Delhi District Court
Sh. Joginder Singh vs M/S. Jamia Hamdard on 7 February, 2012
IN THE COURT OF SH. SATINDER KUMAR GAUTAM
ADDL. DISTRICT & S ESSIONS JUDGE/
PRESIDING OFFICER LABOUR COURT
KARKARDOOMA COURTS, DELHI.
ID No. : 362/10
Date of Institution : 30.10.1995
Date of Award : 07.02.2012
IN THE MATTER OF :
Sh. Joginder Singh, S/o Jeet Ram Thakur
R/O 75, SFS Flats, Gulmohar Enclave
New Delhi.
..........Workman
Versus
1. M/s. Jamia Hamdard,
Hamdard Nagar,
New Delhi
2. Vice Chancellor
Jamia Hamdard University
New Delhi
3. Jamia Hamdard University,
New Delhi.
........Management
ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 1 out of 19
: A W A R D :
An Industrial Dispute between the management of
Jamia Hamdard University, New Delhi through its Vice
Chancellor, Jamia Hamdard University, New Delhi and its
workman Joginder Singh S/o. Sh. Jeet Ram Thakur was referred
vide reference Order No. F.24(1209)/98Lab./1217175 dated
16.04.1998 by Deputy Labour Commissioner (Labour
Department), Government of National Capital Territory of Delhi
for adjudication in exercise of powers conferred by Section 10 (1)
(c) and 12 (5) of the Industrial Dispute Act 1947 (in short Act)
with the following terms of reference:
"Whether the service of Joginder Singh have been
terminated illegally and/or unjustifiably by the
management; and if so, to what relief he is entitled and
what directions are necessary in this respect?"
2 The facts as alleged in the claim petition are that the
workman Joginder S/o. Sh. Jeet Ram Thakur was appointed as
Safai Karamchari in the faculty of Pharmacy w.e.f. 01.06.1990 in
the pay scale of Rs. 750940 plus usual allowances as admissible
by the management. The said appointment was for a probation for
two years. The workman was confirmed and promoted to the post
ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 2 out of 19
of Peon w.e.f. 1.06.1992 at the last drawn wages of Rs. 2323/ p.m.
after expiry of his probation period of two years. He has
unblemished service record and on 3.10.95 he was seriously ill and
simultaneously informed that his mother was suffering from
cancer and therefore, the workman rushed to his native village at
Himachal Pradesh. The claimant sent a letter dt. 6.10.95 regarding
sickness of his mother and requested for sick leave from 4.10.95 to
23.12.95 thereafter, due to his and his mother's ill health had sent
UPC letters dated 24.12.95 and 12.1.96 requesting for sick leave
from 4.10.94 to 20.1.96. Thereafter, when the workman reported
for duty at faculty of Pharmacy on 22.1.96 management refused to
take him back on duty despite furnishing the medical certificate
from Government Hospital at Bilaspur, Himachal Pradesh for the
period of his sickness. Thereafter, the workman repeatedly visited
the management personally but he was not allowed to join his
duty. Thereafter, the workman was shocked received a letter on
30.10.96 after terminated his services w.e.f. 26.4.96.
It is further submitted by the claimant that the
University order states that the articles of charges were framed and
sent to the workman which returned with postal remarks "nobody
ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 3 out of 19
lives in H151". Thereafter, Sh. Habib Ali Siddiqui was appointed
as an Enquiry Authority vide letter dated 14.3.96. The Enquiry
Officer gave his report on 27.3.96 "that the claimant absented from
duty without prior application w.e.f. 4.10.95".
It is further alleged that Enquiry Officer without
issuing even a single notice or direction to the workman to appear,
an exparte inquiry on behalf of the management was conducted,
the inquiry report was accepted by the Vice Chancellor on behalf
of the management and immediately impose the punishment of
termination on the workman with immediate effect. The
management had due intimation of sickness of the workman as
well as his mother but neither the management nor the Enquiry
Officer made any attempt to determine for resumption of his duty.
