Delhi District Court
Sh. Murari Lal Sharma vs M/S. Jaypee Siddharth Hotel Limited 3 on 21 January, 2017
IN THE COURT OF SHRI UMED SINGH GREWAL
POLCXVII ROOM NO. 22 :KKD COURTS: DELHI
LIR No.1495/16 (Old No. DID 70/13).
Unique No. 02402C0207532010.
In the matter of :
Sh. Murari Lal Sharma,
S/o Late Sh. Ram Avtar Sharma,
R/o T261/3, Near Gurudwara and MCD School Baljeet Nagar,
New Delhi110008.
..............Workman
Versus
M/s. Jaypee Siddharth Hotel Limited 3,
Rajendra Place, New Delhi110008.
.............Management
DATE OF INSTITUTION : 22.07.2010.
DATE ON WHICH AWARD RESERVED : 10.01.2016.
DATE ON WHICH AWARD PASSED : 21.01.2017.
A W A R D :
1. This is a direct industrial dispute filed by the workman
under Section 2A of the the Industrial Disputes Act, 1947
(hereinafter referred as "the Act") for reinstatement with continuity
of service and full back wages.
2. Claimant's case is that he was appointed as Attendant
on 30.01.1990 in Health Club at the last drawn salary of
LIR No.1495/16. 1/45
Rs.15,355/ per month. He had been working honestly and
sincerely. Being Vice President of Hotel Mazdoor Manch (Regd.)
of management, he was representing problems of workers for last
20 years. He was also member of registered union. There were
settlements between workers and management, he being
representative of workers, had signed them in 1997, 2000, 2004
and 2008. Sister concerns of J.P. Group formed a union namely,
J.P. Group Karamchari Sanyukt Sangharsh Morcha and he was
elected President of it. The management got enraged due to that
reason and called him in the office on 27.07.2009 at 4.15 p.m and
asked to take full and final account as his service was no more
required and if he did not accede to it, he would be implicated in
false cases. On his refusal, Sh. Anil Mohan - Vice President
(Operation) - Administration & Security with the help of revolver,
tried to give full and final account. A complaint was filed by him
in PS Prasad Nagar. He was refused duty by management without
any prior intimation and payment, illegally and unjustifiably. His
balance payment was sent into his bank account by the
management to which he resisted and got stopped payment of the
same by writing a letter to the bank. He made a complaint against
termination to the Labour Office, Pusa, where he came to know
that management had prepared a false and fabricated domestic
enquiry report on the basis of which, termination order dated
LIR No.1495/16. 2/45
27.07.2009 was passed. He was not given any chargesheet nor any
Enquiry Officer was appointed to conduct enquiry. He was not
given any intimation regarding enquiry. He sent demand notices
dated 05.01.10, 21.06.10 and 17.07.10 which went unreplied. He is
jobless since termination.
3. Written statement is to the effect that service of the
claimant has been dismissed by the management after holding fair
and proper enquiry wherein he was afforded an opportunity in
accordance with the principles of natural justice to participate in
the enquiry proceedings to put forth his defence. However, he
refused to participate in the enquiry proceedings. If the Court
comes to the conclusion that the enquiry conducted is defective for
any reason of whatsoever nature and set aside the same, then the
management reserves its right to prove the charges levelled against
the claimant at the appropriate stage if required. The claimant has
committed acts of gross and serious misconduct which included
serious charges of sexual harassment with a female colleague
which were duly proved in the enquiry conducted by it.
4. Following issues were framed on 10.04.2012 :
1. Whether no enquiry was conducted by the
management against the workman? OPW.
LIR No.1495/16. 3/45
2. Whether the enquiry, if any, conducted by the
management was in accordance with the principles
of natural justice? If so, its effect? OPM.
3. Whether the termination of services of the workman
by the management was illegal? OPW.
4. To what relief, if any, the workman is entitled?
OPW.
5. Later management filed an application for treating
issues No. 1 & 2 as preliminary issues, which was allowed and
issues No. 1 & 2 were treated as preliminary issues.
6. Claimant examined himself as WW1 by tendering
affidavit in evidence as Ex. WW1/A and Ex. WW1/B on those
issues reiterating the contents mentioned in statement of claim. He
relied upon following documents :
I. Ex. WW1/1 is letter of confirmation dt. 30.01.1991.
II. Ex. WW1/2 is promotion letter dt. 01.09.1995.
III. Ex. WW1/3 is letter dt. 30.09.1997 written by Assistant
Labour Commissioner / Conciliation Officer to the
management.
VI. Ex. WW1/4 is letter dt. 16.04.2003 written by union to the
management.
V. Ex. WW1/5 is letter dt. written by union to management.
VI. Ex. WW1/5A is intimation dt. 23.03.11 of elected office
bearers of union.
VII. Ex. WW1/6 is intimation dt. 22.07.09 to the management
LIR No.1495/16. 4/45
regarding election of JPG Karamchari Sanyukta
Sangharsha Morch.
VIII. Ex. WW1/7 are Standing Orders.
IX. Ex. WW1/8 is complaint written by Ms. Vimla Bhatt to
the management against claimant.
X. Ex. WW1/9 is final report form dt. 23.12.09.
XI. Ex. WW1/10 is report dt. 11.08.2009.
XII. Ex. WW1/11 is order passed in complaint case No. 495/1
of 2009 by Sh. Ajay Garg, ld. Metropolitan Magistrate.
XIII. Ex. WW1/12 is treatment slip of claimant.
XIV. Ex. WW1/13 is protest letter dt. 10.08.09 written by
claimant to the management.
XV. Ex. WW1/14 is letter written by claimant to Manager of
Indian Overseas Bank.
XVI. Ex. WW1/15 is complaint dt. 07.08.2009 against
termination of claimant to Assistant Labour Commissioner.
XVII. Ex. WW1/16 is notice dt. 12.08.09 to union to appear before
him on 21.08.2009.
XVIII. Ex. WW1/16A is order dt. 04.01.2010 by Assistant Labour
Commissioner.
