Delhi District Court
I.D. No. 139/16 (Old No. 86/15) vs The on 1 October, 2022
IN THE COURT OF SH. JITENDRA KUMAR MISHRA: PRESIDING
OFFICER INDUSTRIAL TRIBUNAL-I, ROUSE AVENUE DISTRICT
COURTS, NEW DELHI.
Ref. No.: F.24(51)/15/Lab/CD/279
Dated : 19.03.2015
I.D. No. 139/16 (Old No. 86/15)
Workman
Sh. Mahender Kumar
S/o Sh. Brahm Prakash
Security Guard Batch No. 684
Token No. 50963
Presently working at:-
Delhi Transport Corporation
Bawana Depot, Delhi
Vs.
The Management of
M/s Delhi Transport Corporation
IP Estate
New Delhi-110 002
Date of institution : 04.04.2015
Date of reserving award : 08.09.2022
Date of award : 01.10.2022
(MORE THAN 07 YEARS OLD CASE)
AWARD
1. Labour Department, Govt. of the National Capital
Territory of Delhi has referred this dispute arising between the
parties named above for adjudication to this Tribunal vide
notification No. F.24(51)/15/Lab/CD/279 dated 19.03.2015 with
following terms of the reference:-:-
"Whether Sh. Mahender Kumar S/o Sh.
Braham Prakash, Security Guard bearing
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Badge No. 684 and token no. 50963
"stoppage the next due one increment
with cumulative effect" by the
management is illegal and / or unjustified;
and if yes, to what relief she is entitled
and what directions are necessary in this
respect?"
2. Statement of claim has been filed by the
claimant/workman, wherein it is claimed:
(a)Workman was permanent bonafide employee of the
management, who never gave any chance of complaint
against him at any point of time during course of such
tenure;
(b)Due to malicious attitude of the officers towards the
workman, they issued the memo alleging that on
25.06.2009 during duty hours 9:30 to 18:00 discharged
his three duties and on 26.09.2009 at 8:05 hours showed
himself on round and the same was mentioned in Adhikari
Register by own motion and without information left the
depot and thereafter on that day he did not come back;
(c) Workman replied the memo and denied the allegations
categorically but the management was not satisfied and
thus the departmental inquiry was conducted;
(d)The inquiry officer recommended the punishment of
censure against the workman and a memorandum dated
30.06.2010 was issued by Senior Manager (Security) and
the workman was directed to give explanation against the
findings within ten days. The workman was suspended on
01.07.2009 and remained suspended upto 17.07.2009;
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(e)Workman submitted his explanation and requested to set
aside the proposed punishment as the same was based
on arbitrary attitude of the officer of the management but
the same was rejected;
(f) Workman aggrieved by the impugned punishment
awarded against him had appealed before the appellate
authority but the same was also rejected;
(g)The claim has been preferred before the conciliation
officer/ Dy. Labour Commissioner;
(h)On the very same line of action again a show cause notice
was issued alleging that the workman did not inform
timely to the department while he was in a judicial custody
in Sonepat, Haryana w.e.f. 14.01.2001 to 14.02.2001;
(i) The said allegations which were alleged against the
workman happened due to false and frivolous complaint
by the villagers and the criminal case no. 76/2001 was
lodged against the workman in PS Kharkhoda on
31.07.2000, u/s 417/418/420/467/468/471/506 IPC in
which he was taken into custody and faced trial before the
Judicial Magistrate, First Class, Sonepat (Haryana) and
the workman was acquitted of the charges leveled against
him vide judgment dated 19.05.2008, in the mean time as
he was arrested by the police in the above said case, the
wife of the workman telephonically immediately informed
the department, which must be on record of the
management;
(j) Workman after duty while he was going back to his
residence met with an accident and now he has become
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handicapped with 62% permanent physical impairment in
relation to his both lower limbs and the certificate of
disability has been issued by Satywadi Raja Harish
Chandra Hospital, Govt. of NCT, Narela, Delhi-110 040;
(k) Thereafter, on failure of the conciliation proceedings, the
present dispute has been referred for adjudication before
this Tribunal.
It is prayed in the Statement of claim to pass an award in
favour of the workman and the management be directed to set aside
the punishment award and to make the arrears of dues with interest.
3. Written statement filed by the management, wherein
objections have been taken:
(a) The present claim is filed before this court and the
workman has challenged three punishments awarded
to him in different charge sheets and different
misconducts committed by him. But the Deputy Labour
Commissioner has sent a reference letter dated
19.03.2015 only one punishment to this court vide letter
no. F-24(51) LAB(CD) 2015/280/19.03.2015 with
reference whether workman Mahender Kumar with
punishment of stoppage of next due increment with
cumulative effect by the management is illegal or
unjustified and if yes, what relief he is entitled and what
directions are necessary in this respect.
(b) Workman has no cause of action to file the present
claim as he is guilty of misconducts committed by him
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during his course of duties and there are 17 adverse
entires recorded in his past records;
(c)The inquiry was conducted as per law and principles
of natural justice and the workman was found guilty and
after considering the report of the enquiry officer and past
record of the workman, a show cause notice was issued
vide letter dated 30.06.2010;
(d) The reply submitted by the workman was considered
by the disciplinary authority but no fresh point were raised
so the punishment of "Censure" was confirmed and
informed vide letter dated 21.07.2010 to the workman.