The two and a half months leave was duly informed to the
management from time to time. The permanent address of the
workman was within the knowledge of management but no
communication was done at the said address owing to the illness
of claimant and his mother rather to terminate his service. The
medical certificate from the Government hospital from 4.10.95 to
20.1.96 was duly sent to the management by the registered post.
ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 4 out of 19
The Vice Chancellor accepted the finding of the Enquiry Officer.
No show cause notice of the imposition of the said penalty was
assigned upon the workman. The rule of the management has been
violated and no copy of rule of the management have been given
to the workman even on his request, the management deliberately
withhold the pertinent material like leave applications, medical
certificates from the Enquiry Officer. The workman reported for
duty on 22.1.96 after availaing the leave for duty. The entire
proceedings commenced and concluded without the workman was
being made aware of the same. The order of the University was
received on 30.10.96 and the workman could not be made part of
the said order. The workman tried to resume duty through the
conciliation machinery and preferred a claim on 25.7.95 but owing
to adamant attitude of the management who did not appear in the
conciliation proceedings and it ended in failure. Hence, prayed to
reinstate the workman with all consequential benefits.
3. The management filed the written statement and
submitted that the services of the petitioner/workman was
terminated due to unauthorised absence as without any leave
applications etc. The workman was abstained form duty without
ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 5 out of 19
any information w.e.f. 4.10.95 despite telegram mark M1 and M2
were sent on 21.10.95 at the local address as well as permanent
address but the claimant did not respond to the said telegram.
Subsequently, office memo dated 12.12.95 annexure M3 was sent
by registered post for explaining the reasons for his unauthorized
absence but the same was returned undelivered. Subsequently, the
information about unauthorized absence of workman was
published on 20.1.96 in two newspapers i.e. 'Jansatta' and
'Hindustan Times' as annexure M4 and M5. On 29.1.96, the
information of the claimant through registered post was received
alleging that he came to report for duty but he was refused to join.
In response to the said applications, the claimant was again asked
to join duty by sending a expressed telegram on 1.2.96 annexure
M6 on the address given by him. Since he failed to join duty, a
chargesheet was sent to him through Regd. Post on 28.2.96 at the
address given. A notice was issued to the claimant to appear before
the Enquiry Officer on 26.10.96 but he failed to attend inquiry
proceedings. Ultimately, the inquiry proceeding were conducted
an exexparte. The copy of the inquiry report was forwarded to the
claimant through Regd. Post to submit representation within 10
ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 6 out of 19
days time but he failed. On the careful perusal of the enquiry
report, facts and circumstance of the case, the competent authority
imposed penalty of termination as in deed claimant committed
gross misconduct by absenting himself from duty unauthorizedly.
The petitioner in various grounds of the statement of claim filed,
showed that he was trying to assail finding of the inquiry officer
and tried to complete the scope of present petitioner into the
appeal. The entire basis of making such allegations is outside the
ambit of section 10 of ID Act and even otherwise the statement of
claim untenable on the merits and the same is liable to be
dismissed with heavy cost.
4. The claimant filed replication to the written statement
and reagitated the contentions made in the claim petition as well
as refuting the plea taken in the written statement. It is prayed to
dismiss the written statement and grant the relief as prayed in the
claim petition.
5. On the pleadings of the parties, the following issues
were framed on 07.07.2000 :
1. Whether the management is an 'Industry'.
2. Whether the enquiry held by the
management was fair and proper.
ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 7 out of 19
3. Whether the services of workman were
terminated illegally and/or unjustifiably?
4. Relief.
6. After framing of issues, the issue no. 2 regarding
inquiry was treated as a preliminary issue. In order to prove its
case, the workman has examined himself as WW1 and brought his
evidence through an affidavit Ex. WW1/A and also relied upon
documents Ex. WW1/1 to 1/18. He was cross examined by the AR
for the management at length.
