vs. Babu Mahadevappa Andani, 2007 LLR 599 Karnataka High Court; Bank of Baroda Employees Union Chennai Vs. Bank of Baroda and Another, 2008 INDLAW MAD 1087; Modern Food Industries (India) Ltd. Vs. The Government of NCT of Delhi and others, 2000 II CLR 546 Delhi High Court; UCO Bank Vs. The Presiding Officer and another, 1999 LLR 1036 Delhi High Court;
D.I.D. No. 44/09 Page 13 out of 54 Management of M/s K.G. Khosla & Company (P) Ltd. Vs. Ved Raj Bhalla and Others, 1972 LAB.I.C. 1475; Indian Hume Pipe Company Ltd. Vs. Their workmen, 1969 VolI LLJ 242 Supreme Court; Management of Rashtradoot Jaipur Vs. Rajasthan Working Journalists Union & Ors, Jaipur, 1970 Vol20 FLR I Supreme Court; Tin Printers (Pvt.) Ltd. Vs. Industrial Tribunal Delhi and Anr., 1968 Vol17 FLR 61, Punjab High Court; Shankar Chakravarty Vs. Britannia Biscuit Company and Anr., (1979) 2 LLJ 194 Supreme Court; M/s Bharat Iron Works Vs.Bhagubhai Balubhai Patel and Ors, (1976) 32 FLR 72 Supreme Court, in support of its submissions.
My findings on the enquiry issue are as under: Issue no.1 It is seen from the record that the workman has appeared in his workman evidence as WW1, tendered his affidavit by way of evidence Ex.WW1/A as also relied upon documents Exts.WW1/1 to WW1/9, along with an alleged letter dated 07.02.2006 Mark A, on record. In his affidavit by way of evidence Ex.WW1/A on the enquiry issue, the workman has deposed that he had been in the employment of M/s Hindustan Times Ltd. since July, 1986 as a Senior Clerk/Railway Dispatcher; that he was an active member of the Hindustan Times Employees Union and was elected as office D.I.D. No. 44/09 Page 14 out of 54 secretary in the executive committee meeting of the Hindustan Times Employees Union, elections of which had been held on 03rd September, 2005 as per the constitution of Hindustan Times Employees Union, Delhi; that he was declared as protected workman as per Section 33 (4) of the I.D. Act, 1947 by the Assistant Labour Commissioner, New Delhi vide order dated 03.11.2005; that being the elected office secretary of the said union, he along with the other office bearers started pursuing the case of the 362 illegally retrenched employees by the management who were working in the printing undertaking of Hindustan Times Ltd. along with taking action in other cases also; that due to his active participation in the bonafide trade union activities the management got irked and implicated him in a false charge of gross misconduct and charge sheeted him vide charge sheet dated 24.10.2005; that the management of M/s Hindustan Times Ltd.vide its charge sheet dated 24.10.2005 had made false allegation of habitual absenteeism against him belatedly to which he had replied to vide reply dated 28.10.2005 whereby the alleged charges had been denied being wrong and baseless since whenever he availed leave, he had given proper leave application; that the charge sheet was issued by an incompetent authority; that he was neither the appointing authority nor a competent authority to take such decision; that moreover, explanations given earlier in response to memos had been D.I.D. No. 44/09 Page 15 out of 54 accepted by the management and as such there was no basis of holding enquiry in this regard except for malafide considerations; that at no stage the workman had accepted the alleged charges as made known vide enquiry officer's report and dismissal order dated 18.02.2006; that the enquiry officer was unbecoming of an enquiry officer; that the enquiry officer did not conduct the enquiry as per the principles of natural justice, rule of law, fair play and equity; that he was not provided free, fair, equal, reasonable, effective opportunity to defend himself; that no document was supplied to him along with the charge sheet and nor the same was given during the course of enquiry proceeding; that no enquiry was conducted in his matter by the enquiry officer and the enquiry officer closed the enquiry proceedings on the ground that he had admitted his charges; that this was completely untrue; that the enquiry officer Mr. Satish Ahuja acted as an enquiry officer in many matter during that period and in all matters he cheated the entire employees and did not conduct the enquiry in any matter; that all the employees had complained and protested against his such acts of cheating; that the alleged misconduct was not proved in the enquiry but still deliberately in collusion and at the behest of the management, he was declared to be guilty by the biased and prejudiced enquiry officer; that it was a predetermined decision; that the enquiry officer acted with a biased, closed and prejudicial D.I.D. No. 44/09 Page 16 out of 54 mind against him; that he was not allowed the services of the defence assistance during enquiry owing to which the enquiry was vitiated, as such the findings of the same are liable to be set aside; that the management served a show cause notice dated 02.02.2006 which he had replied to vide reply dated 07.02.2006 but the management had also not considered the same properly and dismissed him from service vide order dated 18.02.2006; that "on account of illness" vide letter dated 08.08.2006, he had protested against the dismissal order so made and following which the Hindustan Times Employees Union had also vide its letter dated 08.09.2006 had demanded for withdrawal of said dismissal order and reinstatement in service with the back wages and consequential benefits arising therefrom; that the management had not replied to his above said letters as well as of the Hindustan Times Employees Union due to which the present Industrial Dispute had arisen for holding the said dismissal order as wrong and illegal and for his reinstatement in service; that in the given facts and circumstances of the case the alleged charges as leveled vide charge sheet dated 24.10.2005 cannot be said to have been proved, accordingly, dismissal order so made was wholly malafide, wrong, illegal, unfair and unjustified; that the workman was declared a protected workman by the ALC, New Delhi vide order dated 03.11.2005 being an activist and office bearer of the Hindustan D.I.D. No. 44/09 Page 17 out of 54 Times Employees Union as such the management ought to have taken approval or permission as required in terms of section 33 (2) (b) of the Industrial Disputes Act which also had not been done, accordingly, the order of dismissal so made was not sustainable; that he had been harassed and victimized by way of suspension, leveling false charges, holding enquiry in an unfair and illegal manner against the principles of natural justice and thereafter, imposing the penalty of dismissal, which was wholly disproportionate as such merits to be set aside; that the enquiry had been held with a biased and prejudiced mind in collusion with the management, which resorted to such an act of unfair labour practice with a view to reduce the staff which was a colorable exercise of power; that the workman had been wrongly and illegally charge sheeted with malafide intention and ulterior motives despite commission of no misconduct or misconducts by him; that the enquiry was got conducted by a biased interested enquiry officer who worked as an agent of the management and worked for the interest of the management; that without an enquiry the enquiry officer declared the workman guilty of the charge; that the charge of habitual absenteeism was not proved and as such the enquiry officer could not have decided against him; that no enquiry was conducted and falsely stating that he admitted the charges, the enquiry officer declared him guilty; that this was extremely false and incorrect; that D.I.D. No. 44/09 Page 18 out of 54 in his reply to the show cause notice dated 02.02.2006, he had replied to this in detail vide reply dated 07.02.2006 and relied upon the same but the same was not relied upon much to the prejudice of his defence; that the enquiry report was perverse and the dismissal order so made was liable to be set aside and the enquiry proceedings were liable to be declared vitiated in the interest of justice.
