Delhi District Court
Sh Krishan Chakervorty vs Ipgcl on 10 September, 2024
IN THE COURT OF
PRESIDING OFFICER LABOUR COURT-01:
ROUSE AVENUE DISTRICT COURT: NEW DELHI
Presided Over by: Ms. Pooja Aggarwal, DHJS
LC No. 2424/2016 (Old No. 25/2009)
CNR No. DLCT13-000575-2009
In the matter of:
Mr. Krishna Chakravorty
S/o Late Sh. Pyare Lal,
R/o C-57, Ganesh Nagar,
Pandav Nagar Complex, Delhi-110092.
.....Workman
Details of one immediate family member of the workman:
Name: Smt. Rakhi (Wife)
Mobile No. : 9818221393
Details of Authorized Representative of workman:
Name : Mr. Salim A. Inamdar.
Mobile : 9971136830.
VERSUS
Indraprastha Power Generation Co. Ltd.,
Rajghat Power Generation Co. Ltd.,
Ring Road, New Delhi-110026. .....Management
Details of the Authorized Representative of the management:
Name : Mr. Vinay Sabharwal ,
Mobile no. 9810080522
E mail ID of management: [email protected]
Date of Filing of Claim : 26.03.2009
Date of Final Arguments : 05.09.2024
Date of Award : 10.09.2024
LC No. 2424/16 (Old No. 25/2009)
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AWARD
1. A statement of claim was filed by the workman in March
2009, under Section 10 (4) of the Industrial Disputes Act,
1947 seeking declaration to the effect that enquiry report
was illegal, arbitrary, vitiated, etc. and further seeking
declaration that the final order dated 02.04.2008 was
illegal, null and void with consequential relief of
reinstatement with all consequential benefits, back wages
and seniority as per rules.
2. After completion of pleadings and framing of issues,
initially the workman tendered his evidence affidavit i.e.
Ex. WW1/A on all issues and also relied upon the
documents i.e. Mark A and Ex WW1/1 to Ex WW1/6 as
well as Ex. WW1/8 already marked in DID No. 24/2009.
3. Thereafter, on 09.08.2010 an application under Order VI
Rule 17 CPC was filed on behalf of the workman seeking
to amend the statement of claim as during the pendency of
the dispute, the management had converted the penalty of
termination to another major penalty.
4. Before the disposal of the said application, vide order
dated 22.01.2011, the following preliminary issue was
framed by the Ld Predecessor:
"Whether in view of the averments made in the application
under Order 6 Rule 17 by the workman that the termination
of the workman has been reviewed and he has been reinstated
by the management, the present dispute/petition continues to
be maintainable? OPW."
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5. The said preliminary issue was decided in favour of the
workman and against the management by the Ld
Predecessor vide order dated 14.02.2011 and vide order
dated 21.01.2013 passed by the Hon'ble Delhi High Court
in W.P. (C) 5553/2011, it was held that the Labour Court
had the jurisdiction to proceed with the claim of the
workman under Section 10(4A) of the Industrial Disputes
Act despite reduction in the penalty from that of dismissal
to reduction in time scale.
6. The application under Order VI Rule 17 CPC was allowed
by the Ld Predecessor vide order dated 26.04.2011
whereafter the workman filed his amended statement of
claim.
Facts as per the amended statement of claim
7. In brief, it is the case of the workman that he was working
as A.G.III at I.P. Station under the control of the
management of IPGCL (GENCO) and after Delhi Vidyut
Board was unbundled into six different companies i.e.
IPGCL (GENCO), Delhi Transco Ltd. (DTL), Delhi Power
Co. Ltd. (DPCL) and three DISCOMS i.e. BSES YPL,
BSES RPL and NDPL w.e.f. 01.07.2002, he was
transferred to the present management and became its
employee.
8. It is also the case of the workman that a Tripartite
Agreement was executed between Govt. of NCT of Delhi,
Delhi Vidyut Board and its employees through Joint
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Action Committee defining that the service conditions of
the employees of the DVB to be transferred to the
Successor Power Utilities will remain the same /
unchanged and will be governed as on the date of
unbundling i.e. 30.06.2002. It has also been asserted that
the Delhi State Electricity Workers Union (hereinafter
referred to as 'Union') was the only recognized union by
the management as per Tripartite Agreement which
continued to be recognized even after unbundling and the
workman being the District Secretary of the union was a
protected workman.
9. It has been asserted that for collective bargaining, the
Union had organized a peaceful and legal protest/ Dharna
w.e.f. 13.07.2006, under due intimation to the management
which was never objected to by the management nor any
action was taken under intimation to the Union declaring it
as illegal or unlawful. It has been further asserted that the
workman had availed Earned Leaves w.e.f. 12.07.2006 to
27.07.2006 i.e. during currency of Dharna being the
elected Central Officer Bearer as Organizing Secretary of
the Union, in the election held on 02.06.2006 under the
auspicious of Hon'ble DHC under the control of its
observer.
10.It has also been asserted that a Writ Petition was filed by
the management before the Hon'ble High Court of Delhi to
restrain the Union from holding such Dharna/ Protest
outside their office on the road, and, the Hon'ble High
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Court of Delhi ordered ex-parte to shift the place of
Dharna/ Protest.
11.It has been further asserted that on 25.07.2006, a
memorandum was issued to the workman by Sh. N.P.
