Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 8, Cited by 0]

Delhi District Court

Sh. Vijay Kumar vs M/S Richlook Garments Pvt. Ltd on 3 January, 2019

     IN THE COURT OF SHRI UMED SINGH GREWAL,
        PILOT COURT / POLC­XVII, ROOM NO. 514:
             DWARKA COURTS: NEW DELHI

LID No. 4/2016
In the matter of:­

Sh. Vijay Kumar
S/o Late Sh. Naresh Kumar
R/o L­113, Raghubir Nagar,
New Delhi­110027
Through Sh. Avdhesh Singh,
771, Pocket No. 1, Paschimpuri,
New Delhi­110063.                                ..............Workman
                           Versus

M/s Richlook Garments Pvt. Ltd.
J­27, Udyog Nagar Piragarhi,
New Delhi­110041.                            ..........Management


DATE OF INSTITUTION                         :         13.09.2011
DATE OF RECEIVING IN THIS COURT             :         21.12.2018
DATE ON WHICH AWARD RESERVED                 :        22.12.2018
DATE ON WHICH AWARD PASSED                  :         03.01.2019

A W A R D :­
1.

This is a Direct Industrial Dispute filed by the workman under the Industrial Disputes Act, 1947 (hereinafter referred as "the Act") for reinstatement with continuity of service and full back wages.

LID No. 4/2016 1/20

2. Claimant's case is that the main business of the management is manufacturing garments and he had joined it on 01.01.2004 at the last drawn salary of Rs. 4500/­ per month. His service record was neat, clean and smooth and there was no complaint against him. The management had appointed more than 100 workers and hence, his service was governed by model standing orders. Most of the employees of the management became members of M/s Readymade Garments Export Employees Union because the management did not use to provide legal facilities. In order to got legal facilities, the union got the general checking done in the factory of the management on 27.08.2010. They presented an Industrial Dispute before Conciliation Officer on 08.09.2010 regarding demands of date of appointment and designation. The management started putting pressure upon him and co­workers to disassociate from the union and to withdraw the case. They refused due to which the management got annoyed and terminated his service on 20.12.2010 and withheld earned wages for the months of November and December 2010. They had filed a complaint through union in Labour Department pursuant to which Mr. Sunil Goel and Mr. Rajesh Sharma had appeared on behalf of management and admitted before Labour Officer Mr. Amardeep and Labour Inspector Mr. Rajesh Sharma that they would take claimant back on duty on 29.12.2010. but he was not allowed to work on 29.12.2010 LID No. 4/2016 2/20 by Sh. Shiv Rattan Goel, Sh. Anup Gupta and Sh. Sunil Goel. The management was biased and hence he was suspended during inquiry and false charge­sheet dated 30.12.2010 was issued. The management changed service conditions by asking him to mark presence everyday at 12:00 noon and at 04:00 p.m. He was not paid suspension allowance due to which he could not defend the case effectively. Initially, the management appointed an illegal inquiry committee to probe charges against him and after realizing mistake, it appointed Mr. Goldy Sehgal as inquiry officer who was highly biased against him and he violated the principles of natural justice by not supplying the requisite documents to him. He was not allowed to be represented by a union representative Mr. Raj Kumar. He was not allowed to participate in inquiry proceedings so that evidence could be recorded in his absence. Disciplinary officer had already made up his mind to terminate his service without hearing him. Only due to that reason, copy of inquiry report was not given to him and hence, he was not able to comment on the same before termination. His service was terminated vide undated letter dispatched on 22.03.2011. On 11.04.2011, he made complaint through union to the Labour Department in order to know date of his dismissal but the management did not cooperate by providing him the dated letter of termination. His service was terminated in violation to the provisions of Section 33 of ID Act 1947 because of LID No. 4/2016 3/20 his union activities. He is jobless since termination.

