Delhi District Court
Sh. Mahinder Narain vs M/S Super Safe Ways Pvt Ltd on 13 May, 2008
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IN THE COURT OF SHRI GIRISH KATHPALIA;
PRESIDING OFFICER, LABOUR COURT XIX
KARKARDOOMA COURTS:DELHI.
LIR. NO. 327/06
SH. MAHINDER NARAIN,
S/O SH. PARMESHWAR SAHU,
C/O A.P.S & S.S.W EMPLOYEES UNION,
5/24, NEHRU EKTA COLONY,
SECTOR-6, R.K. PURAM,
NEW DELHI.
........WORKMAN
VS
M/s SUPER SAFE WAYS PVT LTD.,
267, SATYA NIKETAN,
NEW DELHI-21.
........MANAGEMENT
Date of reference:10/10/01
Date of taking up the matter for the first time:07/01/08
Date of conclusion of arguments:06/05/08
Date of award:13/05/08
Ref no. F.24(2338)/2001-Lab./22576-80 dated 10/10/01
AWARD
1. On being satisfied as regards existence of an
industrial dispute between the parties, the
Secretary(Labour) Government of NCT of Delhi in exercise
of powers conferred by section 10(1)(c) and section 12(5) of
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the Industrial Disputes Act referred the present dispute to
the Labour Court V for adjudication, from where it was
transferred to this court with the following terms of
reference:
"Whether the services of Sh. Mahinder
Narain, s/o Sh. Parmeshwar Sahu have
been terminated illegally and/or
unjustifiably by the management and if so,
to what sum of money as monetary relief
along with consequential benefits in terms of
law/government notification and what other
relief is he entitled and what directions are
necessary in this respect?"
2. On service of court notice, the workman filed a
statement of claim, seeking reinstatement of his services
with continuity and back wages. As pleaded by workman,
for past more than 20 years, he had been working with
Indian Oil Corporation (hereinafter referred to as "IOC")
and at their instance he was taken on roll of the
contractor, which is the management herein with effect
from 18/11/93. At that time, the workman was posted in
Saket, which premises were taken over by the office of M/s
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Reliance Petroleum Ltd. subsequently but the workman
continued to be posted at the same premises. Last drawn
monthly salary of the workman was Rs.2,000/-, which was
less than even the minimum wages. As per workman, with
effect from 18/10/99 the management did not allow him
to resume work and even withheld his earned wages for
the months of April 99 and October 99. During the
proceedings before Assistant Labour Commissioner, the
management took a stand that they had initiated an
enquiry against the workman, whereafter the matter was
taken up before the Conciliation Officer but failed. Hence
this reference.
3. Management in the written statement pleaded that
services of the workman had been terminated by them
after conducting a domestic enquiry on the grounds of
serious misconduct. Management is engaged in providing
security personnel to different establishments and act of
the workman in not allowing his substitute security guard
to perform his duties and continuation of the workman on
his earlier place of duty even after receipt of movement
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order was a serious challenge to the functioning of
management and if ignored, the same would cause serious
loss to the management. As pleaded in the written
statement, vide movement order dated 06/10/99 the
workman was directed to report at the office of the
management, leaving the premises under his guard to the
substituted security guard Sh. Rajeshwar Singh, but the
workman willfully refused to obey. As such, the
management initiated a domestic enquiry against the
workman by issuing him charge sheet dated 20/10/99 to
which the workman deliberately did not reply. As per
management, the workman did not participate in the
enquiry and looking into the findings, the management
discharged the workman from service with effect from
04/04/01.
4. Workman filed a rejoinder denying the pleadings of
the management and reaffirmed the claim contents.
5. On the basis of pleadings my ld predecessor framed
the following issues.
1. Whether any valid and proper enquiry
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was conducted against the workman?
2. As per terms of reference.
6. Vide detailed order dated 10/05/06 my ld
predecessor decided issue no. 1 against the management
and held that the enquiry conducted against the workman
was not valid and proper. Looking into the written
statement, my ld predecessor granted opportunity to the
management to prove the workman's misconduct in this
court.