Singh, GM (HR) to the effect that he had participated in
the Dharna since 13.07.2006 continuously and was found
to have indulged in slogan shouting and making
derogatory remarks against Sh. N.P. Singh.
12.It has further been asserted that the management, being
annoyed by the said Dharna with a malafide intention / to
take revenge from the Union/ its office bearers, had
suspended five officials/ office bearers including the
workman conveyed vide order dated 15.09.2006 and also
issued chargesheet for major penalty proceedings against
14 employees/office bearers under C.C.S. (CCA) Rules,
1965 and even though the workman replied to the memo
dated 25.07.2006 vide his letter dated 02.08.2006, he was
placed under suspension vide order dated 15.09.2006 and
in the chargesheet/ memo dated 09.11.2006, the following
charge was levelled against him under the purported
violation of Rule 3 (1) read with Rule 7 (ii) of CCS
(Conduct) Rules 1964.
"That the said Shri Krishan Chakervorty, I.P. Station, while
working as AG-III in I.P. Station during the year 2006
participated in an illegal sit and on dharna organized in front
of himadri building Rajghat Power House on 13.07.06 to
25.07.06 during the said dharna a Shri Rama Kant Sharma
indulged in slogan shouting against senior functionaries of
IPGCL/PPCL.
By exhibiting above misconducts, Sh. Krishan Chakervorty,
AG-III has acted in a manner highly unbecoming of an
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employee of IPGCL/PPCL, thereby contravening rule 3(1)
(iii) read with Rule 7 (ii) of the CCS (Conduct), Rules, 1964,
as applicable to the employees of IPGCL/PPCL."
13.It has been further asserted that the chargesheet was duly
replied to by the workman, but without considering it, a
domestic inquiry was ordered to be conducted against him
and Sh. Raghubir Singh, Dy. Manager (HR) was appointed
as enquiry officer vide order dated 28.03.2007 of the
complainant Mr. N.P. Singh. It has also been asserted that
the enquiry conducted was biased, arbitrary, against the
principles of natural justice, against the rules and based on
no evidence.
14.It has been further asserted that the enquiry report
submitted by the enquiry officer was forwarded to the
workman vide letter dated 21.01.2008 for making
representations, if any, upon which the workman submitted
his representation dated 21.02.2008, yet he was dismissed
from service by the management illegally, arbitrarily, with
a vindictive and biased mind vide order dated 02.04.2008.
15.It has been further asserted that even the appeal preferred
by the workman to the Managing Director was returned
without valid reasons and the workman was directed to
prefer his appeal to the Director (HR), who directed the
workman for personal hearing on various dates but
thereafter dismissed the appeal on 13.01.2009 after the
workman served a legal notice upon the CMD of the
management on 09.01.2009 and even the review petition
filed by the workman against the order of the Director
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(HR) was returned without taking any action.
16.It has been further asserted that the dismissal of the
workman from service vide order dated 02.04.2008 is a
mere act of victimization against the workman for sitting
on peaceful Dharna from platform of a regd. Trade Union.
It has also been further asserted that punishment is highly
disproportionate and is also discriminatory as out of 13
officials against whom the Disciplinary Proceedings were
initiated for the alleged act of Dharna, only 4 workmen
including workman herein had been given severest
punishment of dismissal from the services of IPGCL,
whereas Sh. Rajbir Sharma, AG.III, E.No. 7234 of DTL,
another power utility carved out of erstwhile DVB,
working under the control of GNCTD, was "Censured"
while others were exhonerated.
17.It has also been asserted that the workman is unemployed
after his dismissal and not able to get any job due to
penalty order dated 02.04.2008 which disqualifies him for
any future employment.
18.It has been further asserted that the management had
issued an office order dated 30.03.2010, thereby
converting/ reducing the major penalty of dismissal from
service to that of major penalty of reduction to a lower
stage in the time scale of pay by five stages for a period of
3 years with cumulative effect with further direction that
he shall not earn his annual increments of pay during the
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said period of reduction and the reduction will have the
effect of postponing of his future increments of pay and
that for the intervening period between the date of
dismissal from the service and the date of rejoining his
duty shall be treated as non-duty for all purposes and he
will be entitled only 50% of the pay and allowances for the
said period.
19.It has been further asserted that the workman was allowed
to resume his duty w.e.f. 30.03.2010 but even this
punishment was highly disproportionate and
discriminatory.
20.The workman also amended the prayer clause now also
seeking that the order dated 30.03.2010 be declared illegal,
ultra vires, arbitrary and null and void and further seeking
that the period of dismissal from service i.e. 02.04.2008 till
29.03.2010 reinstatement of service on may be treated as
spent on duty for all intents and purposes and the
management be directed to pay full pay and allowances for
the said period instead of 50%, along with the cost and
compensation for injuries and sufferings for illegal action.
Facts as per the amended written statement
21.In the amended written statement, the management
reiterated the various preliminary objections including as
to the claim not being maintainable; as to no prior demand
having been validly raised by workman before filing of
statement of claim with the Conciliation Officer so there
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was no question of raising any industrial dispute; as to the
Delhi State Electricity Workers' Union not having been
recognized by the management and it having no locus
standi to represent the workman on which account the
statement of claim was liable to be rejected.
