Delhi District Court
Shri Mool Chand Kharaiti Ram Hospital vs Shri Pramod Kumar Bedwal S/O Sh. ... on 27 March, 2018
IN THE COURT OF SH. CHANDRA GUPTA
PRESIDING OFFICER INDUSTRIAL TRIBUNAL,
DWARKA COURTS, NEW DELHI.
OP. No.1301/16 (Old No.65/05)
Shri Mool Chand Kharaiti Ram Hospital
& Ayurvedic Research Institute
(Unit of Shri Mool Chand Kharaiti Ram Trust),
Lajpat NagarIII,
New Delhi110024.
.... Applicant/Management
Vs.
Shri Pramod Kumar Bedwal S/o Sh. R.K.Bedwal,
B3282 Sant Nagar, Burari,
Delhi110084.
.......Workman
Date of institution 03.01.2005
Date of reserving award 22.02.2018
Date of award 27.03.2018
O R D E R
1. The instant approval application has been moved on behalf of the
applicant/management seeking permission u/s 33 (3) (b) of Industrial
Disputes Act, 1947 (as amended upto date) for dismissal of the services of
the respondent/workman with it on the submissions that the
OP No.1301/16 Page 1 of 53
applicant/management, Shri Mool Chand Kharaiti Ram Hospital & Ayurvedic Research Institute is a unit of Shri Mool Chand Kharaiti Ram Trust; that the management was well known hospital of the city; that it was a premier hospital in the capital of India, which was formed in the year 1959 with the object to provide medical facilities to the people; that the opposite party was an employee employed in the hospital; that the opposite party committed serious acts of misconduct on 05.11.2004; that Sh. Vijender Singh, a dismissed employee of the hospital and General Secretary of Mool Chand Kharaiti Ram Hospital Karamchari Union wanted to have a meeting with Mr. S.K.Saggar, General Manager (Special Initiative) and management representatives regarding some issues relating to the filling up of forms by employees for medical benefits; that he was requested to come and meet Mr. Saggar and management representatives on 05.11.2004 at 03.30 p.m; that at about 03.45 p.m on 05.11.2004 a mob of about 2025 persons came and wanted to meet the management representatives; that they were told that for discussions 23 persons could participate in the meeting and rest of them could go; that then Mr. Vijender Singh came to the room where Mr. S.K. Saggar along with Mr. Gianchand, Mr. Rajiv Tyagi and Mr. Satish Kumar were present; that Mr. Vijender Singh threatened Mr. S.K. Saggar that either he gives orders for OP No.1301/16 Page 2 of 53 the withdrawal of circular regarding medical benefits or the people standing outside will beat him and other management team present in the room; that Mr. Saggar tried to persuade him to use restraint and told that the circular regarding issue of new medical books to the employees was issued on 14.09.2004 giving sufficient time to the employees to fill up the form and the date for filling up the forms was extended 23 times; that Mr. Saggar suggested that if the employees still feel that some difficulties were being faced by them they could explain those difficulties by way of representation and ask for extension of time by few days; that Mr. Vijender Singh did not agree with the suggestion and threatened Mr. Saggar that he either withdraw the circular or be prepared to face dire consequences at the hands of the mob; that he was requested to once again think and maintain peace and tranquility in the hospital as per the undertaking given by them in the Hon'ble Delhi High Court; that now he started using very filthy and abusive language against Mr. Saggar and other members of management team present in the room, went out and called the mob standing outside the room and ordered them to beat up the management team; that the mob consisted of employees and some dismissed employees including the opposite party; that on the call of Mr. Vijender Singh the mob, including the opposite party, started beating the OP No.1301/16 Page 3 of 53 management team with hands, fists, shoes, chappals, lathis shouting, "JAAN SE MAAR DO, PETROL LAO AUR JALAA Do, JOOTE MARO"; that in the process they snatched the purse of Mr. Saggar containing about Rs. 7,500/; that few more people joined the mob and beating of Mr. S.K. Saggar, Mr. Gianchand, Mr. Rajiv Tyagi and Mr. Satish Kumar continued for quite some time; that after badly beating Mr. S.K. Saggar, Mr. Gianchand, Mr. Rajiv Tyagi and Mr. Satish Kumar, they left the room saying that they will come again and be prepared to be killed; that they also threatened not to report to the police otherwise be prepared to face consequences; that after the mob, including the opposite party, left the room after beating the above named management personnel, the matter was reported to the police and medical aid provided to the persons beaten up; that Mr. S.K.Saggar resides with his family in the hospital campus itself; that he and his family members were frightened and felt threat to their lives and property; that the aforesaid acts on the part of the opposite party as a member of the mob constitute acts of grave misconduct; that in view of the acts committed as referred to the above, it was considered inexpedient and not possible to hold a domestic enquiry; that the retention of the opposite party in the employment of the hospital is considered seriously prejudicial to the interest of the hospital and its OP No.1301/16 Page 4 of 53 peaceful running and the management has lost confidence in the opposite party; that he has been suspended vide letter dated 06.11.2004; that the applicant/management shall lead evidence before this Hon'ble Tribunal to prove the misconduct by the opposite party; that the opposite party/workman was issued chargesheet dated 01.06.1999 for misconduct committed by him; that he did not submit any explanation to the charge sheet dated 01.06.1999; that thereafter, the management vide their letter dated 25.01.2000 appointed Sh. Sumar Kumar Jha as Enquiry Officer to conduct a domestic enquiry into the charges leveled against the opposite party vide chargesheet dated 01.06.1999; that the opposite party participated in the domestic enquiry and crossexamined all the management witnesses; that thereafter, Sh. Bedwal led his own evidence and produced his five witnesses in the enquiry; that the opposite party was given full opportunity to defend himself in the enquiry; that the enquiry was conducted in accordance with the principles of natural justice; that after the completion of the enquiry the Enquiry Officer submitted his report dated 23.10.2000 wherein the charges levelled against the opposite party vide chargesheet dated 01.06.1999 stood proved; that a copy of the enquiry report was received by the opposite party alongwith the show cause notice dated 18.12.2000; that the opposite party vide letters dated OP No.1301/16 Page 5 of 53 21.12.2000 and 28.12.2000 requested for more time to reply to the above show cause notice; that the applicant management allowed the opposite party to give his reply upto 04.01.2001, but he did not submit the same till date; that in view of the acts of misconduct committed by the opposite party, as submitted above, it was proposed to dismiss him from the services of the hospital on each charge; that Sh. Moolchand Kharaiti Ram Hospital Karamchari Union submitted a list of 8 employees to the management on 27.01.2004 for declaring them as protected workmen for the year 20042005; that the management replied to the same vide their letter dated 14.02.2004 wherein, amongst other objections, it was submitted that Sh. Pramod Kumar Bedwal cannot be granted status of protected workman since disciplinary proceedings were pending against him and the demand of such a status is to shield him from disciplinary action; that information was sought from the Union in terms of proviso to sub rule (3) of rule 61 of the I.D.(Central Rules), 1957; that the Union raised a dispute before the ALC; that during the proceeding before the ALC the Union withdrew 3 names from the list submitted by it, leaving the name of 5 employees only, including the opposite party; that vide order dated 09.12.2004 the ALC has granted the status of protected workman to the opposite party; that without prejudice to its contention OP No.1301/16 Page 6 of 53 that the opposite party could not be granted such a status; since the opposite party is a concerned workman in the pending I.D. No.84/2000 before this Hon'ble Tribunal, therefore, the applicant is moving the present application u/s 33 (3) (b) of the Industrial Disputes Act, 1947 by way of abundant caution; that it is prayed that this Hon'ble Tribunal be pleased to (a) hold that the permission under Section 33(3) (b) of the Industrial Disputes Act is not required.
(b) in case such a permission is required then to grant permission to the management to dismiss the opposite party from the services.