The appeal was filed by the workman and the same was
rejected after hearing the same. The mercy appeal was
also rejected and informed vide letter dated 23.08.2012 to
the workman;
(e) The workman prior to the above said misconduct has
committed misconduct by concealing the facts of his
arrest in a criminal case u/s 147/148/420/467/468/471 IPC
and he remained in Sonepat (Haryana) Jail from
14.01.2001 to 14.02.2001 but he did not inform his arrest
to the management. Though his wife made an
application on 27.01.2001 and mentioned the arrest of
the workman;
(f) Workman was placed under suspension vide order
dated 16.03.2001 which was amended vide letter dated
18.05.2001;
(g) The workman was also issued charge sheet in the
matter on 24.08.2001. The inquiry was conducted and the
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workman admitted the charges in the inquiry without
pressure. So the workman was awarded punishment of
"stoppage of his next due one increment without
cumulative effect" by the disciplinary authority of the
management. The workman preferred the appeal but the
same was rejected and informed vide letter dated
07.11.2008 to the workman;
(h) In other case also, the workman committed
misconduct. As per report/ complaint dated 23.01.2012,
the workman was issued a charge sheet on 14.02.2012
for making bogus attendance in the night shift on
19.01.2012 and Ist shift of dated 20.01.2012 at Raj Ghat
Depot. The detailed inquiry was conducted in the matter
and the charges were proved. The show cause notice was
issued and later on the punishment of "stoppage of next
one increment with cumulative effect" was confirmed vide
order dated 31.10.2012. The appeal was rejected as no
fresh point were raised and workman was informed vide
letter dated 28.01.2013;
(i) Full opportunity was given to the workman to defend
his cases;
(j) After receipt of the inquiry report and considering the
past record of the workman, the disciplinary authority
issued a show cause notice dated 20.09.12 with proposed
punishment of "stoppage of next due on increment with
cumulative effect. The reply was considered but not
satisfactory so the punishment was confirmed and
informed to the workman vide letter dated 31.12.2012;
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(k) Workman is not entitled for any relief from this Tribunal
as he committed misconduct during his course of
employment and caused loss to the corporation;
Rest of the contentions of the statement of claim more or
less are denied.
4. Replication has been filed by the workman, wherein all
objections raised in the preliminary objections have been denied
and the contentions made in the statement of claim are reiterated
and affirmed.
5. On the basis of pleadings of the parties, following
issues were framed by Ld. Predecessor vide order dated
14.07.2017:-
"(i) Whether the claim of the workman has
been properly espoused by the Union?
OPW.
(ii) Whether the management has
conducted enquiry against the workman
in violation of principles of natural
justice?OPW.
(iii) If answer to issue no.2 is affirmative,
whether the workman committed the
misconduct imputed to him by the
management? OPM.
(iv) As per terms of reference. OPW
(v) Relief."
6. To prove his case, workman examined himself as WW1.
He tendered his evidence by way of affidavit, which is Ex.WW1/A, in
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which he has affirmed the contents of his statement of claim. He
has also relied upon documents Ex.WW1/1 to Ex. WW1/9 (objected
to being photocopies), which are:-
i. Ex WW1/1 is copy of letter of the workman;
ii. Ex WW1/2 is copy of letter dated 03.02.2010/ 10.03.2010;
iii. Ex.WW1/3 is copy of the appeal filed by the workman;
iv. Ex.WW1/4 is copy of information of arrest of the workman
dated 25.01.2001;
v. Ex.WW1/5 to Ex.WW1/9 are copies of letters written by
the workman;
On 19.12.2018, Ld. AR for the management had cross
examined WW1.
Thereafter, on 27.02.2019 vide separate statement the
workman closed workman evidence.
7. To prove its case, management examined Sh. Ashok
Kumar, Assistant Security Inspector (Retd.) of the management as
MW1. He deposed in his affidavit that he is the reporter in the
present case and he has given report to the Manager Security in
case of the workman for tampering in duty register by fluid on
20.1.2012 to show himself on duty in the shift at night i.e. on
19.1.2012 and morning though he did not discharge his duty on
19.1.2012. It is further deposed by MW-1 that duty of the workman
was on 19.01.2012 from 10 pm to 6:30 am(next morning) along with
Sh. Jayanti Prasad and Sh. Jagdish Prasad. He further deposed
that the said persons also witnessed the report of the reporter. He
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has also relied upon documents Ex.MW1/1 to Ex.MW1/2, which
are:-
i. Ex.MW1/1 being copy of the report of the
reporter;
ii. Ex.MW1/2 being copy of duty register;
On 06.03.2020, Ld. AR for the workman cross-examined
MW1.
8. Management further examined Sh. Rajender Kumar,
Deputy Manager (PLD) (Retd.) of the management as MW2. He
tendered his evidence by way of affidavit Ex.MW2/A in which he has
deposed that as per report of the reporter, charge-sheet was issued
to the workman. The inquiry was entrusted to him to conduct the
inquiry in case of the workman. MW-2 further deposed that the
inquiry was conducted on 15.05.2012, 04.07.2012, 18.07.2012 and
25.07.2012. The workman had appeared in every inquiry
proceeding. He further deposed that workman has been given
opportunity on each and every date of inquiry to take the help of co-
worker in his matter. He has also relied upon documents Ex.MW2/1
to Ex.MW2/2, which are:-
i. Ex.MW2/1 being copy of inquiry proceedings;
ii. Ex.MW2/2 being copy of findings of the inquiry
officer;
On 06.03.2020, Ld. AR for the workman cross-examined
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MW2.
9. Management further examined Sh. Balesh Raj, Manager
(Personnel) (Retd.) of the management as MW3. He tendered his
evidence by way of affidavit Ex.MW3/A in which he deposed that he
was the disciplinary authority in the case of the workman at the
relevant time. He further deposed that as per record, the workman
was booked for duty on 19.01.2012 but he did not attened duty on
the same day and on the next date he put his presence by
tampering with the duty register by using fluid on the said register.