XIX. Ex. WW1/17 (colly.) are appreciation letters / certificates
etc. issued by management to the claimant.
7. On enquiry issues, the management examined three
witnesses Sh. Mukesh Singhal as MW1, Sh. Anil Mohan as MW2
and Smt. Puja Mehta as MW3. They unanimously deposed in their
LIR No.1495/16. 5/45
affidavits in evidence that they were members of committee
constituted by management vide office order dated 24.03.2005
regarding matters of sexual harassment against lady employees, to
enquire into the charges levelled by Smt. Vimla Bhatt against
claimant in her complaint Ex. MW1/2 dated 25.05.2009. Notice
was issued to the claimant to participate in enquiry to be conducted
at M/s. J.P. Vasant Continental, but he did not appear. Due to his
absence, the committee was left with no option than to conduct
enquiry exparte. The proceedings are Ex. MW1/3. They had
conducted proceedings as per the principles of natural justice.
Smt. Vimla Bhatt had supported her case during enquiry and hence
claimant was held guilty vide report Ex. MW1/4 dated 27.07.2009.
8. On misconduct, the claimant deposed in his affidavit
that he was not involved in any misconduct. Smt. Vimla Bhatt is a
lady of easy virtue and she alongwith other ladies was being used
by the management against him because he was at loggerheads
heads with the management on labour issues. He further deposed
that two cases were got registered against him by Smt. Vimla Bhatt
and he has been acquitted in both cases. In one case, she had filed
appeal in the Sessions Court which has already been dismissed. He
relied upon following documents :
I. Ex.WW1/1 is letter of confirmation in service dt. 30.01.91.
LIR No.1495/16. 6/45
II. Ex.WW1/2 promotion letter dt. 01.08.95.
III. Ex.WW1/3 is letter dt. 30.09.97 sent to the management
by labour office.
IV. Ex.WW1/4 is letter dt. 16.04.03 sent to management.
V. Ex.WW1/5 is letter dt. 02.04.11 sent to management.
VI. Ex.WW1/6 is office letter dt. 23.03.11.
VII. Ex.WW1/7 is letter dt. 22.07.09 sent to the management.
VIII. Ex.WW1/8 is complaint sent to management against Bimla
Bhatt.
IX. Ex.WW1/9 is judgment dt. 02.03.16 decided by Sh. Dinesh
Bhatt, ASJ04, THC.
X. Ex.WW1/10 is judgment dt. 12.07.12 decided by Ms. Kiran
Gupta, MM, Mahila Court, Central District, THC.
9. On misconduct, the management examined six
witnesses.
MW4 Ajit Sharma tendered his affidavits in evidence
as Ex. MW4/A and MW4/B in which he deposed that he was
informed by the Director of the company on 25.07.2009 that a
complaint had been received against Sh. Murari Lal Sharma for
attempting to outrage the modesty of Smt. Vimla Bhatt. Complete
set of enquiry report was supplied to him by Director on
27.07.2009. After taking into consideration all the facts and
circumstances, he passed the order dated 27.07.09 Ex. MW4/1 vide
which service of the claimant was terminated. Simultaneously, he
LIR No.1495/16. 7/45
was tendered an amount of Rs.71,826/ towards full and final dues
and Rs.98,753/ towards his gratuity vide cheque No.900308 and
900307 respectively but he refused to accept the cheques and
hence termination letter was sent to him on his residential address
and cheques were deposited in his back account. The claimant
had a habit of past misconduct. Due to one such misconduct, he
was issued warning letter Ex. MW4/5 dated 11.09.1992.
Previously i.e. on 06.06.2003, he had insulted Dr. A.K. Pandey in
his office by using high pitch voice and objectionable language for
which he was warned vide warning letter Ex. MW4/6. On
11.08.2003, the claimant had prevented the hotel staff from taking
lunch as witnessed by security logbook Ex.MW4/7. Some, lady
employees like Asha Jaiswal, Seema Chhabra, Bubly Dutta and
Vimla Bhatt had given complaint against him on 23.07.2004 for
causing them harassment. He had used unparliamentary language
against them. The management had received a complaint dated
28.08.2007 from Ms. Renu Kotia (Executive House Keeper) in
which it was alleged that the claimant had rudely behaved and had
used indecent language with Sh. Jaideep Singh, GM Corporate and
had also given lewd remarks against Ms. Renu Kotia. Regarding
that incident, the claimant had tendered apology letter admitting
mistake.
MW5 Renu Kotia deposed that she was working as
LIR No.1495/16. 8/45
Executive House Keeper in M/s. J.P. Siddharth Hotel in 2008. In
that capacity, her primary responsibility was to look after the house
keeping aspect of the hotel. She was the head of the Department.
Sh. Jaideep Singh was working as G.M. Corporate. Apart from his
responsibilities, Sh. Jaideep Singh used to check Guest rooms to
ensure proper execution of housekeeping. A few employees of the
hotel including the claimant, had gathered in Linen Room of the
hotel on 28.08.2007 to complain against the procedure of change of
uniform. They shouted and howled Sh. Jaideep Singh. At that
time, Sh. Murari Lal Sharma was not in House Keeping
Department, but despite it, he had participated in the incident
alongwith other workers. He was instigating workers by using
foul, abusive and sexually coloured language for which she had
given a complaint Ex. MW4/9 dated 28.08.2007 against him.
MW6 Sh. Rajesh Bali deposed that he was appointed
as Enquiry Officer vide letter dated 11.09.2007 to enquire into the
matter of showcause notice and chargesheet dated 01.09.2007
issued against to the claimant and coemployee Jagdish Prasad. He
had issued notice dated 12.09.2007 to both employees to
participate in the proceedings to be held on 17.09.2007.
Submissions and proceedings of both parties were recorded by him.
In proceedings dated 26.09.2007, the claimant had submitted a
letter dated 22.09.2007 addressed to Sr. General Manager
LIR No.1495/16. 9/45
admitting his misconduct as detailed in chargesheet dated
01.09.2007. He had tendered unconditional apology for the
incident. Due to acceptance of guilt by him, the enquiry was
concluded on 26.09.2007 and enquiry report Ex. MW4/7 was
submitted to the management.