Ex.WW1/1 Colly being copies of Hindustan Times Employees Union Election 2005 Notice dated 25.08.2005 alongwith list of election 2005 dated 30.08.2005 of office bearers; Ex.WW1/2 being copy of letter dated 07.10.2005 of the Office of Registrar Trade Union, Government of NCT of Delhi (Labour Department) to Sh. Dinesh Tiwari, Member, Hindustan Times Employees Union, New Delhi along with copy of the union's constitution; Ex.WW1/3 being copy of charge sheet dated October 24, 2005 of the management to the workman; Ex.WW1/4 being copy of reply dated 28.10.2005 of the workman to the management of the same; Ex.WW1/5 Colly being copy of letter dated 14.02.2006 of the workman to the management; Ex.WW1/6 being copy of show cause notice dated February 03, 2006 of the management to the workman; Ex.WW1/7 being copy of dismissal order dated 18.02.2006 of the management to the workman; Ex.WW1/8 being copy of protest letter dated 08.09.2006 of the union against the dismissal order dated 18.02.2006 in respect of the D.I.D. No. 44/09 Page 19 out of 54 workman and Mark A being copy of alleged letter dated 07.02.2006 of the workman to the management.
This witness has been cross examined at length on behalf of the management in workman evidence on enquiry issue, in which he has deposed that he was 12th passed; that he knew little bit of reading and writing of English; that he knew Hindi very well; that Ex. WW1/M1 bear his signatures at point A to G; that it was wrong to suggest that Ex.WW1/M1 contains the factual and correct position; that it was wrong to suggest that a valid and proper enquiry was conducted against him and on the very first date of enquiry he admitted the charges leveled against him; that it was wrong to suggest that the enquiry officer conducted the enquiry in accordance with principles of natural justice; that it was wrong to suggest that the enquiry officer did not cheat him or that he gave full opportunity to him to defend himself or that he had admitted the charges; that it was wrong to suggest that the enquiry officer was an impartial person; that it was wrong to suggest that the enquiry officer did not act with a bias, close or prejudiced mind; that it was wrong to suggest that his allegation that he had been victimized by the management was totally false and baseless; that it was wrong to suggest that his entire allegations against the enquiry and the enquiry officer were false and an afterthought story; that it was wrong to suggest that he never D.I.D. No. 44/09 Page 20 out of 54 submitted letter dated 07.02.2006 which was Mark A to the management either in person or sent it by post; that it was wrong to suggest that he was not implicated in a false charge; that it was wrong to suggest that the charges against him were correct; that it was wrong to suggest that he was not implicated in a false case by the management on account of his union activities; that it was wrong to suggest that he was not an active member of any union; that it was wrong to suggest that the enquiry was fair and proper; that it was wrong to suggest that he was deposing falsely.
Thereafter, workman evidence on enquiry issue has been closed, on record.
In management evidence on the enquiry issue, the management has led the evidence of Sh. Satish Ahuja, Enquiry Officer of the management as MW1, who has tendered his affidavit by way of evidence Ex.MW1/A as also relied upon documents Ex. MW1/1 Colly, Ex.MW1/2 and Ex.MW1/3, on record. In his affidavit by way of evidence Ex.MW1/A he has deposed to the effect that the management of Hindustan Times Ltd. had appointed him as Enquiry Officer to conduct a domestic enquiry into certain charges of misconduct leveled by them against Mr. Vinod Kumar Sharma vide Charge Sheet dated 24.10.2005; that thereafter, he fixed the enquiry on 11.11.2005; that during the proceeding dated 11.11.2005 the D.I.D. No. 44/09 Page 21 out of 54 workman categorically admitted the charges leveled against him vide charge sheet dated 24.10.2005; that he recorded the enquiry proceeding dated 11.11.2005 correctly and truthfully and the same represents the correct and factual position as to what happened in the enquiry; that the said enquiry proceedings bear his signatures, as well as those of the management's representative and the workman; that he conducted the enquiry independently, impartially and without any bias for or against any party; that based on the materials on record in the enquiry, including categorical admission of the workman before him in the enquiry, he submitted his enquiry report.
Ex. MW1/1 Colly being copy of the enquiry proceedings held by the MW1 in respect of the workman along with appendices/enclosures thereto (which is also Ex.WW1/M1, on record), Ex.MW1/2 being copy of the enquiry report of the MW1 Sh. Satish Ahuja Enquiry Officer in respect of the workman and Ex. MW1/3 being copy of letter dated 08.11.2005 of the management to the workman to the effect that domestic enquiry would be held into the charges leveled against him by the management vide charge sheet dated 24.10.2005 and that Sh. Satish Ahuja had been appointed as an Enquiry Officer to conduct the subject enquiry in accordance with the principles of natural justice as also intimating to him the date, time and place of holding of the enquiry on the part of the enquiry officer, D.I.D. No. 44/09 Page 22 out of 54 as abovesaid.