22.On merits it has been asserted that the workman
participated in the illegal sit-on (Dharna) organized in
front of Himadri Building, Rajghat w.e.f. 13.07.2006 to
25.07.2006 during which he indulged in slogan shouting,
using derogatory remarks against senior functionaries of
the management. It has been further asserted that in the
departmental enquiry, the charge was wholly proved by the
Enquiring Authority and that it was after considering all
the facts and circumstances, that the competent
disciplinary authority had imposed the penalty of dismissal
from service.
23.It has been reiterated that neither the Union was
recognized by the management nor the workman ever
recognized as a Protected Workman under the Industrial
Disputes Act and it has also been asserted that he was also
not a member of the said Union or a District Chairman or
was Deputy Chairman, as alleged.
24.The management has not denied the execution of tripartite
agreement but it has been asserted that after unbundling,
new legal entities have been created and the management
company being a newly created company was a distinct
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legal entity from Delhi Vidyut Board under the Companies
Act and there was no question of the Union having been
continued as a recognized union.
25.It has also been asserted that neither prior intimation was
given to the management about the protest/dharna nor the
Dharna was peaceful, legal or justified. It has been
asserted that repeated warnings were given not to continue
with the Dharna and even legal action was taken against
the same. It has also been asserted that no collective
bargaining was involved; that the ingress and egress was
disturbed, filthy abusive slogans shouted and peaceful
working of the management was disturbed on account of
the so called Dharna and that such protests could never be
recognized as a valid industrial action under the
Constitution of India.
26.The factum of filing of Writ Petition before the Hon'ble
Delhi High Court has been admitted to be a matter of
record and it has been asserted that Hon'ble High Court
also gave directions to the Union and other persons not to
carry out illegal activities on the spot, nor to carry out the
illegal activities of slogan shouting etc. and not to disturb
the peaceful atmosphere etc.
27.It has been further asserted that the charges levelled
against the workman were bonafide and genuine which
were found to be proved in the Departmental Enquiry.
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28.It has been further asserted that the memorandum dated
25.07.2006 was issued by the competent disciplinary
authority i.e. GM (HR) as the workman has participated in
the illegal sit-on (dharna pradarshan) organized in front of
Himadri Building Rajghat w.e.f. 13.07.2006 to 25.07.2006
and during the said Dharna, he indulged in slogan shouting
against senior functionaries of the management and that
the suspension order dated 15.09.2006 was in accordance
with the provisions of CCS (CCA) Rules, wherein there
was no stipulation to make the reference to memorandum
dated 25.07.2006 or reply dated 02.08.2006 submitted by
the workman thereto.
29.It has been further asserted that the punishment having
been reviewed upon the request of the workman in his
favour, the workman was not entitled to challenge the
same. All other averments made in the amended statement
of claim were denied by the management on merits.
Facts asserted in rejoinder to amended written statement
30.In the rejoinder, it has been asserted that workman had
filed this dispute himself under section 10(4) of the ID Act
through DSEW Union having registration no. 36 from the
Registrar of the Trade Unions, Delhi and the management
had not referred to any withdrawal or cancellation of
recognition of the Union in question.
31.It has also been asserted that workman had participated in
the legal Dharna w.e.f. 13.07.2006 to 27.07.2006 when he
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had availed leave w.e.f. 13.07.2006 to 27.07.2006 which
had been sanctioned by the competent authority.
32.It has been reiterated that the organization of a peaceful
and legal protest/Dharna w.e.f. 13.07.2006 to 27.07.2006
was never objected by the management in any of its
communication to the union and the use of abusive
language by the workers against any officers of the
management, or disturbance of ingress and egress have
been denied. It has also been asserted that the Hon'ble
Delhi High Court had only ordered for shifting the place of
dharna/protest which dharna/protest was not illegal. All the
other averments made in the amended written statement
have been denied and the contents of written statement of
claim have been reaffirmed.
Issues
33.Vide order dated 11.03.2015, Ld. Predecessor recast the
issues as under:
1. Whether there was a fair and proper enquiry in
accordance with the principles of natural justice and
the service rules governing the workman? OPW
2. Whether the workman proves that there was
victimisation and unfair labour practice by the
management?
3. What relief.
4. Whether the punishment awarded to the workman
vide order dated 30.03.2010 is valid? OPW
34.Vide order dated 11.03.2015 itself, the issue no.1 was
directed to be treated as a preliminary issue which would
be decided first.
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35.On the enquiry issue, the workman examined only himself
and tendered his evidence by way of affidavit i.e. Ex.
WW1/A relying upon document Mark A to Mark Q
whereas the management examined MW1 Raghuvir Singh
i.e. the enquiry officer who tendered his evidence by way
of affidavit i.e. Ex.MW1/A and also relied upon the letter
vide which he was appointed as enquiry officer i.e.
Ex.MW1/1 and the enquiry record along with the
chargesheet, reply to the chargesheet, enquiry proceedings
and enquiry report i.e. Ex.MW1/2. These witnesses were
duly cross-examined.
36.Vide order dated 23.12.2019, the Ld. Predecessor decided
the enquiry issue in favour of the workman and against the
management and thereafter, vide order dated 19.02.2021
passed by the Ld Predecessor, the management was
directed to lead its evidence first.
Evidence
37.The management examined two witnesses i.e. MW2 M.K.
Singh and MW3 Rishi Kumar Rathi who testified on
similar lines and were duly cross-examined on behalf of
the workman whereas the workman examined only
himself, tendering his evidence by way of affidavit i.e. Ex.
WW1/A1 and was duly cross-examined on behalf of the
management.