MW7 Ms. Asha Jaiswal deposed that she had joined
M/s. J.P. Hotels in 1995. In 2004, she was working in Health Club
of J.P. Siddharth Hotel. At that time, the claimant was working as
Guest Attendant in the Health Club. He used to harass her
consistently by sexual remarks and acts. He used to speak to her in
a filthy language which she cannot repeat. He used to threat her
that he would not let her work in the hotel and that she would be
abducted from bus stop. She alongwith her colleagues Vimla
Bhatt, Seema and Babli, who were also working in Health Club,
complained against claimant to the management on 23.07.2004
vide complaint Ex. MW7/1. An FIR was also registered against
claimant on that complaint.
MW8 Ms. Vimla Bhatt deposed that she was working
with M/s. J.P. Hotels since 1992. In 2004, she was working as
Guest Attendant in Health Club of J.P. Siddarth Hotel. At that
time, the claimant was also working as Guest Attendant in the
Health Club. She and Murari Lal had common duty hours. The
claimant used to take shower in the hotel and used to stand only in
LIR No.1495/16. 10/45
the towel before her. Whenever she was in front of him, he used to
drop the towel. He used to call her by making lewd physical
gestures. She had complained to the management several times
against the obscene misconduct of the claimant. She was joined by
Ms. Asha Jaiswal, Seema and Babli. She was transferred to
another unit i.e. M/s. J.P. Vasant in 2007. After her transfer, the
claimant used to visit the premises of J.P. Vasant also and indulged
in same kinds of activities. He was threatening her to withdraw the
case. On 24.07.2009, she had gone to Patel Nagar Market. At that
time, the claimant, all of a sudden, came in front of her, physically
held her and threatened in filthy and foul language to withdraw the
case.
MW9 Sh. A.K. Pandey, Sr. General Manager, (P & A)
had retired from the management in 2009. He deposed that he
was working with the management in 2003 in that capacity. The
claimant misbehaved with him on 06.06.2003 by using high pitch
voice and objectionable language. The claimant threatened him to
leave the office. The Security Manager came in the Personnel
Department after hearing the drama. The incident was witnessed
by Sh. Virender Kumar also, who was present in the office. He
relied upon note dated 06.06.2003 as Ex. MW4/6, upon which the
Vice President had warned the claimant.
MW10 - Dipankar Kumar had been examined by the
LIR No.1495/16. 11/45
management to prove gainful employment of the claimant. He
deposed that he was asked by the management to conduct enquiry
about the gainful employment of the claimant. He came to know
that claimant was involved in the business of Astrology, property
and handling of labour cases. His detailed reports are Ex. MW10/2
and MW10/3. The photographs clicked by him are Ex. MW10/5
and Ex. MW10/6. Ex. MW10/7 is copy of Janampatri prepared for
that witness by the claimant after charging fee. He made video as
MW10/8. He had given claimant two cheques of Rs.5500/ each
for helping him to take a flat on rent. The remaining fees of
Rs.5000/ was paid to Sh. Murari Lal Sharma in cash vide receipt
Ex. MW10/9.
Issue Nos. 1 & 2.
10. Both these issues have already been decided in favour
of the claimant and against the management by previous POLC
vide order dated 21.04.14 by holding that the management had not
conducted any enquiry against the claimant regarding the incident
dated 24.07.2009 alleged by MW8 Ms. Vimla Bhatt.
Issue No. 3.
Incident dated 24.07.2009.
11. Ld. ARM argued that Ms. Vimla Bhatt and other co
LIR No.1495/16. 12/45
employees had lodged FIR No. 63/2005 in PS Prasad Nagar under
Section 509 IPC for making objectionable gestures towards them.
The claimant wanted Ms. Vimla Bhatt to withdraw the case and
that is why he was after her. He used to threat her that he would
not let her work in the hotel and that she would be abducted from
bus stop. On 24.07.2007, when MW8 had gone to Patel Nagar
Market, the claimant held her physically, used filthy and foul
language to withdraw the case. On those facts, an FIR was lodged
against claimant. Intimation thereof was given by MW1 to the
management also which was confirmed by MW8 in enquiry and
hence, he was held guilty. He admitted that claimant has been
acquitted in that case, but argued that acquittal in a criminal case
has no bearing on labour cases and in this regard he relied upon
The Divisional Controller, K.S.R.T.C. Vs. M.G. Vittal Rao, 2012
LLR 8 and State of West Bengal and Ors. Vs. Sankar Ghos, Civil
Appeal Number 10729/2013. He further argued that Vimla Bhatt
has appeared in the witness box to support the management as
MW8.
Ld. ARW argued that management was using two
ladies namely, Ms. Vimla Bhatt and Asha Jaiswal against the
claimant. Earlier, the management had used both these ladies to
lodge a complaint against the claimant in Prasad Nagar. The
management was using these ladies against him due to his labour
LIR No.1495/16. 13/45
activities as he was Vice President of the Hotel Mazdoor Union.
He next argued that in that case, the claimant has been acquitted by
the ld. Metropolitan Magistrate. Such acquittal was honourable
one and it should be distinguished from mere acquittal. He relied
upon S. Bhaskar Reddy & Anr. Vs. Superintendent of Police &
Anr. CA No. 10592/2014, on this point.
