Delhi District Court
Sh. Sanjay Chaubey vs M/S Continental Arts on 12 February, 2008
ID NO. 257/2001
IN THE COURT OF MS. MAMTA TAYAL: PRESIDING OFFICER: LABOUR
COURT-I : ROOM NO.50: KARKARDOOMA COURTS: DELHI.
ID NO. 257/2001
BETWEEN
Sh. Sanjay Chaubey
C/o Engineering Workers Lal Jhanda Union,
I-441, Karampura,
New Delhi - 110015.
........ Workman
AND
M/s Continental Arts
C-27, Shardapuri,
Ring Road,
Raja Garden,
New Delhi - 27.
........ Management
ORDER
1 Vide this order I shall dispose of the following preliminary issue framed by ld. Predecessor vide order dated 14.08.03. Issue :-
"Whether the management conducted fair and proper enquiry against the claimant, if so, its effect?"
2 Before proceeding to dispose of the above issue, the back 1 ID NO. 257/2001 drop in which the present issue has arisen may be recapitulated in brief.
3 Secretary (Labour), Government of National Capital Territory of Delhi had referred the dispute arising between the parties named above for adjudication to this Labour Court vide notification No. F.24 (4468)/2000-Lab./1870-74 dated 10.01.2001 with the following terms of the reference:-
"Whether the services of Sh. Sanjay Chaubey have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect?"
4 Workman filed his claim petition contending that he had been diligently and honestly working with the management as power pressman since 1992 on a monthly salary of Rs.1750/-. It was alleged that the management was indulging in unlawful activities and it did not provide any legal benefits to the workers nor did it maintain any service record and seniority list. It used to take signatures of the workers on blank papers and vouchers. It was 2 ID NO. 257/2001 further averred that in July,1999, workman went on duly sanctioned leave, to attend his father's death anniversary. When he came to join his duties after availing leaves, on 01.09.99, he was not permitted to join the duties and was illegally terminated by the management. He had sent a demand notice dated 03.06.2000 which was neither replied by the management nor he was taken back. Thereafter he raised an industrial dispute before the conciliation officer but the proceedings failed on account of non-cooperation of the management. Since his termination, he was unemployed. 5 The claim of the workman was contested by the management by filing written statement. The date of joining and the factum of termination of the workman was disputed. It was contended that the workman joined the management on 19.02.96 and he himself stopped reporting for duties w.e.f. 26.07.99. Management wrote a letter dated 10.11.99 to the claimant calling upon him to resume his duties and submit his explanation for his unauthorised absence. Management also wrote another letter dated 12.01.2000 but none of letters were replied by the claimant. Subsequently a charge sheet dated 29.05.2000 was issued to him. 3 ID NO. 257/2001 The claimant did not submit any reply to the charge sheet. Management appointed Sh. Gautam Chakraborty as enquiry officer for holding a domestic enquiry against the claimant. But the claimant failed to appear before the enquiry officer to rebut the charges. Enquiry officer found claimant guilty of the charges pressed against him. Management issued a show cause notice dated 18.01.2001 to workman asking for his comments on the report of enquiry officer but the claimant did not reply the same. Accordingly, the claimant was dismissed from the service vide letter dated 13.02.2001. The enquiry conducted against the workman was fair and proper. The management traversed all other contentions of the workman contained in the claim petition. 6 In rejoinder the workman countered the defence raised by the management and reiterated his own contentions. 7 On the pleadings of the parties, following issues were framed on 14.08.2003 :-
1) Whether the management conducted fair and proper enquiry against the claimant, if so, its effect?4 ID NO. 257/2001
2) Whether the termination of the claimant is in violation of Section 25F of the I.D. Act, if so, its effect?
3) As per terms of reference.
It was ordered that the enquiry issue was to be treated as preliminary issue and the case was posted for evidence on the said issue.
8 Claimant filed his own affidavit towards evidence. Sh. Gautam Chakraborty, Enquiry Officer appeared as MW1 on behalf of management. Evidence was closed and oral arguments were advanced by both the sides.