This witness has been cross examined at length on behalf of the workman in management evidence on enquiry issue, in which he has deposed that it was correct that he had conducted other enquiries as well of the employees of M/s Hindustan Times before conducting the present enquiry; that it was correct that he was a practicing advocate; that he did not recollect whether he conducted the enquiry of Rajinder Bhati, J.S. Tripathi, S.K.Pandey and Others.; that he did not remember their names; that he did not remember as to whether he conducted the enquiries before or after conducting the enquiry of the present workman; that it was wrong to suggest that he was deliberately evading to disclose the names of the persons or the period of the enquiry; that he started conducting the enquiries of the employees of M/s Hindustan Times from 2005; that he did not know how the management came to know about him and approached him to conduct the enquiries; that it was correct that the management gave letter appointing him as an enquiry officer as and when he was required to conduct an enquiry; that the said letter relating to the present enquiry was not on record; that it was wrong to suggest that no appointment letter was issued to him by the management; that the letter issued to him by the management did not specify the period within which the enquiry had to be concluded; that he could not say D.I.D. No. 44/09 Page 23 out of 54 without seeing the letter of appointment as to whether it was mentioned therein or not that the enquiry had been conducted in accordance with certified standing orders applicable on the workman; that it was wrong to suggest that no appointment letter was issued to him by the management appointing him as an enquiry officer; that a copy of the letter dated 08.11.2005 addressed to workman was supplied to him by the management, same was marked as Ex. MW1/3; that Ex.MW1/3 was the letter appointing him as the enquiry officer (objected to by the AR for the workman as this was not the letter of appointment but a letter addressed to the workman by Mr. Navneet Kaushik through the Manager, HRD); that except this letter no other letter was issued to him by the management appointing him as an enquiry officer; that he was practicing at Faridabad; that he was enrolled as an Advocate at Faridabad; that he did not have any case in Delhi; that he did not practice in Delhi; that the management had taken his verbal consent before appointing him as an enquiry officer on phone; that Mr.A.K. Talukdar had taken his consent prior to Ex. MW1/3; that it was correct that he did not personally intimate the workman of the date of proceedings; that the management had taken upon itself to do so; that his consent was sought which he gave verbally; that he had required the workman to tell him whether he wished to be represented with the defence representative or not, D.I.D. No. 44/09 Page 24 out of 54 during the enquiry proceedings; that he did not meet the date of appointment and initiation of the enquiry proceedings; that on the date when the enquiry proceedings were initiated he did not have the copy of the standing orders; that the same were filed during the enquiry proceedings by the management; that it was wrong to suggest that he did not know the procedure prior to the initiation of the enquiry proceedings; that he knew the procedure as he had conducted the number of enquiries prior to the present enquiry and as such he was well aware of the procedure; that most of the industries have similar standing orders apart from two variants; that he did not read the standing order of Hindustan Times prior to initiation of the standing orders as he was fully aware of the same, he did no supply any copy of the standing orders to the workman as the same was not asked from him; that it was correct that he did not require the management to provide him the certified standing orders in Hindi as he had conducted the enquiry proceedings in Hindi; that he did not ask the workman whether he was aware of the standing orders or not; that he did not remember whether he had conducted all the enquiries in one day like the present one; that he had read out the charges to the workman in Hindi and on his reading the charge, the workman admitted the same Q. Did he explain procedure prior to reading out the D.I.D. No. 44/09 Page 25 out of 54 charge?
A. His report was self sufficient according to which he had explained the procedure.
That it was incorrect to suggest that he did not follow the procedure as he had explained to the workman; that the procedure followed by him was a matter of record; that the procedure followed manifests from the proceeding sheet of the enquiry proceeding; that it was incorrect that he did not explain to the workman that there would be a stage where a workman would be required to admit or deny the charge; that it was correct that he did not explain the consequences of admission or denial of charges; that it was incorrect that he did not explain the meaning of charges of habitual absenteeism and habitual late coming; that it was correct that he did not explain the consequences if the charges were proved as there was no stage for the same; that it was because of the fact that the workman had admitted to the charge; that the punishment was not within his domain but was prerogative of the administration; that it was correct that he did not explain the consequences of the admission of the workman in context to Section 14 (2) (e) and 12 (2) (f) of the certified standing order; that he considered the explanation of the workman dated 28.10.2005 in his report; that it was correct that he did not enquire from the MR for leave application of the workman as the workman had already D.I.D. No. 44/09 Page 26 out of 54 admitted the charge; that it was correct that on the first day of the enquiry only the procedure relating to the enquiry was explained to the parties; that as an enquiry officer, he also enquired from the charge sheeted employee or the management representative for filing of documents or bringing of defence representative etc. on the first day; that no defence representative had appeared on behalf of the charge sheeted employee; that he did not ask specifically if the charge sheeted employee wanted to bring any defence representative. Vol. Such occasion did not arise as he admitted the charges; that the management was duly represented by a management representative; that the charge sheeted employee signs at each proceeding sheets after reading the contents thereon; that it was incorrect to suggest that all the proceeding sheets were signed by the charge sheeted employee at the end of the enquiry