Delhi District Court
Industrial Dispute Between : vs M/S. Hotel Sidharth on 17 April, 2014
IN THE COURT OF SH. SANJEEV KUMAR, PRESIDING
OFFICER, LABOUR COURT
KARKARDOOMA COURTS, DELHI.
ID No. 465/10 (OLD ID No.74/2000 )
INDUSTRIAL DISPUTE BETWEEN :
Sh. Suresh Kumar S/o Sh. Mangloo Ram
R/o H. No.20, Vill. Hamidpur, P.O. Alipur,
Delhi36
........Workman
VERSUS
M/s. Hotel Sidharth
Rajendra Place,
New Delhi8
......Management
Date of Institution : 25.07.2000
Date of award
: 17.04.2014
AWARD
1. The Secretary (Labour), Govt. of NCT, Delhi vide order
No. F.24 (5134)/99Lab./2300123005, Dated 09.07.2000 referred
the present industrial dispute between the parties for adjudication to
the Labour Court on the following terms of reference :
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 1 out of 33
"Whether the termination of services of Sh.Suresh
Kumar is illegal and/or unjustified and if so, to what relief is he
entitled and what directions are necessary in this respect?"
2. The workman filed the statement of claim. The relevant
and leading facts are that the workman employed with the
management as "Senior Plumber" w.e.f. 30.01.1990 and his last
drawn wages were Rs.4439/ per month. Workman did not give any
chance of complaint regarding his work. Management wanted to
provide a job in place of workman to some body known to them,
therefore, started harassing and asking workman for extra duties apart
from his duties at the hotel and when workman refused, then
management got annoyed and started conspiracy to dismiss the
workman. In pursuance to conspiracy a show cause notice dt.
13.10.97 was issued to the workman which was duly replied by
workman but management was not satisfied, therefore, instituted a
domestic enquiry which was contrary to industrial employment
(standing order) Act 1946. Sh. D.S. Sarin was appointed as enquiry
officer who had written letter dt. 08.11.97 in English and fixed the
date of hearing as 12.11.97. Workman appeared before him on
12.11.97 and requested to carry out the proceedings in Hindi language
and supply all the documents in Hindi so that he could read and
understand them. It is stated that enquiry officer gave assurance that
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 2 out of 33
the enquiry would be conducted in Hindi and all the translated
documents in Hindi would be supplied then proceedings wer
adjourned for 17.11.1997 but on that day enquiry officer was absent
then workman received another letter in Hindi intimating him enquiry
to be conducted on 21.11.97 at 2.30p.m. Enquiry proceeding were
adjourned to xxx.12.97, but enquiry officer did not appear on that day
as well. A letter dt.01.01.1998 in English language was received by
workman. Then workman asked the translation of this letter in Hindi
language to the enquiry officer as well as management but
intentionally it was not sent by any of them. Another letter received
by workman in which he was informed that enquiry proceeding was
conducted on 06.01.98 and now it will be conducted on 13.01.98 at
bar room No.2, Western side, Tis Hazari Court, Delhi and when
workman reached there, he found a seat of the advocate and no
proceedings were held. It was intimated to the Enquiry officer but no
reply was received. Workman continued his duty during that period.
It is stated that on 27.02.98 workman requested for leave which was
allowed but before leaving the premises, he received an information
that he is called by general manager. It is stated that at about
3.30A.m. A charge sheet dt.27.02.98 was given by general manager
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 3 out of 33
in english that workman came to know that a domestic enquiry was
conducted in his absence at hotel premises and he was found guilty
and management wants to terminate his services. It is stated that
workman wrote a letter requesting for hidi translation dt.24.12.97 and
enquiry report so that he can reply the show cause dt.7.02.98 but it
was not replied by the management. It is stated that thereafter, on
07.04.98 workman suddenly fallen ill and and remain admitted in
ESI hospital and on advise remained on rest till 13.04.98 and it was
informed to management, however, workman came to know that his
services were terminated on 07.04.98. He asserted action of the
management was illegal unjustified and against the principles of
natural justice. It is prayed that award may be passed in favour of the
workman with the direction of reinstatement, full back wages,
continuity of services and all other benefits.
3. The management filed written statement and taken
preliminary objection that reference is not maintainable and it has
been made without applying the mind and terms reference is also not
maintainable as it is not the case of termination of employee. It is a
case of dismissal after holding fair and proper enquiry. It is stated
that workman failed to comply mandatory direction in the reference
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 4 out of 33
therefore, claim is not maintainable.