12. It is correct that Ms. Vimla Bhatt has supported the
case of the management by appearing in the witness box as MW8
in which she deposed about the incident which had taken place on
24.07.2009 with her near Patel Nagar Metro Station. But it is also
a fact that claimant has been acquitted by the criminal court in that
case. There is no quarrel over proposition of law that acquittal in a
criminal case has no bearing on the proceedings of the Labour
Court as held by Apex Court in The Divisional Controller,
K.S.R.T.C. Vs. M.G. Vittal Rao (supra) and State of West Bengal
and Ors. Vs. Sankar Ghos, (supra). But distinction is to be made
between simple acquittal and honourable acquittal. Regarding
honourable acquittal, following observations by the Apex Court in
S. Bhaskar Reddy & Anr. Vs. Superintendent of Police & Anr.
(supra) are highly relevant :
19. It is an undisputed fact that the charges in
the criminal case and the Disciplinary
proceedings conducted against the appellants by
LIR No.1495/16. 14/45
the first respondent are similar. The appellants
have faced the criminal trial before the Sessions Judge, Chittoor on the charge of murder and other offences of IPC and SC/ST (POA) Act. Our attention was drawn to the said judgment which is produced at Exh. P7, to evidence the fact that the charges in both the proceedings of the criminal case and the Disciplinary proceeding are similar. From perusal of the charge sheet issued in the disciplinary proceedings and the enquiry report submitted by the Enquiry Officer and the judgment in the criminal case, it is clear that they are almost similar and one and the same. In the criminal trial, the appellants have been acquitted honourably for want of evidence on record. The trial judge has categorically recorded the finding of fact on proper appreciation and evaluation of evidence on record and held that the charges framed in the criminal case are not proved against the appellants and therefore they have been honourably acquitted for the offences punishable under 3 (1) (x) of SC/ST (POA) Act and under Sections 307 and 302 read with Section 34 of the IPC. The law declared by this Court with regard to honourable acquittal of an accused for criminal offences means that they are acquitted for want of evidence to prove the charges. The meaning of the expression "honourable acquittal" was discussed by this Court in detail in the case of Deputy Inspector General of Police & Anr. v. S. Samuthiram[3], the relevant para from the said case reads as under : "24. The meaning of the expression "honourable acquittal" came up for consideration before this LIR No.1495/16. 15/45 Court in RBI v. Bhopal Singh Panchal. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted." (Emphasis laid by this Court) After examining the principles laid down in the above said case, the same was reiterated by this Court in a recent decision in the case of Joginder Singh v. Union Territory of Chandigarh & Ors. in Civil Appeal No. 2325 Of 2009 (decided on November 11, 2014. Further, in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr. (supra) this Court has held as under: "34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellant's residence and recovery of incriminating articles there from". The findings LIR No.1495/16. 16/45 recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case." (emphasis laid by this Court) Further, in the case of G.M. Tank v. State of Gujarat and Ors.(supra) this Court held as under: LIR No.1495/16. 17/45 "20..........Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the PC Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honourably acquitted by the competent court on the same set of facts, evidence and witness and, therefore, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.
30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law.........It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the chargesheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were LIR No.1495/16. 18/45 examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of [pic]difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed." (emphasis laid by this Court)
20. The High Court has not considered and examined this legal aspect of the matter while setting aside the impugned judgment and order of the Tribunal. The Tribunal has also not LIR No.1495/16. 19/45 considered the same. We have examined this important factual and legal aspect of the case which was brought to our notice in these proceedings and we hold that both the High Court and Tribunal have erred in not considering this important undisputed fact regarding honourable acquittal of the appellants on the charges in the criminal case which are similar in the disciplinary proceedings.
21. We have answered the alternative legal contention urged on behalf of the appellants by accepting the judgment and order of the Sessions Judge, in which case they have been acquitted honourably from the charges which are more or less similar to the charges levelled against the appellants in the Disciplinary proceedings by applying the decisions of this Court referred to supra. Therefore, we have to set aside the orders of dismissal passed against the appellants by accepting the alternative legal plea as urged above having regard to the facts and circumstances of the case.
13. Whether the acquittal of claimant was merely acquittal or honourble acquittal, can be seen from the judgment of the Ld. Metropolitan Magistrate. Following paragraphs of judgment dated 12.07.12 Ex. WW1/10 passed by Ld. Metropolitan Magistrate Ms. Kiran Gupta in FIR No. 316/09 under Section 354/506 IPC proves that the claimant was honourably acquitted by the Magistrate :
11. Now, the question for consideration is LIR No.1495/16. 20/45 whether the sole testimony of complainant can be relied upon. Admittedly the place of incident was a crowded place. PW1 has admitted that when the accused misbehaved with her, she shouted and on hearing her shout, accused ran away. PW6 ASI Raj Kumar in his examination in chief has deposed that during investigation he made inquiry from public persons but they did not respond to him. However, in his cross examination he admitted that during investigation he had also interrogated the accused and accused has informed him that at the time of incident he was with Nirmal Chanda and Sh. Gajraj Singh Tomar. He further admitted that during investigation he had also interrogated Sh. Nirmal Chanda, Sh. Gajraj Singh Tomar, Sh. R K. Mishra, Sh. Baldev Singh, Sh. Karnail Singh (Taxi Stand), Sh. Gulab Schand (Mochi), Sh Anil Kumar (Electrician), Sh. Inder Dev Gupta (Chaiwala), Sh. Suresh Chand (Security Guard). He further admitted that persons Sh. Baldev Singh, Sh. Karnail Singh (Taxi Stand), Sh. Gulab Chand (Mochi), Sh. Anil Kumar (Electrician), Sh. Inder Dev Gupta (Chaiwala), Sh. Suresh Chand (Security Guard) were present at the place of incident and all these persons has stated that no such incident had ever happened in their knowledge. He further admitted that he had interrogated a number of rickshaw pullers who remained present at the Metro Station, Patel Nagar and said rickshaw puller have also shown their ignorance about the LIR No.1495/16. 21/45 happening of any such incident. Further he admitted that he had not seen the original of Mark A and D but has merely placed them on record as the same were given to him by the complainant. It is highly improbable that none of the public persons gathered at the spot on hearing her shout it being admittedly a congested place. No plausible explanation has been given by the IO for not placing on record the statement of the persons recorded during investigation.