proceedings on the given date; that the proceeding on next page was recorded only after the previous proceedings sheet was signed by the parties; that it was incorrect that this was not a normal practice that prior to recording the proceedings of the next page, the previous page was mandatorily signed; that he could not say if such procedure was laid down in the standing order. Vol. This was a normal practice; that it was incorrect to suggest that he obtained the signature of the charge sheeted employee on each page without giving him the proceeding sheets for his reading and D.I.D. No. 44/09 Page 27 out of 54 understanding; that it was wrong to suggest that the workman herein kept on continuously signing individual sheets one after the other independently; that it was wrong to suggest that he did not explain the charges to the workman concerned; that on page 3 of his proceeding dated 11.11.2005 the fact regarding explaining the charges was contained at point A to A; that as per him reading and explaining the charges was one and the same thing; that as per his reading of charges was as good as explaining the same; that there was no such specific recording in the proceeding mentioning that he had explained the meaning of habitual absenteeism and late coming; that it was correct that documents Ex.M1 to M15 filed by the management during the proceedings were neither admitted nor denied by the workman concerned; that it was correct that he did not enquire from the workman anything regarding this document; that it was also correct that he did not ask the workman whether he wanted to put any question to the management representative regarding these exhibited documents; that it was a matter of record whether the management had filed any document pertaining to charge sheet dated 13.02.2003 and May 13, 2003 regarding poor attendance during the enquiry proceedings; (that after pursuing the record witness says that no such document was filed by the management in the enquiry); that it was correct that he did not provide the Hindi version of standing order to D.I.D. No. 44/09 Page 28 out of 54 the workman concerned; that it was further correct that he did not grant him any opportunity to go through the standing orders or even the Hindi standing orders; that it was correct that Ex.WW1/4 was filed by the management in the enquiry which was marked as Ex. M12 in the enquiry which was the explanation of the workman to the charge sheet served upon him; that it was correct that he did not conduct any enquiry from the department where the workman was posted to ascertain the fact relating to the habitual late coming and habitual absenteeism of the workman; that he also did not enquire from the concerned department as to whether the workman concerned was giving proper application for his leave and late coming; that he also did not enquire regarding the entitlement of 15 days sick leave, 16 casual leave, 30 days privileged leave as per the rules applicable on him from the management; that it was a matter of record whether the management had filed any document including show cause notice to show the habitual absenteeism or late coming of the workman except the charge sheet; that it was wrong to suggest that the workman never admitted the charge of habitual absenteeism and habitual late coming; that it was wrong to suggest that he did not conduct the enquiry in accordance with principles of natural justice, rule of law, fair play and equity; that it was wrong to suggest that he did not provide free, fair, equal, reasonable and effective opportunity D.I.D. No. 44/09 Page 29 out of 54 to the workman to defend himself during the enquiry; that it was wrong to suggest that there was no document on record or evidence against the workman herein to suggest that the workman committed the alleged misconduct as stated in the charge sheet; that it was wrong to suggest that the document placed by the management bearing exhibit no. M1 to M15 did not prove even prima facie that the workman was involved in misconduct of habitual absenteeism and habitual late coming; that it was wrong to suggest that he did not conduct any enquiry at the behest of the management and closed the enquiry by cheating the workman on the false ground that the workman admitted the charges; that it was wrong to suggest that there was no document on record to show that the workman habitually absented without leave for ten days in any year; that it was correct that he did not enquire from the workman as to whether he was absent without leave for more than ten days in a year. Vol. No such occasion arose in view of his admission to the charges; that it was a matter of record as to whether the workman absented for ten days in a year; that it was correct that the management did not file any document showing that the workman concerned was habitually absent without leave or without permission for more than ten days and regarding habitually late coming in a year during the enquiry; that it was wrong to suggest that he acted as a mouth piece of the management and recorded the D.I.D. No. 44/09 Page 30 out of 54 proceedings as per the dictates of management representative; that it was wrong to suggest that he acted with closed and biased mind to any how hold the workman guilty of charges for hefty consideration; that he did not remember whether he had conducted the enquiry of S/Sh.J.S.Tripathi, R.S. Bhati, S.K.Pandey and other employees of Hindustan Times in the same way and concluded their enquiry on the first day itself in a similar way as the present enquiry and held them guilty in similar fashion, recording that they had admitted the charges; that he did not remember if concluded the said enquiry also in one hour of the same day; that it was wrong to suggest that he obtained the signatures of charge sheeted employee of Hindustan Times by cheating them; that he did not know whether the charge sheeted employees of Hindustan Times protested against his conduct or that they asked the management to conduct the enquiry afresh; that it was wrong to suggest that the charge sheeted employees asked him to conduct the enquiry afresh but he refused the same; that it was wrong to suggest that the enquiry report was perverse; that his report was self explanatory as to whether he had considered what materials and documents placed before him including the documents pertaining to charge sheet dated 13.02.2003 and 13.05.2003; that he did not give the enquiry report to the management in Hindi; that it was wrong to suggest that he was deposing falsely.
D.I.D. No. 44/09 Page 31 out of 54 Thereafter, management evidence on the enquiry issue has been closed, on record.