7. To controverted the claim of the workman, the
management lead an evidence by examining MW1 Sh. Minraj
Ahmed Khan, Assistant Registrar (Establishment) who was
testified in his examination in chief through an affidavit, the
contentions made in written statement reaffirm and in cross
examination admitted that he was promoted as Assistant Registrar
in the same department and was Incharge of the Establishment
Department and the disciplinary action was initiated from the
Establishment Department. There are seven Deans in the Jamia
Hamdard and the Dean is the head of the faculty which consists of
Academic departments. In Pharmacy department if anyone
ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 8 out of 19
commits misconduct, the matter is reported to the Registrar by the
Establishment section. The concerned Head of the Pharmacy
informs the establishment section. Registrar is disciplinary
authority in respect of Peons. Vice Chancellor on behalf of the
council can issue directions with regard to issuance of charge sheet
to the delinquent employees. The letter Ex.MW1/M1 is addressed
to the Dean and forwarded to the Registrar by the Dean
Ex.M1/M3 is also addressed to the Dean Faculty of Pharmacy
and the same has been forwarded by the Dean to the Registrar. In
case of major penalty for issuing a charge sheet, approval of Vice
Chancellor is required. The documents Ex.MW1/M4 is not the
charge sheet but the annexure part of the charge sheet. The letter
for non appearance on duty were sent on the correct address,
which was available in the personal file of the employee and he
never gave any other address. The workman was not placed under
suspension before the termination order was passed. No
preliminary inquiry was conducted before conduct of regular
inquiry. The office memorandum Ex.MW1/M11, Ex.MW1/M14
were signed by Sh. Miraz Ahmed Khan who acted as inquiry
officer. It is not recollect if the copy of the order had or had not
ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 9 out of 19
been filed on judicial file or these documents was not referred in
the original inquiry report or did not consider the letter of the
workman during the pendency of the inquiry proceedings. He also
did not recollect if the inquiry officer recorded the statement of
the witnesses. The address on which telegrams were sent on the
addresses available in the office record. He do not aware regarding
the documents with respect to the appointment of the inquiry
neither placed on judicial file nor those were referred in the
inquiry proceedings. Inquiry officer by default was aware about all
available address of the workman.
8. After concluding the evidence of the parties on
inquiry issue, arguments heard. The issue No. 2 with respect to
the inquiry hold by the management was fair and proper. After
leading evidence by both the parties, the issue no. 2 is decided in
favour of the workman and against the management vide order
dated 05.07.2011 with the observation that "it is revealed that
there is no legal evidence whatsoever supported the finding and
chargesheet has not actually been received by the delinquent. The
report of the Enquiry Officer dramatically contrary to the
evidence on the record and the report is perverse the liberty of
ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 10 out of 19
natural justice has not been followed strictly. Accordingly, the
inquiry proceedings and inquiry report on the basis of service of
the workman were terminated is hereby declared null and void and
same is hereby set aside".
9. There is no legal evidence whatsoever supported with
the chargesheet has been actually received by the delinquent. The
report of the Enquiry officer is contrary to the evidence on record
and the report is perverse to the principles of natural justice. As
such inquiry proceedings and inquiry report is decided to be
illegal, ultra virus and violation of principles of natural justice.
10. After disposed off the issue of inquiry, the parties
were directed to lead evidence on merit. The workman do not lead
any fresh evidence as inquiry issue decided in his favour and the
statement of the AR for the workman was recorded with respect to
the closure of the workman evidence on 24.8.11. Since the
workman has not lead any evidence, the management also opted
not to lead any evidence on the other issue and to prove the
validity of inquiry before the court as to prove that same was fair
and valid by following the principle of natural justice. The
management evidence was closed vide order dated 14.11.11.
ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 11 out of 19
11. Having heard the submissions of ld. A.R.s/counsel for
the parties and carefully gone through the material placed on
record and findings on the issues are as under :
12. Issue no. 2 : " Whether the enquiry held by the
management was fair and proper".
This issue of the inquiry is already been decided in
favour of the workman and against the management vide order
dated 05.7.11.
13. Issue No.1 : Whether
the management is an
'Industry'.