2. Reply has been filed on behalf of the respondent/workman to the instant approval application wherein it is stated that allegations leveled against the workman are totally fabricated; that he was not in any manner involved in the alleged incidents of 05.11.2004; that the charges vide the charge sheet dated 01.06.1999 were fabricated and concocted to victimise the workman for his trade union activities; that the domestic enquiry conducted by Mr. Suman Kumar Jha was in violation of principles of natural justice and the model standing orders and the report of the Enquiry Officer was perverse; that the decision to dismiss the workman was not on account of any misconduct but due to his trade union activities. Other averments made in the approval application have been denied and OP No.1301/16 Page 7 of 53 dismissal of the same has been prayed for.
3. Rejoinder has been filed on behalf of the applicant/management wherein all the averments made in the reply filed on behalf of the respondent/workman have been denied and the contentions made in the instant approval application have been reiterated.
4. On the basis of pleadings of the parties, following issues were framed vide order dated 11.05.2005:
1. Whether the enquiry conducted against the workman is not fair and proper?
2. Whether the workman has committed any misconduct on 05.11.2004? OPM
3. Whether the workman could be declared a protected workman as stated in para 8 of the application? OPM
4. Whether the applicant is entitled for permission to dismiss the workman Sh. Pramod Kumar Bedwal? OPM
5. Relief.
5. Issue no.1 regarding fairness and proprietary of enquiry has been treated as preliminary issue. Thereafter evidence had been led on behalf of the parties on the enquiry issue which has been decided in favour of the workman and against the management vide order dated 06.07.2009, on record.
6. Thereafter evidence had been led on behalf of the parties on OP No.1301/16 Page 8 of 53 remaining issues including the issue of commission of misconduct on the part of the respondent/workman as alleged by the applicant/management vide its instant approval application.
7. In management evidence on remaining issues, management has examined Lt. Col. (Retd.) Satish Chandra who by way of his affidavit by way of evidence Ex. MW 1/A has deposed that he worked with the management from 03.05.1999 to 01.10.2004 as Sr. Manager (Pers & HRD); that Sh. Pramod Kumar Bedwal was working as LDC in the department of MOT; that on 01.06.1999 he left his working place and instigated 1015 other employees which included Smt. Indira Mahendri, Smt. Vimla and Smt. Vidya and also other workers; that they came in front of the office of GM (Operation) and instigated the other workers to join them; that in the administrative department they also threatened to other employees that the other workers if will not join them then they will face the dire consequences; that Sh. Pramod Kumar Bedwal forcefully pushed to Smt. Manju Thareja and to Smt. Suman Kashyap and that is why they both sent their written complaint to General Manager (Ops )just after the incident, which were placed on enquiry record as Ex. M1 and M2; that Smt. Suman Kashyap and Smt. Manju Thareja also stated that they have been accused indecently by the workers, however, she was OP No.1301/16 Page 9 of 53 hesitating to give those words in writing as those were so derogatory that they felt ashamed to repeat the same; that both the ladies have stated that they have been threatened also by Sh. Pramod Kumar Bedwal and his associates by saying that if they would not join them then they would face the dire consequences of the same; that these employees i.e. Sh. Pramod Kumar Bedwal and other workers also instigated to other employees of the administrative department who were doing their job at that time; that the misconducts which approximate 15 employees have committed at the instance of the workman are of serious nature, it disturbed the peace in the hospital and caused disturbance and mental tension not only to the employees of the hospital but also to the patients who had been admitted there for treatment in various departments of the hospital; that they started apprehending that the entire hospital may go on strike hence they would not be able to get the proper treatment; that however the doctors and administrative staff tried to satisfy them that they would get all the proper treatment and comfort in the hospital; that the management initiated domestic enquiry to afford further opportunity to the charge sheeted employees and all the witnesses from whom the written complaint were received, were produced by the management in the enquiry, who had been cross examined by the workman at length; that the ladies who had OP No.1301/16 Page 10 of 53 faced the mental tension and agony due to the acts of the employee Sh. Pramod Kumar Bedwal and his associates are ready to give their statement on oath in this regard; that the deponent is once again placing the copy of the charge sheet on record along with the affidavit and the same has been exhibited as Ex. MW 1/1 and the complaint given by Smt. Manju Thareja is also annexed here with as Ex. MW 1/2.
In cross examination on behalf of workman in management evidence on remaining issues, MW 1 has deposed that it is wrong to suggest that incident did not take place in his presence or that for the said reason, he has not deposed in his affidavit Ex. MW 1/A; that it is incorrect that his statement in para no.2 of the affidavit is wrong; that it is wrong to suggest that no incident had taken place on 01.06.99 as stated by him; that it is wrong to suggest that no complaint was made by Mrs. Manju Thareja and Mrs. Suman Kashyap to him; that it is wrong to suggest that as Manju Thareja did not come up to state false statement in favour of management, therefore, she has been dismissed from service; that he is not aware whether Mrs. Manju Thareja is still in service of management or not; that his office was at the first floor on the date of incident; that the office of GM (Operation) was at the ground floor; that it is wrong to suggest that no incident has taken place nor he has witnessed the incident or that he is OP No.1301/16 Page 11 of 53 deposing falsely; that it is wrong to suggest that the allegations in para 2 of his affidavit to the effect that 'Suman Kashyap and Manju Thareja also stated that they have been abused sexually' have come for first time; that it is wrong to suggest that he has deposed falsely on this fact; that his statement regarding threat to Mrs. Suman Kashyap and Mrs. Manju Thareja is correct as mentioned in para 2 of his affidavit; that it is wrong to suggest that Manju Thareja and Suman Kashyap never complained in this regard; that he remembers the names of two three workers alongwith Pramod Kumar Bedwal namely Mahendri and Vimla; that he does not remember the names of other workers being old incident; that it is incorrect that Pramod Kumar Bedwal did not instigate other workers including the employees of administrative department to join them; that it is incorrect to suggest that his statement in para no.3 of his affidavit is incorrect; that it is incorrect that he did not receive written complaint or that the same was fabricated on behalf of management; that it is incorrect that document Ex. MW 1/2 is fake or that Mrs. Manju Thareja did not give any complaint; that he is not aware if services of Mrs. Suman Kashyap and Mrs. Manju Thareja were already terminated prior to the incident dated 01.06.99; that he is not aware that they were taken back in service in order to prove the false complaints; that it is wrong to suggest OP No.1301/16 Page 12 of 53 that he is deposing falsely that day in the court or that his affidavit is false.