It is seen from the record that though the workman has alleged by way of his affidavit by way of evidence Ex.WW1/A in workman evidence on the enquiry issue to the effect that the enquiry conducted by the management in the charge sheet dated 24.10.2005 of the management in his respect qua the allegations of the management against him of his being in the habit of absenting himself from duty without prior information/permission as also of his being habitual late comer in his duty along with his attendance record for the year 2005 up to September, 2005 which allegedly revealed that he had absented for 52 days and had reported for duty late on 57 occasions, the details of which had been furnished along with the month, number of days absence, dates of absence, number of days of late coming in each month w.e.f. January to September, 2005 on the ground that the above said charges, if, proved true were a misconduct under section 14 (2)
(e) and 14 (2) (f) of the Certified Standing Orders for Non Journalists employees which was applicable to the workman with the further definition of the Section 14 (2) (e) " habitual absence without leave for more than 10 days". 14 (2) (f) " late attendance for more than 5 days in a year", was not conducted in accordance with principles of natural justice, rule of law, fair play and equity by virtue of D.I.D. No. 44/09 Page 32 out of 54 management being prejudiced against him on account of his allegedly being a protected workman by virtue of having been elected the office Secretary of the subject union in respect of the employees of the management and accordingly, the management had made false allegations of habitual absenteeism against him; that he had allegedly not admitted to the alleged charges which had been denied by him vide his reply dated 28.10.2005 Ex.WW1/4; that he had not been provided free, fair, equal, reasonable, effective opportunity to defend himself by the enquiry officer in the enquiry; that no document had been supplied to him along with the charge sheet nor the same was given during the course of the enquiry proceedings; that no enquiry was conducted in his matter by the enquiry officer and the enquiry officer closed the enquiry proceedings on the ground that he had admitted his charges, which was completely untrue; that the enquiry officer Mr. Satish Ahuja acted as an enquiry officer in many matters during that period and in all matters he cheated the entire employees and did not conduct the enquiry in any matter; that all the employees had complained and protested against his such acts of cheating; that the alleged misconduct was not proved in the enquiry but still deliberately in collusion and at the behest of the management, the workman was declared to be guilty by the biased and prejudiced enquiry officer; that the enquiry officer acted with a biased, closed D.I.D. No. 44/09 Page 33 out of 54 and prejudiced mind against him; that the workman was not allowed the services of the defence assistant during enquiry owing to which enquiry stands vitiated and its findings are liable to be set aside, however, it is seen from the record that vide the enquiry proceedings admitted by the workman to having been held in his respect in his cross examination on behalf of the management in workman evidence on enquiry issue, on record, Ex.WW1/M1 admittedly bearing his signatures at Points A to G thereon (as also Ex.MW1/1 Colly, on record), the workman has participated in the subject enquiry proceedings on the date of hearing viz. 11.11.2005 fixed in the same, as is evident from his signatures admitted by him at Points A to G thereon wherein it has been mentioned that (True English translation rendered by the Court) the enquiry officer has explained the procedure of the enquiry in detail to both the parties which would be that in order to prove the allegations of misconduct on the part of the management against the workman, the management would be afforded opportunity first to lead its witnesses/evidence in this regard against the workman in the enquiry with opportunity to the workman to cross examine/rebut the same; that after conclusion of the management evidence in the enquiry, the charge sheeted employee would then be given an opportunity to present witnesses/evidence in his defence with the opportunity to the management to cross D.I.D. No. 44/09 Page 34 out of 54 examine/rebut the same; that on the closure of evidence on behalf of both the parties, the enquiry proceedings would be concluded and report on the same given by the enquiry officer to the management; that during the proceedings of the enquiry as per the standing orders of the management, the charge sheeted employee would be afforded the facility of being assisted by a defence assistant; that the proceedings of the enquiry would be signed by the enquiry officer as also both the parties on each page of its proceedings and only thereafter, the writing of the next page of the enquiry proceedings would commence; that in case the charge sheeted employee wished to inspect any document in respect of the charges against him or take notes from the same or even to take photocopy of the same then due opportunity would be afforded to him in this regard; that copy of the each enquiry proceedings would be supplied to each party and their signatures in lieu of the receipt of the same taken; that the delinquent employee/charge sheeted employee has submitted that he had received the charge sheet and has read and understood the contents of the same; that the contents of chargesheet have been read to the charge sheeted employee who has been asked as to whether he admits the charges against him; that the charge sheeted employee has accepted the charges against him. Sd/ Charge sheeted employee. 11.11.2005; that it has been submitted by the representative of the D.I.D. No. 44/09 Page 35 out of 54 management that since the charge sheeted employee has accepted/admitted the charges against him, accordingly, the management did not wish to produce any witness against the charge sheeted employee in the enquiry and the documents relating to the charges would be submitted, on record, for which permission be given to the management; that permission has been granted to the management representative in this regard; that the management representative has presented/brought on record the following documents on behalf of the management:
(i) Photocopy of leave register, 2005 Ex. M1.
(ii) Photocopy of attendance register January, 2005 Ex. M2
(iii) Photocopy of attendance register February, 2005 Ex. M3.
(iv) Photocopy of attendance register March, 2005 Ex. M4.
(v) Photocopy of attendance register April, 2005 Ex. M5.
(vi) Photocopy of attendance register May, 2005 Ex. M6.
(vii) Photocopy of attendance register June, 2005 Ex. M7.
(viii) Photocopy of attendance register July, 2005 Ex. M8.
(ix) Photocopy of attendance register August, 2005 Ex. M9.
(x) Photocopy of attendance register September, 2005 Ex. M10.
(xi) Charge sheet dated 24.10.2005 Ex. M11
(xii) Explanation/reply dated 28.10.2005 of the charge sheeted employee to the charge sheet Ex. M12.
D.I.D. No. 44/09 Page 36 out of 54 (xiii) Letter dated 08.11.2005 of the management intimating the
holding of a domestic enquiry in the charge sheet dated 24.10.2005 Ex. M13.
(xiv) Postal receipt dated 09.11.2005 Ex. M14.