9 I have carefully considered the matter and gone through the records.
My findings on the enquiry issue are as follows:-
ENQUIRY ISSUE :-
10 The main plank of arguments advanced by AR for workman to vitiate the enquiry is that the workman was never served 5 ID NO. 257/2001 with any notice of any domestic enquiry being held against him by the management nor any enquiry was actually conducted against him. AR for workman has contended that in fact the workman was terminated on 01.09.99 whereupon he made a complaint to labour authorities on 18.02.2000 and sent a demand notice dated 05.06.2000 to management. He continued that the management has created a farce of this enquiry only to evade consequences of the dispute raised by the workman regarding his illegal termination. Rebutting this, management has tendered enquiry officer in evidence who affirmed on oath that he was appointed by the management as enquiry officer vide letter dated 22.08.2000 to enquire into the charge sheet dated 29.05.2000. The enquiry officer has proved on record the enquiry proceeding along with all the documents as Ex.MW1/1 to MW1/3. A perusal of the same reveals that the workman was sent the charge sheet by the management at his residential address in the first week of June,2000. Thereafter repeated notices were sent by the enquiry officer at the same address of the workman asking him to participate in the enquiry duly informing him the date and place of the enquiry. Not only this, he was also served through publication in the newspaper before 6 ID NO. 257/2001 proceeding exparte against him. The workman in his own evidence or cross- examination of MW1 did not specifically aver that the address on which the charge sheet and the notices were sent by the management and the enquiry officer was not his complete residential address. In fact, he has given an evasive reply stating that he does not remember his address during the relevant period. He also admitted that he has never informed the management about change of his address. Regarding the notice published in the newspaper, he simply raised an excuse that he does not read newspaper so he did not have knowledge. This plea is obviously a desperate attempt on part of workman to show ignorance of pending enquiry. In cross- examination of MW1, no suggestion was given that the notices were not sent at the correct address of the workman or that they were forged or fabricated documents. Though it was suggested that in the notice published in the paper, the address of the management was not mentioned, but a perusal of the newspaper containing the said notice is sufficient to conclude that the suggestion is against record and the address of management was duly mentioned in said notice. Further in cross of MW1 an attempt was made to convass that the conciliation 7 ID NO. 257/2001 proceedings were going on at the relevant time and management did not serve any notice of enquiry proceedings on the workman during conciliation but neither the workman in his own evidence nor in cross of MW1 proved on record the conciliation proceedings to establish that at the relevant time, the management was appearing in conciliation proceedings or that it deliberately did not serve any notice on the workman before conciliation officer casting any doubt about the bonafide of the management. In the case of M/s Trina Engineering company (p) Ltd. Vs. The Secretary (Labour) and Ors. 2006, LLR 51, it has been held that the letters sent by the management through registered post at the recorded address of the workman as given by him are sufficient to hold proper service even when they are not delivered.
11 On the basis of various letters, notices, duly stamped postal documents, the report of postal authorities, newspaper publication and enquiry proceedings recorded by the enquiry officer, it can be safely concluded that the workman was repeatedly called upon to join the enquiry proceedings and he was granted sufficient opportunity to put forth his case and to test the 8 ID NO. 257/2001 veracity of the management witnesses. He was proceeded ex-parte only on his failure to respond to numerous intimations addressed to him for the purpose.
12 The AR for workman has though made a sincere endeavour to convince that the enquiry was unfair, improper and lopsided, however, to decide whether an enquiry was unfair and improper the ultimate test is the test of prejudice or the test of fair hearing. In the present case it cannot be said that workman was not granted a fair opportunity to put forth his case. In fact, sufficient notices were sent both through post as well as through publication in newspaper about the enquiry. He was granted repeated opportunities to participate but he refused to join. 13 In a recent case, reported as Ramesh Kumar Vs. Punjab National Bank, 2000 LLR 682, Hon'ble High Court of Delhi observed that An enquiry which has been held ex-parte is not violative of principles of natural justice when the delinquent officer despite information did not participate in the proceedings.
9 ID NO. 257/2001 14 Same was the view of Apex Court of India in the case of New India Insurance Company Ltd. Vs. S.M.I Kazib and Ors. 2001 LLR 825 15 In the case of Mohan Singh Vs. Jaipur Metals and Electricals Ltd. 1996 LLR 448, it was held that "When a delinquent does not participate in an enquiry it is not open to him to raise the objection that he has been deprived of the opportunity to defend himself."
16 In Bank of India Vs. Apurba Kumar Saha (1994) 2 SCC 615, it was laid down that On refusal of the workman to participate in enquiry without any valid reason, violation of natural justice cannot be pleaded at a later stage.
17 Lastly, it is pleaded that the finding of the enquiry officer is not based on facts and material on record and is totally perverse. It is settled law that a finding arrived at in a domestic enquiry can be held to be perverse only if it is based on no evidence or is entirely 10 ID NO. 257/2001 against the evidence on record or is based on irrelevant evidence. It is also emphasized by the Superior Courts repeatedly that even if there is some evidence on record, however little it may be to support the findings there is no perversity. Reliance is placed on Delhi Cloth and General Mills Co. Vs. L.B. Singh 1972 (1) SCC 595 and Parry & Co. Ltd. Vs. P.C. Pal 1970 90 LLJ 429 SC.
18 In a recent case of Vasant P. Patil Vs. IIT Powai, Mumbai & Ors. 2006 LLR 452, it was held that where the documentary evidence on record is considered by enquiry officer, the findings cannot be perverse or legally untenable. I have perused the entire enquiry proceedings alongwith the report of the enquiry officer. In the course of enquiry proceedings, the management has examined the material witness who has deposed against the workman and her statement has been considered by the enquiry officer while giving his report. The enquiry report shows that it is based on unrebutted testimony of witness and on official records and therefore it cannot be called perverse or based on no evidence. The enquiry officer has neither misconducted himself nor the enquiry has been conducted in violation of the principles of natural justice. 11 ID NO. 257/2001 Accordingly, the issue is decided in favour of the management and against the workman. I hereby hold the enquiry to be fair and proper.
Announced in the open court (MAMTA TAYAL)
on 12th February, 2008 PRESIDING OFFICER LABOUR COURT-I
KARKARDOOMA COURTS, DELHI
12