Delhi District Court
Smt. Valsala Vasudevan vs M/S Saini CoOperative T & C Society ... on 11 September, 2017
IN THE COURT OF SHRI UMED SINGH GREWAL, PILOT
COURT / POLCXVII ROOM NO. 22 :KKD COURTS: DELHI
LIR No.1185/17.
In the matter of :
Smt. Valsala Vasudevan
W/o Sh. R. Vasudevan, Age 54 years
R/o 203, Swastik Apartment, Ward No.8,
Mehrauli, New Delhi110030, Mobile No.9810742175,
Adhar Card No.4074 5194 7765
..............Workman
Versus
M/s Saini Cooperative T & C Society Limited,
2420 Bazar Kamra Bankash, Darya Ganj, New Delhi110002.
(General Secretary, Ved Prakash Saini, Adhar Card No.
2533 2347 8303, Mobile No.9212151595).
............. Management
DATE OF INSTITUTION : 25.04.2017.
DATE ON WHICH AWARD RESERVED : 05.09.2017.
DATE ON WHICH AWARD PASSED : 11.09.2017.
A W A R D :
1.Vide Order No. F.24(125)/17/Ref./CD/Lab./611 dated 21.04.2017, issued by Govt. of NCT of Delhi, a reference was sent to this Court with the following terms: "Whether dismissal of Smt. Valsala Vasudevan W/o Sh. R. Vasudevan from service by the management vide order No. Nil dtd. Nil is illegal and/or unjustified; and if so, to what relief is she entitled and what LIR No.1185/17 1/17 directions are necessary in this respect?"
2. Claimant's case is that the management is a society engaged in the business of lending and borrowing of money on interest. She had joined it as Clerk initially on contract basis and was confirmed on 01.01.2001. When she demanded wages of a confirmed employee, she was suspended on 01.07.2003 without any chargesheet but was reinstated in July, 2004. During that period, her financial position worsened as her husband had undergone by pass surgery and was bed ridden. So, she had rejoined on the terms dictated by the management. She was made to work in the ledger posting and issuing fixed deposit receipts. In order to victimize her, she was called upon to calculate maturity amount of fixed deposits and interest on advanced loans, though such work was of specialized nature which required a qualified accountant. Despite it, she did the assigned work to the best of her capability. The management had purchased a computer software programme to update entries. The master software was operated by another accountant. Her responsibility was only to make ledger entries. Final responsibility was of the accountant who used to check the same by using accountant software programme. The management was hellbent to employee its close relatives and for that, it was finding ways and means to remove from service the persons who were not related to it. The management is a society formed by the persons of Saini LIR No.1185/17 2/17 Community. She is a South Indian lady and hence, she was always targeted. When she was not paid wages for a confirmed employee, a Labour Inspector had visited the premises of the management on her complaint dated 28.02.2010. She was suspended on 08.05.2010 without any chargesheet. A false complaint was lodged against her by a coemployee Sh. Deepak Kumar on 15.04.2010 alleging that she had shouted at him when he was asked to sign the ledger. The second complaint was lodged by Ms. Shikha Saini who was daughter of wife's sister of thethen President Sh. H.K. Saini. That complaint was filed on 26.04.2010 i.e. within a month and half of her joining. Two complaints were lodged by Ms. Anuradha Saini on 03.05.2010 and 08.05.2010. Ms. Anuradha Saini was also related to President Sh. H.K. Saini. All these complaints were unrelated to her competence and pertained to her general behaviour and demeanor. A false complaint was lodged by one Mr. Ravinder Kumar Saini on 08.05.2010 alleging that she had made mistake in calculation of interest on FDRs. Sh. Ravinder Kumar Saini is the son of sister of thethen president Sh. H.K. Saini. She was illegally suspended on 08.05.2010 with immediate effect and was issued a false charge sheet dated 12.06.2010 upon which a domestic enquiry was conducted by an advocate who was working as Stock Enquiry Officer with the management. He was the same person who was appointed as Enquiry Officer by the management when she was LIR No.1185/17 3/17 suspended in 2003. The Enquiry Officer did not allow to defend herself in lawful manner as she was deprived of help of defence assistance. All other employees were related to office bearer of the management and hence, they refused to help her. The officials of management who represented it before Enquiry Officer were qualified and well versed with intricacies of legal system but she was illiterate in legal affairs. She asked some members of management to help them but they refused as they were indebted to the society and were afraid of its president Sh. H.K. Saini. Her service was terminated in July, 2011 without issuing any show cause notice. The entire evidence led by management before Enquiry Officer shows that she was not guilty of any miscalculation.