4. On merit it is stated that workman was employed w.e.f.
03.01.90 and last drawn wages was Rs.4441/ per month. It is stated
that workman was not performing his duties satisfactorily for past
quite some time for which management repeatedly advising/warning
him but the workman did not improve. He indulged in grave and
serious misconduct therefore, he was charge sheeted and thereafter,
domestic enquiry was instituted against him. The enquiry officer
conducted the enquiry in impartial manner, given full opportunity to
the workman to participate and defend himself. It is stated that as per
clause no.27 of the certified standing order as applicable to the
employees including the workman the domestic enquiry could be
ordered by general manager or his duly authorized functionary,
therefore, in the present case personnel manager who is authorized on
behalf of the general manager ordered the enquiry. As per request of
the workman all the documents were provided to him in hindi
connected to the enquiry and proceeding were also conducted in
Hindi language. As per clause 29 of certified standing order of the
establishment, workman could be represented by any co employee.
On 12.11.97 the enquiry officer adjourned the proceedings for
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 5 out of 33
17.11.97 as defence representative was not available and again
enquiry was adjourned on 21.11.97 on the request of defence
representative of the workman. On 06.01.98 the workman did not
appear after due notice but enquiry office did not proceed exparte
and adjourned the case. Vide letter dt.05.01.98 of the management,
the workman has been offered assistance in understanding English
version of letter dt.01.01.98. Management also informed vide letter
dt.05.01.98 regarding appearing of workman's representative and
witness in the enquiry to be held at the office of the enquiry officer
which was duly received by workman at bar room No.2, Western
side, Tis Hazari Court, Delhi for 06.01.98 and 13.01.98 but workman
did not appear and was proceeded exparte. It is stated that enquiry
proceeding with respect to 06.01.98 and 10.02.98 were held in hindi
and sent to the workman. As per intimation dt.02.02.98 sent by the
enquiry officer in Hindi to the workman, the enquiry officer had
acceded the suggestion of the workman to hold the enquiry in the
premises of hotel Siddharth, therefore, it was fixed for 10.02.98.
Workman was duly communicated with each day of hearing and
enquiry officer gave him opportunity to defend himself but he was not
interested, therefore, enquiry officer had no other option but to
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 6 out of 33
proceed exparte. It is stated that enquiry officer submitted his report
to the management according to which all charges as per charge sheet
dt.13.10.97 were proved against the workman. Management gave yet
another opportunity to workman by issuing show cause notice dt.
27.02.98 alongwith enqiry report dt.23.02.98. It is stated that civil suit
was filed by workman which was dismissed by civil Judge, Shri. L.S.
Solanki vide order dt.02.05.2000. Management had no intimation
regarding illness of the workman till 11.04.98, however, his services
were already dismissed vide order 07.04.98 which was sent to the
workman vide speed post/registered AD alongwith banker's cheque of
his legal dues of Rs.23,249/ towards full and final payment. Another
letter dt.21.04.98 communicated to the workman but he did not give
any response. Another letter dt.22.04.98 was sent to the workman
through speed post. Thereafter, publication in news paper Hindustan
(Hindi) dt.24.04.98 was also published in this regard. It is stated
that enquiry officer conducted a fair and impartial enquiry in the
present case by giving full opportunity to the workman and in case
this court vitiate enquiry, management reserves the right to prove the
charges before the court.
5. The workman filed the rejoinder and denied all the
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 7 out of 33
allegations made in the written statement. The workman represented
the contents of the statement of claim.
6. From the pleading of both parties, vide order dated
12.11.2001, the following issues have been framed :
1. Whether the enquiry were
conducted by the management
against the workman was fair
and proper?
2. To what relief , if any, is the
workman entitled against the
management in terms of
reference.
7. Ld. ARs for both parties submitted that issue no.1 i.e.
"enquiry issue" be treated as preliminary issue and let it be decided
first.
8. In order to prove this issue, the workmen examined
himself as WW1, through an affidavit dt.o1.10.2001 Ex.WW1/A and
also relied upon the documents Ex.WW1/1 i.e. charge sheet and
WW1/2 reply to the charge sheet. He was cross examined.
9. On the other hand management examined R.L. Maan,
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 8 out of 33
Asstt. Chief Engineer who led his evidence by way of affidavit
Ex.MW1/A and relied upon documents Ex.MW1/1 to Ex.MW1/2 and
Sh.Virender Bhan MW2.
10. Thereafter, vide order dt. 18.11.05 my Ld. Predecessor
has held that the enquiry was not conducted in accordance with the
principles of natural justice, therefore, decided this issue in favour of
workman and directed the parties to lead evidence in order to prove
the misconduct.