8. MW 2 Sh. Gyan Chand Malhotra Officer on Special Duty in the management has deposed by way of his affidavit by way of evidence Ex. WW 2/A that on 05.11.2004 at about 2 P.M., Satish Kumar Asst. Manager (Personnel and HR) informed him that he got telephonic message from Sh. Vijender Singh, General Secretary of Moolchand Hospital Karamchari Union that Mr. Vijender Singh want to hold a meeting with the management regarding circular issued on 14.09.2004 for renewal of Medical Benefit Book; that he spoke to Mr. S.K. Saggar (G.M.) and he told him that he is busy in meeting with doctors; that accordingly Mr. Vijender Singh was informed by Mr. Satish Kumar; that later on Mr. Saggar gave time of about 3.30 P.M. for the meeting and the same was communicated to Vijender Singh by Sh. Satish Kumar; that at about 3.30 P.M. Mr. S.K. Saggar, Satish Kumar, Rajeev Tyagi and himself went to the conference room; that at about 3.45 P.M. Mr Satish Kumar went outside the conference room and saw a mob of 20/25 people outside the room; that he told Vijender Singh that 23 persons can participate in the meeting as already discussed; that thereafter; Vijender Singh entered the room and started threatening and shouting at Mr. Saggar; that he threatened Mr. Saggar that either he should withdraw the circular or face OP No.1301/16 Page 13 of 53 the consequences of the mob standing outside; that they requested him to restrain from such act; but he started abusing them; that when Mr. Saggar suggested that all problems can be solved in peaceful manner he became more rash and opened the door of room and called the mob and ordered them to beat us; that they were saying "JAAN SE MAARO EN KO, PETROL LAO, YEH MOUKA PHIR NAHI MELEGA"; that the mob started bearing them with blow, shoes and chapels and also started threatening them if they will report to police they will beat them outside the hospital; that after beating them they left room; that later on they came to know that some one picked up purse of Mr. Saggar containing some amount and papers; that few of them were having chapels, shoes and sticks in their hands; that in the incident of beating he saw that S/Sh. Pramod Kumar, Gopal Singh, Mani Ram, Anil Kumar, Manju Sharma, Ms. Praveen Wagmere, Gangadhar, A.K. Aggarwal, Rama Devi, Santra, Bhairav Mishra, M.D. Yadav, C.B. Hans, Jai Singh, Naresh Kumar, Jeet Ram, K.P. Benjwal and some others were beating them; that he saw Pramod Kumar Bedwal was actively participating in such incident and causing harm to them; that he did not give any complaint in writing to the management since Mr. S.K. Saggar had done so; that the police recorded his statement; that later he also narrated the incident to the management OP No.1301/16 Page 14 of 53 orally; that the matter was reported to the police who recorded the statement of so many employees and officers of the management and a FIR bearing No.865/2004 has been registered by P.S. Lajpat Nagar, New Delhi; that he has seen the documents such as copy of the letter dated 03.01.2005, copy of the complaint sent by Sh. S.K. Saggar to P.S. Lajpat Nagar, along with list of employees who participated in the incident; that he has seen FIR bearing no.864/2004 and MLCs which have been placed, on record, the same are true and correct.
9. In cross examination, MW 2 has deposed that it is correct that management had dismissed the services of around 65 workmen relating to the incidence of 5.11.04. Vol. Exact number of workmen he does not know; that he was not a witness in all the above cases except in few cases; that to his knowledge the MLCs Ex. MW 2/1 to Ex. MW 2/4 are being filed for the first time in the present case; that he does not know whether in all the cases of dismissal relating to incidence of 5.11.04, the workmen have been reinstated in service after orders from this Hon'ble Court. Vol. The reinstatement order passed by Ld. Court/ Tribunals had been challenged by management in Hon'ble High Court and in the Honble High Court a consent order was passed to take the workmen on duty on certain conditions as mentioned by the Hon'ble High Court in the OP No.1301/16 Page 15 of 53 consent order; that it is wrong to suggest that it was not a consent order and the workmen were reinstated as per orders on merits; that it is wrong to suggest that all the workmen as their names have been mentioned in para 4 of his affidavit have been taken back on duty by the management; that few of the workmen have been taken back and few others have left the services after settlement with the management and certain retired from service; that it is wrong to suggest that in every ward security guard is posted. Vol. Common security is there but not in every ward; that they had received few complaints from the department heads of different wards that the workmen had left their place of work; that it is wrong to suggest that no such complaints have been made and that is why the same have not been brought on record; that he does not think he participated in any meeting between the management and the Union prior to 5.11.04; that some of the senior managers including Sh. S.K. Saggar, Mr. Satish Kumar and Mr. Rajiv Tyagi were present in the incident; that however he informed to Sh. Vibhu Talwar about the incident as he himself came to know about the incident as everybody was aware about the incident in the hospital; that he informed him about the incident only after they came back to the hospital after recording the MLC; that he has not stated this fact in cross examination relating to other workmen because this question OP No.1301/16 Page 16 of 53 was not put to him; that it is wrong to suggest that no such incident occurred and that is why he did not mention this in his statement in the other cases; that he alongwith four officers went to police station on 5.11.04; that he does not remember the time exactly but it was around 45 pm; that they went to the AIIMS at 7 pm on that date; that he does not remember whether they went to police station or the hospital first; that none of the officers took any medical aid from Moolchand Hospital on 5.11.04; that it is wrong to suggest that no incident of assault took place on 5.11.04 and that is why no medical help was sought from Moolchand Hospital by anyone; that it is wrong to suggest that no meeting between management and workmen/ Union as mentioned by him in para 2 and 3 of his affidavit ever took place; that it is wrong to suggest that incident mentioned by him in para 2 and 3 of his affidavit did not take place; that it is wrong to suggest that management wanted to dismiss the services of permanent workmen for their union activities and to replace them with cheap contract workers and that is why the so many workers were dismissed on 6.11.04; that all the four officers filed the written complaint to the police jointly which was drafted by Sh. S.K. Saggar; that he did not file the complaint individually; that he does not recollect whether he had signed the complaint prepared by Mr. S.K. Saggar given to police; that it OP No.1301/16 Page 17 of 53 is wrong to suggest that no such incident occurred and that is why he did not make any written complaint; that he does not know the exact number of applications filed by management u/s 33 (2) (b) of I.D. Act on 6.11.04; that it is wrong to suggest that management had kept the approval applications ready without the incident had taken place and filed the same on 6.11.04; that he does not know the present status in FIR No.864/865 of 2004 PS Lajpat Nagar; that it is wrong to suggest that no incident as mentioned by him in his affidavit took place on 5.11.04; that it is wrong to suggest that he has filed a false affidavit and deposing falsely.
10. MW 3 Sh. Dinesh Dutta Dy. Manager (Accounts) of the management has deposed in his affidavit by way of evidence Ex. MW 3/A that he is working with the management since 13.05.1995 and at present he is working as Dy. Manager (Accounts) in Moolchand Hospital; that on 05.11.2004 he was sitting in his office; that at 3.30 P.M. Mr. Vijender Singh, General Secretary of the MCKRH Karamchari Union and Mr. Ajay O.T. Assistant came in the Account Section to see Sh. S.K. Saggar, General Manager; that they enquired about Mr. Saggar, who was not available at that moment in his seat; that later, at about 4.10 PM, he went down to main office and heard noise from conference room, that he immediately rushed there and saw a mob of about 6070 persons OP No.1301/16 Page 18 of 53 surrounding the conference room and shouting "BAAHAR NIKALO SALON KO" "MAARO" etc. etc.; that in the mob he saw S/Shri A.K. Aggarwal, Pushkar, Sudarshan Prasad, Bhim Singh, Ms. Rani Cheria, Mr. Ganga Dhar, Ms. Sumathyamma CR., Mr. Narinder, Mrs Bhupinder Kaur S/Shri Brij MohanII, Sushil Kumar, Mahesh chand, Mrs. Nirmal Chanana, Mr. Mahinder Singh Rawat alongwith others; that they were shouting and abusing management outside the conference room; that S/Shri Vijender Singh, R.S. Dogra, Pramod Kumar Bedwal, Ajay Kumar, Mukesh Sulekh, Balbir, Raj Kumar, Durga Singh Bisht, Gian Singh, Ms. Kirti Gurnanai, Ms. Rosamma Varghese, Mrs. Thankamani P.K. Suresh, Mrs. Santra, Mrs. Ram aDevi, S/Shri Giri Lal, Naresh Kumar, Pale Ram, Bhairav Mishra, Rohtas Kumar, Mrs Alphonsa Baby Kutty, Mrs. Praveen Waghmare alongwith others were inside the conference room and had gheraod the management representtives S/Shri S.K. Saggar, Gian Chand Malhotra, Satish Kumar and Rajiv Tyagi; that at that moment, he was walking in the corridor next to the Conference Room; that while he saw this scene, they also started threatening him :"SALE BHAG JA, MAHIN TO TERE KO BHI YAHIN JAAN SE MAAR DENGE"; that then he rushed upstairs and was viewing the scene from the corridor of the 1 st Floor; that suddenly shouting was increased and he heard them saying OP No.1301/16 Page 19 of 53 "MARO SAALON KO" JUTE SE MAARO" JAAN SE MAAAR DO SAALON KO"; that he saw that Mr. Brij MohjanII rushed to the ground in front of conference room and picked a pipe from the garden and entered the conference room; that others were also searching for bamboo sticks; that they also tried to break the tree in front of the conference room; that thereafter they rushed to trust room; that on seeing the above incident he was very much frightened; that he returned to his seat and did not inform anyone about what he had seen; that later on he learnt that an FIR bearing No.865/2004 had been registered with P.S.. Lajpat Nagar, when the Inspecting Officer came to hospital and asked them to give statements; who had seen the incident; that he gave the statement to police to the above effect and then also informed the management orally about what he had seen; that he had seen Sh. Pramod Kumar Bedwal was actively taking part along with other employees and also instigating other to cause harm to the aforesaid officers of the management; that the workers were threatening when he wanted to appear in OP case that if any one appeared in court to give evidence, his hands and legs would be broken; that these facts were communicated to the Ld. Tribunal at that time in writing also.