Earlier, she had raised an industrial dispute under Section 10(4)(A) of the I.D. Act, 1947 titled as Valsala Vasudevan Vs. Saini Cooperative Thrift & Credit Society but the same was withdrawn on 22.11.2016 with liberty to file the claim under Section 2 of the I.D. Act. Thereafter, she filed a case before Conciliation Officer where the matter could not be resolved and hence, he referred the matter to this court vide order dated 21.04.2017.
3. Written statement is to the effect that the management is a society managed by only 56 employees whose functions are well defined. Claimant's duty was to do all clerical jobs such as making entries in ledger and issuing receipts. She was never paid LIR No.1185/17 4/17 wages lower than the wages meant for a confirmed employee and hence, her suspension on 01.07.2003 was not due to the reason of demand of hike in wages. She used to work as Clerk whose duty was like ledger posting, issuing fixed deposit receipts and calculating maturity amount on FDRs. She was never targeted or victimized for being a South Indian lady. The management did not want to recruit the relatives of its office bearers. Had it been the case, the claimant would not have been appointed at all. Complaints were made by all coemployees against her behaviour. She did not perform duty seriously and hence, chargesheet dated 12.06.2010 was issued. A full domestic enquiry was conducted in which all principles of natural justice were followed. The claimant was given full opportunity to participate in enquiry and to defend herself. She was told about the procedure to be adopted by Enquiry Officer. She had crossexamined the witnesses produced by management. She did not examine any witness in defence. She was found guilty and the management also concurred with the finding and removed her from service.
4. Following issues were framed on 23.05.2017:
1. Whether the enquiry conducted by the management is not fair and proper? OPW.
2. As per terms of reference. OPW
3. Relief.LIR No.1185/17 5/17
5. In order to get declared enquiry proceeding invalid, the claimant tendered her affidavit in evidence as Ex.WW1/A mentioning all the facts stated in statement of claim. She relied upon following documents : I. Ex.WW1/1 is copy of complaint dated 12.08.09 to ALC. II. Mark W1 is copy of chargesheet dated 12.06.10. III.Mark W2 is copy of complaint dated 15.04.10 to Management Committee by Sh. Deepak Kumar.
IV. Mark W3 is copy of complaint dated 26.04.10 to Management Committee by Ms. Shikha Saini.
V. Mark W4 is copy of complaint dated 03.05.10 to Management Committee by Ms. Anuradha Saini.
VI. Mark W5 is copy of complaint dated 08.05.10. VII. Mark W6 is copy of complaint dated 08.05.10 to Management Committee by Sh. Ravindra Kumar Saini, Clerk. VIII. Mark W7 is copy of undated dismissal order of the claimant.
IX. Mark W8 is copy of demand letter dated 04.10.10 to Enquiry Officer.
X. Mark W9 is copy of demand letter dated 06.10.10 to Enquiry Officer.
XI. Mark W10 is copy of letter dated 18.10.10 to Enquiry Officer by claimant.
XII. Mark W11 is copy of another letter dated 18.10.10 to Enquiry Officer by claimant.
XIII. Mark W12 is copy of reply dated 19.10.10 of chargesheet.LIR No.1185/17 6/17
XIV. Mark W13 is copy of letter dated 27.01.11 to the Enquiry Officer by claimant.
XV. Mark W14 is copy of letter dated 05.04.11 to the Enquiry Officer by claimant.
6. The management examined its Enquiry Officer Sh. Ajay Gaur as MW1, who claimed that he had conducted enquiry as per the principles of natural justice and in a fair and proper manner by giving full opportunity to the claimant to defend the case. She had crossexamined all the witnesses of the management. He found her guilty in enquiry report dated 14.05.2011.
Issue No. 1:
7. This issue has already been decided in favour of management and against claimant by this court vide order dated 19.08.2017.