(xv) Copy of the Certified Standing Orders of the management Ex. M15; that it has been submitted by the management representative that the originals of the attendance registers and leave register have been brought by her, which have been seen and returned; that it has been submitted by the management representative that now the management did not wish to present any other document in the enquiry; that since the charge sheeted employee has accepted the charges as leveled against him, hence the enquiry stands concluded; that the enquiry report would be submitted at the earliest to the management. Sd/ Enquiry Officer. Sd/ Management representative. Sd/ Charge sheeted employee. 11.11.2005. Received copy of the enquiry proceedings from page nos. 1 to 5. Sd/ Charge sheeted employee 11.11.2005, as also accepted the charges of his being absent from his duties without prior information/permission for a period of 52 days as also having reported for duty late 57 times on the dates, months and year alleged i.e. with effect from January to September, 2005 vide the charge sheet dated 24.10.2005 of the management against the workman Ex.WW1/3, on record, of his own free will and D.I.D. No. 44/09 Page 37 out of 54 understanding consequent to the procedure as per the Certified Standing Orders of the management in his respect having been duly explained on the part of the enquiry officer to him which entails inter alia that in order to prove the charges against the delinquent employee/charge sheeted employee/workman, opportunity would be given to the management to lead evidence in respect of the same against the workman with the opportunity to the workman to cross examine the witnesses appearing on behalf of the management in this regard and consequent to the closure/winding up of the management evidence, the charge sheeted employee qua the charges in his respect, would be granted due opportunity to present/produce his defence/evidence in rebuttal of the same with consequent opportunity to the management to cross examine the witnesses appearing in the defence evidence of the charge sheeted employee/workman in the enquiry along with the facility as per the Certified Standing Orders of the management of provision of services of the defence assistant to the charge sheeted employee/workman during the enquiry along with the liberty to the charge sheeted employee to inspect any document relating to the charges against him, to take notes from the same or even to take photocopy of the same during the enquiry as also the provision of copy of the enquiry proceedings to each party pursuant to taking their signatures in lieu of receipt of the same as also it is D.I.D. No. 44/09 Page 38 out of 54 seen from the enquiry proceedings Ex. MW1/1 Colly (as also Ex. WW1/M1) that consequent upon it having been certified by the charge sheeted/delinquent employee/workman appearing before the enquiry officer that he had received the charge sheet as also had read the contents of the same as also duly understood the same with the further mention that the charge sheet has been read over to the charge sheeted employee/delinquent employee/workman on the part of the enquiry officer and then he has been asked as to whether he accepted the charges leveled against him or not to which it has been mentioned in the enquiry proceedings by the enquiry officer, Ex.MW1/1 Colly (as also Ex.WW1/M1, on record) that the charge sheeted employee/delinquent employee/workman has accepted the charges as leveled against him with the subsequent proceedings as mentioned in the same, as above said, on record, with the admitted signatures of the charge sheeted employee/delinquent employee/workman at points A to G thereon, on which enquiry proceedings, it is further seen from the record that the enquiry officer MW1 Sh. Satish Ahuja has submitted his report Ex.MW1/2 to the management holding that the charge sheeted employee/delinquent employee/workman is guilty of all the charges leveled against him vide charge sheet dated 24.10.2005 (Ex. WW1/3) after detailing the enquiry proceedings in the same and on the basis of the admission of the charge sheeted D.I.D. No. 44/09 Page 39 out of 54 employee/delinquent employee/workman to the charges as leveled by the management vide its charge sheet dated 24.10.2005 Ex.WW1/3, along with the contents of explanation/reply dated 28.10.2005 of the charge sheeted employee/workman (Ex.WW1/4) to the charge sheet, as above said against him as mentioned therein. Admittedly, copies of all the enquiry proceedings along with its appendices/annexures as also the enquiry report of the enquiry officer on the same had been supplied to the workman by the management as is evident from the affidavit by way of evidence of the workman Ex.WW1/A in workman evidence wherein he has submitted that copy of the entire proceeding sheets of the enquiry and the copy of the communication made by him to the management were enclosed therewith and marked as Ex.WW1/5 Colly, which includes the copy of the enquiry report as also from the contents of the paragraph no. 5 of the statement of claim to the effect that at no stage the workman accepted the alleged charges as made known vide enquiry officer's report and dismissal order dated 18.02.2006, as above said.
I find from the record that despite the workman having alleged that the enquiry conducted by the management in the charge sheet dated 24.10.2005 of the management in his respect qua the allegations of the management against him of his being in the habit of absenting himself from duty without prior D.I.D. No. 44/09 Page 40 out of 54 information/permission as also of his being habitual late comer in his duty along with his attendance record for the year 2005 up to September, 2005 which allegedly revealed that he had absented for 52 days and had reported for duty late on 57 occasions, the details of which had been furnished along with the month, number of days absence, dates of absence, number of days of late coming in each month w.e.f. January to September, 2005 on the ground that the above said charges, if, proved true were a misconduct under section 14 (2)
(e) and 14 (2) (f) of the Certified Standing Orders for Non Journalists employees which was applicable to the workman with the further definition of the Section 14 (2) (e) " habitual absence without leave for more than 10 days". 14 (2) (f) " late attendance for more than 5 days in a year", was not conducted in accordance with principles of natural justice, rule of law, fair play and equity by virtue of management being prejudiced against him on account of his allegedly being a protected workman by virtue of having been elected the office Secretary of the subject union in respect of the employees of the management and accordingly, the management had made false allegations of habitual absenteeism against him; that he had allegedly not admitted to the alleged charges which had been denied by him vide his reply dated 28.10.2005 Ex.WW1/4; that he had not been provided free, fair, equal, reasonable, effective opportunity to defend D.I.D. No. 44/09 Page 41 out of 54 himself by the enquiry officer in the enquiry; that no document had been supplied to him along with the charge sheet nor the same was given during the course of the enquiry proceedings; that no enquiry was conducted in his matter by the enquiry officer and the enquiry officer closed the enquiry proceedings on the ground that he had admitted his charges, which was completely untrue; that the enquiry officer Mr. Satish Ahuja acted as an enquiry officer in many matters during that period and in all matters he cheated the entire employees and did not conduct the enquiry in any matter; that all the employees had complained and protested against his such acts of cheating; that the alleged misconduct was not proved in the enquiry but still deliberately in collusion and at the behest of the management, the workman was declared to be guilty by the biased and prejudiced enquiry officer; that the enquiry officer acted with a biased, closed and prejudiced mind against him; that the workman was not allowed the services of the defence assistant during enquiry owing to which enquiry stood vitiated and its findings were liable to be set aside, however, no evidence has been led by the workman for proving of the same in his workman evidence, on record, thereby the said allegations being nothing more than bald allegations on the part of the workman against the enquiry conducted by the management in the charges as leveled by the management against him vide charge sheet dated D.I.D. No. 44/09 Page 42 out of 54 24.10.2005 Ex.WW1/3, on record. Admittedly, it has been held vide citation 1981 LAB. I.C. 557 The Manager, Boisahabi Tea Estate, Petitioner Vs. The Presiding Officer Labour Court, Dibrugarh and anotherRespondents that:
"It is a settled law that the domestic enquiries do not stand on the same pedestal with the trials of actions or cases in Court; they are not governed by technical rules or procedural laws. The rules of natural justice are matters not of form but of substance breach of bare technicalities cannot be equated with violation of the principles of natural justice. Dehors prejudice there cannot be violation of the rules of natural justice." as also "Prejudice caused to the delinquent resulting from the alleged violation of natural justice must be asserted and/or established or proved. The resultant effect of violation of the Rules must result in some sort of sufferance, handicap or prejudice to the delinquent."