He further deposed that on the basis of the report, a charge-sheet
was issued to the workman. The workman replied the chargesheet.
Same was considered by MW-3 but being not satisfied, the matter
was sent to the inquiry officer to conduct inquiry in the present
matter. MW-3 further deposed that after considering the report of the
inquiry officer and past record of the workman, the workman was
found guilty of misconduct committed during his duty so the
proposed punishment of 'stoppage of the next due one increment
with cumulative effect was imposed on the workman'. He has also
relied upon documents Ex.MW3/1 to Ex.MW3/4, which are:-
i. Ex.MW3/1 being copy of charge sheet;
ii. Ex.MW3/2 being copy of past record of the
workman;
iii. Ex.MW3/3 being copy of memorandum dated
20.09.2012;
iv. Ex.MW3/4 being copy of punishment order;
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On 06.03.2020, Ld. AR for the workman cross-examined
MW3.
Thereafter, on the same day i.e. on 06.03.2020 vide
separate statement, Ld. AR for the management closed
management evidence.
10. On 30.10.2021, an application was moved on behalf of
the management to recall the workman and the same was allowed
on same date.
11. An application was also moved on behalf of the workman
u/s 151 CPC for calling the record and examine the General
Secretary of the Union in additional workman evidence, which was
also allowed vide order dated 30.10.2021.
12. In pursuance of order dated 30.10.2021, Ld. AR for
management had cross-examined WW1 on 25.05.2022 and
workman further examined Sh. Vijay Kumar Sharma, General
Secretary of the Union as WW2 on 25.05.2022. He tendered his
evidence by way of affidavit, Ex.WW2/A in which he has deposed
that he was the General Secretary of DTC Employees Congress.
He has further deposed that workman was a member of their Union
and he approached for his grievances. He has further deposed that
matters were discussed in the executive committee on 25.08.2013
and unanimously decided to serve notice to CMD, DTC to resolve
the case of the workman as he was victimized due to trade union
activities. He has further deposed that the then General Secretary
Sh. Om Singh issued espousal and he identified his signature. He
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has also relied upon documents Ex.WW2/1 and Ex. WW2/2 and
Mark A, which are:-
i. Ex WW2/1 being copy of identity card of DTC employee;
ii. Ex WW2/2 being copy of identity card of the witness;
iii. Mark A being copy of espousal dated 10.12.2013;
On 25.05.2022, Ld. AR for the management had cross
examined WW2.
13. Final arguments have been heard at length as advanced
by Sh. Jagdish Tyagi, Ld. AR for workman and Sh. Hardwari Lal, Ld.
AR for management.
14. I have gone through the entire record of the case
including pleadings of the parties, evidence led and documents
proved during evidence.
15. Written arguments have been filed on behalf of both the
parties, which have been considered.
During arguments, ld. AR for workman has argued that
inquiry was not conducted following the principles of natural justice,
the management has also failed to establish the charges imposed
upon the delinquent official. It is further argued that management
has refuted its own allegations, hence, the order of stoppage of
next one increment with cumulative effect dated 31.10.2012 is liable
to be quashed and set aside and accordingly, directions be issued to
management to release the stopped increment along with its
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arrears.
In written arguments submitted on behalf of management, it
is argued that inquiry was conducted by the Inquiry officer as per
law and principles of natural justice. Every opportunity was given to
the workman. It is further argued that workman and the reporters
were present in the said inquiry proceedings. The workman was
asked to take any help of co-worker or any witness but the workman
refused to take the help. The charges were read over to the
workman and the charges were denied by the workman and hence
request for inquiry has been made. The workman was given full
opportunity to defend his case. The inquiry officer after considering
the evidence and documents on record, has given his findings on
16.08.2012. It is further argued that the workman did not dispute his
presence in the inquiry proceedings and also participation, cross-
examination and opportunity given to prove his defence witness.
The inquiry finding has been supplied along with show cause letter.
The past record is also considered and there are ten adverse entires
and the same are not challenged and only the last adverse entry
has been challenged. Hence, the claim of the workman is liable to
be dismissed.
16. Ld. AR for the workman has also relied upon following
judgments:
(a)Narayana Rao K. V. and Anr. Vs. State of Andhra Pradesh
and Anr., (1958) IILLJ 294 AP;
(b)Delhi Transport Corporation Vs. Harish Babu, LPA No.
310 of 2012 & CM No. 7196/2012;
(c) D.T.C. Vs. Krishna Bahal, 2020 LLR 246
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17. My issue wise findings are:-
Issue no.1:
"(i) Whether the claim of the workman has
been properly espoused by the Union?
OPW"
The onus to prove this issue was on the workman.
Workman in support of this issue has examined WW-2. WW-2 Sh.
Vijay Kumar Sharma in his affidavit has deposed that he is the
General Secretary of DTC Employees Corporation. WW-2 further
deposed that DTC Employees Congress was informed by workman
that being a member of the Employees Congress, he was being
harassed and has been illegally imposed three punishment of
censure dated 21.10.2010, stoppage of one increment without
cumulative effect dated 31.07.2003 and stoppage of increment with
cumulative effect dated 31.10.2012. He has further relied upon
document Ex. WW2/1 which is copy of ID card issued by DTC. He
also relied upon copy of ID card issued by DTC Employees
Congress which is exhibited as Ex. WW2/2 and thereafter he relied
upon copy of espousal which is mark A.
WW-2 in his cross-examination admitted that the espousal
letter was not prepared in his presence. WW-2 also admitted that he
has no original espousal letter dated 10.12.2013. WW-2 further
admitted that he has no document available to establish the fact that
workman is a member of their union.