7. In support of his case the workman appeared as
his solitary witness while four witnesses were examined on
behalf of management.
8. MW1 is the enquiry officer, who proved on record
the relevant documents as Ex.MW1/1-9.
9. MW2 is the Assistant Manager of the management,
who deposed on oath the above mentioned contents of
management's pleadings and placed on record the relevant
documents as Ex.MW2/1-6. He specifically deposed that
the workman who was posted at Saket premises of IOC
was given a movement order Ex.MW2/1 dated 06/10/99
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with the directions to handover the duty to another guard
Rajeshwar Singh and report at the office, but the workman
deliberately refused to comply and rather wrote
endorsement X to X on reverse side of the movement
order, thereby flatly refusing to obey. He stated that the
movement order Ex.MW2/1 had been handed over by him
to the guard Rajeshwar Singh, who returned the same
along with workman's endorsement. In his cross
examination, MW2 explained that since Saket area was
being looked after by field officer Virender Singh, it is the
latter who visited the post after refusal of the workman to
comply with the movement order.
10. MW3 Sh. Virender Singh is the field officer of the
management who also deposed the above mentioned
contents of written statement and placed on record as
Ex.MW3/1 a copy of his statement recorded by the enquiry
officer. In his cross examination MW3 stated that the
movement order had been delivered on 07/10/99 to the
workman by another guard but the workman refused to
handover the post, whereafter on 08/10/99 MW3 visited
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the post along with another officer Sh. Satya Narain and in
their presence the workman wrote on reverse side of the
movement order that he would not handover the charge.
He denied the suggestion that the endorsement X to X on
reverse side of the movement order was made by the
workman under his pressure.
11. MW4 is Sh. Satya Narain, who also deposed on
oath the contents of written statement. MW4 stated that
he was present at the post on 06/10/99 when the
workman refused to comply with the movement orders and
wrote endorsement on the reverse side of the same. In
cross examination a suggestion was extended to this
witness that no movement order had been served on the
workman, which suggestion was denied. He admitted that
in the premises where the workman had been posted, a
murder had taken place in which their training officer was
arrested and acquitted. But he denied the suggestion that
the workman had been posted to avoid stigma.
12. Workman appeared as WW1 to depose on oath the
above mentioned contents of his pleadings and placed on
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record the relevant documents as Ex.WW1/1-25. In his
chief examination, the workman did not throw any light on
the allegation of misconduct of disobedience of the
movement order as alleged by the management. In his
cross examination, the workman admitted that in the
month of October 1999 he was posted as security guard in
Saket flat of a Director of IOC. He admitted that on
06/10/99 the management had sent Rajeshwar Singh in
his place and directed him to report back. He also
admitted having personally made the endorsement at
portion X to X on the reverse side of the movement order
Ex.MW2/1 but denied the suggestion that he never
reported back for duty at office of the management. He
stated having come to know about pendency of the
domestic enquiry around 08/11/99 and thereafter
whenever he tried to contact the management, he was not
allowed to enter. He admitted that during conciliation
proceedings he had filed his claim against the
management as well as IOC but denied the suggestion that
he wanted to take up a job with IOC only. He admitted
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LIR NO. 327/06 Page 8 of 19 pages
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having issued notice dated 30/10/99 Ex.MW2/2A to the
IOC, claiming regularization of service with the IOC. He
also admitted having issued letters Ex.MW2/4-6 to the
management which are on his letter head, describing him
as contractor and general supplier but denied the
suggestion that simultaneous with his job, he was also
running a business.
13. No other evidence was brought by either side.
14. I have heard authorized representative for both the
sides and perused the records. As mentioned above, the
issue no. 1 has already been decided by my ld predecessor
against the management. My findings on issue no. 2 are as
under.
ISSUE NO.2
15. It was argued on behalf of workman that the
management has not been able to establish service of
movement order Ex.MW2/1 on the workman and defiance
thereof by him. It was argued that neither Mr. Batra nor
Rajeshwar Singh was produced in the box by the
management. Had Mr. Batra been produced in the box by
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the management, the workman would have succeeded to
establish that he never refused to comply with the
movement order and that it is Mr. Batra who had directed
him not to leave the post. However, it was admitted in the
course of final arguments that till 18/10/99 the workman
did not leave the post, though the movement order dated
06/10/99 directed him to do so.