Final Arguments
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38.Final arguments were then advanced by Mr. Salim A.
Inamdar, Ld. Authorized Representative for the workman
and Mr. Vinay Sabharwal, Ld. Authorized Representative
for the management.
39.It has been argued on behalf of the workman that as the
enquiry issue has been decided against the management, it
was for the management to prove the charges against the
workman on merits but the testimony of MW2 M.K. Singh
and MW3 Rishi Kumar Rathi was vague without any
particulars or details of the slogans purportedly shouted
and even the name of the officer against whom derogatory
slogans were allegedly raised has not been testified to. It
has been argued that the management witnesses have not
named the workman; they have not proved any public
nuisance to have been caused and they have also not
elaborated or given details as to how the activities of the
management company were hampered by the dharna. It
has been further argued that the evidence brought on
record by the management is completely evasive and
without any basis as the management has failed to even
remotely connect the workman with the charges as levelled
against him in the chargesheet.
40.It has been further argued that mere participation in dharna
could not be termed as misconduct and that participation in
dharma by the workman was along with other colleagues/
employee of management, who were never charged or they
were exonerated of all charges levelled against them which
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indicated victimization. It has also been argued that the
management has failed to establish the misconduct and
even the modified punishment granted to the workman
vide order dated 30.03.2010 was not justified. Hence the
claim be allowed.
41.Ld. AR for the workman has relied upon the following
judgments in support of his arguments:
1. The Workmen of M/s Firestone Tyre and Rubber Co. of
India (Pvt.) Ltd. vs. The Management and Others
(1973) 1 SCC 813.
2. Union of India Vs. H.C. Goel 1963 SCC Online SC 16
3. Kuldeep Singh Vs. Commissioner of Police and Others
(1999) 2 SCC 10.
4. Anil Gilurker Vs. Bilaspur Raipur Kshetriya Gramin
Bank and Another (2011) 14 SCC 379.
5. Union of India and Ors. Vs. Gyan Ghand Chattar
(2009) 12 SCC 78
42.On the other hand, Ld. AR for the management has argued
that as the workman has participated in the illegal dharna
and indulged in slogan shouting and making derogatory
remarks against senior officials, there was violation of
Rule 7 of CCS Rules and that there was no victimization as
proven charges are antithesis to the allegation of
bias/victimization, hence the claim be dismissed.
43.Ld. AR for the Management has also relied upon the
following judgments in support of his arguments:
1. Delhi Cloth & General Mills Vs. Ludh Budh Singh
(1972) 3 SCR 29.
2. M/s L & T Komatsu Ltd. Vs. N. Udaykumar AIR 2006
SC 2015.
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For Dharna, Demonstrations and Slogan shouting as
misconduct
3. Krishnakumar R V The Union of India, by the Hon'ble
Central Administrative Tribunal in O.A. No. 240 of
2010.
4. The Superintendent, Central Prison, Fatehgarh Vs. Ram
Manohar Lohia, AIR 1960 SC 633.
5. Kamleshwar Prasad and Ors. Vs. The State of Bihar
and Another, AIR 1962 SC 1166.
On Preponderance of Probability
6. Employer's Management West Bokaro Colliery of
Tisco ltd. vs. Concerned workman, Ram Parvesh Singh,
by the Hon'ble Supreme Court of India in Appeal
(Civil) 892 of 2008.
On Proven charges are antithesis to the allegation of
bias/ victimization.
7. Bharat Iron Works Vs Bhagubhai Bhalubhai Patel and
others, by the Hon'ble Supreme Court of India in Civil
Appeal No. 835 of 1975.
On Vagueness of Charges
8. Anant R Kulkarni Vs Y.P. Education Society & Ors, by
the Hon'ble Supreme Court of India in Civil Appeal
No. 3935 of 2013.
9. Biecco Lawrie Ltd. & Anr Vs State of Bengal, AIR
2006 SC 3096.
10. Toshniwal Brothers Private Ltd. Vs. Bir Singh and Ors.,
ILR 1973 Delhi 319.
Issue Wise Findings
44.The final arguments as advanced have been carefully
considered along with the evidence on record and after
careful consideration of the same, issue wise findings are
as under:
Issue No. 1: Whether there was a fair and proper
enquiry in accordance with the principles of natural
justice and the service rules governing the workman?
OPW
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45.This issue has already been decided by the Ld Predecessor,
in favour of the workman and against the management
vide order dated 23.12.2019.
Issue No. 2: Whether the workman proves that
there was victimisation and unfair labour practice
by the management?
And
Issue No. 4: Whether the punishment awarded to
the workman vide order dated 30.03.2010 is
valid? OPW
46.Both these issues are being taken up together for the sake
of convenience as they involve inter-connected facts. It is a
settled proposition of law that a plea is to be proved by the
party who has set up the same. (Reliance for this
interpretation is placed upon the judgment of the Hon'ble
Delhi High Court in Automobile Association of Upper
India v. P.O. Labour Court II, 2006 SCC OnLine Del 456).
47.In the present case, as it is the management who has
asserted that the punishment awarded to the workman vide
order dated 30.03.2010 is valid, it was for the management
to prove the same whereas it was for the workman to prove
that there was victimisation and unfair labour practice by
the management.
48.As per the amended pleadings, the management had
conducted a domestic enquiry against the workman after
which he had initially been dismissed but thereafter, vide
order dated 30.03.2010 passed by the management, his
dismissal was reviewed and another major penalty was
passed.