WW-2 has relied upon espousal as Mark A, however,
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same is only a photocopy. Why the original of this document has not
been brought has not been explained. How, this document came in
possession of WW-2, not explained. It is not the case of WW-2 that
Sh. Ombir Singh has handed over to him this document.
Hence, keeping in view the cross-examination of WW-2
and document Mark A, this Tribunal is not convinced that there is
any valid espousal in favour of the workman. Moreover, there is no
evidence regarding membership of workman with DTC Employee
Congress and as to when he became member of the said union. No
date has been mentioned as to when workman approached DTC
Employees Congress for redressal of his grievance. No subscription
receipt has been filed by the workman in support of the fact that he
was the member of DTC Employees Congress. Moreover, in
Espousal Mark A it is mentioned that maximum members were
present. What prevented the workman in calling any member who
could prove that any meeting of Executive Committee was held on
25.08.2013 in which the case of workman was considered. Hence,
without a valid espousal, the claim of the workman is not valid as
observed in various judgments which are as:
18. In M/s Hotel Samrat vs. Govt. of NCT of Delhi & Ors.
2007 LLR 386 (Hon'ble Delhi High Court), it has been held:-
"12. The dispute between an individual workman and the employer
can be treated as an industrial dispute only where the workmen as
a body or a considerable section of them, make common cause
with the individual workman and espoused his demand. The
question arises how the espousal can be inferred. Espousal means
that the dispute of an individual workman is adapted by union as its
own dispute or a large number of workmen give support to the
cause of an individual workman. In the instant case, the only
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evidence available on record about espousal of the cause is the
statement of the Secretary of the Union made before the Tribunal.
In his statement, he stated that he requested the management to
treat workman Hira Singh at par with other employees and grant
him regular pay scale and he met the management for this purpose
and on his pursuance, the management started deducting provident
fund from salary of the workman Hira Singh. There is no evidence
apart from this evidence about the espousal of the cause. Does
mere lending of name of the union by the union secretary while
raising the conciliation proceedings or for issuing notice amount to
'espousal' of cause'? Union is a representative body of the
workmen. The cause of any workman can be espoused collectively
by the Executive Body of the union by taking a decision in this
respect. This decision may not be taken in a formal manner but can
be taken in an informal manner but it has to be a collective decision
of the executive body of the union. An individual member of the
Executive body cannot take the character of the entire union and
cannot bind the union. Merely because the union secretary met the
management and requested for giving a regular appointment letter
to the workman, would not amount to espousal of the cause. In this
case, this is the only evidence available on record in respect of
espousal. In J.H. Jadhav's case(supra), the Supreme Court
observed that the union must formally express itself in the form of a
resolution which should be approved by its members. However, the
number of supporting members of the union may be relevant
depending upon facts of each case. In 1961 II LLJ 436 Bombay
Union of Journalists v. Hindi Bombay, the Supreme Court observed
that an individual dispute can take the character of an industrial
dispute only if it was proved that it was, before it was referred,
supported by union of employees. In each case, for ascertaining
whether an individual dispute has assumed character of an
industrial dispute, the test is whether on the date of reference, the
dispute was taken up and supported by the union of the workmen
of the employer against whom the dispute is raised by the individual
workman or by an appreciable number of employees. In this case,
the Supreme Court observed that notice of the meeting for the
purpose of considering request by the members for tenable cause
of concerned workmen was not given to the employees of the
Hindu Board which were not the members of the union at the
relevant time. Hence, by mere passing of a resolution by other
members of the union, the case of the appellant that the cause of
concern workmen was supported by the other employees of Hindu
Board, could not be supported. The Supreme Court observed that
unless an individual dispute was taken up by union of employees of
the employer or by appreciable number of employees of the union,
it remains as an individual dispute and does not become an
industrial dispute. In 2001(89) FLR 458 Prakash and Ors v.
Superintending Engineer(ELEL) and Ors, the Karnataka High Court
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observed that an individual can raise a dispute, only for removal,
termination or dismissal. If the workman wants to raise a dispute for
his absorption and regularization, that can only be done through the
union on behalf of workman or workmen."
19. In Tirupathi Cotton Mills Ltd Vs. Labour Court and anr,
(1968) II LLJ 723 AP it has been held in para no. 10:
"It is unnecessary to multiply cases Sufficient to say
that unless there is a concerned action evidencing
indication on the part of a substantial or appreciable
number of workmen of the establishment it will be
impossible to hold that the dispute, which on the face
of it must be regarded as an individual dispute, has
been converted into an industrial dispute. It is only
then we may assume that it was a collective
bargaining on the part of the workers with the
employers. This concerned action may as well be
evinced by a union which is substantially interested
in the dispute as having a large number of members
of the employees of that establishment.
20. In J. H. Jadhav Vs. M/s Forbes Gokak Ltd Appeal
(Civil) 1089 of 2005 it has been held by Hon'ble Supreme Court as:
"............The definition of "Industrial Dispute" in Section 2(k) of the
Act shows that an Industrial dispute means any dispute or difference
between an employer and employers or between employers and
workmen, or between workmen and workmen, which is connected
with the employment or non-employment or the terms of the
employment or with the condition of labour, of any person. The
definition has been the subject matter of several decisions of this
Court and the law is well settled. The locus classicus is the decision
in Workmen of M/s Dharampal Premchand(Saughandhi) Vs. M/s
Dharampal Premchand (Saughandhi) 1965 (3) SCR 394 where it was
held that for the purposes of Section 2(k) it must be shown that (1)
the dispute is connected with the employment or non employment of
a workman (2) the dispute between a single workman and his
employer was sponsored or espoused by the Union of workmen or by
a number of workmen. The phrase "the union" merely indicates the
Union to which the employee belongs even though it may be a Union
of a minority of the workmen. (3) the establishment had no union on
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its own and some of the employees had joined the Union of other
establishment belonging to the same industry. In such a case it would
be open to that Union to take up the cause of the workmen if it is
sufficiently representative of those workmen, despite the fact that
such Union was not exclusively of the workmen working in the
establishment concerned. An illustration of what had been anticipated
in Dharam Pal's case is to be found in the Workmen of Indian
Express Newspaper (Pvt.) Ltd Vs. Management of Indian Express
Newspaper Private Ltd AIR 1970 SC 737 where an outside' union
was held to be sufficiently representative to espouse the cause.........."