11. In his cross examination, MW 3 has deposed that he joined the management on 13.03.1995; that his present designation is Dy. Manager OP No.1301/16 Page 20 of 53 (Accounts); that the management had dismissed around 5060 workmen on 6.11.2004; Again said: they were dismissed on different dates and not only on 6.11.04; that he does not know whether approval was granted to the management in any of the above cases, in which applications u/s 33(2)
(b) of I.D. Act were filed; it is wrong to suggest that he is not giving the answer of last question deliberately, despite having knowledge of the same. Vol. It does not pertain to his department; that it is wrong to suggest that no such incident occurred on 5.11.04 as narrated by him in his affidavit; that he does not know whether any appointment was taken by Sh. Vijender Singh on 5.11.04 to meet the management; that it is wrong to suggest that allegations of violence on 5.11.04 were made by management against the workmen to dismiss the permanent workmen en masse and replace them with contract workmen; that it is wrong to suggest that contents of para no.3,4 and 5 of his affidavit are wrong; that he does not know who has abused him as mentioned in last part of para no.4 of his affidavit; that he does not know who shouted on him as mentioned in para 5 of his affidavit; that he does not know who abused as mentioned in para 3 of his affidavit from the crowed to the management; that he does not remember whether any construction activity was going on in the hospital; that there were no bamboo sticks stored in the hospital; that the OP No.1301/16 Page 21 of 53 conference room is on ground floor; that Mr. Pushkar, workman threatened him as mentioned in para 7 of his affidavit; that it is correct that he is marking his daily attendance in the register; that it is wrong to suggest that he was on leave w.e.f. 5.11.04 to 7.11.04; that it is wrong to suggest that on 5.11.04 there was no slogan shouting; that it is wrong to suggest that no such incidents as mentioned by him took place on 5.11.04 or that he has not seen any such incident; that it is wrong to suggest that he has filed false affidavit or that he is deposing falsely.
12. In rebuttal, respondent/workman examined himself as WW 1 in his evidence on remaining issues and deposed vide his affidavit by way of evidence Ex. WW 1/A that he has gone through the dismissal order as well as the application u/s 33 (3) (b) filed by the management; that the contents of the same are concocted, baseless, fabricated and have been made with malafide intentions to victimise him for his trade union activities; that there is not even an iota of truth in any of the allegations made against him in the dismissal order as well as the application u/s 33 (3) (b) filed by the management and the same are totally unfounded and baseless; that all workmen in Mool Chand Hospital have been getting wages as per Pay Commission Scales since last 30 years and they were presently getting wages as per IVth Pay Commission Scales; that in 1996 OP No.1301/16 Page 22 of 53 when the recommendations of the Vth Pay Commission were confirmed by the Govt. the Mool Chand Kharaiti Ram Hospital Karamchari Union called upon the management to implement the Vth Pay Commission Pay Scales; that the above demand was raised by the union on account of the fact that as per the earlier agreement the management was bound to make payment of the wages as per the new pay commission scales as soon as the same was announced; that the management however refused to accept the demand which was raised on the basis of the existing agreement which forced the union to raise an industrial dispute; that after raising of the demand seeking the Vth Pay Commission Pay Scales, the management has been systematically eliminating the permanent workmen employed by the hospital since I.D. No.86/98 claiming pay scales as per recommendations of the Vth Pay Commission was raised by the workmen; that the management has dismissed/ terminated/forced to resign majority of the permanent workmen on the rolls of the management hospital as on 1.1.96 who would have become entitled to the benefits/pay scales as per recommendations of the Vth Pay Commission; that there were around 688 permanent classIII and IV workmen on the rolls of the hospital at the time of their raising the industrial dispute, but presently the total strength is less than around 100 permanent workmen and the rest of OP No.1301/16 Page 23 of 53 the workmen have been dismissed/terminated/retrenched/issued malafide transfer orders to places where the hospital has no business or were forced to resign on account of extreme harassment; that the management has taken a policy decision to dismiss a minimum of 5 permanent workmen every month; that however, the Hon'ble High Court of Delhi vide order dated 27.7.04 directed the management to maintain status quo which prevented the management to reach this target from July, 2004 onwards; that the management has dismissed a large number of workmen on the basis of the present false and frivolous allegations accusing them being involved in the alleged incidents of 5.11.04 similar to the ones made against him to clear the back log of dismissals caused by the order of the Hon'ble High Court of Delhi dated 27.7.04 directing the management to maintain the status quo; that the malafide intention of the management is that by the time the case relating to the dispute of the workmen claiming the scales of pay as per recommendations of the Vth Pay Commission is adjudicated upon finally, no ClassIII or IV employee who is entitled to the said benefits should remain on the rolls of the management hospital; that the management personnel had made an open challenge in this regard to the workmen; that the allegation made against him of any involvement in the alleged incidents of 5.11.04 is totally fabricated and invented for the OP No.1301/16 Page 24 of 53 purpose of dismissing him from service; that there was no demand for a meeting on 5.11.04 as alleged; that no meeting or any incident as alleged by the management occurred on 5.11.04; that the management had been repeatedly asking him and other workmen to convert into nonDA scales and presently around 150 workmen have accepted this and are working on contract basis after the management harassed them to accept the nonDA scales; that the management had prepared a list of workmen to be victimised since they had refused to succumb to the management pressure to resign from the hospital or to accept the new pay scale against the Vth Pay Commission Scale, to which a large number of workmen had fallen prey to; that the action of the management in dismissing him from the service is malafide and has been done to scuttle the claim for the benefits under the Vth Pay Commission; that the malafide intention of the management is evident from the bare reading of the original list attached to the alleged complaint to the police and the names of the workmen dismissed on the ground of the alleged incident dated 5.11.04 ; that the original list contained the names of 35 workmen but subsequently the management dismissed more than 60 workmen from service without conducting any kind of enquiry; that as per the management his service conditions are governed by the service rules framed by the management; OP No.1301/16 Page 25 of 53 that he could not have been dismissed by the management without holding a domestic enquiry as per provisions of the service rules framed by the management; that to his knowledge there was no meeting or incident on 5.11.04; that on 5.11.04 he was performing his duties from 9 am to 4 pm immediately after which he went home; that the management dismissed him from service on 10.12.04 and he continued to perform his duty from 6.11.04 to 10.12.04; that false allegations are being raised against him with a malafide intention as per policy of the management to dismiss the permanent ClassIII and IV employees from service; that the authorised signatory of the management Sh. Manojit Sengupta has no authority at all to take any disciplinary action or file the present proceedings on behalf of the management; that the documents showing authority being given to Sh. Manojit Sengupta by the management is fabricated and the same has not been proved; that as per the service rules only the "Sanchalak" (Director) can take action against him that too after a proper domestic enquiry; that there is no resolution authorising Sh. Manojit Sengupta to take disciplinary action or to file the present proceedings; that the present application is bad for want of authority and the same is liable to be dismissed on this ground alone; that the disciplinary authority has not conducted any enquiry in respect of the alleged incident dated 5.11.04 and OP No.1301/16 Page 26 of 53 the same is evident from the record itself; that the management dismissed some of the workmen on 5.11.04 itself and some were dismissed between the period from 5.11.04 to 10.12.04; that the contention of the management that he was a member of the mob involved in alleged acts of grave misconduct on 5.11.04 is incorrect and malafide; that he was not a member of any such alleged mob; that the contents of para no.4 of the approval application are incorrect and hence denied; that if any domestic enquiry has been conducted the same would have proved that the allegations are false and fabricated and the malafide intentions of the management and also the incorrect allegations raised against him and other workmen and that is the reason why the management has not conducted any domestic enquiry in the above case; that the order of dismissal is null and void because of the