16. Ld authorized representative for management took
me through the entire pleadings as well as evidence in
support of his argument that the workman deliberately did
not leave the post in violation of the movement order since
the workman somehow wanted to cling to the IOC, with
whom he had been trying to get employed as a regular
employee. It was argued that the workman consciously
stayed away from the enquiry proceedings.
17. At the very outset, it would be pertinent to record
that inspite of specific pleadings of the management
alleging that the workman willfully disobeyed the
movement order dated 06/10/99, in rejoinder the
workman did not explain his stand at all. It is nobody's
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LIR NO. 327/06 Page 10 of 19 pages
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case that the workman was unaware about conduct of
enquiry proceedings against him on the grounds of
disobedience of the movement order Ex.MW2/1.
Ex.MW2/WX1 is the reply of management before the
Regional Labour Commissioner, in which the management
specifically described pendency of the enquiry against the
workman but despite that the workman did not join
enquiry even at that stage; the records of the enquiry
proceedings also clearly reflect that the workman was not
unaware about pendency of enquiry against him. In his
cross examination the workman specifically admitted that
he came to know about the enquiry proceedings on
18/10/99(which date he rectified as 08/11/99 in his
testimony) which was much prior to his statement of claim
dated 26/03/02. Despite being aware about the enquiry
and the allegation of misconduct, the workman did not
bring specific pleadings throwing light on the alleged
misconduct. Neither in the statement of claim nor in the
rejoinder nor even in his chief examination did the
workman explain as to whether or not he refused to
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comply with movement order and if so, under what
circumstances.
18. In his cross examination, the workman admitted
having written the endorsement X to X on the reverse side
of the movement order Ex.MW2/1. The said endorsement
is thus:
"Batra sahab ko malum hai ki sahab, mem
sahab mujhe zimmevari dekar gai hain. F-
4C, Saket hum M.N. Sahu T.N. 3218 hain.
Main Rajeshwar Singh ko duty nahin de
raha hun.
Sd/-"
19. Workman neither pleaded nor deposed in his chief
examination that he had been directed by Mr.
Batra(further details of the said Mr. Batra neither on
record nor disclosed during arguments) not to leave the
post. As such, there was no necessity for the management
to produce the said Mr. Batra in the box. Even otherwise,
having admitted the receipt of movement order Ex.MW2/1
and having admitted his endorsement on reverse side of
the movement order, it is the workman who ought to have
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LIR NO. 327/06 Page 12 of 19 pages
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summoned Mr. Batra in order to justify his refusal to leave
the post.
20. So far as non production of Rajeshwar Singh is
concerned, that also is inconsequential since the workman
admits in his cross examination that on 06/10/99 the
management had sent Rajeshwar Singh to replace him and
he had been directed to report back.
21. I find force in the contention of management that
the workman deliberately clung to his post since he
somehow wanted not to detach himself from IOC.
Ex.MW2/2A is a demand notice dated 30/10/99 issued by
the workman to the IOC, in para 3 whereof the workman
claimed besides other reliefs, regularization of his services
with the IOC. In his cross examination workman also
admitted that even before Conciliation Officer, he had filed
his claim against IOC as well. Ex.WW1/12 is workman's
complaint dated 12/10/99 through union against the IOC
claiming regularization, by which time the workman had
already received the movement order Ex.MW2/1 but he
made no mention thereof in the said complaint. Even in
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his complaint Ex.WW1/14 dated 14/02/2000 against the
present management and IOC the workman did not
disclose about the movement order. It reflects his motive
behind defiance of movement order Ex.MW2/1 to the effect
that he somehow wanted to be taken on the rolls of IOC.
22. It is amply established from record that the
workman deliberately and willfully refused to obey the
movement order Ex.MW2/1. In view of nature of the work
of security guard, in my view such a refusal which has
wide ranging ramifications on security of the clients of
management is a serious misconduct.