21. Hon'ble High Court of Madras in Buckingham and
Carnatic Co. Ltd, Madras Vs. Buckingham and Carnatic Mills
Staff Union and anr. AIR 1960 Mad 106 in para no. 5 held:
"5. In an early case in this Court, Kandan Textiles vs.
Industrial Tribunal, MANU/TN/0159/1951: (1949) NULLLLJ
875 Mad, which was decided by a Division Bench of which
one of us was a party, it was definitely held that there
could be no collective dispute unless at least a substantial
number of the employees in the establishment as a whole
or in the concerned part of the establishment should be at
dispute. It was also pointed out that it was not necessary
that before the Government could make a valid order
referring a dispute to the Tribunal the majority of the
workmen should be ranged as one of the parties. A
collective dispute is thus described:
A dispute between the employer on the one hand
and the entire establishment or part of the establishment
on the other hand in which case it is reasonable to
presume that at least a substantial number of the
employees in the establishment as a whole or in the
concerned part of the establishment should be at dispute.
In Manager, United Commercial Bank Ltd Vs.
Commissioner of Labour, Madras, MANU/TN/0015/1951:
(1951) I LLJ 1 Mad, Viswanatha Sastri J, agreed with this
view of an industrial dispute and said:
"The distinction between an individual dispute and
an industrial dispute is, if I may respectfully say so, well
brought out in the judgment of my Lord in MANU/
TN/0159/1951: (1949) NULLLLJ 875 Mad, citing inter alia
a passage from the judgment of Isaacs J. in George
Hudson Ltd Vs. Australian Timber Works Union, (1922)
32 CLR 413, ....if the resuming workman or a substantial
I. D. No. 139/16 (Old No. 86/15) Sh. Mahender Kumar Vs. DTC Page No. 18 of 30
body of them or a union of workmen takes up the cause
of the victimised employee and demands his
reinstatement, there is an industrial dispute.
In Sri Ram Vilas Service Ltd Vs. State of Madras,
AIR 1956 Mad 115, this view was again followed by
Rajagopalan J.A different view was however taken,
though not by this Court. The point was considered in
detail by Venkatarama Aiyer J, in C.P. Transport Service
Ltd, Nagpur Vs. Raghunatha Gopal, (S) MANU/SC/
0067/1956: (1957) I LLJ 27 SC. His Lordship referred to
the three different views taken by the High Courts and
Industrial Tribunals in the country, namely, (1) a dispute
which concerns only the rights of individual workers
cannot be held to be an industrial dispute, (2) a dispute
between an employer and a single employee can be an
industrial dispute and (3) a dispute between an employer
and a single employee cannot per se be an industrial
dispute but it may become one if it is taken by the Union
or a number of workmen. Venkatarama Aiyar J, was of
the opinion that there was considerable reason behind
the third of the views and the preponderance of judicial
opinion was clearly in favour of it.
He observed:
Notwithstanding that the language of Section 2(k)
is wide enough to cover a dispute between an employer
and a single employee, the scheme of the Industrial
Disputes Act does appear to contemplate that the
machinery provided therein should be set in motion, to
settle only disputes which involve the rights of workmen
as a class and that a dispute touching the individual rights
of a workman was not intended to be the subject of an
adjudication under the Act, when the same had not been
taken up by the Union or a number of workmen.
6. In another case, namely, Newspapers Ltd Vs.
State Industrial Tribunal, U.P(S) MANU/SC/ 0078/1957:
(1957) II LLJ 1 SC, the Supreme Court expressly
approved the view taken by this Court in
MANU/TN/0159/1951: (1949) NULLLLJ 875 Mad and
other cases following it.
Therefore, in light of the aforesaid judgments and in view
of the above observations, this Tribunal is of the view that issue no.
1 is answered against the workman.
22. Issue no.2:
I. D. No. 139/16 (Old No. 86/15) Sh. Mahender Kumar Vs. DTC Page No. 19 of 30
"(ii) Whether the management has
conducted enquiry against the workman
in violation of principles of natural
justice?OPW."
To decide this issue, let the testimony of WW-1 be
discussed herein.
WW-1 during cross-examination admitted that he had
received the charge-sheet dated 24.08.2001 Ex. WW1/M1. WW-1
further admitted that he had appeared in the inquiry held before the
Inquiry Officer Sh. S. K. Sharma Ex. WW1/M2 which bears his
signature at point A. WW-1 further deposed that he had received the
Inquiry Report Ex. WW-1/M3. WW-1 denied the suggestion that he
had been given full opportunity to defend himself in the inquiry
proceedings. WW-1 also admitted that he had been issued show
cause notice dated 20.06.2003 i.e. Ex. WW1/M4 which bears his
signatures at point A. WW-1 also admitted that he had received
punishment letter dated 31.07.2003 i.e. Ex. WW1/M5. WW-1 denied
the suggestion that the punishment order dated 31.07.2003 of the
management in respect of Ex. WW1/5 is legal and valid.