3. Written statement is to the effect that the claimant was not working with it w.e.f. 01.01.2004 at the last drawn salary of Rs. 4500/­ per month. Rather, he had started working since 20.07.2007 at the last drawn salary of Rs. 5280/­ per month. He had filed a case dated 20.12.2010 before Labour Department wherein the year of his appointment was mentioned as 2006. He was complicit in unfair labour practice i.e. abusing his seniors and colleagues, threatening to kill them and bringing outsiders forcibly in the premises. The management had received several complaints against him from colleagues and senior officials from time to time regarding his acts of violence, unlawful activities and interruption in factory's activities. He was warned several times but he did not mend his business. When he was given show cause notice for unlawful activities, he started absenting from duty. Several police complaints were lodged against him, co­workers and office bearers of M/s Readymade Garments Export Employees Union. He along with co­ workers had resorted to unlawful activities. In this background, the management was left with no option than to approach the Hon'ble Court for injunction and consequently, the­then Civil Judge Ms. Shefali Sharma passed an order restraining him, co­workers and union from Staging any dharna, demonstration etc. within the radius LID No. 4/2016 4/20 of 100 meters from the factory and residence of management. Distance was maintained/ confirmed with certain modifications in appeal. Termination of his service on 20.12.2010 and withholding of earned wages from November and December 2010 have been denied.

As the claimant was involved in several acts of indiscipline and was absent unauthorizedly, he was suspended and served with charge­sheet. A register was kept outside the factory for the suspended employees to mark their presence. The register was kept outside due to fear of the claimant and co­employees as they might have created ruckus inside the premises. The claimant did not turn up to mark his presence and that facts can be verified from CCTV camera installed on the gate. Initially, inquiry committee of four persons was formed to inquire into the charges against claimant. All four members were qualified senior officers of the management and were fully competent to probe the charges. But the office bearers of the union objected to constitution of the committee before ALC, Karampura and hence, the committee was dissolved and an educated, honest and independent person Mr. Goldy Sehgal was appointed as inquiry officer. Demand of dissolution of inquiry committee was merely a pressure tactic of the union as the claimant did not appear before the Inquiry Officer who was appointed after LID No. 4/2016 5/20 dissolution of inquiry committee. As he never appeared before the Inquiry Officer, there was no question of any demand by him for any document. Moreover, the relevant documents and charge­sheet had already been supplied to him before initiation of the inquiry. The Inquiry Officer had no option than to proceed him ex­parte. The claimant was found guilty of the misconduct. The management also agreed with the report of the Inquiry Officer and dismissed him from service and dismissal letter was posted to the claimant on 22.03.2011 mentioning therein that the Inquiry Officer had found him guilty of mis­conduct in report dated 19.03.2011. Every correspondence relating to inquiry proceedings was communicated to the claimant and also to union office and Labour Department office. It is further mentioned that the claimant had taken an advance of Rs. 32,450/­. His wages against loan were adjusted and after adjustment, balance of Rs. 29006/­ is still due against him for which a notice was sent but he did not pay a single penny. It is mentioned lastly that if the domestic inquiry proceedings was set aside, the management be given liberty to prove mis­conduct of the claimant by leading evidence in the court.

4. Following issues were framed on 07.02.2012.

1. Whether the enquiry held by the Management was as fair and proper?OPW?OPM LID No. 4/2016 6/20

2. Whether the services of the workman were terminated illegally and/ or unjustifiably by the management?OPW.

3. Relief, if any.

5. In order to get declared inquiry invalid, the claimant examined himself as WW­1/A mentioning all the facts stated in statement of claim. He relied upon documents from Ex. WW­1/1 to Ex. WW­1/4.

6. On inquiry issue, the management examined two witnesses.

MW­1 Mr. Rajesh Sharma, Accounts Manager, deposed that as per record, the claimant along with co­workers and office bearers of the union had resorted to unlawful activities by interrupting the production and restraining the ingress and outgress of co­ employees. He was involved in stone pelting also. The management was constrained to take an injunction order against workers from the court of Ms. Shefali Sharma, the­then Civil Judge. Also, he was absent from duty unauthorizedly. Due to so many acts of misconduct, domestic inquiry was initiated and the claimant was asked to join the same which he did not join deliberately and was proceeded ex­parte. The inquiry officer was found him guilty and the management terminated his service. He relied upon documents LID No. 4/2016 7/20 from Ex. MW­1/1 to Ex. MW­1/7.