failure of the management to conduct any domestic enquiry in respect of the allegations; that the atmosphere in the hospital has been totally peaceful after 5.11.04; that there was no reason why the management could not have held a domestic enquiry in the prevailing atmosphere of peace and tranquility; that many domestic enquiries have been held in the hospital immediately after the alleged incident; that the management personnel are very influential and they influenced the police and registered a false FIR against the workmen; OP No.1301/16 Page 27 of 53 that the contents of the complaint made by Mr. S.K. Saggar to the police on 5.11.04 is false; that the management has not made payment of one month wages as stipulated u/s 33 (3) (b) of I D Act to him alongwith the dismissal since payments have been made at the old rates and he is entitled for wages as per the Vth Pay Commission Scales as per award dated 14.01.03; that the conditions precedent before initiating action against a workman u/s 33 (3) (b) of I D act has not been complied with; that no domestic enquiry has been held in the matter; that the management has not given any reason for not holding the enquiry and no extenuating circumstances in this regard has been explained or pleaded; that there was no extenuating circumstances in the above case for not holding the domestic enquiry; that the management has dismissed more than 55 workmen alleging their participation in the alleged assault against the officers on 5.11.04 and filed applications u/s 33 (2) (b) of the I.D. Act but in all the 55 cases these applications were dismissed by this Hon'ble Court and the workmen have been reinstated in service by the management; that this Hon'ble Court has found that there is no merit or substance in any of the allegations relating to the alleged incident dated 5.11.04; that in view of the above; nothing could be held against him relating to the alleged incident dated 5.11.04; that the allegations contained in the charge sheet OP No.1301/16 Page 28 of 53 dated 1.6.99 are also false and fabricated; that the management has instigated the complainants in the alleged incidents to make the complaint against him to victimise him for his trade union activities; that the employees who made the complaint against him were misguided and instigated by the management by giving them inducements and they have subsequently understood the management's tactics and have apologized to him; that there is no truth or substance in the allegations contained in the charge sheet dated 1.6.99; that he denied that he did not file any reply to the show cause notice dated 18.12.2000; that a reply was given to the said show cause notice; however, he has misplaced the copy of the said reply; that the silence of the management from the issue of the show cause notice dated 18.12.2000 after conclusion of the domestic enquiry proceedings till his proposed dismissal order dated 10.12.04 i.e. for a full 4 year period, clearly indicate that the management did not consider the allegations contained in the charge sheet dated 1.6.99 serious enough to warrant any disciplinary action against him; that he is unemployed after 10.12.04; that he has been a member of Mool Chand Kharaiti Ram Hospital Karamchari Union (Regd.) and he is a workman concerned in the various industrial disputes pending before this Hon'ble Court filed by his above union; that he would have been entitled for the various benefits OP No.1301/16 Page 29 of 53 from the industrial disputes if the same were to be decided in favour of the workmen; that he has been engaged in works of manual and clerical nature only and he had no administrative or supervisory powers; that in view of the above the application filed by the management u/s 33 (3) (b) is liable to be rejected out rightly; that he relies upon document Ex. WW 1/1 which is order dated 09.12.04 declaring him a protected workman for the year 20042005.
In his cross examination, WW 1 has deposed that he is graduate; that his date of birth is 15.07.1965; that he does not remember the date when his present affidavit was prepared but it might have been attested in Karkardooma; that he does not know when it was got attested; that he can show the document pertaining to his membership with union; that he does not remember as to whether the union demanded the documents of the union pertaining to their existence in the hospital; that he was participating in the court proceedings pertaining to the demands of pay as per 5th pay commission; that he has seen the order in which the Hon'ble Supreme Court has accepted the recommendations of 5th CPC and for the calculation of the wages this matter has been sent to this Tribunal; that it is wrong to suggest that he is deposing falsely in this regard or he has not seen the judgment; that it is wrong to suggest that Hon'ble Supreme Court OP No.1301/16 Page 30 of 53 has dismissed the claim of the Union and for further adjudication on the terms which has been framed by DB of Hon'ble Delhi High Court; that he has not even written any letter to management to inform that he is member of the Union or participating in the Union activities. Vol. He is a protected workman; that he does not have any letter of the management with him in which the management accepted him as a protected workman; that he has not stated in his reply that in 2004 only the 100 employees have left the employment; that he has rather stated that 70 employees have left the employment; that he has no document to show that the election of the Union were ever held to appoint its office bearers; that he does not have any document to show that he ever participated in the election of office bearers of the Union. It is wrong to suggest that employees Union is not existing in the hospital; that it is correct that Secretary of the Union Sh. Vijender Singh is a dismissed employee; that he was present in the hospital on 05.11.04; that he does do not know the difference between the DA and non DA employees; that he does not know whether the non DA employees are getting more salary than the DA employees; that for the alleged incident dated 05.11.04, there are 34 lists according to which the employees have been terminated for the said alleged incident. Vol. No enquiry was held by the management of any employee of that incident OP No.1301/16 Page 31 of 53 before terminating the services of the employees; that it is wrong to suggest that he is deposing falsely in this regard; that it is correct that for the incident which took place on 05.11.04, the management filed a complaint before the police and police was arrived at in the hospital; that he does not know whether the officers of the management sustained injuries in the incident which took place on 05.11.04 or their MLCs were conducted in AIIMS; that he has not reported to the police that the incident dated 05.11.04 did not take place in the hospital; that he does not have any service rules of the hospital; that he does not know whether his union is having the service rules or not; that he was marking his attendance in the attendance register which was being maintained by the HR Department; that he only used to sign the attendance register and not mentioning the time of his arrival in the hospital and departure from there. Vol. The attendance register was being made available to them in the morning, night and in the evening at 04 pm every day; that it is correct that he was suspended by the management after the incident of 05.11.04; that a notice was placed on the main gate regarding the suspension; that Mr. Manojit Sengupta was the Manager in Accounts Department; that he does not have any document to show that Sh. Manojit Sengupta was not competent to initiate disciplinary action against him; that it is correct that OP No.1301/16 Page 32 of 53 hospital is being run by the Mool Chand Kharaiti Ram Charitable Trust and it is a private hospital; that officially, he is not aware who are the trustees of the hospital and whether they are looking after the work of the hospital; that there is no director in the hospital except the trustees; that he does not know whether the management filed several OPs in the matters of the employees who were terminated on incident of 05.11.04 and proved the incident in those OPs by leading evidence; that it is correct that the police registered an FIR no.865/04 which was pending in Patiala House Courts pertaining to incident dated 05.11.04; that he has the copy of the judgment passed in FIR 865/04 and he will file the same at the time of arguments; that according to him, no employee has been sentenced in the said FIR; that it is correct that management used to credit his monthly salary in the branch of Allahabad Bank which is in existence within the premises of the management; that he does not know whether one month wages at the time of his termination were deposited by the management in his account towards the compliance of Section 33(2) (b) of I.D. Act; that it is correct that prior to the charge sheet given for the incident of 05.11.04, the other charge sheets have also been filed upon him by the management; that he does not have original of Ex. WW 1/1; that he does not know anything about the ID No.86/98; that he is getting 75% wages from the OP No.1301/16 Page 33 of 53 management till date as he is under suspension; that he is not working anywhere else; that it is correct that he need not report for duty to hospital ever and his suspension allowance is credited every month in his account which is being maintained by him in Allahabad Bank; that it is wrong to suggest that he has filed wrong affidavit, written statement or that he is deposing falsely.