12. Admittedly, there are many complaints pending between the parties, copies of the same have been placed on record by the complainant and IO. Prosecution has relied upon PW6/A i.e. call details of the accused. I have carefully perused the call details Ex. PW6/A. In addition to these call details there are call details of complainant of the said date also. The requisition which has been placed on record for getting these call details shows two different numbers which are different from Ex. PW6/A. The said requisition is stated to be of the mobile phone of the complainant. There is no formal letter / requisition regarding the request for private call details of the accused. None of the Nodal Officer has been examined to prove the said call details. As per the call details of the complainant, it is not evident that she was present at the place of incident on the said date. At this stage, it is submitted by Ld. APP that since complainant did not made any call from her LIR No.1495/16. 22/45 mobile phone on said date, hence there are no call details regarding the presence of complainant on the said date as per the call details of complainant. It is highly improbable that complainant did not call her husband or anybody despite being so shocked on the date of incident. AS per PW1 incident occurred at around 6.30 - 6.45 p.m and as per the testimony of PW2, complainant reached her house at around 9.00 p.m. Hence, considering the facts and circumstances of the case and contradictions in the testimony of PW1 and PW2 no ground is made out for convicting the accused for the offence U/s 509 IPC also, hence, the plea of the Ld. APP is accordingly dismissed.
13. As regards the offence U/s 506 IPC is concerned, complainant has failed to show how the accused criminally intimated her to cause threat in her mind in order to attract the offence U/s 506 IPC. PW1 has merely stated that accused threatened her by saying that if she did not withdraw the cases against him, she would face dire consequence. In my view, said act does not tantamount to criminal intimidation which is punishable U/s 506 IPC. In the absence of any cogent evidence against the accused, accused is acquitted for the offence U/s 506 IPC also.
14. The chargesheet under Section 173(2) Cr.P.C. forwarded by police in FIR N0. 316/09 under Section 354/506 IPC on the LIR No.1495/16. 23/45 complaint of Smt. Vimla Bhatt is Ex. WW1/9. It is mentioned that in the chargesheet the scene of crime was near Patel Nagar Metro Station which was a busy place. The incident had taken place at 6.45/7.00 p.m. which was a prime time for the travellers of metro. Near that place, there was a Taxi Stand and a Cobbler and Chaiwala were also running their business. There was a premises No. 4/32 West, Patel Nagar about 20 meters away from the crime scene and a private security guard was also posted there. The Investigating Officer tried to know facts from those persons, but he did not find any eye witness. Then he inquired Murari Lal Sharma who told that he was an office bearer of Mazdoor Sangh. In that capacity, he used to represent workers against management due to which the management was aggrieved by him. It is further mentioned in the chargesheet that the Investigating Officer collected his mobile phone details from which he came to know that at the time of incident, the location of Murari Lal Sharma was near Balraj Khanna Market and West Patel Nagar. If Murari Lal Sharma was present where the incident had taken, the location of his phone should have been near East Patel Nagar, Metro Station, but he was somewhere else. Murari Lal Sharma had told Enquiry Officer that at that time he was with his known persons, namely, Nirmal Chanda and Gajraj Singh Tomar. On inquiry, these persons also told Enquiry Officer that Murari was with them at the time of LIR No.1495/16. 24/45 alleged incident. The Investigating Officer recorded statements of drivers who were sitting at the Taxi Stand, Cobbler Gulab Chand, Electrician Anil Kumar and Chaiwala Inderdev Gupta and Security Guard Suresh Chand. They told him that no incident of attempt to outrage modesty of a lady had taken place on 24.07.2009. The Investigating Officer then contacted the rickshaw pullers who were standing near the Metro Station and they also told him that no such incident had taken place on 24.07.2009.
15. The judgment of ld. Magistrate and chargesheet of the IO prove that it was a totally false case which was alleged by MW8 against the claimant. Motive for MW8 to lodge false case against claimant was no other than to support the management because the management was inimical to him as he was a union leader as proved by documents Ex. WW1/3, Ex. WW1/4, Ex. WW1/5, Ex. WW1/6, Ex. WW1/7 and Ex. WW1/8 . She was used merely as tool. So, the management has failed to prove incident of 24.07.2009.
16. Ld. ARM relied upon AEPC Vs. A.K. Chopra to argue that no leverage should be given to the delinquent official in the case of molestation. The cited law is not applicable to the facts and circumstances of the case in hand because in the cited case LIR No.1495/16. 25/45 there was no criminal case registered against the delinquent official and hence there was no acquittal / conviction order of the Trial Court. In the case in hand, the matter was reported not only to the management but to police also. The police had lambasted complainant for the incident. The Trial Court has acquitted the claimant. Due to these reasons, the case in hand is quite different from the cited case.
Other misconduct
17. Ld. ARM argued that the complaint of sexual harassment was given to management against claimant by some ladies, namely, Asha Jaiswal, Seema Chhabra, Babli Dutta and Vimla Bhatt on 23.07.2004. An FIR was registered against claimant in that case. He countered next misconduct mentioned in warning letter Ex. MW4/5 dated 11.09.1992 for refusal to carry out the orders of superiors. He next argued that the claimant had misbehaved with Dr. A.K. Pandey in his office on 06.06.2003. On 11.08.2003, he had prevented hotel staff from taking lunch. Lastly, he argued that Ms. Renu Kotia had given a complaint dated 28.08.07 to the management against claimant that he had rudely behaved and used indecent language with Sh. Jaideep Singh, GM Corporate and had also given lewd remarks against her.
Ld. ARW argued that the management had not LIR No.1495/16. 26/45 conducted any enquiry in respect of any of those misconducts. It had not sought permission of the Court to prove those misconducts. Some of the witnesses, who have appeared to support the above misconduct, have been summoned as accused persons by the Criminal Court on the complaint of the claimant. Moreover, the management had already forgiven claimant for those misconducts and hence, it cannot be allowed to reagitate in the background that the management has miserably failed to prove the misconduct dated 24.07.2009.
Ld. ARM relied upon The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Ors. AIR 1973 SC 1227 to argue that the management had not conducted any enquiry, still it can prove misconduct directly in the Court.