11. To prove the misconduct, management examined 8
witnesses. MW1 Sh.A.K. Pandey, MW2M Sh. Avinash
Chander,MW3M Sh. R.L. Maan, MW4M Sh. Prabhakar Gupta,
MW5 R.S. Punia, MW6 Sh. M.L. Khurmi, MW7 Sh. Virender Bhan,
MW8 Sh. Rahul Rai Gupta.
12. On the other hand workman only examined himself and
led his evidence by way of affidavit Ex. WW1/A. He was cross
examined.
13. I have heard the arguments of Sh. Atul Nagarajan, AR for
workman as well as Mr. Raj Birbar Sr. Advocate assisted by Ms.
Raavi Birbal, AR for management and carefully gone through the
material placed on record. My findings are as under.
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 9 out of 33
14. As far as issue no.1 is concerned my Ld. Predecessor has
already held that enquiry proceeding are vitiated.
Issue no.2
To what relief , if any, is the
workman entitled against the
management in terms of
reference.
15. The case of the management is that the workman has
been terminated from service as he committed misconduct, therefore,
charge sheet dt.13.10.97 was issued against him on which domestic
enquiry was conducted and the since the workman was found guilty
of misconduct by the enquiry officer. On the report of enquiry officer,
he was terminated by the disciplinary authority. Since the domestic
enquiry has already been held vitiated by my Ld. Predecessor vide
order dt.18.11.05 therefore, the misconduct which he has levelled in
the charge sheet against workman is to be proved in the court. As per
charge sheet Ex.MW1/2, the workman has committed following
misconduct:
(i) on 13.08.97 workman came about 7.00p.m. for duty and
after seeing the duty chart in control room he shows his disagreement
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 10 out of 33
of placing of his duty in the evening shift and he asked the engineer
Mr. Prabhakar Gupta who was present in the control room as duty
shifted in morning shift and that Mr. Prabhakar Gupta asked him to
do duty as per duty charts, he abused Mr. Prabhakar Gupta.
(ii) on 25.08.97 in the morning shift workman did not attend
any complaint and all the complaints remained pending till evening
which cause loss to the hotel.
(iii) on 31.08.97 in the morning shift workman did not give
information about the level of water in the water tank which was his
duty and due to failure of his duty water out flowed from the water
tank 34 times and cause loss to the management.
(iv) On 03.09.97 in the evening shift duty workman refused to
check the water level of water tank.
(v) on 09.07.97 in the night shift the workman refused to check
the water level of the water tank and again on 14.09.97 in the night
shift when the tanker was called and workman was asked to check
the water level of tanker and give receipt to the tanker driver. The
workman refused to check level of water tank and give the receipt due
to which water tanker left without supply the water.
(vi) on 15.09.97 workman was on duty in the morning shift and
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 11 out of 33
he was called to train the water from the swimming pool area after
starting through water pump but despite the direction of the
concerned engineer and lobby manager he refused to do to same and
as per chargesheet the workman committed misconduct: (i) he
refused to comply with the directions of department (ii) abused the
senior officer (iii) negligence in performance too. (iv) working
against the interest of hotel.
16. It is contended by the Ld. AR for management that the
management through the testimony of the witnesses i.e. MW1 to
MW8 has been able to prove the misconduct mentioned in the
chargesheet which is duly corroborated from the documents
ExMW1/A to MW1/30. Ld. AR submits that during domestic
enquiry standard of proof is not same as in a criminal case and
principal of preponderance of probability is to be followed. Ld. AR
further contended that even hearsay evidence is admissible. Hence,
workman's termination is legal and justified. Ld. AR has relied upon
judgements S. K. Awasthi Vs M.R. Bhope, Presiding Officer
1994(68)FLR841, State of Rajasthan Vs. Shri B.K. Meena & Others
1996 (Supreme Court), Indian Kanoonhttp/indian
kanoon.org/doc/58259, Sarabhai M. Chemicals Ltd Vs. M.S. Ajmere
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 12 out of 33
and Anr.1980)ILLJ 295Bom, manu/mh/0215/1979, Life Insurance
Corporation Vs. R. Dhandapani Indian Kanoon
http/indiankanoon.org/doc/812574, Railway Board vs Niranjan Singh
Indian Kanoonhttp/indian kanoon.org/doc/80109.
17. On the other hand, Ld. ARW has argued that the
management witness are not reliable because they are interested
witness and there are number of contradictions in the statements of
witnesses and the documents, therefore, the testimony are not reliable.