13. I have heard arguments from Dr. M.Y. Khan Ld. AR for applicant/management and the respondent/workman himself on the remaining issues and have perused the record of the case. My findings on the remaining issues including the issue of commission of misconduct on the part of the respondent/workman as alleged by the applicant/management vide the instant approval application are as under:
14. Findings on issue no.2 Issue no.2 is "Whether the workman has committed any misconduct on 05.11.2004? OPM"
15. Vide the testimony of MW 1 Lt. Col. (Retd.) Satish Chandra, management has alleged inter alia that the workman while working as LDC in the department of MOT on 01.06.1999 left his working place and instigated 1015 other employees which included Smt. Indira Mahendri, Smt. Vimla and Smt. Vidya and also other workers; that they came in OP No.1301/16 Page 34 of 53 front of the office of GM (Operation) and instigated the other workers to join them; that in the administrative department they also threatened to other employees that the other workers if will not join them then they will face the dire consequences; that Sh. Pramod Kumar Bedwal forcefully pushed to Smt. Manju Thareja and to Smt. Suman Kashyap and that is why they both sent their written complaint to General Manager (Ops )just after the incident, which were placed on enquiry record as Ex. M1 and M2; that Smt. Suman Kashyap and Smt. Manju Thareja also stated that they have been accused indecently by the workers, that both the ladies have stated that they have been threatened also by Sh. Pramod Kumar Bedwal and his associates by saying that if they would not join them then they would face the dire consequences of the same; that these employees i.e. Sh. Pramod Kumar Bedwal and other workers also instigated to other employees of the administrative department who were doing their job at that time; that the misconducts which approximate 15 employees have committed at the instant of the workman are of serious in nature, it disturbed the peace in the hospital and caused disturbance and mental tension not only to the employees of the hospital but also to the patients who had been admitted there for treatment in various departments of the hospital; that they started apprehending that the entire hospital may go on OP No.1301/16 Page 35 of 53 strike hence they would not be able to get the proper treatment; that however the doctors and administrative staff tried to satisfy them that they would get all the proper treatment and comfort in the hospital; that the copy of the charge sheet on record have been exhibited as Ex. MW 1/1 and the complaint given by Smt. Manju Thareja as Ex. MW 1/2.
16. In cross examination, this witness has denied the suggestion that incident did not take place in his presence as alleged or that he has not witnessed the said incident or that he was deposing falsely in this regard. He has further denied the suggestion on behalf of the workman as to the alleged incorrectness or non happening of the alleged incident on 01.06.1999 as alleged against the workman constituting the misconduct on his part as also the factum of the MW 1 being not a witness to the said incident dated 01.06.1999 as alleged by the management against the workman or that Ex. MW 1/2 (colly) are not the complaint of the employees Manju Thareja and Suman Kashyap dated 01.06.1999 to the management in this regard constituting the basis of the charge sheet of the same date Ex. MW 1/1.
17. It is seen vide the testimony of MW 2 Sh. Gyan Chand Malhotra Officer on Special Duty with the management that he has deposed by way of his affidavit by way of evidence Ex. WW 2/A inter alia that on OP No.1301/16 Page 36 of 53 05.11.2004 at about 2 P.M., Satish Kumar Asst. Manager (Personnel and HR) informed him that he got telephonic message from Sh. Vijender Singh, General Secretary of Moolchand Hospital Karamchari Union that Mr. Vijender Singh want to hold a meeting with the management regarding circular issued on 14.09.2004 for renewal of Medical Benefit Book; that he spoke to Mr. S.K. Saggar (G.M.) and he told him that he is busy in meeting with doctors; that accordingly Mr. Vijender Singh was informed by Mr. Satish Kumar; that later on Mr. Saggar gave time of about 3.30 P.M. for the meeting and the same was communicated to Vijender Singh by Sh. Satish Kumar; that at about 3.30 P.M. Mr. S.K. Saggar, Satish Kumar, Rajeev Tyagi and himself went to the conference room; that at about 3.45 P.M. Mr Satish Kumar went outside the conference room and saw a mob of 20/25 people outside the room; that he told Vijender Singh that 23 persons can participate in the meeting as already discussed; that thereafter; Vijender Singh entered the room and started threatening and shouting at Mr. Saggar; that he threatened Mr. Saggar that either he should withdraw the circular or face the consequences of the mob standing outside; that they requested him to restrain from such act; but he started abusing them; that when Mr. Saggar suggested that all problems can be solved in peaceful manner he became OP No.1301/16 Page 37 of 53 more rash and opened the door of room and called the mob and ordered them to beat them; that they were saying "JAAN SE MAARO EN KO, PETROL LAO, YEH MOUKA PHIR NAHI MELEGA"; that the mob started bearing them with blow, shoes and chapels and also started threatening them if they will report to police they will beat them outside the hospital; that after beating them they left room; that later on they came to know that some one picked up purse of Mr. Saggar containing some amount and papers; that few of them were having chapels, shoes and sticks in their hands; that in the incident of beating he saw that S/Sh. Pramod Kumar, Gopal Singh, Mani Ram, Anil Kumar, Manju Sharma, Ms. Praveen Wagmere, Gangadhar, A.K. Aggarwal, Rama Devi, Santra, Bhairav Mishra, M.D. Yadav, C.B. Hans, Jai Singh, Naresh Kumar, Jeet Ram, K.P. Benjwal and some others were beating them; that he saw Pramod Kumar Bedwal was actively participating in such incident and causing harm to them; that he did not give any complaint in writing to the management since Mr. S.K. Saggar had done so; that the police recorded his statement; that later he also narrated the incident to the management orally; that the matter was reported to the police who recorded the statement of so many employees and officers of the management and a FIR bearing No.865/2004 has been registered by P.S. Lajpat Nagar, New OP No.1301/16 Page 38 of 53 Delhi. He has proved, on record, Ex. WW 2/1 to Ex. WW 2/4 which are the copies of the MLCs dated 05.11.04 in respect of S/Sh.Satish Kumar, S.K. Saggar, Rajiv Tyagi and Gian Chand Malhotra respectively, officials/ employees of the management qua the alleged assault on them.
18. In his cross examination, he has denied the suggestion that all the workmen as their names have been mentioned in para 4 of his affidavit have been taken back on duty by the management; he has deposed that few of the workmen have been taken back and few others have left the services after settlement with the management and certain retired from service; he has denied that no complaints have been made against the workman and that is why the same have not been brought on record; he has deposed that some of the senior managers including Sh. S.K. Saggar, Mr. Satish Kumar and Mr. Rajiv Tyagi were present in the incident, however he informed to Sh. Vibhu Talwar about the incident as he himself came to know about the incident as everybody was aware about the incident in the hospital; that he informed him about the incident only after they came back to the hospital after recording the MLC; he has denied that that no incident of assault took place on 5.11.04 and that is why no medical help was sought from Moolchand Hospital by anyone or that no meeting between management and workmen/ Union as mentioned OP No.1301/16 Page 39 of 53 by him in para 2 and 3 of his affidavit ever took place or that incident mentioned by him in para 2 and 3 of his affidavit did not take place; or that management wanted to dismiss the services of permanent workmen for their union activities and to replace them with cheap contract workers.