18. In The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. (supra), the Hon'ble Apex Court held that if no enquiry has been held by the employer or if the enquiry is found defective, the Labour Court should give opportunity to the employer and employee to prove and rebut the misconduct. It further held that the effect of employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. Following paragraph of above judgment is LIR No.1495/16. 27/45 relevant : "32 (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to, adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action; and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the, merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
From the above citation, it becomes clear that the management is not bound to conduct enquiry against the claimant regarding misconduct. It can directly lead evidence in the Court on such misconduct.
19. In the absence of enquiry proceedings, the onus is upon the management to prove that it was not possible for it to LIR No.1495/16. 28/45 conduct enquiry and that termination was justified. The procedure to be followed by management in case of no enquiry was explained by Apex Court in Amar Chakravarty and others Vs. Maruti Suzuki India Ltd. 2011 (128) FLR 564 SC in following words:
13. In Karnataka State Road Transport Corporation (Supra) relied upon by the learned Counsel for the appellant, a Constitution Bench of this Court affirmed the decision of this Court in Shambu Nath Goyal V. Bank of Baroda and others wherein the issue for consideration was as to at what stage, the management is entitled to seek permission to adduce evidence in justification of its decision to terminate the services of an employee. It was held that the right of the employer to adduce additional evidence, in a proceeding before the Labour court under Section 10 of the Act, questioning the legality of the order terminating the service must be availed of by the employer by making a proper request at the time when it files its statement of claim or written statement. It was observed that:
"The management is made aware of the workman's contention regarding the defect in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under Section 33 of the Act. Then, if the management chooses to exercise its right it must purpose without any unreasonable delay."
14. Similarly, in the Workman of M/s. Firestone Tyre & LIR No.1495/16. 29/45 Rubber Co (supra), this Court observed that:
"Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying its action, and it is open to the employee to adduce evidence contra." (See also: United Bank of India V. Tamil Nadu Banks Deposit Collectors Union and another, Engineering Laghu Udyog Employees' Union Vs. Judge, Labour Court and Industrial Tribunal and another)".
16. In view of the aforesaid position in law, the inevitable conclusion is that when no enquiry is conducted before the service of a workman is terminated, the onus to prove that it was not possible to conduct the enquiry and that the management was justified because of misconduct by the employee, lies on the management. It bears repetition that it is for the management to prove by producing evidence, that the workman is guilty of misconduct and that the action taken by it is proper. In the present case, the services of the appellantsworkmen having been terminated on the ground of misconduct, without holding a domestic enquiry, it would be for the management to adduce evidence to justify its action. It will be open to the appellantsworkmen to adduce evidence in rebuttal. Therefore, the order passed by the Labur Court, shifting the burden to prove issue No. 1 on the workmen is fallacious and the High Court should have quashed it.
LIR No.1495/16. 30/4520. In Director, Central and State Farm, Jetsar Vs. The State of Rajasthan and others, Special Appeal No. 740/1994, the Hon'ble High Court of Rajasthan held that where no domestic enquiry was held by management or where the management does not reply upon domestic enquiry held by it, then the employer is entitled to straightway adduce evidence before the Labour Court justifying its action and the Tribunal is bound to consider the evidence so adduced by the employer on merit and can adjudicate the controversy on the basis of the evidence so adduced. The High Court further held that before producing the evidence, a request has to be made by the employer before the Labour Court. In the cited case, no such request was made by the employer before the Judge of the Labour Court and hence, Hon'ble Rajasthan High Court held that Labour Court was justified in holding that the dismissal of the employee was invalid because the order of dismissal was passed without serving any chargesheet or holding any enquiry.
21. Para No. 6 of preliminary objections of written statement is relevant to decide whether the management had taken permission of the Court to lead evidence to prove other misconducts against the claimant. The same is reproduced as under : "6. Without prejudice to the submissions made hereinabove, it is further submitted that LIR No.1495/16. 31/45 the management has conducted the enquiry in the case of the claimant and the same "is" fair, proper and justified in all respect. However, if the Hon'ble Court comes to the conclusion that the enquiry conducted in the case of the claimant is a defective for any reason of whatsoever nature and set aside the same, then the replying management reserves its right to prove the charges levelled against the claimant at the appropriate stage if so required." Use of word "is" in third line of above para shows that the management had conducted enquiry against the claimant only in respect of one misconduct and that it was seeking permission of the Court to prove that misconduct in the Court, if the enquiry was found deficient. Perusal of the whole written statement shows that the management had not taken defence anywhere that it had conducted enquiry against claimant in respect of any misconduct other than dated 24.07.2009. It nowhere sought permission of the Court to prove misconduct other than 24.07.2009. On enquiry issue, it led evidence only in respect of enquiry in respect to misconduct dated 24.07.2009. Without seeking permission, its case is hit by above citation of Hon'ble Rajasthan Court in Director, Central and State Farm, Jetsar Vs. The State of Rajasthan and others (supra). Without permission of the Court, it cannot lead evidence against claimant on other misconduct.
LIR No.1495/16. 32/4522. Moreover, on the complaint of Ms. Vimla Bhatt, Asha Jaiswal and other co lady employees, the police had registered FIR No.63/05 under Section 509 IPC against Sh. Murari Lal Sharma, Satish Gupta and Raj Rani. In that case, all the three accused persons have been acquitted by Metropolitan Magistrate Ms. Manu Vedwan vide judgment dated 31.10.14. The ladies, namely, Vimla and Asha Jaiswal had preferred an appeal against the order of ld. Magistrate and that appeal has been dismissed by ld. ASJ Sh. Dinesh Bhatt vide judgment dated 02.03.16 Ex. WW1/9. Following paragraph of the judgment of ld. Magistrate proves that the claimant was honourably acquitted in the criminal case : "17. The question which is for consideration is whether the testimony of both the complainants is of such credible nature that conviction can be based solely on their testimony. In the initial complaint Ex. PW1/A, both the complainants miserably failed to disclose any of the filthy words used by the accused persons, however, during examination in chief of PW1, PW1 has narrated some very obscene words. PW2 who is the co complainant in Ex.PW1/A has also later on narrated the incident in her examination in chief differently from her initial complaint. The reason for not disclosing the said filthy words in the complaint Ex. PW1/A has not been explained by the prosecution. No date, time and exact place of occurrence of alleged incidents have been narrated by the complainant.