MW­2 Mr. Goldy Sehgal deposed that he was as independent HR consultant and was appointed by the management as inquiry officer to probe charges against claimant. After appointment, he served claimant with notice of inquiry asking him to join the same. But, despite service and sufficient opportunity, he did not participate and was proceeded ex­parte. He had given fair and proper opportunity of hearing to both parties and also observed the principles of natural justice. After conclusion of evidence, he went through the material on record and evidence and found claimant guilty of mis­conduct and submitted the report with the management.

7. On merit, the management examined its Chief Financial Officer Mr. Sunil Goel as MW­3 who deposed that after receipt of several complaints, he called claimant and co­workers and tried to make them understand but they do not budge. The management was suffering loss regularly due to claimant and office bearers of the union as neither they were working nor they were allowing others to work. They used to speak rudely to their seniors and also did not obey their command. They used to make machines out of order deliberately. He next deposed that the claimant and other workers had taken advance from the company which they were not LID No. 4/2016 8/20 repaying. Whenever they were asked by him to repay, they would talk in absurd manner by abusing and threatening that office bearers of the union would beat him. Several complaints Ex. MW­3/1 (colly 22 pages) were sent against them to police. As the allegations were grave, charge­sheet was given and domestic inquiry was conducted against him.

8. The claimant did not examine any witness on merit.

Issue no. 1:­

9. This issue has already been decided in favour of claimant and against management by the then POLC Mr. Anand Swaroop Aggarwal vide order dated 21.10.2014.

Issue no. 2:­

10. The management did not argue the case orally. It placed on record written arguments in which it is mentioned that the case be dismissed because the claimant did not approach the Conciliation Officer U/s 2 A (2) of ID Act 1947 before raising direct Industrial Dispute in this court. He cannot do so. On merit, not a single word has been mentioned in written arguments as to whether the management has proved the mis­conduct or not and if proved, how LID No. 4/2016 9/20 and where that proof exists.

On the other hand, Ld. ARW argued that the management did not take plea of section 2A (2) of ID Act in written statement. Alternatively, he argued that despite amendment in ID Act 1947 by Central Government by way of insertion of section 2A (2), the old section 10 (4A) (as amended by Delhi Government), still exists as both sections provide separate remedies and in this regard, he relied upon Rajendra Singh Vs. State Bank of India, LPA No. 716/2015, decided on 4th May, 2017 by Hon'ble High Court of Delhi. On merit, he argued that the management has failed to substantiate all seven allegations leveled in charge­sheet Ex. MW­ 1/5. He submitted that the management examined only one witness i.e. Mr. Sunil Goel to prove those charges but he did not depose the material particulars upon which the charges were founded. The charges deposed by him are general and vague without any specification. The documents produced by that witness are also short of proving the mis­conduct because those are only complaints to the police. The management did not place on record the action taken report of the police against claimant on those complaints. The management did not examine any senior officer or co­worker with whom the claimant had misbehaved or had abused.

LID No. 4/2016 10/20

11. Perusal of written statement shows that the management did not take the plea that the case of the claimant was barred by section 2A (2) of ID Act as he did not take recourse of the Conciliation Officer before raising Direct Industrial Dispute before this court. That plea is quite after thought.

Moreover, it was held by the Hon'ble High Court of Delhi in Rajendra Singh Vs. State Bank of India (supra) that section 2A (2) and section 10 (4A) of ID Act 1947 provide two separate remedies and it is in the sweet will of the worker under which of the section he wanted to invoke the jurisdiction of the Labour Court. It was further held that despite amendment by the Central Government in the form of section 2A (2), the section 10(4A) (as amended by Delhi Government) is still operative. Following were observations of the Hon'ble High Court:­

25. We have noted above that so far as Section 10(4A) of the Industrial Disputes Act is concerned, it is a legislative amendment which had been proposed by the Legislative Assembly of the Government of NCT of Delhi which was reserved for consideration of the President and stands enacted only after the assent of the President was received on 13th July, 2003. In view of the position declared by the first proviso to clause 3C of Article 239AA, so far as Section 10(4A) is concerned, the same would prevail in the LID No. 4/2016 11/20 National Capital Territory of Delhi.