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49.A perusal of the order dated 30.03.2010 reveals that by
virtue of the same, the major penalty of dismissal from
service was reduced to that of "reduction to a lower stage
in the time scale of pay by three stages for a period of 3
years with cumulative effect with further direction that he
shall not earn his annual increments of pay during the said
period of reduction and the reduction will have the effect
of postponing his future increments of pay" and it was also
ordered that the intervening period between the date of
dismissal from the service and the date of his rejoining
duty shall be treated as non-duty for all purposes and he
will be entitled only to 50% of the pay and allowances for
the said period.
50.As already noted, the enquiry as conducted by the
management, has been set aside vide order dated
23.12.2009 passed by the Ld Predecessor. Hence, now it
was for the management to lead fresh/ independent
evidence to prove the misconduct on the part of the
workman and it could not rely on the enquiry proceedings.
51.Strength for this interpretation is drawn from the judgment
in Neeta Kaplish v. Presiding Officer, Labour Court,
(1999) 1 SCC 517 wherein the Hon'ble Supreme Court,
considered various judgments, including Workmen of
Firestone Tyre & Rubber Co. of India (P) Ltd., v.
Management, (1973) 1 SCC 813) and observed that:
"24. In view of the above, the legal position as emerges out is
that in all cases where enquiry has not been held or the
LC No. 2424/16 (Old No. 25/2009)
Krishna Chakravorty Vs. IPGCL Digitally signed
by POOJA Page No. 18 of 31
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enquiry has been found to be defective, the Tribunal can call
upon the Management or the employer to justify the action
taken against the workman and to show by fresh evidence,
that the termination or dismissal order was proper. If the
Management does not lead any evidence by availing of this
opportunity, it cannot raise any ground at any subsequent
stage that it should have been given that opportunity, as the
Tribunal, in those circumstances, would be justified in passing
an award in favour of the workman. If, however, the
opportunity is availed of and the evidence is adduced by the
Management, the validity of the action taken by it has to be
scrutinised and adjudicated upon on the basis of such fresh
evidence....
26. Learned counsel for the appellant contended that i n spite
of the direction by the Labour Court to the respondent-
management to lead evidence, it was open to the Management
to rely upon the domestic enquiry proceedings already held by
the Enquiry Officer, including the evidence recorded by him,
and it was under no obligation to lead further evidence,
particularly as the Management was of the view that the
charges, on the basis of the evidence already led before the
Enquiry Officer, stood proved. It was also contended that
under Section 11-A, the Labour Court had to rely on the
"materials on record" and since that enquiry proceedings
constituted "material on record", the same could not be
ignored. The argument is fallacious.
27. The record pertaining to the domestic enquiry would not
constitute "fresh evidence" as those proceedings have already
been found by the Labour Court to be defective. Such record
would also not constitute "material on record", as contended
by the counsel for the respondent, within the meaning
of Section 11-A as the enquiry proceedings, on being found to
be bad, have to be ignored altogether. The proceedings of the
domestic enquiry could be, and, were, in fact, relied upon by
the Management for the limited purpose of showing at the
preliminary stage that the action taken against the appellant
was just and proper and that full opportunity of hearing was
given to her in consonance with the principles of natural
justice. This contention has not been accepted by the Labour
Court and the enquiry has been held to be bad. In view of the
nature of objections raised by the appellant, the record of
enquiry held by the Management ceased to be "material on
record' within the meaning of Section 11-Aof the Act and the
only course open to the Management was to justify its action
by leading fresh evidence as required by the Labour Court. If
such evidence has not been led, the Management has to suffer
the consequences."
(Emphasis supplied)
52.In The Workmen of M/s Firestone Tyre and Rubber Co. of
LC No. 2424/16 (Old No. 25/2009)
Krishna Chakravorty Vs. IPGCL Digitally signed Page No. 19 of 31
by POOJA
AGGARWAL
POOJA
Date:
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India (Pvt.) Ltd. vs. The Management and Others (1973) 1
SCC 813, it has also been laid down by the Hon'ble
Supreme Court that the tribunal gets the jurisdiction to
consider the evidence placed before it for the first time in
justification of the action taken only if no enquiry has been
held or after the enquiry conducted by an employer is
found to be defective and that when fresh evidence is
adduced for the first time, it is the Tribunal which has to be
satisfied on such evidence about the guilt or otherwise of
the workman concerned.
53.The relevant portions of the said judgment are reproduced
as under for the sake of convenience:
"34. From those decisions, the following principles broadly
emerge:
....
(6) The tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only if no enquiry has been held or after the enquiry conducted by an employer is found to be defective. .....
39. Having held that the right of the employer to adduce evidence continues even under the new section, it is needless to state that, when such evidence is adduced for the first time, it is the Tribunal which has to be satisfied on such evidence about the guilt or otherwise of the workman concerned. The law, as laid down by the Court that under such circumstances, the issue about the merits of impugned order of the dismissal or discharge is at large before the Tribunal and that it has to decide for itself whether the misconduct alleged is proved, continues to have full effect. In such a case as laid down by this Court, the exercise of managerial functions does not arise at all".