19. Vide his testimony as MW 3 Sh. Dinesh Dutta Dy. Manager (Accounts) of the management, has deposed by way of his affidavit by way of evidence Ex. MW 3/A inter alia that on 05.11.2004 he was sitting in his office; that at 3.30 P.M. Mr. Vijender Singh, General Secretary of the MCKRH Karamchari Union and Mr. Ajay, O.T. Assistant came in the Account Section to see Sh. S.K. Saggar, General Manager; that they enquired about Mr. Saggar, who was not available at that moment in his seat; that later, at about 4.10 PM, he went down to main office and heard noise from conference room, that he immediately rushed there and saw a mob of about 6070 persons surrounding the conference room and shouting "BAAHAR NIKALO SALON KO" "MAARO" etc. etc.; that in the mob he saw S/Shri A.K. Aggarwal, Pushkar, Sudarshan Prasad, Bhim Singh, Ms. Rani Cheria, Mr. Ganga Dhar, Ms. Sumathyamma CR., Mr. Narinder, Mrs Bhupinder Kaur S/Shri Brij MohanII, Sushil Kumar, Mahesh Chand, Mrs. Nirmal Chanana, Mr. Mahinder Singh Rawat alongwith others; that they were shouting and abusing management OP No.1301/16 Page 40 of 53 outside the conference Room; that S/Shri Vijender Singh, R.S. Dogra, Pramod Kumar Bedwal, Ajay Kumar, Mukesh Sulekh, Balbir, Raj Kumar, Durga Singh Bisht, Gian Singh, Ms. Kirti Gurnanai, Ms. Rosamma Varghese, Mrs. Thankamani P.K. Suresh, Mrs. Santra, Mrs. Ram aDevi, S/Shri Giri Lal, Naresh Kumar, Pale Ram, Bhairav Mishra, Rohtas Kumar, Mrs Alphonsa Baby Kutty, Mrs. Praveen Waghmare alongwith others were inside the conference room and had gheraod the management representatives S/Shri S.K. Saggar, Gian Chand Malhotra, Satish Kumar and Rajiv Tyagi; that at that moment, he was walking in the corridor next to the Conference Room; that while he saw this scene, they also started threatening him :"SALE BHAG JA, MAHIN TO TERE KO BHI YAHIN JAAN SE MAAR DENGE"; that then he rushed upstairs and was viewing the scene from the corridor of the 1st Floor; that suddenly shouting was increased and he heard them saying "MARO SAALON KO" JUTE SE MAARO" JAAN SE MAAAR DO SAALON KO"; that he saw that Mr. Brij MohanII rushed to the ground in front of conference room and picked a pipe from the garden and entered the conference room; that others were also searching for bamboo sticks; that they also tried to break the tree in front of the conference room; that thereafter they rushed to trust room; that on seeing the above incident he was very much frightened; that OP No.1301/16 Page 41 of 53 he returned to his seat and did not inform anyone about what he had seen; that later on he learnt that an FIR bearing No.865/2004 has been registered with P.S.. Lajpat Nagar, when the Inspecting Officer came to hospital and asked them to give statements; who had seen the incident; that he gave the statement to police to the above effect and then also informed the management orally about what he had seen; that he had seen Sh. Pramod Kumar Bedwal was actively taking part along with other employees and also instigating other to cause harm to the aforesaid officers of the management; that the workers were threatening when he wanted to appear in OP case that if any one appeared in court to give evidence, his hands and legs would be broken; that these facts were communicated to the Ld. Tribunal at that time in writing also. In his cross examination on behalf of the workman on remaining issues, MW 3 has denied that no such incident occurred on 5.11.04 as narrated by him in his affidavit or that allegations of violence on 5.11.04 were made by management against the workmen to dismiss the permanent workmen enmasse and replace them with contract workmen or that he was on leave w.e.f. 5.11.04 to 7.11.04 and that he was not present in the hospital at the time of incident dated 5.11.04 or that on 5.11.04 there was no slogan shouting or that no such incidents as mentioned by him took OP No.1301/16 Page 42 of 53 place on 5.11.04 or that he has not seen any such incident.
20. In rebuttal evidence, workman has deposed by way of his affidavit by way of evidence Ex. WW 1/A inter alia to the effect that he has gone through the dismissal order as well as the application u/s 33 (3)
(b) filed by the management; that the contents of the same are concocted, baseless, fabricated and have been made with malafide intentions to victimise him for his trade union activities; that there is not even an iota of truth in any of the allegations made against him in the dismissal order as well as the application u/s 33 (3) (b) filed by the management and the same are totally unfounded and baseless; that all workmen in Mool Chand Hospital have been getting wages as per Pay Commission Scales since last 30 years and they were presently getting wages as per IVth Pay Commission Scales; that in 1996 when the recommendations of the Vth Pay Commission were confirmed by the Govt. the Mool Chand Kharaiti Ram Hospital Karamchari Union called upon the management to implement the Vth Pay Commission Pay Scales; that the above demand was raised by the union on account of the fact that as per the earlier agreement the management was bound to make payment of the wages as per the new pay commission scales as soon as the same was announced; that the management however refused to accept the demand which was OP No.1301/16 Page 43 of 53 raised on the basis of the existing agreement which forced the union to raise an industrial dispute; that after raising of the demand seeking the Vth Pay Commission Pay Scales, the management has been systematically eliminating the permanent workmen employed by the hospital since I.D. No.86/98 claiming pay scales as per recommendations of the Vth Pay Commission was raised by the workmen; that the malafide intention of the management is that by the time the case relating to the dispute of the workmen claiming the scales of pay as per recommendations of the Vth Pay Commission is adjudicated upon finally, no ClassIII or IV employee who is entitled to the said benefits should remain on the rolls of the management hospital; that the allegation made against him of any involvement in the alleged incidents of 5.11.04 is totally fabricated and invented for the purpose of dismissing him from service; that the management had prepared a list of workmen to be victimised since they had refused to succumb to the management pressure to resign from the hospital or to accept the new pay scale against the Vth Pay Commission Scale, to which a large number of workmen had fallen prey to; that the malafide intention of the management is evident from the bare reading of the original list attached to the alleged complaint to the police and the names of the workmen dismissed on the ground of the alleged incident OP No.1301/16 Page 44 of 53 dated 5.11.04 ; that the original list contained the names of 35 workmen but subsequently the management dismissed more than 60 workmen from service without conducting any kind of enquiry; that as per the management his service conditions are governed by the service rules framed by the management; that he could not have been dismissed by the management without holding a domestic enquiry as per provisions of the service rules framed by the management; that as per the service rules only the "Sanchalak" (Director) can take action against him that too after a proper domestic enquiry; that there is no resolution authorising Sh. Manojit Sengupta to take disciplinary action or to file the present proceedings; that the present application is bad for want of authority and the same is liable to be dismissed on this ground alone; that he was not a member of any such alleged mob; that if any domestic enquiry has been conducted the same would have proved that the allegations are false and fabricated and the malafide intentions of the management and also the incorrect allegations raised against him and other workmen and that is the reason why the management has not conducted any domestic enquiry in the above case; that the allegations contained in the charge sheet dated 1.6.99 are also false and fabricated; that the management has instigated the complainants in the alleged incidents to make the complaint against OP No.1301/16 Page 45 of 53 him to victimise him for his trade union activities; that the silence of the management from the issue of the show cause notice dated 18.12.2000 after conclusion of the domestic enquiry proceedings till his proposed dismissal order dated 10.12.04 i.e. for a full 4 year period, clearly indicate that the management did not consider the allegations contained in the charge sheet dated 1.6.99 serious enough to warrant any disciplinary action against him. He has relied upon documents Ex. WW 1/1 which is copy of letter dated 09.12.2004 of the office of the Dy. Labour Commissioner, South District declaring the workman Sh. Pramod Kumar Bedwal, Member Executive of Moolchand Khairaiti Ram Hospital Karamchari Union (Regd.) as a 'protected workman' for the year 200405 under the provisions of section 33 (4) of Industrial Disputes Act, 1947 (as amended upto date).