26. We also note that, so far as Section 10(4A) of the Industrial Disputes Act, 1947 and Section 2A of the enactment are concerned, they provide two different remedies to a workman who stands discharged/dismissed/retrenched for redressal of his grievance. Section 10(4A) enables a workman to directly approach the Labour Court or the Industrial Tribunal within a period of one year from the communication of the order of discharge/dismissal/retrenchment without taking recourse to the procedure prescribed under Section 10. On the other hand, by virtue of Section 2A, a dispute/difference between a workman and his employer connected with or arising out of discharge dismissal retrenchment or termination of service is deemed to be an industrial dispute. Furthermore, the workman is enabled to approach the Conciliation Officer within a period of three months from the occurrence and after expiry of three months from the date of so approaching him, the workman can make a further application directly to the Labour Court or Tribunal for adjudication of the dispute. That is to say, under Section 2A, the second option available to the workman does not have to await the references by the Conciliation Officer.

28. Even if it could be held that there was a repugnancy between them, by virtue of the operation of the proviso to Article 239AA(3) LID No. 4/2016 12/20

(c), Section 10(4A) being a law made by the Legislative Assembly of the Government of NCT of Delhi which was reserved for consideration of the President and having received his assent on 13th July, 2003 and stands enacted thereafter, would prevail over the central legislation.

In view of above discussion, the case cannot be discarded simply on the technicality that the claimant had not approached the Conciliation officer U/s 2A(2) of ID Act 1947 before invoking the jurisdiction of this court directly.

12. On merit the deposition of MW­3 Mr. Sunil Goel is as under:­ a. When he tried to make claimant and co­workers to understand, they were not ready to understand anything. b. The company suffered losses because neither they were working nor they were allowing others to work.

c. The workers spoke rudely to seniors and did not obey their command.

d. They made machines out of order deliberately. e. The workers had taken advance from the management and were not ready to pay the same. When he asked them to repay the advance, they would talk in absurd and abusive manner threatening LID No. 4/2016 13/20 him that he would be beaten by office bearers of their union.

As per charge­sheet Ex. MW­1/5 dated 30.12.2010, following are the charges against claimant:­ a. He along with co­workers was complicit in the slow down of the production. He was on unauthorized strike of three days. He used mobile phone and other gadgets during duty hours and whenever the senior officers asked him not to do so, he misbehaved with them by abusing.

b. He disobeyed the command of senior officers and misbehaved and abused them.

c. He was unauthorizedly absent since 01.12.2010. d. On 14.12.2010, he along with co­workers assembled outside the premises of the company, gheraoed it and did not allow co­ employees to go inside or to come outside. He pelted stones and when senior officers asked him not to do so, he did not budge. He along with others beat co­worker Jagbir Lakra who reported the matter to the police.

e. He instigated the co­workers on 20.12.2010 to gherao the company. During gherao, he spread violence by beating co­workers. f. On 29.12.2010, he along with Labour Inspector come to gate of the factory and instigated co­workers to work against interest of the management and when they refused, he threatened and abused LID No. 4/2016 14/20 them. Just after leaving of premises by Labour Inspector, he along with office bearers of the union pelted stone on co­workers due to which an employee namely Javed Khan sustained injuries. g. He made machines out of order deliberately several times due to which there was slow down in production.

13. Perusal of charge­sheet and above evidence of MW­3 show that the charges as well as evidence of MW­3 are general and vague. It has not been specified when the claimant was complicity in slowing down of production. It has also not been deposed on which days he was on unauthorized strike. The date, month and year of misuse of mobile phone and other gadgets have also not been deposed regarding charge no. 2. MW­3 did not name the officer of the management whose order was violated by the claimant. Date, month and year of violation have also not been mentioned.

In support of charge no. 3, the management has placed on record letter dated 13.12.2010 written to the claimant. But contents of that letter are not in conformity with charge no. 3 because as per charge no. 3, he was continuously absent since 01.12.2010 but as per letter dated 13.12.2010, he was absent on several days from 01.12.2010 till 11.12.2010.

LID No. 4/2016 15/20

Regarding charge no. 4, the management is heavily relying upon complaint appearing at page no. 4 of Ex. MW­3/1 given by co­worker Jagbir Lakra to PS Mianwali Nagar in which it is mentioned that some workers of the management were engaged in unionbaji and that on 14.12.2010, some workers gave a stick blow on the back of his head. The management did not examine Jagbir Lakra to prove the complaint and the incident. It did not place on record any FIR etc. registered by the police on that complaint. It also did not file the charge­sheet on that complaint. There is nothing on the file which may suggest that the claimant was arrested by the police on that complaint. Perusal of complaint shows that the name of the claimant is missing therein. So, it has failed to prove charge no. 4 also.