(Emphasis supplied)
54.The evidence, if any, so led by the management, has to be considered on the parameters of preponderance of probabilities as opposed to beyond reasonable doubt as is required in criminal cases. In Rajender Singh v. State Bank LC No. 2424/16 (Old No. 25/2009) Krishna Chakravorty Vs. IPGCL Digitally signed by Page No. 20 of 31 POOJA POOJA AGGARWAL AGGARWAL Date:
2024.09.10 16:39:50 +0530 of India, 2015 SCC OnLine Del 7386, it has been observed by the Hon'ble Delhi High Court that:
"It is also well settled that the standard of proof, required in criminal proceedings and those before the Labour Court/Industrial Tribunal, are different. Before the Labour Court/Industrial Tribunal, the standard of proof is not that the misconduct must be proved beyond reasonable doubt but whether on preponderance of probability, it could be concluded that the employee is guilty as charged."
(Emphasis supplied)
55.In the present case, MW2 M.K. Singh and MW3 Rishi Kumar Rathi have both testified to the effect that between 13.07.2016 and 25.07.2006, demonstrations including dharna took place in front of the building called Himadri House, in which the office of the management was situated and that the workman had also participated and shouted slogans against senior officers of the management as also that the slogans were abusive by naming the officer and saying that he has died. They have also testified that there was a lot of nuisance caused including public nuisance by virtue of the demonstration including slogan shouting which also affected the passage for ingress and egress of the office of the management.
56.The factum of the workman herein having participated in the Dharna which had commenced on 13.07.2006 is not in dispute as the workman has himself testified in his evidence affidavit i.e. Ex WW1/A1 that he had participated in the dharna.
57.However, the mere participation in a demonstration does not ipso facto amount to misconduct as the right to LC No. 2424/16 (Old No. 25/2009) Digitally Krishna Chakravorty Vs. IPGCL signed by Page No. 21 of 31 POOJA POOJA AGGARWAL AGGARWAL Date:
2024.09.10 16:39:58 +0530 demonstrate falls within the ambit of Freedom to speech and expression within the meaning of Articles 19(1)(a) and
(b) of the Constitution.
58.Strength for this interpretation is drawn from the judgment in Kamleshwar Prasad and Ors. Vs. The State of Bihar and Another, AIR 1962 SC 1166, as relied upon by the management as well wherein, while considering the validity of Bihar Government Servants' Conduct Rules, 1956, by a notification of the Governor of Bihar dated August 16, 1957, the Hon'ble Supreme Court struck down Rule 4A in the form in which it stood prohibiting "any form of demonstrations" was violative of the appellants' rights under Article 19(1)(a) &(b), thereby recognizing the right of demonstration as a part of freedoms guaranteed under Article 19(1)(a) & (b). The relevant portions of the judgment are reproduced as under for the sake of convenience:
"13. The first question that falls to be considered is whether the right to make a "demonstration" is covered by either or both of the two freedoms guaranteed by Art. 19(1)
(a) and 19(1)(b). A 'demonstration' is defined in the Concise Oxford Dictionary as "an outward exhibition of feeling, as an exhibition of opinion on political or other question especially a public meeting or procession". In Webster it is defined as "a public exhibition by a party, sect or society......... as by a parade or mass-meeting". Without going very much into the niceties of language it might be broadly stated that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one's ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech. It has however to be recognised that the argument before us is confined to the rule prohibiting demonstration which is a form of speech and expression or of a mere assembly and LC No. 2424/16 (Old No. 25/2009) Digitally Krishna Chakravorty Vs. IPGCL signed by Page No. 22 of 31 POOJA POOJA AGGARWAL AGGARWAL Date:
2024.09.10 16:40:08 +0530 speeches therein and not other forms of demonstration which do not fall within the content of Art. 19(1)(a) or 19(1)(b). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles. It necessarily follows that there are forms of demonstration which would fall within the freedoms guaranteed by Art. 19(1)(a) and 19(1) (b). It is needless to add that from the very nature of things a demonstration may take various forms; It may be noisy and disorderly, for instance stone- throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Art. 19(1)(a) or (b). It can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances.
....
16....The threat to public order should therefore arise from the nature of the demonstration prohibited. No doubt, if the rule were so framed as to single out those types of demonstration which were likely to lead to a disturbance of public tranquillity or which would fall under the other limiting criteria specified in Art. 19(2) the validity of the rule could have been sustained. The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration--be the same however innocent and however incapable of causing a breach of public tranquillity and does not confine itself to those forms of demonstrations which might lead to that result.
....
18. We have rejected the broad contention that persons in the service of government form a class apart to whom the rights guaranteed by Part III do not, in general, apply. By accepting the contention that the freedoms guaranteed by Part III and in particular those in Art. 19(1)(a) apply to the servants of government we should not be taken to imply that in, relation to this class of citizen, the responsibility arising from official position would not by itself impose some limitations on the exercise of their rights as citizens."
(Emphasis supplied)
59.It cannot be gainsaid that such right to participate in the demonstrations is not absolute and needs to be exercised in proper manner. In Krishnakumar R vs The Union of India, in O.A. No. 240 of 2010, the Ld. Central Administrative Tribunal, Ernakulum Bench has observed that a peaceful Digitally signed LC No. 2424/16 (Old No. 25/2009) by POOJA Krishna Chakravorty Vs. IPGCL POOJA AGGARWAL Page No. 23 of 31 Date:
AGGARWAL 2024.09.10 16:40:15 +0530 and orderly demonstration would fall within the freedom of speech, but that right needs to be exercised in an appropriate manner and to demonstrate during office hours when they are expected to discharge their duties is to desert duty and get paid for it from the public exchequer but after doing the day's work, if the employee demonstrate after office hours, in a peaceful manner, it may not be seen as violative of 7(ii) of CCS (Conduct) Rules.