The documents produced by the management are forged and
fabricated documents. Documents are only photocopy of the which
cannot be relied. He further argued that if any warning was issued to
the workman than as standing rules of management the entry was
required to made in the service book of the workman but since, no
such entry in the service book has been produced , therefore, it is
proved that the all these warning are forged and fabricated. He
further argued if there was any complaints of misconduct entry should
have been lodged in log book but management complaints are on
plain paper hence cannot be relied.
18. I have considered the arguments and gone through the
record. In order to prove the case management examined as many as
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 13 out of 33
8 witnesses. MW1 Sh. A.K. Pandey through affidavit Ex.MW1/A has
deposed that since the workman was not performing due satisfactorily
in the past quite some time and for which management have been
repeatedly advised/warned him but workman did not improved at all.
It is further deposed that that the previous conduct of workman also
shows the highly negligent in performance. He has proved document
Ex.MW1/29 to Ex.MW1/29 and MW17A. The document Ex.MW1/1
is warning letter dt.18.03.94 that he remained absent on many times
which is case convenience. There are other letters dt. 30.03.94,
01.04.94, 06.04.94, 16.04.94. the letters dt. 11.08.94, 12.08.94,
01.09.94, 30.09.94, 15.10.95, 27.10.95, 25.10.95. Ex.MW1/2 is
charged sheet dt.13.10.97 as per the charge sheet. MW1/3 is
complaint of the workman that he refused to check the water tank.
MW1/4 is also complaint that workman refused to check water tank.
MW1/5 is a complaint for refusal to check water tank and signed the
receipt. MW1/6 is also complaint for refusal of the workman to pump
out water, MW1/7 is complaint dt.25.08.97 of not attending duty in
morning shift by the workman. MW1/1 to 8, 11, 12, 13 are warning
issued to the workman, Ex.MW1/10, 15. The document ExMW1/17
are the charge sheet dt.03.09.97 of misbehaving with his senior
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officer. The document Ex.MW1/24 is reply to the workman's letter
dt.25.10.97. The document Ex.MW1/27 is letter dt.02.03.97. The
document Ex.MW1/17, 18, 28, 29 are the complaint against
workman. The document Ex.MW1/9 is complaint against workman,
The document Ex.MW1/20 is complaint against workman. The
document Ex.MW1/21 is complaint against workman for leaving the
hotel without attending the complaint. The document Ex.MW1/19 is
warning letter dt.03.09.94. The document Ex.MW1/22 is complaint
against workman that he reported in morning shift whereas he posted
in evening shift. The document Ex.MW1/23 is warning letter dt.
24.04.96. In his cross examination he admitted that he has no
personal knowledge pertaining to year 1994 as he was posted in the
hotel Siddharth, Rajendra Palace, in the year 1995. He has admitted
that that any of incident which is mentioned in the charge sheet issued
against the workman that Ex.MW1/2 is happened in his presence and
only voluntarily stated that this incident were brought to his
knowledge by concerned functionaries apart from records. Hence his
testimony is based on hearsay evidence. No doubt hearsay evidence
is also admissible in evidence during the domestic enquiry. Since the
Labour Tribunal is acting just like an enquiry office, therefore, the
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 15 out of 33
hearsay evidence is also evidence admissible in the preceding before
the court but hearsay evidence are only relevant when the primary
evidence is not available. Since the management has examined the
witnesses in whose presence the incident mentioned in the charge
sheet had happened therefore I do not found testimony of MW1
A.K. Pandy much material to prove the misconduct of the workman.
19. MW2M Avinash Chandra in his evidence led by way of
affidavit Ex.MW2/A has deposed that the workman has abused the
Security Guard, Sh. Vijender Singh and utility worker Sh. Anand
Prasad on the issue of some food items in the cafeteria and workman
has also abused two other workers for which they gave written
complaint dt.2.03.97 for taking action against workman and he made
entry in the log book. He further stated that the complaint of aforesaid
employees namely Vijender, Anand Prasad and two other workman is
Ex.MW1/16 Ex.MW1/17. In his cross examination he admitted that
workman was not working under him and was not reporting to him.
He admitted that the alleged incident has not taken place in his
presence. He stated that he made entry in the log book on the basis of
information made by Anand Prasad. He admitted that the log book is
like register and does not have loose sheets and on the each page of
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log book name of the management is printed but when he was
confronted with log book, page MW1/6. He further admitted that the
same is not having the name of the management. Thus, from his
testimony also it is evident that he was not the witness of incident dt.