In respect of charge­sheet no. 5, the management is relying upon complaint dated 20.12.2010 appearing at page no. 17 of Ex. MW­3/1 given to SHO PS Mianwali. Again, the management has not placed on record copy of FIR or charge­sheet registered by the police on that complaint. There is nothing on the file which may suggest that the police had arrested the claimant. In fact, name of the claimant is missing in that complaint. So, the management has failed to prove charge no. 5 also.

LID No. 4/2016 16/20

Regarding charge no. 6, the management is relying upon complaint dated 29.12.2010 appearing at page no. 19 of Ex. MW­ 3/1 addressed to SHO PS Mianwali in which the name of the claimant is appearing as provocateur. It is mentioned in that complaint that on 29.12.2010 at about 03:15 p.m., some workers of the company abused the officers and threw stones and bricks in the factory premises. HC Rajender Singh came there after 15­20 minutes but by that time, everybody had fled away. Again, the management has not placed on record the FIR and charge­sheet registered by police upon that complaint. Perusal of the complaint shows that the number of provocateurs is 17 and number of persons who actually committed offence is 7. It is quite unnatural because generally the strength of provocateurs is meager as compared to the strength of the persons who actually commit offence. The management did not examine HC Rajender Singh who had visited the spot 15­20 minutes after the incident. It also did not examine the then Labour Inspector with whom workers had gone to the premises of the management. It is the case of the management that a worker namely Javed Khan had sustained injury due to pelting of stones. But Javed Khan had not been examined. His MLC has also not been placed on record. So, the management has failed to prove that charge also.

LID No. 4/2016 17/20

The management did not place on record any document to substantiate the allegation that the claimant had made machines out of order deliberately several times. The date, month and year of mis­conduct has neither been specified in charge­sheet nor deposed by MW­3. So, the management has failed to prove that charge also.

14. In view of above discussion, it is held that management has failed to substantiate even a single charge against the claimant. So, he was removed from service by the management illegally. This issue is decided against the management and in favour of the claimant.

Issue no. 3:­

15. The workman claimed that he had joined the management on 01.01.2004 but he did not place on record any document to prove that fact. On the other hand, management's plea is that the claimant had joined it only on 20.07.2007. On the strength of that admission it is held that the claimant had started working with management w.e.f. 20.07.2007. The onus of proof of length of service is always upon the workman claimant but he has failed to prove that he had joined the management on 01.01.2004.

LID No. 4/2016 18/20

His plea is that his service was terminated on 20.12.2010. On the other hand, the management's case is that the Inquiry Officer had given his report on 19.03.2011 and a letter was dispatched to the claimant on 22.03.2011 to intimate him that his service has been terminated. The claimant has not placed on record any termination letter. On the other hand, the management has filed the letter posted to the claimant on 22.03.2011 in which it is mentioned that the Inquiry Officer had submitted report on 19.03.2011 in which he had found claimant guilty of the charges. So, it is held that the claimant's service was terminated on 22.03.2011. In this way, the length of his service comes out from 20.07.2007 to 22.03.2011 i.e. for about 4 years.

Taking into account the facts that claimant's service was terminated about 7 years ago and that he had served the management only for 4 years, this court is of the view that relief of reinstatement would not be proper for any of the party. So, that relief is declined.

In view of length of service of about 4 years and last drawn salary of Rs. 5,280/­/­, the management is directed to pay him lumpsum compensation of Rs. 1,00,000/­ (Rs. One Lakh). The management is directed to pay that amount to claimant within one LID No. 4/2016 19/20 month from today failing which it shall be liable to pay interest @ 9% per annum from today till realization. Parties to bear their own costs. Award is passed accordingly.

16. The requisite number of copies be sent to the Govt. of NCT of Delhi for publication of the award. File be consigned to record room.

Dictated & announced (UMED SINGH GREWAL) in the open Court on 03.01.2019. PILOT COURT/ POLC­XVII DWARKA COURTS, NEW DELHI LID No. 4/2016 20/20