60.The relevant portion of the said order is reproduced hereinunder for the sake of convenience:
"10. The agitation on 20.12.2006 in which the applicant had participated, was a demonstration against certain policy of the department. The employees have the freedom of speech to express their stand or feelings about a particular act of the Head of Department. The Apex Court held in AIR 1962 SC 1166, Rameshwar Prasad and Others vs. State of Bihar and Another, that a peaceful and orderly demonstration would fall within the freedom of speech. But that right needs to be exercised in an appropriate manner. To demonstrate during office hours when they are expected to discharge their duties is to desert duty and get paid for it from the public exchequer. After doing the day's work, if the employee demonstrate after office hours, in a peaceful manner, it may not be seen as violative of 7(ii) of CCS (Conduct) Rules. In the instant case, the applicant demonstrated instead of working during office hours and forced the Accountant General to take a particular door to enter his office after blocking his normal entry door. In doing so, he clearly violated 7(ii) of CCS (Conduct) Rules..."
(Emphasis supplied)
61.However, in the present case, the management has failed to prove that the participation of the workman herein in the dharna was beyond the ambit of the fundamental right to freedom of speech and expression nor the management has led any evidence to prove that the dharna was not peaceful LC No. 2424/16 (Old No. 25/2009) Krishna Chakravorty Vs. IPGCL Page No. 24 of 31 Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date:
2024.09.10 16:40:25 +0530 or orderly or that it was inappropriate.
62.The testimonies of MW2 M.K. Singh and MW3 Rishi Kumar are conspicuously silent as to the workman herein having participated in the dharna during office hours nor the management has led any other evidence to this effect. The management has also failed to cross-examine the workman as to his duty hours during the dharna and in the absence whereof, there is no evidence on record to prove that the workman participated in dharna during his duty hours. Rather, the testimony of the workman as to him being on earned leave w.e.f 12.07.2006 till 27.07.2006 has not been controverted by the management through any cross-examination.
63.That being so, even on a scale of preponderance of probabilities, sufficient evidence has not been brought on record by the management to prove misconduct on the part of the workman herein on the account of his mere participation in the dharna.
64.It is also noted that both MW2 M.K. Singh and MW3 Rishi Kumar Rathi have also testified that the workman had shouted slogans against the senior officers of the management which were abusive and naming the officer, saying that he had died.
65.However, the said testimonies of MW2 M.K. Singh and MW3 Rishi Kumar Rathi attributing the slogan shouting to LC No. 2424/16 (Old No. 25/2009) Digitally signed by Krishna Chakravorty Vs. IPGCL POOJA Page No. 25 of 31 POOJA AGGARWAL AGGARWAL Date:
2024.09.10 16:40:34 +0530 the workman is vague in as much as, even the name of the officer against whom such slogans were purportedly raised has not been disclosed nor in the evidence as led, the dates on which the purported slogans were shouted has been disclosed, the absence of which details renders the said testimonies as unworthy of credence even more so as the factum of the workman having shouted abusive slogans has not been admitted by the workman as in his evidence affidavit i.e. Ex WW1/A1, wherein he has categorically testified inter-alia that he had not resorted to any abusive language while participating in the dharna and that it was wrongly alleged that he had shouted slogans against the senior functionaries of IPGCL which testimony has not been controverted through cross-examination by the management, for reasons best known to them.
66.Thus, in the absence of any admission by the workman, merely on the basis of vague testimony of the management witnesses, there is insufficient evidence on record, even on a scale of preponderance of probabilities to conclude that the workman had shouted slogans against senior officers of the management or that the slogans were abusive by naming the officer saying that he has died.
67.It is also duly noted that both MW2 M.K. Singh and MW3 Rishi Kumar Rathi have also testified that there was public nuisance caused by virtue of the demonstration including slogan shouting which also affected the passage for ingress and egress of the office of the management. However, the LC No. 2424/16 (Old No. 25/2009) Digitally Krishna Chakravorty Vs. IPGCL signed by Page No. 26 of 31 POOJA POOJA AGGARWAL AGGARWAL Date:
2024.09.10 16:40:51 +0530 said testimonies are vague as to the manner in which such passage was purportedly affected as also in respect of the period of such purported affect.
68.It is not the case of the management that the dharna was organized in premises of the management as both MW2 M.K. Singh and MW3 Rishi Kumar Rathi have testified that the dharna took place in front of the building called Himadri House, in which the office of the management was situated.
69.During his cross-examination, MW2 M.K. Singh has denied that the dharna was happening at 200 meters outside the main gate, volunteering that the dharna was at the main gate, but during his cross-examination, MW3 Rishi Kumar Rathi has testified that the dharna was happening in front of the gate at 50 meters yet in his further cross-examination, MW3 Rishi Kumar Rathi has gone on to testify that the dharna was in front of the management gate whereafter he testified that after a few days, the dharna was shifted 200 meters from the main gate which testimonies indicate that initially the dharna was being held at the gate which was later shifted 200 meters from the main gate.