21. In his cross examination on behalf of the management in rebuttal evidence, WW 1 has deposed inter alia that he does not have any letter of the management with him in which the management accepted him as a protected workman; that he has no document to show that the election of the Union were ever held to appoint its office bearers; that he does not have any document to show that he ever participated in the election of office bearers of the Union. He has admitted that he was present in the OP No.1301/16 Page 46 of 53 hospital on 05.11.04 and that for the incident which took place on 05.11.04, the management filed a complaint before the police and police was arrived at in the hospital; that he does not know whether the officers of the management sustained injuries in the incident which took place on 05.11.04 or their MLCs were conducted in AIIMS; that he has not reported to the police that the incident dated 05.11.04 did not take place in the hospital; that he does not have any service rules of the hospital; that he does not know whether his union is having the service rules or not; that he was marking his attendance in the attendance register which was being maintained by the HR Department; that it is correct that he was suspended by the management after the incident of 05.11.04; that a notice was placed on the main gate regarding the suspension; that Mr. Manojit Sengupta was the Manager in Accounts Department; that he does not have any document to show that Sh. Manojit Sengupta was not competent to initiate disciplinary action against him; that it is correct that hospital is being run by the Mool Chand Kharaiti Ram Charitable Trust and it is a private hospital; that it is correct that the police registered an FIR no.865/04 which was pending in Patiala House Courts pertaining to incident dated 05.11.04; that it is correct that prior to the charge sheet given for the incident of 05.11.04, the other charge sheets have also been filed upon OP No.1301/16 Page 47 of 53 him by the management; that he does not have original of Ex. WW 1/1; that he is getting 75% wages from the management till date as he is under suspension; that he is not working anywhere else; that it is correct that he need not report for duty to hospital ever and his suspension allowance is credited every month in his account which is being maintained by him in Allahabad Bank.
22. It is seen from the record that management by way of testimonies of MWs 1 to 3 alongwith documents Ex. MW 2/1 to Ex. MW 2/4, as abovesaid, has been able to prove, on record, that the workman had committed misconduct as alleged against him i.e. vide charge sheet Ex. MW 1/1 supported by the complaints of Ms. Manju Thareja and Suman Kashyap Ex. MW 1/2 (colly) as also qua alleged misconduct dated 5.11.04 as alleged against the respondent/workman vide the instant approval application as also vide the testimonies of MWs 2 and 3 in the same, as abovesaid, to the effect of being found indulged in disorderly and riotuous conduct/behaviour alongwith others on 5.11.04 at about 3.45 pm in the premises of the hospital resulting in causing of bruises/ injuries on the persons of officials of the management/ complainants as mentioned in the respective MLCs of the said date of the concerned hospital in their respect in this regard and in respect of incident whereof FIR No.865/2004 OP No.1301/16 Page 48 of 53 had been registered with P.S. Lajpat Nagar, New Delhi which it is seen from the record have not been able to be rebutted by the respondent/workman by way of his testimony vide his affidavit by way of evidence Ex. WW 1/A in the rebuttal workman evidence, as abovesaid, who on the contrary it is seen from his cross examination in rebuttal workman evidence has admitted that the incident as alleged took place on 5.11.04 when he deposes It is correct that for the incident which took place on 5.11.04 the management filed a complaint before the police and police arrived at in the hospital. He does not know whether the officers of the management sustained injuries in the incident which took place on 5.11.04 or their MLCs were conducted in AIIMS. He had not reported to the police that the incident dated 5.11.04 did not take place in the hospital........; it is correct that the police registered an FIR No.865/04 which was pending in Patiala House Court pertaining to incident dated 5.11.04.
23. It is seen from the cross examination of MW 2 Sh. Gian Chand Malhotra on behalf of the workman in management evidence on remaining issues that it is not specifically disputed that FIR No.865/04 has been registered with P.S. Lajpat Nagar on the complaint of the assaulted employees of the management hospital on the date of the OP No.1301/16 Page 49 of 53 incident viz 05.11.04 against the respondent/workman alongwith others as accused persons qua the incident dated 05.11.04 in the management hospital with respect to the complainants/officials of the management hospital.
24. It is further seen from the record that apart from the allegations of the respondent/workman by way of his affidavit by way of evidence Ex. WW 1/A in rebuttal workman evidence to the effect that he is being victimised on the part of the management for being an office bearer of the union of the workmen and actively taking part in its activities on behalf of the workmen as also being a concerned workman in various industrial disputes raised by the union of the workmen viz. Mool Chand Khairaiti Ram Hospital Karamchari Union (Regd.) with the management in respect of various general demands of the workmen against it particularly one relating to the implementation of the recommendations of the Vth Pay Commission in their respect and was thus entitled alongwith the others to its benefits on the due adjudication of the said dispute as referred to the adjudicating authority in this regard alongwith by virtue of having not succumbed to the pressure exerted by the management upon him to convert to so called nonDA employment or to accept the new pay scale against the Vth Pay Commission scale or to even resign from his OP No.1301/16 Page 50 of 53 employment with the hospital which was a concerted design / effort on the part of the management to dismiss/ terminate / force to resign majority of the permanent workmen on the rolls of the management hospital as on 01.01.1996 who would have become entitled to the benefits/pay scales as per recommendations of the Vth Pay Commission in this regard, in order to deprive them of the same, i.e. for his trade union activities, the respondent/workman has not led any evidence to corroborate his said allegations of his being victimised on the part of the management for his trade union activities as also by virtue of his allegedly having refused to accede to the management pressure to resign from the hospital or to accept new pay scales against Vth Pay Commission claimed by the large number of workmen as alleged by him in his affidavit by way of evidence Ex. WW 1/A, in rebuttal workman evidence.
25. In view of above discussion, instant issue is decided in favour of the management and against the workman.
26. Findings on issue no.3 Issue no.3 is "Whether the workman could be declared a protected workman as stated in para 8 of the application? OPM"
27. It is seen from the record that the management has admitted vide paragraph no.8 of its instant approval application that vide order dated OP No.1301/16 Page 51 of 53 09.12.2004 the ALC has granted the status of protected workman to the opposite party as also the workman has proved order dated 09.12.04 of the Asst. Labour Commissioner, Office of the Dy. Labour Commissioner, South District, New Delhi declaring the workman, Member Executive of the Moolchand Kharaiti Ram Hospital Karamchari Union (Regd.) as 'protected workman' for the year 200405 under the provisions of Section 33 (4) of the Industrial Disputes Act, 1947 (as amended upto date), Ex. WW 1/1, in rebuttal workman evidence, on record, as already observed herein above, as also the instant approval application has been filed by the applicant/management u/s 33 (3) (b) of Industrial Disputes Act, 1947 (as amended upto date), seeking permission for the dismissal of the respondent/workman from his services with the management, which provision of law is in respect of 'protected workman'. In view of the above, status of workman as 'protected workman' stands admitted, on record. This issue is decided accordingly.
28. Findings on issue nos. 4 and 5 Issue no.4 is "Whether the applicant is entitled for permission to dismiss the workman Sh. Pramod Kumar Bedwal? OPM" and issue no. 5 is "Relief". These issues are taken up together, being interconnected.
29. In view of my findings on issue no.2, instant approval application OP No.1301/16 Page 52 of 53 is allowed and permission is granted to the management for dismissing the services of the workman under the provisions of section 33 (3) (b) of Industrial Disputes Act, 1947 (as amended upto date), as prayed by it vide the instant approval application. File be consigned to the Record Room.
Digitally signed by
CHANDRA CHANDRA GUPTA
Announced in open Tribunal GUPTA Date: 2018.03.27
15:23:17 +0530
on 27.03.2018 (CHANDRA GUPTA)
Presiding Officer Industrial Tribunal,
Dwarka Courts, New Delhi.
OP No.1301/16 Page 53 of 53