23. In view of the management having succeeded to
establish misconduct of the workman, what remains to be
seen is the proportionality of punishment awarded to the
workman.
24. In the case of B.C. CHATURVEDI vs UNION OF
INDIA (1995) 6 SCC 749, Hon'ble Supreme Court
discussed various judicial precedents and held as under:
"18. A review of the above legal position
would establish that the disciplinary
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authority and on appeal the appellate
authority being fact finding authorities
have exclusive powers to consider the
evidence with a view to maintain discipline.
They are invested with the discretion to
impose appropriate punishment keeping in
view the magnitude or gravity of the
misconduct. The High Court/Tribunal
while exercising the power of judicial
review cannot normally substitute its own
conclusion on penalty and impose some
other penalty. If the punishment imposed
by the disciplinary authority or the
appellate authority shocks the conscience
of the High Court/Tribunal, it would
appropriately mould the relief, either
directing the disciplinary/appellate
authority to reconsider the penalty
imposed or to shorten the litigation, it may
itself, in exceptional and rare cases,
impose appropriate punishments with
cogent reasons in support thereof."
25. In the case of HOMBE GOWDA EDUCATIONAL
TRUST vs STATE OF KARNATAKA, (2006) 1SCC 430,
Hon'ble Supreme Court held:
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"17. The tribunal's jurisdiction is akin to
one under section 11A of the Industrial
Disputes Act. While exercising such
discretionary jurisdiction, no doubt it is
open to the tribunal to substitute one
punishment by another; but it is also
trite that the tribunal exercises a limited
jurisdiction in this behalf. The
jurisdiction to interfere with the
quantum of punishment could be
exercised only when, interalia, it is
found to be grossly disproportionate.
18. This court repeatedly has laid down
the law that such interference at the
hands of the tribunal should be interalia
on arriving at a finding that no
reasonable person could inflict such a
punishment. The tribunal may
furthermore exercise its jurisdiction
when relevant facts are not taken into
consideration by the management which
would have direct bearing on the
question of quantum of punishment.
................
30. This court has come a long way from its earlier view points. The recent trend _________________________________________________________ LIR NO. 327/06 Page 16 of 19 pages 17 in the decisions of this court seek to strike a balance between the earlier approach to the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country. In several decisions of this court it has been noticed how discipline at workplace/industrial undertakings received a setback. In view of change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity. Our country is governed by rule of law. All actions therefore must be taken in accordance with law. Law declared by this court in terms with Article 141 of the Constitution, as noticed in the decisions noticed supra, categorically demonstrate that the tribunal would not normally interfere with the quantum of punishment imposed by the employers unless an appropriate case is made out therefor."
26. Falling back to the present case, the management is responsible for security of its clients. Workman, a _________________________________________________________ LIR NO. 327/06 Page 17 of 19 pages 18 security guard posted by the management blatantly refused to obey the movement order and that too in writing with oblique purposes of clinging somehow to a big corporation, the IOC not just for a day or two; the workman did not move from the post as per his own case for about 12 days. Such an act on the part of the workman could have very serious security repercussions and a business loss to the management. Such an act of indiscipline cannot be allowed. It cannot be said that no reasonable person could inflict punishment of discharge from service on the workman for such misconduct. I do not find the punishment of discharge inflicted on the workman by the management vide their letter dated 04/04/01 disproportionate to the misconduct.
27. In view of above discussion, issue no. 2 is decided against the workman and it is held not proved that the services of the workman were terminated by the management illegally or unjustifiably. RELIEF
28. In view of above findings, it is held that the _________________________________________________________ LIR NO. 327/06 Page 18 of 19 pages 19 workman is not entitled to any relief against the management.
29. Reference accordingly stands answered. Copies of this award be sent for publication and file be consigned to records leaving the parties to bear their own cost. ANNOUNCED IN THE OPEN COURT ON 13th May, 2008 (GIRISH KATHPALIA) ADDITIONAL DISTRICT & SESSIONS JUDGE, PRESIDING OFFICER, LABOUR COURT-XIX, KARKARDOOMA COURTS, DELHI.
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