Issue No.2:
8. Ld. ARW argued that main allegations against claimant are that she had rudely misbehaved with three officials of the management. The minor allegations are regarding mistakes and error in record. Such kind of misconduct can be said to be minor for which the highest punishment of removal from service has been passed and hence, the punishment is disproportionate to the proved LIR No.1185/17 7/17 misconduct. So, this court can definitely interfere and substitute the punishment with mild punishment. In this regard, he relied upon Management of Hindustan Machine Vs. Mohd. Usman & Anr., AIR 1984 SC 321. He next relied upon Ved Prakash Gupta Vs. Delton Cable India (P) Ltd., AIR 1984, SC 914, to argue that abusing a senior official in filthy language does not warrant termination from service. He argued that in M.C.D. Vs. Sh. Daulat Ram, WP(C) No. 2149/1990 decided by Hon'ble High Court of Delhi on 27.08.2004, the allegations were of misappropriation and cheating but despite it, the Hon'ble High Court held that termination of service was not the right punishment.
Ld. ARM argued that the labour court can interfere only when the punishment given by management is shockingly disproportionate. Mere expression that the punishment is disproportionate would not meet the requirement of law. It should give reasons. This court cannot interfere due to sympathy, generosity and private benevolence. Such power should be exercised judicially and judiciously. He next argued that if the enquiry is found proper, the court should not interfere in the decision of the management simply because it was having a different view. He relied upon following citations: I. The Deputy General Manager (SME) of State Bank of India, Chennai and Another Vs. The Presiding Officer, LIR No.1185/17 8/17 CGIT cum LC, Chennai & Another, 2015 LLR 21, Madras High Court.
II. U.B. Gadhe & Others etc. Vs. G.M. Gujrat Ambuja Cement Pvt. Ltd. 2007 LLR 1178, Supreme Court of India. III. U.P.S.R.T.C. Vs. Nanhe Lal Kushwaha, 2010 LLR 230, SC.
IV. Karnatka Bank Ltd. Vs. A.L. Mohan Rao, 2006 LLR 252, SC.
V. Municipal Corporation of Delhi Vs. Daulat Ram & Another2004 [LB1] GJX 0563, decided by Hon'ble High Court of Delhi.
VI. Anand Regional Cop. Oil Seedsgrowers Union Ltd. Vs. Shaileshkumar Harshadbhai Shah, 2006 LLR 1052, SC. VII. Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane 2004 LLR 1105, SC.
VIII. Bharat Heavy Electricals Ltd. Vs. M. Chandrasekhar Reddy and Others 2005 LLR 258, SC.
IX. Jarnail Singh Vs. Presiding Officer, Labour Court, Patiala and Another 2007 LLR 245, decided by Punjab and Haryana High Court.
In the case in hand, he argued, the duty of the claimant was to maintain ledger. She made wrong calculation in the ledger and thereby caused financial loss to the management. In that capacity, she was required to enter the factum of loan in the ledger book if somebody had taken loan from management. A customer namely Sh. Mukesh Kumar Saini had taken loan of Rs.10,000/ LIR No.1185/17 9/17 from management on 14.02.2010, but that fact was not mentioned in the ledger book. When another official Sh. Akash Saini checked the computer, he came across that error of the claimant. She had rudely misbehaved with Sh. Deepak Kumar, Clerk; Ms. Sikha, Clerk and Ms. Anuradha for which they had given complaints. She had used objectionable and indecent language while quarreling with a lady official of management. All these charges are grave in nature. Due to her wrong calculation, the management has lost confidence in her.
9. In Management of Hindustan Machine Vs. Mohd. Usman & Anr. (Supra), relied upon by claimant, it was held by the Apex Court that the labour court can interfere if the punishment is shockingly disproportionate one to the proved misconduct. In The Deputy General Manager (SME) of State Bank of India, Chennai and Another (Supra), the Hon'ble Madras High Court held that the labour court can interfere in the punishment in case the same is disproportionate, but it should record reasons for such conclusion. It further held that misplaced sympathy, generosity and private benevolence cannot be a ground to interfere with the punishment imposed by employer. In U.B. Gadhe & Others etc. Vs. G.M. Gujrat Ambuja Cement Pvt. Ltd. (Supra), the Apex Court held that power and discretion conferred under Section 11A of the I.D. Act, 1947, needless to say have to be exercised judicially and judiciously.
LIR No.1185/17 10/17In U.P.S.R.T.C. Vs. Nanhe Lal Kushwaha (Supra), The Hon'ble Supreme Court held that the question as to whether an order of punishment is disproportionate to the gravity of charge on the basis of whereof the workman has been found to be guilty, must be spelt out in clear and cogent manner.