Further, the complainant has also LIR No.1495/16. 33/45 miserably failed to specify as to which of the accused has acted in which manner. PW1 in her examination in chief deposed that accused No. 1 made obscene gestures towards her and used to touch her breast in the pantry area but no specific imputation has been made regarding the misbehaviour by the other two accused persons. PW1 and PW2 both have admitted that all these incidents h ave happened during the duty hours and other staff used to be present at the time but prosecution has miserably failed to examine any other staff from the premises. In the light of abovementioned discussion and further in the light of the improvements made by PW1 and PW2 during their testimony in count, not much reliance can be placed on their testimony. Admittedly, accused persons were known to both the witness being t he colleagues. It is also an admitted fact that accused Murari Lal Sharma has filed his complaint before the Manager as well as the formal complaint with SHO, PS Prasad Nagar which is Ex. DW3/3 much before the filing of complaint by the complainant in CAW Cell. Thus, motive for false implication cannot be ruled out. Hence, benefit of doubt goes in favour of accused persons and they are acquitted for the offence under Section 509/34 IPC. Previous bail bonds of accused persons are further extended for a period of six months as per Section 437 Cr.P.C."
23. Additionally, the claimant had filed a criminal complaint under Section 200 Cr.P.C read with Section 506/120 B/34 IPC against the officials of the management namely, Anil LIR No.1495/16. 34/45 Mohan, Anand Kumar Pandey and Ajit Sharma. Sh. Ajit Sharma has appeared as MW4 and Sh. A.K. Pandey as MW9, in this case. The summoning order has already been passed against Sh. Anil Mohan on 13.10.10. Due to said complaint, it cannot be ruled out that MW4 and MW9 are highly biased witnesses against the claimant.
The management, before happening of the alleged incident on 24.07.2009, had already forgiven claimant regarding previous misconducts. His service was terminated due to event of 24.07.2009 coupled with previous misconducts. The management has already failed to prove the incident of 24.07.2009.
24. In view of the above discussion, this issue is decided against the management and in favour of the management Demand notice
25. Ld. ARM argued that the claimant had not sent any demand notice to the management before filing the case under Section 10(4A) of the Act and due to that reason, his case should be dismissed. In this regard, he relied upon (1) Sindhu Resettlement Corporation Ltd. Vs. Industrial Tribunal of Gujrat and Others, AIR 1968 Supreme Court 529, & (2). Fedders Lloyd Corporation Ltd. Vs.Lt. Governor of Delhi AIR 1970 Delhi 60.
LIR No.1495/16. 35/45On the other hand, ld. ARW argued that the claimant had asked the management to reinstate his service but he was not taken back on duty. Against management, he had filed a case in the office of Deputy Labour Commissioner Central District where the management had appeared but it refused to reinstate him.
It is correct that before institution of industrial proceedings, the worker should give a demand notice to the management. Without demand there can be no refusal. In the absence of demand and refusal, there can be no industrial dispute and the same was held by the Apex Court in the cases relied upon by the management. There is a document Ex. WW1/16A dated 04.01.10 issued by Sh. M.K. Gaur, Assistant Labour Commissioner, Central District in which it is mentioned that the claimant had filed a complaint dated 12.08.2009 against M/s. Jaypee Siddharth alleging that his service was terminated illegally on 27.07.09. That office was requested by the claimant to reinstate his service with back wages and to resolve the matter. It is further mentioned in that document that both parties were called for primary discussion on 21.08.2009, 04.09.2009, 16.09.2009, 30.09.2009, 16.10.2009, 28.10.2009, 10.11.2009, 24.11.2009, 18.12.2009 & 29.12.2009. Due to divergent views of the parties, no settlement could be arrived at at that stage in his office. Ex. WW1/16A speaks volumes about the adamant attitude of the LIR No.1495/16. 36/45 management because it had refused to reinstate the service of the claimant. That document fills the vacuum of formal demand notice.
Issue No. 4.
26. Even if, service of a workman has been terminated illegally, that would not automatically lead to reinstatement with 100% back wages. In Nehru Yuva Kendra Sangathan Vs. Union of India & Ors. 2000 IV AD (Delhi) 709, Hon'ble Delhi High Court dealt with the question of reinstatement and back wages and observed in paragraphs 27 and 28 as under : "27. We find from the decision of the Supreme Court rendered in the 1970s and 1980s that reinstatement with back wages was the norm in cases where the termination of the services of the workman was held inoperative. The decisions rendered in the 1990s, including the decision of the Constitution Bench in the Punjab Land Development and Reclamation Corporation Ltd., Chandigarh seem to suggest that compensation in lieu of reinstatement and back wages is now the norm. In any case, since we are bound to follow the decision of the Constitution Bench, we, therefore, conclude that reinstatement is not the inevitable consequence of quashing an order of termination; compensation can be awarded in lieu of reinstatement and back LIR No.1495/16. 37/45 wages.
28. Considering the facts of this case, we are persuaded to award compensation in lieu of reinstatement and back wages to the workman"
27. In Municipal Council, Sujanpur Vs. Surinder Kumar 2006 LLR 662, Hon'ble Supreme Court observed that the relief of reinstatement is not automatic but is in the discretion of the court. In paragraph 16, it was observed as under : "Apart from the aforementioned error of law, in our considered opinion, the Labour Court and consequently the High Court completely misdirected themselves insofar as they failed to take into consideration that relief to be granted in terms of section 11A of the said Act being discretionary in nature, a Labour Court was required to consider the facts of each case therefor. Only because relief by way of reinstatement with full back wages would be lawful, it would not mean that the same would be granted automatically".