02.03.97 and he is also hearsay witness. Management has failed to
explain why Anand Parkash who informed him about the incident not
examined. Further he deposed that filled the logbook Ex.MW1/6. On
perusal Ex.MW1/16, I found that his alleged report is written on
plain sheet and does not appear to be page of log book as he has
admitted that log book is having name of management printed on it.
MW2M has failed to explain why he has written report on the loose
plain sheet. Hence, it cannot be said that the same is fabricated.
Further the original of the same has not been produced therefore same
has not been proved as per Evidence Act. Hence, his report
Ex.MW1/M with regard to incident dt 02. 03. 1997 does not inspire
much confidence. Hence, in these circumstances, I do not found
testimony of MW2 M much reliable.
21. MW7 Virender Bhan is prime witness of incident dt.
15.09.1997. MW7 in his affidavit MW7/A has deposed that he was
lobby Manager. He further deposed that on 15.09.97 he was informed
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 17 out of 33
by Prabhakar Gupta, shift engineer that Suresh Kumar Sr. Plumber
(workman) was not starting the pump for the purpose of draining the
rain water from the swimming pool area. He went to swimming pool
area and asked to the needful but Suresh Kumar refused to attend the
same by saying that he would not fetch the water to pour into the
pump to start it for which some other person could be called
ultimately said work left by him. In his cross examination he has
stated that he do not remember in which shift he was on duty on
15.09.97 and further stated that the incident had taken place in the
morning shift about 78.00a.m. He further stated that when he reached
to Mr. Prabhakar Gupta shift engineer, workman and Sahab Singh
were present. He stated he do not remember on what floor the
swimming pool was situated whether on ground floor or not. He is
lobby manager on first floor hence it look very unlikely that he do not
know on what floor swimming pool is situated. It appeared that he
deliberately avoided to give answer because swimming pool was on
first floor and there is very less chance of flooding of rain water on
first floor. He has not proved any document to prove that there was
any problem of water logging on the swimming pool area. Though he
stated that the workman has abused Mr. Prabhakar Gupta and he has
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relied upon document Ex.MW1/5 in this regard but on perusal of the
document Ex.MW1/5 I found that the same is complaint regarding the
refusal of the workman for checking the filled water tanker and
signed on the tanker slip and there is no mentioned of the fact that
workman abused the Parbhakar Gupta on that day in fact it complaint
EXMW1/6 on the back side of document EX MW1/5 pertained to
incident dt. 15.09.1997 which as per MW4 Mr. Prabhakar Gupta,
made by him. But even in the said complaint it is not mentioned that
workman has abused Prbhakar Gupta and same is only about refusal
to statr the pump by workman. Even MW4 in his evidence has not
deposed that workman abused him on 15.09.1997.
22. MW4 is most important witness with regard to incident
dt.15.09.97 has deposed in his evidence through affidavit Ex.MW4/A,
that on 15.09.97 he asked the workman to start pump to clear rain
water collected in the swimming pool area due heavy rain but he
refused to obey his instructions and of the lobby manager and he
made entry in the log book regarding this incident. He has proved the
log book entry in this regard as Ex.MW1/6.
23. Further in the said complaint only it is mentioned that on
round checking rain water was full and the pump was in operation but
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 19 out of 33
it would not pumping water out so he (Parbhakar Gupta) came to
Engineer Control room and called Suresh Kumar, through Sahib
Singh and told that pump (rain water) is not working, filled the water
and start pump. He (workman) replied that he can fill the water but
he will not take/bring water from any where. He did not attended the
job so he called L.M.(lobby manager). Again that Sh. Suresh Kumar
was not doing the job of draining raining water swimming area,
L.M., myself, and Sahib Singh went to rainy water pump and again
told to Suresh Kumar to fill water and start the pump. He was rigid
that he will not bring water to fill it is not my duty. He told to do
yourself so all of us returned back. Then at about 8.30a.m. he took
Bhola and Sahib Singh and filled water in pump and the flood water
was drain out. Thus from the said complaint Ex.MW1/6 it is evident
that the allegation against the workman is that he had not obeyed the
order of the Prabhakar Gupta, Lobby Manager to pump out the water.
He denied that the complaint Ex.MW1/6 is forged and fabricated
documents.