WW-1 during his further cross-examination on 25.05.2022
admitted that he appeared before the Inquiry conducted on
15.05.2012 and 25.07.2012 and his signatures are at point A. WW-1
further admitted that he has received the copy of inquiry findings
along with show cause notice dated 20.09.2012.
It is also deposed by WW-1 in Ex. WW1/A in para no. 12
that the departmental Appeal was preferred by the workman and the
appellate authority without going through the merit of the case as
well as without applying its judicious mind dismissed the appeal of
I. D. No. 139/16 (Old No. 86/15) Sh. Mahender Kumar Vs. DTC Page No. 20 of 30
the workman, hence, the workman along with above two
punishments awarded, filed the application before conciliation officer
for conciliation but the management remained adamant thus due to
his behaviour the conciliation officer was pleased to refer the matter
by making reference.
It is deposed by MW-1 in para no. 2 of Ex MW1/A that
duty of the workman was on 19.1.2012 along with Sh. Jayanti
Prasad and Sh. Jagdish Prasad. MW-1 further deposed that said
persons have also witnessed the report of the reporter. In cross-
examination MW-1 admitted that he had appeared before the Inquiry
Officer in the domestic enquiry held against the workman in respect
of his report. MW1 admitted that he is the reporter of Ex. MW1/1.
MW-1 further admitted that his report is based on the statement of
Sh. Jayanti Prasad, Driver and Sh. Jagdish Singh, Tyreman. MW-1
further admitted that Sh. Jayanti Prasad and Sh. Jagdish Singh had
appeared before the Inquiry Officer.
It is deposed by MW-2 in Ex. MW2/A in para no. 3 that the
inquiry was conducted on 15.05.2012, 04.07.2012, 18.07.2012 and
25.07.2012. MW-2 further deposed that the workman appeared in
every inquiry proceedings. He was given opportunity on each and
every date of inquiry to take the help of co-worker in his matter.
MW-2 further deposed that the workman refused to take the help of
co-worker. It is further deposed by MW-2 that statement of
management witnesses were recorded and the workman was given
opportunity to cross-examine the witnesses. MW-2 further deposed
that the workman cross-examined the management witnesses
before the Inquiry Officer. It is also deposed by MW-2 that workman
was also given opportunity to call his witnesses but he refused. MW-
I. D. No. 139/16 (Old No. 86/15) Sh. Mahender Kumar Vs. DTC Page No. 21 of 30
2 further deposed that copy of inquiry proceedings had been
supplied to the workman when conducted against his signatures.
There is no serious challenge to the testimony of MW-2
regarding the inquiry conducted by him during cross-examination
before this Tribunal.
MW-3 in his affidavit has deposed that workman was
booked for duty on 19.01.2012 but he did not attend the duty on the
same day and on the next date he put his presence by tampering
the duty register by using fluid on the said register. In para no. 4 of
Ex. MW-3/A, MW-3 deposed that the domestic inquiry was
conducted by the Inquiry Officer in the presence of the delinquent
employee and the inquiry Officer has given his finding. MW-3 further
deposed that after considering the report of the inquiry officer and
past record of the workman, the workman was found guilty of
misconduct committed during his duty.
MW-3 in his cross-examination admitted that he had
examined the complete inquiry proceedings and finding of the
inquiry officer upon the same, Ex. MW2/1 and Ex. MW2/2 before
issuing the show cause notice dated 20.09.2012 in respect of the
proposed punishment to the workman Ex. MW3/3 on record. There
is no serious challenge regarding Inquiry Report and the past record
of the workman.
There is no challenge to the fact as deposed by MW-3 in
para no. 2 of Ex. MW3/A that as per record, the workman was
booked for duty on 19.01.2012 but he did not attend duty on the
same day and on the next day, he put his presence by tampering
the duty register by using fluid on the said register.
Now, inquiry report is perused. This Tribunal has come to
I. D. No. 139/16 (Old No. 86/15) Sh. Mahender Kumar Vs. DTC Page No. 22 of 30
the conclusion that the workman has made entry of his 'ratri paari'
on 20.1.2012 at about 8.30 for the date of 19.1.2012 after making
manipulation on folio no. 223 of the management register.
Before commencement of inquiry proceedings Ex. MW2/1
it is specifically asked whether he has received the report to which
he replied that he has received the copy of report along with charge-
sheet.
Even the own witness produced by the workman namely
Sh Jagdish Singh, Tyreman, in inquiry report has admitted the fact
regarding marking of attendance of 19.01.2012 on 20.01.2012
through one Sh. Ashok Kumar.
In Saran Motors (P) Ltd Vs. Vishwanath, (1964) 2 LLJ
139 SC, Hon'ble Apex Court has specifically held that:
"It is well known that enquiries of this type are generally conducted
by the officers of the employer and in absence of any specific
individual bias attributable to a particular officer, it has never been
held that the enquiry is bad just because it is conducted by an
officer or the employer."
"It is well known that enquiries of this type are
generally conducted by the officers of the employer and in the
absence of any special individual bias attributable to a
particular officer, it has never been held that the enquiry is
bad just because it is conducted by an officer of the
employer."
This Tribunal has further relied upon paras no. 10 and 35
in Kumaon Mandal Vikas Nigam Ltd Vs. Girja Shankar Pant
(2001) 1 SCC 182 as:
"10. The word "bias" in popular English parlance stands
included within the attributes and broader purview of the word
"malice" which in common acceptation means and implies "spite" or "ill-
I. D. No. 139/16 (Old No. 86/15) Sh. Mahender Kumar Vs. DTC Page No. 23 of 30
will" (Stroud's Judicial dictionary, 5th Edn., Vol 3) and it is now well
settled that mere general statements will not be sufficient for the
purposes of indication of ill-will. There must be cogent evidence
available on record to come to the conclusion as to whether in fact
there was existing a bias which resulted in the miscarriage of justice.