28. In Vinod Kumar & others vs Salwan Public School & others WP(c)5820/2011 dt.17.11.2014 Hon,ble Justice V. Kameshwar Rao has held as under:
11.Having considered the rival submissions LIR No.1495/16. 38/45 of the counsels for the parties, I do not find any infirmity in the order of the Labour Court. It is a settled position of law that even if termination has been held to be illegal, reinstatement with full back wages is not to be granted automatically. The Labour Court is within its right to mould the relief by granting a lumpsum compensation. In fact, I note that the Labour Court has relied upon three judgments propounding the law that the Labour Court can mould a relief by granting lump sum compensation; the Labour Court is entitled to grant relief having regard to facts and circumstances of each case.
12. Further, the Supreme Court in the following judgments held as under:
(a) In the matter reported as Jaipur Development Authority v. Ramsahai, (2006) 11 SCC 684, the court has stated:
"However, even assuming that there had been a violation of Sections 25G and 25H of the Act, but, the same by itself, in our opinion, would not mean that the Labour Court should have passed an award of reinstatement with entire back wages. This Court time and again has held that the jurisdiction under Section 11A must be exercised judiciously. The workman must be employed by State within the meaning of Article 12 of the Constitution of India, having regard to the doctrine of public employment. It is also required to recruit employees in terms of the provisions of the rules for recruitment framed by it. The LIR No.1495/16. 39/45 respondent had not regularly served the appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be subserved if instead and in place of reinstatement of his services, a sum of Rs 75,000 is awarded to the respondent by way of compensation as has been done by this Court in a number of its judgments."
(b) In the matter reported as Nagar Mahapalika v. State of U.P., (2006) 5 SCC 127, the court has stated:
"23. Noncompliance with the provisions of Section 6N of the U.P. Industrial Disputes Act, although, may lead to the grant of a relief of reinstatement with full back wages and continuity of service in favour of the retrenched workmen, the same would not mean that such a relief is to be granted automatically or as a matter of course. 25 .....The appellant herein has clearly stated that the appointments of the respondents have been made in violation of the provisions of the Adhiniyam. An appointment made in violation of the provisions of the Adhiniyam is void. The same, however, although would not mean that the provisions of the Industrial Disputes LIR No.1495/16. 40/45 Act are not required to be taken into consideration for the purpose of determination of the question as to whether the termination of workmen from services is legal or not but the same should have to be considered to be an important factor in the matter of grant of relief. The Municipal Corporation deals with public money. Appointments of the respondents were made for carrying out the work of assessment. Such assessments are done periodically. Their services, thus, should not have been directed to be continued despite the requirements therefor having come to an end. It, therefore, in our considered view, is not a case where the relief of reinstatement should have been granted."
(c) In the matter reported as Talwara Coop. Credit and Service Society Ltd. v. Sushil Kumar, (2008) 9 SCC 486, the court has stated:
"8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration."LIR No.1495/16. 41/45
(d) In the matter reported as Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327, the court has stated :
"7. It is true that the 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 a 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 of the prescribed procedure. ...
14. An order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
29. The claimant deposed in examination in chief that he was jobless since termination of his service, but in cross examination he deposed that he had no proof that he had tried for reemployment at several places. He was unable to tell the month LIR No.1495/16. 42/45 and year and name of the organizations visited by him in connection with reemployment. He has five members in the family one son, two daughters, wife and himself. Son is studying in 11th class and the elder daughter has passed BCA. His younger daughter is in B. Com IInd Year. If the claimant was jobless since termination, his children would not have studied in higher classes. His gainful employment has been proved by MW10 who was employed by the management to enquire into the gainful employment. In CD Ex. MW10/8, the claimant can be seen sitting in an office on the door of which it is mentioned that it was an office of property dealer who used to deal in sale, purchase and renting of property. It bears the name of Pandit Murari Lal Sharma who is none else than claimant. He has been described as office bearer of Rashtriya Mazdoor Sangh and Hotel Mazdoor Sangh etc. Simultaneously, it is mentioned on the front door of the office that it was an astrology centre also and the proprietor was dealing in Vivah, Hawan, Mahurat and computer janam patari. The claimant admitted in cross examination that he was appearing in CD. MW10 had approached the claimant to take a room on rent. The claimant helped him for which MW10 had paid him a cash fees of Rs.5,000/. The remaining fees was given in the form of two cheques of Rs.5,500/ each. All these facts prove gainful employment of the claimant. There are entries of deposition of LIR No.1495/16. 43/45 huge amounts in the bank account of the claimant. The claimant tried to justify those entries on the ground that he had four brothers and all were living in joint family. His brothers were dealing in property business and they had deposited the amount in his bank account. Such plea was not taken by the claimant before such cross examination. His brothers are residing in village and not in Delhi. At one place, he replied in cross examination that his brother Purshotam Sharma had given him two cheques of Rs.1.25 lakhs each which he had deposited in his bank account. His brother Purshotam Sharma is a builder and he had received that amount from purchaser Sh. Babu Ram. If Sh. Babu Ram had purchased property from Purshotam Sharma, he would have issued cheques in the name of Purshtam Sharma and not in the name of the claimant. It is quite intriguing that a sum of Rs.2.5 lakhs in the form of two cheques were transferred to the account of Babu Ram from claimant's account. If Sh. Babu Ram was the purchaser, the amount should have come to the account of claimant from the account of Babu Ram but conversely took place. The claimant could not remember who had given him a cheque of Rs.1.50 lakh as reflected in his bank account statement dated 20.03.12. There is a entry of Rs.2 lakhs in his bank statement dated 18.04.12. These huge entries definitely prove his gainful employment. So, the relief of reinstatement is totally ruled out. The claimant had served LIR No.1495/16. 44/45 the management from 1990 to 2009 at the last drawn salary of Rs.15,500/ per month.
30. Taking into account all these facts, a lumpsum compensation of Rs.15,00,000/ (Rupees Fifteen Lacs Only) is granted to him. The management is directed to pay the said amount to him within one month from the date of publication of the award, failing which it shall be liable to pay interest on it @ 9% per annum from today till its realization. Parties to bear their own costs. Award is passed accordingly.
31. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 21.01.2017. POLCXVII/KKD, DELHI.
LIR No.1495/16. 45/45