D.I.D. No. 44/09 Page 43 out of 54 I find, from the record that no serious effort has been made or any evidence led on the part of the workman in his workman evidence, on record, to show/prove that his above said allegations in respect of the conduct of the enquiry on the part of the management vide Ex.MW1/1 Colly (as also Ex.WW1/M1) along with Exts MW1/2 and MW1/3, as above said, have caused any prejudice to him, which is a sine qua non for any alleged violation of principles of natural justice on the part of the management qua the enquiry held in respect of the charge sheet dated 24.10.2005, Ex.WW1/3, against the workman, the subject matter of the instant issue and accordingly, I find from the record that the said allegations as leveled by the workman against the subject enquiry conducted by the management in respect of the charge sheet dated 24.10.2005 of the management in his respect are nothing but bald allegations on the part of the workman against the same in his workman evidence, on record, as already observed hereinabove, and accordingly, do not stand proved, on record. It is further seen from the record that even though it has been alleged by the workman that he had not admitted to the charges of the management as leveled against him in the charge sheet dated 24.10.2005, Ex.WW1/3, as above said, of his being a habitual absentee and late comer in his duties with the management, having absented from his duties with the management without prior D.I.D. No. 44/09 Page 44 out of 54 information/permission for 52 days and having reported late for duties on a total number of 57 days during the period w.e.f. January to September, 2005 amounting to misconduct under section 14 (2) (e) and 14 (2) (f) of the Certified Standing Orders for Non Journalists employees of the management like the workman and accordingly, applicable to the workman being " habitual absence without leave for more than 10 days" and " late attendance for more than 5 days in a year" respectively, vide his reply dated 28.10.2005 to the same, Ex.WW1/4, however, from a reading of the same, it is evident that there is no refuttal/rebuttal of the charges as leveled by the management against the workman vide its above mentioned charge sheet dated 24.10.2005, Ex.WW1/3, in his respect, the delinquent employee/charge sheeted employee/workman having infact expressed his regret for his absence from his duties without prior permission as also being late for his duties on account of his alleged family circumstances as mentioned therein viz. that his wife was sick for the last few years; that he got her treatment from various places but her disease could not be diagnosed; that he was only male member in his house; that he had to take care of his children; that he admits that he often reached late in the office and also even remained absent from duty; that in any case he informed his incharge; that he further assures not to give any chance of complaint in future, which have D.I.D. No. 44/09 Page 45 out of 54 been considered by the enquiry officer qua the charge sheeted employee/delinquent employee/workman in his enquiry report Ex.MW1/2, on record, and I, thus, find no merit in the allegation of the workman that he had not admitted to the charges as leveled against him by the management vide its charge sheet dated 24.10.2005 in his respect, Ex.WW1/3, as above said, on record, in his reply dated 28.10.2005, as above said, to the same, Ex.WW1/4, on record.
I further find that the objection taken by the workman vide his affidavit by way of evidence Ex. WW1/A in respect of the alleged incompetency of the charge sheet Ex. WW1/3 as issued by the management in his respect as also the alleged incompetency of the enquiry officer to hold the enquiry in his respect as taken by the workman in his written submissions, on record, are not tenable in the instant proceedings in law by virtue of the workman having not taken the same in his reply dated 28.10.2005 Ex. WW1/4 to the subject charge sheet (in re the charge sheet) or in the enquiry proceedings Ex. MW1/1 Colly (as also Ex. WW1/M1) held in his respect on the same or even in his instant statement of claim filed in this court as required vide the provisions of citations UCO Bank Vs. The Presiding Officer and another, 1999 LLR 1036 Delhi High Court; Management of M/s K.G. Khosla & Company (P) Ltd. Vs. D.I.D. No. 44/09 Page 46 out of 54 Ved Raj Bhalla and Others, 1972 LAB.I.C. 1475; Indian Hume Pipe Company Ltd. Vs. Their workmen, 1969 VolI LLJ 242 Supreme Court; Management of Rashtradoot Jaipur Vs. Rajasthan Working Journalists Union & Ors, Jaipur, 1970 Vol20 FLR I Supreme Court; Tin Printers (Pvt.) Ltd. Vs. Industrial Tribunal Delhi and Anr., 1968 Vol17 FLR 61, Punjab High Court; Shankar Chakravarty Vs. Britannia Biscuit Company and Anr., (1979) 2 LLJ 194 Supreme Court wherein in Shanker Chakravarty (supra) it has been held " 31. If such be the duties and functions of the Industrial Tribunal or the Labour Court, any party appearing before it must make a claim or demur the claim of the other side and when there is a burden upon it to prove or establish the fact so as to invite a decision in its favour, it has to lead evidence. The quasijudicial Tribunal is not required to advise the party either about its rights or what it should do or omit to do. Obligation to lead evidence to establish an allegation made by a party is on the party making the allegation.