24. On perusal of the complaint , I found that the same is on
the plain paper and not on printed log book having name of
management. MW2M Avnish Chander has admitted that log book
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 20 out of 33
was printed log book. Hence said complain can not be the log book
entry made by him. Further complaint Ex.MW1/6 is on the side of
the paper date is mentioned as 15.09.1997 which appear to be in
different handwriting and with different ink than the main complaint
hence as been written later on. Original of the said document has not
been produced hence same is not admissible in evidence. Further the
management has failed to prove/explain as to what action has been
taken on the said complaint. Why no show cause notice or memo was
issued to the workman to explain his conduct with regard to the
incident dt. 15.09.97 and hence, in these circumstances, it can not be
ruled out that to justify the action of termination said complaint has
been fabricated. Hence I have sufficient doubt about the authencity of
the complaint EXWW1/6 and I also do not find testimony of
MW4&7 reliable as it cannot be ruled out that to support management
case they have concocted the false story. Therefore in my view
management has failed to proved that workman committed
misconduct on 15.09.1997
26. Further MW4 Parbhakar Gupta has deposed that on
13.08.97 workman used unparliamentary, abusive language against
him in control room because he (workman) wanted to do only night
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 21 out of 33
shift on that day and he has given written complaint in this regard
MW1/1. The witness in his cross examination has stated that he has
not made entry in the log book regarding incident on 13.08.97 and
further submitted that he made complaint Ex.MW1/1 to the head of
the department Mr. M.L. Khurmi. He also stated that he was not
supposed to made entry in the log book. If he was not supposed to
made entry in the log book why he made entry in log book on
15.09.1997. As he himself stated that he made entry in the log book
with regard to incident dt.15.09.1997. MW4 in his cross examination
has admitted that there is no date mentioned under his signature. He
denied the suggestion that the workman has not conducted any
misconduct as mentioned in the complaint. Further he admitted that
he has not made any entry in the log book regarding incident dt.
13.08.97. He admitted that when ever an incident happened of such
nature is happened he supposed to make entry in the log book. He
also admitted that log book is in the form of bind register. It appear
reason for entry in the log book is to rule out fabrication later on.
There is no explanation by the MW4 why he has not made entry in
the log book about the said incident though from the testimony it is
evident that MW4 was very well aware that entry in the log book is
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 22 out of 33
necessary when some incident like this had happened. Hence, this
create doubt about the authenticity of complaint. Further he stated in
the cross examination that he made complaint to head of department
Sh. M.L. Khurmi who was examined as MW6. MW4 had not stated in
his testimony that MW4 had made any such complaint Ex.MW1/1 to
him with regard to incident dt. 13.08.1997. Further management has
failed to explain that when MW4 has made complaint dt.13.08.97 and
what action has been taken on the said complaint. It has not been
deposed by any of the witness that any show cause or memo or
warning was issued to the workman to explain his conduct except
charge sheet. It cannot be ruled out to support the case of
management that the workman has committed misconduct, the
complaint dt. 13.08.1997 & 15.09.1997 are fabricated and that is why
no entry has been made in the log book with regard to said incident
13.08.97 and 15.09.97. Hence, in these circumstances, I do not found
testimony of MW4 much inspiring and reliable.
27. The other incident as per charge sheet is dt. 25.08.97 and
31.08.97 as per which the workman did not attend the complaint
during his duty and all the complaints remained pending till ending.
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 23 out of 33
No witness has deposed in his testimony anything about the incident
dt. 25.08.97. Hence, I held that management has failed to prove that
the workman has not attended any complaint of dt.25.08.97. The
another incident dt. 31.08.97 as per which the workman did not give
information about the level of water in the water tank due to which
34 times water tank was over flowed. Again no witness has deposed
in his testimony about the incident of dt.31.08.97. Hence, I held that
management has failed to prove that the workman has not performed
his duty on 31.08.97. Even otherwise also in my view such kind of act
of workman as specified in complaint dt 25.08.1997 and 31.08.1997
would not be justified for imposing major penalty of dismissal from
the service.
28. As per charge sheet another incident is dt.03.09.97. MW4
in his evidence has deposed that he asked the workman to attend the
pumping complaint but he did not attend any complaint as per the
system they were used to call plumber from the control room. The
workman replied that he is not peon and he did not check the water
level in the water tank, hence, made entry in the log book by him. In
his cross examination he stated that he was on duty on 03.09.97 but
he do not remember whether it was in the evening shift or in the
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morning shift. He do not remember the time of the incident but stated
that he made entry of the incident on log book and copy of the same is
Ex.MW1/3. The witness was confronted with the copy of the entry
whether it contents his signature or not. The witness stated that his
signature would be on second sheet of log book entry. But he admit
that the second sheet is not on the judicial file. He was directed to
produce the second sheet and his cross examination was deferred. On
recalling he stated that second sheet is not traceable. Hence it create
doubt. He admitted that MW1/3 is part of the log book and also
admitted that log book compromise lose sheet. Hence, in these
circumstances, when management failed to produce the log book in
original it create doubt about its authenticity. Further the
management has failed to explain what action has been taken against
workman, if he has failed to comply with the direction as stated by
MW4 has mentioned by the management in the log book Ex.MW1/3
the management has not produced any show cause or memo that the
workman was asked to explain his conduct, except issuance of charge
sheet i.e. after one month of the alleged incident. Hence, I held that
management has failed to prove that the workman has committed any
misconduct on 03.09.97 as alleged in the charge sheet.