70.For reasons best known to the management, they have not led any further evidence to elucidate the manner in which the ingress and egress was so affected. Rather, during his cross-examination, MW3 Rishi Kumar Rathi has himself LC No. 2424/16 (Old No. 25/2009) Digitally Krishna Chakravorty Vs. IPGCL signed by Page No. 27 of 31 POOJA POOJA AGGARWAL AGGARWAL Date:
2024.09.10 16:41:01 +0530 testified to the effect that there were no problems at the gates which further belies his testimony in chief as to the passage for ingress and egress of the office of the management having been affected as it is difficult to fathom as to how ingress and egress would be affected if there were no problems at any of the gates of the building from where the ingress or egress to/from the office of the management could have happened.
71.For the sake of convenience, the relevant portion of cross-
examination of MW3 Rishi Kumar Rathi is reproduced as under -
"The Dharna was infront of management gate and there was another gate for other people and the second gate also, there is an office complex. The main office gate (Himadri House) is closed and is under the control of CISF and is opened as and when the officers have to enter or exit. There was no problem at the gate was under me and there was no problem on the gate which was under the management. There was also no problem at the Himadri House Gate. Both the gates are at a distance of 4 to 5 meters from each other.
Ques. Is it correct that the Dharna was happening 200 meters from the main gate?
Ans. After a few days, the Dharna was shifted to 200 meters from the main gate."
72.For reasons best known to them, the management has failed to lead any further evidence to prove the effect on the ingress or egress to/from the office of the management and in the absence of the same, there is insufficient evidence, even on a scale of preponderance of probabilities to conclude that dharna had effected the passage of ingress-egress of the office of the management so as to attribute any misconduct to the workman herein for participation in the dharna.
LC No. 2424/16 (Old No. 25/2009) Digitally
Krishna Chakravorty Vs. IPGCL signed by Page No. 28 of 31
POOJA
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73.It is to be borne in mind that by way of the present case, the workman has challenged the penalty order dated 30.03.2010 which arose out of the chargesheet/ memorandum dated 09.11.2006 as per which the workman had been charged as under:
"STATEMENT OF CHARGES FRAMED AGAINST SH. SHRI KRISHAN CHAKRAWORTY, AG-III, E. NO. 33847 (ENCLOSED WITH MEMO NO. F.1/25-28/ 06/DM (VIG.)/ 2006-07/1327 DTD. 09.11.2006) That the said Sh. Shri Krishan Chakraborty, while working as AG-III in Rajghat Power House during the year 2006, participated in an illegal sit-on (Dharna) organized in front of Himadri Building, Rajghat w.e.f. on 13.7.06 to 25.7.06. During the said Dharna, Sh. Shri Krishan Chakraworty indulged in slogan shouting and making derogatory remarks against senior functionaries of IPGCL/PPCL.
By exhibiting above misconducts, Sh. Shri Krishan Chakraworty, AG-III has acted in a manner highly unbecoming of an employee of IPGCL/PPCL thereby contravening rule 3(1) (iii) read with Rule 7(ii) of the CCS (Conduct) Rules, 1964, as applicable to the employees of IPGCL/PPCL."
74.As discussed above, even through fresh evidence as led after the inquiry issue was decided against the management and in favour of the workman, the management has failed to prove the charges of misconduct against the workman. Consequently, it has failed to justify the punishment awarded to the workman vide order dated 30.03.2010. Issue no. 4 is accordingly decided against the management and in favour of the workman.
75.It is duly noted that the workman has failed to lead positive evidence to prove that there was victimization or unfair labour practice by the management and in the absence of LC No. 2424/16 (Old No. 25/2009) Krishna Chakravorty Vs. IPGCL Digitally signed by Page No. 29 of 31 POOJA POOJA AGGARWAL AGGARWAL Date:
2024.09.10 16:41:25 +0530 the same, the issue no.2 is decided against the workman and in favour of the management.
Issue no.3: Relief
76.In view of the findings on issue no.4, the penalty imposed upon the workman vide order dated 30.03.2010 i.e. "reduction to a lower stage in the time-scale of pay by three stages for a period of three years with further direction that he shall not earn his annual increments of pay during the said period of reduction and the reduction will have the effect of postponing his future increments of pay" including the direction that "the intervening period between the date of dismissal from service and the date of his rejoining duty shall be treated as non-duty for all purposes and he will be entitled only to 50 % of the pay and allowances for the said period" cannot be sustained and is set aside.
77.It is directed that the workman is entitled to his time scale of pay as per his service even for the three years without any reduction in the stage of his pay scale with all increments of pay as per his service and for intervening period between the date of dismissal from the service and the date of his rejoining duty, he shall not be treated as non-duty for all purposes and will be entitled to full pay and allowances for the said period. Parties to bear their own cost.
78.The claim is decided accordingly.
LC No. 2424/16 (Old No. 25/2009) Digitally signed by POOJA Krishna Chakravorty Vs. IPGCL POOJA AGGARWAL Page No. 30 of 31 AGGARWAL Date:
2024.09.10 16:41:54 +0530
79.Copy of Award be uploaded on the website of RADC and be also sent to the concerned department through proper channels as per rules.
80.File be consigned to the record room after necessary compliance.
Announced in the Open Court POOJA Digitally signed by POOJA AGGARWAL today i.e. on 10th September 2024 AGGARWAL Date: 2024.09.10 16:42:05 +0530 (POOJA AGGARWAL) Presiding Officer Labour Court -01 Rouse Avenue District Courts New Delhi (sa) LC No. 2424/16 (Old No. 25/2009) Krishna Chakravorty Vs. IPGCL Page No. 31 of 31