D.I.D. No. 44/09 Page 47 out of 54 The test would be who would fail if no evidence is led. It must seek an opportunity to lead evidence and lead evidence. A contention to substantiate which evidence is necessary has to be pleaded. If there is no pleading raising a contention there is no question of substantiating such a non existing contention by evidence. It is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and if entertained it would tantamount to granting an unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such bodies have not to be read strictly, but it is equally true that the pleadings must be such as to give sufficient notice to the other party of the case, it is called upon to meet. This view expressed in Tin Printers 9 (P) Ltd. Vs. Industrial Tribunal (1967II, LLJ 667) at D.I.D. No. 44/09 Page 48 out of 54 page 680 commends to us. The rules of fair play demand where a party seeks to establish a contention which if proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. But if there is no pleading there is no question of proving something which is not pleaded. This is very elementary.
32. Can it for a moment be suggested that this elementary principle does not inform industrial adjudication? The answer must be an emphatic "no".
as also it has been held in the Management of M/s K.G. Khosla and Company (P) Ltd. (supra) that "14. The above observations were made in the context of only whether evidence could be appreciated in the light of the pleadings and the discrepancies between the evidence and the pleadings. These observations do not bear on the question which arises for decision in D.I.D. No. 44/09 Page 49 out of 54 the present case as to whether objection can be taken to the validity of the domestic enquiry on the ground that the persons conducting the enquiry and signing the charge sheet were not competent to do so without raising such a plea. On such a question there should have been a precise plea and there having been no such plea this point could not have been entertained by the Industrial Tribunal. As pointed out by Dua.J., it is not sufficient that there is some kind of evidence. The specific contention which has now been put forward as to whether the enquiry was conducted and the charge sheet signed by persons not competent to do so is of a factual nature and therefore ought to have been pleaded thus giving an opportunity to the management to meet such a case. This not having been done the Industrial Tribunal was not correct in entertaining such an objection".
D.I.D. No. 44/09 Page 50 out of 54 It is further seen from the record that the management has relied upon citations in support of its submission to the effect that the admission of the charge sheeted employee/delinquent employee/workman to the charges as leveled by the management against him before the enquiry officer is the best evidence viz. Delhi Transport Corporation Vs. Shyam Lal, 2004 Vol. 3 L.L.J. 532 wherein it has been held that: " Additionally, the effect of the admission regarding guilt as contained in the letters...
have not been considered in the proper perspective. It is fairly settled position in law that admission is the best piece of evidence against the person making the admission. It is, however, open to the person making the admission to show why the admission is not to be acted upon."
as also vide citation 2006 INDLAW DEL, 391 which is a decision of Division Bench of the Hon'ble High Court of Delhi in case Engineering Projects (I) Ltd. Vs. S.K. Malhotra and others, inter alia in paragraph no. 6 of the same to the effect: "6. Thus, a perusal of the enquiry proceedings shows that the Writ Petitioner D.I.D. No. 44/09 Page 51 out of 54 admitted the charges against him. In our opinion, once an accused admits the charges against him, then no evidence need to be led against the accused and instead straightaway the punishment can be given."
apart from the citations viz. Union Bank of India Vs. Babu Mahadevappa Andani, 2007 L.L.R. 599 (Karnataka High Court); Bank of Baroda Employees Union Chennai Vs. Bank of Baroda, 2008 Ind. Law Mad., 1087 (Madras High Court); Modern Food Industries (India) Limited Vs. The Government of NCT of Delhi and others, 2000 Vol. 2 CLR 546, (Delhi High Court) wherein in Modern Food Industries (India) Ltd. supra it has been held: "Once the charge is admitted, nothing remained to be proved by the petitioner and, therefore, the Inquiry Officer was not supposed to proceed further with the inquiry and recording of findings that charge is proved on the basis of admission was proper and valid. Therefore, the Tribunal went wrong in observing that the letter dated 09.01.1979 does not amount to accepting the D.I.D. No. 44/09 Page 52 out of 54 charges or that even if it amounts to tendering the apology, still departmental inquiry was required to be conducted. It has been held by the Apex Court in number of cases that no such inquiry is required once the charge is admitted by the delinquent employee."
which I find are squarely applicable to the facts of the instant case.
It has further been held vide citation 2013 LLR 540 (Himachal Pradesh High Court) in case titled as Sh. Madan Lal Sharma Vs. H.P. Khadi and Village Industries Board inter alia that: "10. It is settled law by now that when an employee admits the relevant facts/guilt, the regular enquiry is not required to be conducted."
In view of my above observations and findings, I thus find from the record that the workman has not been able to discharge the onus which was upon him in respect of the alleged violation of the principles of natural justice and fair play on the part of the management in the matter of holding the subject enquiry in respect of the charges as leveled by the management against the D.I.D. No. 44/09 Page 53 out of 54 workman vide its charge sheet dated 24.10.2005, Ex.WW1/3, on record, in his respect and accordingly, I find the allegations of the workman in respect of the subject enquiry being allegedly in violation of the principles of natural justice and fair play as made by him, vide his affidavit by way of evidence Ex.WW1/A in workman evidence on enquiry issue, as abovesaid, having not been proved on his part, on record and accordingly, the subject enquiry proceedings Ex.MW1/1 Colly and enquiry report Ex.MW1/2 of the enquiry officer MW1 Sh. Satish Ahuja of the management in its management evidence on enquiry issue, on record, alongwith Ex.MW1/3 in the same in the instant proceedings, on record, are held to be just and proper/legal and valid. The enquiry issue is accordingly, decided in favour of the management and against the workman.
Announced in the open court
on 18.07.2013 (Chandra Gupta)
Presiding Officer Labour CourtX
Karkardooma Courts, Delhi.
D.I.D. No. 44/09 Page 54 out of 54