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 25 out of 33
29. The another incident as per charge sheet is dt. 09.09.97
when the workman refused to check the water tank in the night shift.
No management witness has deposed anything about the incident dt.
09.09.97 in their testimony. Hence, management has failed to prove
that the workman has committed any misconduct on 09.09.97 as
alleged in the charge sheet. Another incident dt. 14.09.97 the MW4
has also deposed that as per charge sheet on 14.09.97 workman's duty
was in the night shift, since there was less water in the pump of water
tank, therefore, when the workman was came, the workman was
asked to check the water level in the tanker and issue receipt but he
refused to issue the due to which water tanker left without supply
water. MW4 in his testimony has reagitated the said facts and
deposed that he made entry in the log book in this regard. But to
support his testimony he has not produced any such log book entry
with regard to incident dt. 14.09.97. hence, his testimony is not
corroborated with the documentary evidence. No other witness has
supported his testimony, hence, I held that management has failed to
prove that the workman has committed misconduct on 14.09.1997 .as
alleged in the charge sheet
30. Therefore, in view of the aforesaid, I held that the
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 26 out of 33
management has failed to proved the misconduct as mentioned in the
charge sheet against the workman on the basis of which he was
terminated.
31. As far other misconduct as alleged by the managements
which are not part of the charge sheet i.e. he was issued warning letter
on 03.09.94 and he came while wearing chappal on 28.06.97 or he
workman was in the habit of leaving hotel without his replacement
arrived on duty, did not attend complaint of water flooding, or refused
to attend the blockade in wash room as stated by MW5 in his
testimony. MW5 has also stated that entry was made in log book
which he prove as Ex.MW1/9, MW/10 & MW1/25 but all these
complaints are on plain paper and not on printed log book, hence
create doubt about its authenticity. If those misconduct was
committed by workman why entry was not made in service book
which was require to as per disciplinary rule of management. Further
in my view, the management has relied upon this allegations and
same were not made part of the charge sheet while conducting the
domestic enquiry and this allegation have been levelled first. During
the evidence in the court. In the written statement management has
not stated anything about the incident of misconduct as alleged by
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 27 out of 33
MW5 in his testimony. Hence, same is beyond the pleading and I do
not found, same can be considered.
32. Undoubtedly, in departmental enquiry the charges are
not required to be proved beyond reasonable doubt as held in
judgements relied upon by management and even hearsay evidence is
admissible but golden rule of evidence is that the testimony of witness
produced by the management must be of creditworthy, as discussed
above I did not find testimony of witness produced by the
management trustworthy. Hence judgements relied upon management
is not helpful to management.
33. Therefore, in these circumstances, I held that the
management has failed to prove that the workman has committed
misconduct as alleged by the management. Therefore, I found that
the workman has been terminated illegally.
RELIEF
34. The relief of reinstatement is not automatic where ever
termination has been held illegal. It depend upon fact and
circumstances of each case. This view is also strengthen by judgment
of "Ashok Kumar Sharma v. Oberoi Flight Services"AIR 2010
SUPREME COURT 502 where in Supreme Court while rely upon
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 28 out of 33
various judgements of Supreme Court held compensation in lieu of
reinstatement or back wages would be appropriate. The relevant para
of judgement is reproduced as below:
"8. In the case of Sita Ram v. Moti Lal Nehru Farmers Training Institute2(2008
AIR SCW 2256) this Court considered the matter thus :
"21. The question, which, however, falls for our consideration is as to whether the
Labour Court was justified in awarding reinstatement of the appellants in service.
22. Keeping in view the period during which the services were rendered by the
respondent (sic appellants); the fact that the respondent had stopped its operation
of bee farming, and the sen/ices of the appellants were terminated in December 1996, we are of the opinion that it is not a fit case where the appellants could have been directed to be reinstated in service.