35. The test, therefore, is as to whether a mere apprehension of bias or
there being a real danger of bias and it is on this score that the
surrounding circumstances must and ought to be collated and
necessary conclusion drawn therefrom- in the event however the
conclusion is otherwise inescapable that there is existing a real danger
of bias, the administrative action cannot be sustained: If on the other
hand, the allegations pertaining to bias is rather fanciful and otherwise
to avoid a particular court, Tribunal or authority, question of declaring
them to be unsustainable would not arise. The requirement is
availability of positive and cogent evidence and it is in this
context that we do record our concurrence with the view expressed by
the Court of Appeal in Locabail case."
This Tribunal has further relied upon para no. 32 of Pravin
Kumar Vs. Union of India and ors (2020) 9 Supreme Court
Cases 471 that:
"32. Rather it appears that the delinquent person received a fair trial,
which can illustratively be determined by analysing whether he received
an opportunity of adducing evidence, cross-examining witnesses and
whether depositions were recorded in his presence. The record clearly
elucidates that all these essentials had been duly observed in the
present proceedings. Opportunity to seek assistance of another officer
was accorded, right of making representation was granted before each
authority, multiple opportunities were granted to lead evidence, cross-
examine witnesses, and raise objections. The appellant exercised most
of these options, though some were given up despite reminders. Minor
delays on part of the appellant were ignored and each
concern of his had been addressed through detailed reasons."
This Tribunal has further relied upon Cipla Ltd and ors
Vs. Ripu Daman Bhanot and anr. (1999) 4 Supreme Court Cases
188, wherein para no. 13 it is held as:
"13. In N. Kalindi Vs. Tata Locomotive & Engg. Co. Ltd it was
held that a workman against whom a departmental enquiry is
held by the management has no right to be represented at such
enquiry by an outsider, not even by a representative of his union
though the management may in its discretion allow the
employee to avail of such assistance. So also in Dunlop Rubber
I. D. No. 139/16 (Old No. 86/15) Sh. Mahender Kumar Vs. DTC Page No. 24 of 30
Co. (India) Ltd Vs. Workmen it was laid down that an employee
has no right to be represented in the disciplinary proceedings by
another person unless the Service Rules specifically provided for
the same. A three-Judge Bench of this Court in Crescent Dyes
and Chemicals Ltd Vs. Ram Naresh Tripathi laid down
that the right to be represented in the departmental proceedings
initiated against a delinquent employee can be regulated or
restricted by the management or by the Service Rules. It was
held that the right to be represented by an advocate in the
departmental proceedings can be restricted and regulated by
statutes or by the Service Rules including the standing orders,
applicable to the employee concerned. The whole case law
was reviewed by this Court in Bharat Petroleum Coporation Ltd
Vs. Maharashtra General Kamgar Union and it was held that a
delinquent employee has no right to be represented by an
advocate in the departmental proceedings and that if a right to
be represented by a co-workman is given to him, the
departmental proceedings would not be bad only for the reason
that the assistance of an advocate was not provided to him."
In para no. 33 of Usha Breco Mazdoor Singh Vs.
Management of Usha Breco Ltd and another (2008) 5 Supreme
Court Cases 554, it has been held that:
"33. Before a departmental proceeding, the standard of proof is
not that the misconduct must be proved beyond all reasonable
doubt but the standard of proof is as to whether the test of
preponderance of probability has been met. The approach of
the Labour Court appeared to be that the standard of proof on
the management was very high. When both the parties
had adduced evidence, the Labour Court should have borne in
mind that the onus of proof loses all its significance for all
practical purpose."
In West Bokaro Colliery (Tisco Ltd) Vs. Ram Parvesh
Singh, (2008) 3 Supreme Court Cases 729 in paras no. 20 and 21
it has been held as:
"20. The Tribunal has set aside the report of the enquiry officer
and the order of dismissal passed by the punishing authority by
observing that the charges against the respondent were not
proved beyond reasonable doubt. It has repeatedly been held by this Court that the acquittal in a criminal case would not operate as a bar for drawing up of a disciplinary proceeding against a delinquent. It is well settled principle of law that yardstick and standard of proof in a criminal case is different from the one in disciplinary proceedings. While the standard of proof in a I. D. No. 139/16 (Old No. 86/15) Sh. Mahender Kumar Vs. DTC Page No. 25 of 30 criminal case is proof beyond all reasonable doubt, the standard of proof in a departmental proceeding is preponderance of probabilities.
21. Learned Counsel for the respondent cited two cases Workmen Vs. Firestone Tyre and Rubber Co. of India (P) Ltd and South Indian Cashew Factories Workers' Union vs. Kerala State Cashew Development Corporation Ltd to contend that the Labour Court in exercise of its jurisdiction under Section 11-A could have come to a different conclusion. There is no quarrel with this preposition of law. The Labour Court could have awarded lesser punishment in the given facts and circumstances of the case. In a case where two views are possible on the evidence on record, then the Industrial Tribunal should be very slow in coming to a conclusion other than the one arrived at by the domestic Tribunal by substituting its opinion in place of the opinion of the domestic tribunal".
In (2011) 4 Supreme Court cases 584, titled as State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya, it has been held in para no. 7 as :
"7. It is now well settled that the courts will not act as an appellate Court and reassess the evidence laid in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based as no evidence or where they are clearly perverse. The test to find out perversity is to see whether a Tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations."