The management through the written statement
alleged that respondent/management is an University and being an
Educational institution is not an Industry "as defined under the amended definition of Industries." The petitioner through the rejoinder submitted that Peon and substaff are covered under the definition of 'workman' and the respondent management is an 'Industry'.
14. The 'Industry' is define in section 2 (j) of the Industrial Dispute Act, 1947 as it carries on systematic activities will organise cooperations between the employer and employee. ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 12 out of 19 It is nonetheless say as it receive government aid and the donation to meet its expenses. The Hon'ble Supreme Court of India give broader view of the definition of Industry in the following judgement : ● Safdarjung Hospital Vs. Kuldip Singh Sethi, AIR 1970 SC 1407 : 1 SCC 735 : 1970IILLJ266, ● Solicitors case AIR 1962 SC 1080, Gymkhana Case AIR 1968 SC 564, University of Delhi Vs. Ramnath AIR 1963 SC 1873 : 1963IILLJ335, ● Dhanrajgiri Hospital Vs. Their workman AIR 1975 SC 2032 : (1975) 4 SCC 621 : 1975IILLJ409 and other rullings, whose ratio runs counter to the principles enunciated above and the state of Bombay V. Hospital Mazdoor Sabha Air 1960 SC 610 : 1960ILLJ251 was rehabilitated.
The ld. Senior counsel argued that by applying the said principles, the second respondent would come within the purview of "Industry" as defined under the industrial Dispute Act, (hereinafter referred to as the Act'). In Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others (Supra) case, the Hon'ble Supreme Court held that : Bombay Pinjrapoles in the said case was an industry, justifying the conclusion with a different process of reasoning, that Pinjrapoles are industries, not because they have commercial motives, but because despite their compassionate objectives, they share business like orientation and operation.
ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 13 out of 19
15. The petitioner was working as a class IV employee and covered under the definition of workman as defined U/s. 2 (s) of the Industrial Dispute Act. Section 2 (s) also enlarge the scope of definition by using the word 'any such person who has been dismissed, discharged, or retrenched as led to the dispute " as an Industrial dispute. Fact culled out from the evidence and the aforesaid authority shows that the claimant covered under the definition of workman and the domestic inquiry for the charges of absent was being conducted and he was dismissed from the service by order of the competent authority against which the petitioner raised an industrial dispute before this court and after thoroughly analysis the material on record, it proved that the management is an 'industry' as defined in the aforesaid discussion as observed in case of Delhi University (Supra) accordingly, the issue No. 1 is decided against the management.
16. Issue No. 3 : Whether the services of workman were terminated illegally and/or unjustifiably? In the domestic inquiry, the service of the peititoner was terminated due to his unauthorized absence without any ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 14 out of 19 information. The claimant was absent from the duty without any information w.e.f. 4.10.95. The management sent two telegrams on 21.10.95 one at local address in Delhi and another on his permanent address for explaining the reasons for unauthorized absence from duty but the petitioner did not respond the above telegrams. The office memo dated 12.12.95 was sent by registered post for explaining the reasons for his unauthorized absence and same was returned undelivered. The unauthorized absence of the workman was also published on 24.1.96 in two newspapers i.e. Jansatta and Hindustan Times and directed the claimant to join the duty or report within 15 days failing which it is presumed that he is not interested in service. On 29.1.96 a registered post application of the claimant was received. In these applications, the claimant alleged that he came to report for duty but he was refused to join. The chargesheet was sent to him through registered post on 28.2.96 at the address given by him. The notice was also issued to appear before the Enquiry Officer on 26.10.96 but he failed to appear and an exparte inquiry was conducted. The copy of the inquiry report was forwarded to the claimant through registered post to submit representation within 10 days time but he ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 15 out of 19 failed to appear and on the basis of the report of the inquiry officer the competent authority terminated the services of the workman as absented himself from duty unauthorizedly.
17. The issue of the inquiry was decided against the management vide order dated 5.07.11 with the observation that there is no legal evidence in support of the chargesheet received by the delinquent. The report of the enquiry officer is contrary to the evidence on record and perverse the principals of natural justice. Thereafter, an opportunity was granted to the management to prove the inquiry before the court but the management has not led any evidence in this regard.