23. Indisputably, the Industrial Court, exercises a discretionary jurisdiction, but such discretion is required to be exercised judiciously. Relevant factors therefore were required to be taken into consideration; the nature of appointment, the period of appointment, the availability of the job, etc. should weigh with the court for determination of such an issue.
24. This Court in a large number of decisions opined that payment of adequate amount of compensation in place of a direction to be reinstated in service in cases of this nature would subserve the ends of justice. (See Jaipur Development Authority v. Ramsahai [(2006) 11 SCC 684] : (2006 AIR SCW 5963), M.P. Admn. v. Tribhuban [(2007) 9 SCC 748] : (2007 AIR SCW 2357) and Uttaranchal Forest Development Corpn. v. M.C. Joshi [(2007) 9 SCC 353] : (2007 AIR SCW ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 29 out of 33 7305))
25. Having regard to the facts and circumstances of this case, we are of the opinion that payment of a sum of Rs. 1,00,000 to each of the appellants, would meet the ends of justice. This appeal is allowed to the aforementioned extent. In the facts and circumstances of this case, there shall be no order as to costs."
9. The aforereferred two decisions of this Court and few more decisions were considered by us in the case of Jagbir Singh v. Haryana State Agriculture Marketing Board3(2009 AIR SCW 4824) albeit in the context of retrenchment of a daily wager in violation of section 25F of Industrial Disputes Act who had worked for more than 240 days in a year and we observed thus :
"7. It is true that earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention to the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice."
7.It is not necessary to multiply the decisions of this Court wherein award of compensation in lieu of reinstatement and back wages has been held to be adequate and in the interest of justice.
8.In light of the aforesaid legal position, the view of the High Court that monetary compensation in lieu of reinstatement of the workman would be proper cannot be ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 30 out of 33 said to be unjustified."
35. In case titled as Mohd. Shakir And Sunder Lal Jain Hospital 2010ILLJ245 (Del) High Court of Delhi it was held that:
" illegality of dismissal/termination from service of a workman did not in itself ipso facto result in his reinstatement. The long history of litigation and acrimony between the parties leading to trust deficit in this case was considered by the Labour Court and it had rightly concluded that reinstatement might not be appropriate remedy will justified award of compensation in lieu of the reinstatement of the workman."
In another judgment of Jharkhand vide 2012 LLE 317 Employers in relation to the Management of Kuju Pundi Project of M/s Central Coalfield Ltd., Ranchi vs. Their workmen represented by the Secretary, Jharkhand Colliery Mazdoor Sangh, Hazaribagh, it was held that that : Compensation instead of reinstatement would be appropriate to the workmen who were engaged only as casual, hence Division Bench allowed compensation of Rs.30,000 each in addition to the last drawn wages received by them as provided by Section 17B of the ndustrial Disputes Act.
In another case Purvanchal Vidyut Vitran Nigam Ltd., Varanasi and Another Vs. State of U.P. & Others631LLR2011, the Hon'ble Allahabad High Court has held that:
ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 31 out of 33
9. "noncompliance of provisions of section 25F of the Industrial Disputes Act providing for retrenchment compensation and one month's notice at the time of termination is not a rule of thumb to grant reinstatement with back wages since the compensation of Rs.50,000/ in lieu thereof would be appropriate relief hence the Award of the Labour Court granting reinstatement is set aside."
36. Now reverting back to the case the claimant has not pleaded in the claim or evidence that he is unemployed. Management has examined MW8 Rahul Raj Gupta a private detective who has deposed that claimant was engaged in the family business of plying commercial truck. He also derive truck. He prove photograph and CD EXMW8/1 (colly). On perusal of the same I found that claimant was driving commercial truck. Workman has not denied that he is not in the said photograph or CD. Therefore in my view management has been able to prove that claimant was not unemployed. The claimant was terminated in the year 1998, hence more than 15 years has gone he has only work with the management for about 7 year. Therefore, in these circumstances it would not be appropriate to grant reinstatement or back wages and in my view of it would be appropriate to grant a lumpsum compensation. Hence I award lumpsum compensation of Rs.1,00,000/ (One Lac Only) to workman as compensation in lieu of reinstatement, back wages and other benefits. ID NO. 465/10 Suresh Kumar Vs. Ms. Hotel Sidharth Page no. 32 out of 33
37. Copy of award be sent to the Secretary Labour, Govt. of NCT, Delhi for publication of the award. The claim is answered accordingly. The award be also sent to server (www.delhicourts.nic.in).
File be consigned to Record Room.
Announced in Open Court th on this 17 April, 2014 (SANJEEV KUMAR ) Presiding Officer Labour Court, Karkardooma, Delhi.
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