In (2008) 4 Supreme Court cases 517 titled as Workmen of Balmadies Estates Vs. Management, Balmadies Estates and ors in para no. 10 it is held as:
"10. It is fairly well settled now that in view of the wide power of I. D. No. 139/16 (Old No. 86/15) Sh. Mahender Kumar Vs. DTC Page No. 26 of 30 the Labour Court it can, in an appropriate case, consider the evidence which has been considered by the domestic tribunal and in a given case on such consideration arrive at a conclusion different from the one arrived at by the domestic Tribunal. The assessment of evidence in a domestic enquiry is not required to be made by applying the same yardstick as a civil court could do when a lis is brought before it. The Evidence Act, 1872(in short "the evidence Act") is not applicable to the proceeding in a domestic enquiry so far as the domestic enquiries are concerned, though principles of fairness are to apply. It is also fairly well settled that in a domestic enquiry guilt may not be established beyond reasonable doubt and the proof of misconduct would be sufficient. In a domestic enquiry all materials which are logically probative including hearsay evidence can be acted upon provided it has a reasonable nexus and credibility."
In (2007) 4 Supreme Court Cases 669 titled as Coimbatore District Central Co-operative Bank Vs. Coimbatore District Central Co-operative Bank Employees Association and another it has been held in para no. 29 as:
"29. From the above decisions, it is clear that our legal system also has accepted the doctrine of proportionality. The question, however, is whether in the facts and circumstances of the present case, the High Court was justified in invoking and applying the doctrine of proportionality. In our judgment, the answer must be in the negative. Normally, when disciplinary proceedings have been initiated and finding of fact has been recorded in such inquiry, it cannot be interfered with unless such finding is based on "no evidence" or is perverse, or is such that no reasonable man in the circumstances of the case would have reached such finding. An inquiry was instituted and findings recorded that recorded that all the four charges were proved. The Labour Court considered the grievances of the workmen, negatived all the contentions raised by them, held the inquiry to be in consonance with principles of natural justice and findings supported by evidence. Keeping in view the charges proved, the Labour Court, in our opinion, rightly held that the punishment imposed on workmen could not be said to be harsh so as to interfere with it. ...."
This Tribunal has further relied upon (2008) 4 Supreme Court cases, 517 titled as Workmen of Balmadies Estates Vs. Management, Balmadies Estates and ors, in which it has been held that the assessment of evidence in a domestic enquiry is not I. D. No. 139/16 (Old No. 86/15) Sh. Mahender Kumar Vs. DTC Page No. 27 of 30 required to be made by applying the same yardstick as a civil court could do when a lis is brought before it. The Evidence Act, 1872 is not applicable to the proceeding in a domestic enquiry so far as the domestic enquiries are concerned, though principles of fairness are to apply. It is also fairly well settled that in a domestic enquiry guilt may not be established beyond reasonable doubt and the proof of misconduct would be sufficient. In a domestic enquiry all materials which are logically probative including hearsay evidence can be acted upon provided it has a reasonable nexus and credibility.
Keeping in view the referred case law, this Tribunal is of the considered view that Inquiry Officer has duly considered the statements of management witnesses and thus comes to the conclusion that the Inquiry Officer has not violated the principles of natural justice while conducting inquiry against the workman. Hence, issue no. 2 is answered in favour of the management and against the workman.
23. Issue No.3 If the answer to issue no 3 is in affirmative, whether the workman committed the misconduct imputed to him by the management ? OPM The onus to prove this issue was on the management. MW-3 in Ex. MW-3/A in para no. 4 deposed that domestic inquiry was conducted by the Inquiry officer in the presence of delinquent employee and the inquiry Officer has given his finding to him. After I. D. No. 139/16 (Old No. 86/15) Sh. Mahender Kumar Vs. DTC Page No. 28 of 30 considering the report of the inquiry officer and past record of the workman, the workman was found guilty of misconduct committed during his duty. In cross-examination, MW-3 deposed that he had examined the complete inquiry proceedings and finding of the inquiry officer before issuing the show cause notice dated 20.09.2012 in respect of the proposed punishment to the workman. Workman could not establish what prejudice was caused to the workman as he was given full opportunity to defend himself during inquiry proceedings. He has not stated anywhere what prejudice was caused or he was not granted oppportunity to defend himself by the Inquiry officer. Penalty imposed upon the workman is:
"stoppage of next due one increment with cumulative effect imposed on the workman".
The said punishment is not exaggerated in view of the findings given during disposal of issue no. 1 to 3. Hence, this Tribunal is of the view that managament has successfully been able to discharge the onus to prove this issue. Therefore, punishment awarded to the workman vide Ex. MW3/3 is in accordance with the law and therefore, same is confirmed.
24. Issue no. 4 As per terms of reference. OPW In view of the findings given for issues no. 1 to 3, this Tribunal is of the view that workman is not able to discharge the onus to prove this issue. Hence, reference is answered against the workman.
I. D. No. 139/16 (Old No. 86/15) Sh. Mahender Kumar Vs. DTC Page No. 29 of 30 Issue no. (v) Relief.
Keeping in view the findings of issues no. 1 to 4, no relief can be granted to the workman.
25. The award is passed accordingly and the reference is answered in these terms.
26. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room.
Announced in open Tribunal Digitally signed by
JITENDRA
on this 1rst day of October, 2022 KUMAR
JITENDRA KUMAR
MISHRA
Date: 2022.10.01
MISHRA 04:41:22 +0530
(Jitendra Kumar Mishra)
POIT-I/Rouse Avenue Courts, New Delhi
I. D. No. 139/16 (Old No. 86/15) Sh. Mahender Kumar Vs. DTC Page No. 30 of 30