18. Since the inquiry against the claimant have been vitiated and there is no fresh evidence led by the management to prove the issue of inquiry which have been decided against the management therefore, the termination of the workman is illegal and unjustifiable. Accordingly, the issue no. 3 is decided against the management and in favour of the workman.
19. Relief : Since the issues no. 1, 2 and 3 are decided in favour of the workman and against the management. The management ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 16 out of 19 has not led any fresh evidence in order to prove the disciplinary action taken by the competent authority justified and within their purview. The claimant in his statement of claim as well as in his testimony admitted that he was absent from duty from 3.10.95 as he suddenly fallen ill and his mother was also suffering from cancer as such he rushed to his native village and simultaneously, informed to the management telephonically about his sickness and departed to his native village after requesting sick leave claimant also sent UPC letter dated 6.10.95 informing the management about his sickness and ailment of his mother.
20. Therefore, in these circumstances, to meet the ends of justice and the judgement given below the workman Sh. Joginder Singh is entitled for reinstatement 50% of backwages. My decision finds support by the decision in cases of Haryana Urban Development Authority v. Om Pal, 2007(2) SCT 749, it is stated that, it is now also well settled that despite a wide discretionary power conferred upon the Industrial Courts under Section 11A of the 1947 Act, the relief of reinstatement with full backwages should not be granted automatically only because it would be lawful to do so. Grant of relief would depend on the fact situation obtaining in each case. It will depend upon several factors; one of which would be as to whether the recruitment was effected in terms of the statutory provisions operating in the filed, if any.*** ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 17 out of 19
18. In case of Allahabad Jal Sansthan v. Daya Shankar Rai, 2005(2) SCT 699, this court has observed: A law in absolute terms cannot be laid down as to in which cases, and under what circumstances, full back wages can be granted or denied. The Labour Court and/or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration.***
19. In case of Madurantakam Coop. Sugar Mills Ltd. vs. S. Vishwanathan, 2005(2) SCT 111, the quantum of back wages was confined to 50%, stating: It is an undisputed fact that the workman had since attained age of superannuation and the question of reinstatement does not arise. Because of the award, the respondent workman will be entitled to his retiral benefits like gratuity, etc. and accepting the statement of the learned Senior Counsel for the appellant Mills that it is undergoing a financial crisis, on the facts of this case we think it appropriate that the full back wages granted by the Labour Court be reduced to 50% of the back wages.***
21. Giving a realistic approach to the matter and in spite of all these circumstances we are restricting ourselves to the question of 50% of the total back wages. Although services of the respondent have been terminated unjustifiably and illegally, it itself does not create a right of reinstatement with full employment benefits and full back wages.***"
21. The Award is passed in the above terms and reference in favour of the workman/claimant by awarding him reinstatement and 50% of the back wages from the order of filing of the claim till the date of order. Copy of the Award be sent to ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 18 out of 19 the Secretary (Labour) Government of National Capital Territory of Delhi for necessary action. One copy of the Award be sent to Senior Civil Judge (Central) District, Delhi in compliance of provision of section 11 (10) of the Act as mentioned in ID (Amendment) Act 2010. The award be also sent to server (www.delhicourts.nic.in). The file be consigned to record room. Announced in the Open Court on 7th February, 2012 (Satinder Kumar Gautam) Additional District & Sessions Judge, Presiding Officer, Labour Court, Karkardooma Courts, Delhi.
ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 19 out of 19 I am of the considered view that Management is still continuing with the business so in the pursuits of justice it is awarded that the workman be reinstated in the service on the same post with continuity of service buy without back wages. Under the present circumstances of the case Management is directed to pay a compensation of Rs.15,000/ to the workman within three months of the award becoming enforceable failing which workman shall be entitled to recover the compensation amount with interest @ 9% per annum from the date of award. Accordingly, Award stands passed as per the foregoing findings. ID No. 362/10 Joginder Singh Vs. Jamia Hamdard Page No. 20 out of 19