In Karnatka Bank Ltd. Vs. A.L. Mohan Rao (Supra), the Hon'ble Supreme Court held that it was not for the courts to interfere in cases of gross misconduct with the decision of disciplinary authority so long as the enquiry had been fair and proper and misconduct proved. In such matters, it was for the disciplinary authority to decide what was the fit punishment. In Municipal Corporation of Delhi Vs. Daulat Ram & Another (Supra), the Hon'ble Delhi High Court held that interference in the quantum of punishment is not called for on the ground of misplaced or uncalled for sympathy. It was held in Anand Regional Cop. Oil Seedsgrowers Union Ltd. Vs. Shaileshkumar Harshadbhai Shah (Supra) that it was a settled law that industrial courts should not interfere with the quantum of punishment unless there existed sufficient reasons therefore. In Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane (Supra), the Apex Court held that one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment. It is the loss of confidence, which is the primary factor, LIR No.1185/17 11/17 to be taken into consideration. When a person is found guilty of misappropriating funds, there is nothing wrong in losing confidence in such a person. Punishment of dismissal was upheld. In Bharat Heavy Electricals Ltd. Vs. M. Chandrasekhar Reddy and Others (Supra), the Apex Court held that the alleged misconduct is the first misconduct is no ground to condone the misconduct.
10. From above citations, it becomes clear that the labour court can interfere in the decision of the employer only when punishment is disproportionate to the proved misconduct. While interfering, the labour court should record reasons on the paper.
11. The chargesheet dated 12.06.2010 shows that following three charges were leveled against claimant: I. She had rudely misbehaved with Sh. Deepak Kumar, Clerk; Ms. Sikha, Clerk and Ms. Anuradha for which they had given complaints on 15.04.2010, 26.04.2010, 03.05.2010 and 08.05.2010.
II. She committed mistakes and errors in records and thereby caused financial loss to the management.
III. Sh. Akash Saini, Clerk had complained against her on 07.05.2010 that a customer of the management had taken a loan of Rs.10,000/ in February, 2010 but she did not mention that fact in the ledger maintained by her.
12. To prove first allegation, the management had placed LIR No.1185/17 12/17 on record complaints dated 15.04.2010, 26.04.2010, 03.05.2010 and 08.05.2010 preferred by MW1, MW2 and MW3 against claimant. These are marks W2, W3, W4 and W5. Simultaneously, these witnesses had deposed vividly about the misconduct committed by claimant. MW1 Sh. Deepak Kumar deposed before Enquiry Officer that he had asked claimant to sign on the front page of ledger prepared by her so that he may come to know later by whom, if any, the mistake was made in ledger because he would have identified the mistake by going through the signature. The claimant refused to sign the ledger and talked to her in a loud voice. She called her illiterate and rude. MW2 Ms. Shikha deposed that when she was taking printout of FDR from the room of the claimant, the claimant used indecent language against her by saying "tu to ek market ki larki hai". MW3 Ms. Anuradha deposed that the claimant had come late in April, 2010. The head of the institution had asked her to deduct the wages of the employee who had come late. In order to deduct claimant's wages due to late coming, she showed her attendance sheet on 03.05.2010. After seeing the sheet, the claimant got enraged, used indecent language and threw the sheet on her face saying that she used to flatter President. She uttered "mujhe pata hai tu kya karti hai. Tu kaise supervisor bani. Tu society mei idharudhar muh marti firti hai. Mai tujhe dekh lungi". She showed her sandal saying that the witness would be beaten with LIR No.1185/17 13/17 sandals.
The claimant had termed Ms. Shikha, MW2 as market girl. She had doubted the character of Ms. Anuradha also by saying that she was knowing well what she used to do and how she became supervisor.
13. There are three parts of charge No.2. The first part is that total for entry Nos.5657 to 5667 in column No.5 should be Rs.9,41,200/, but the claimant had shown the total as Rs.2,91,200/. It has already been held by this court in enquiry issue that the calculation of those entries should be Rs.10,01,200/. So, the claimant had made total less by Rs.7,00,000/. It is a huge mistake. The third part of charge No.2 is that she had wrongly calculated the interest on FDR Nos. 20818, 20820 and 20837. It is pertinent to mention that management is engaged in the business of lending and borrowing money. The interest should have been calculated as Rs.11,232/ but the claimant had calculated the interest as Rs.13,104/. The duty of the claimant was to maintain ledger. It was she who was required to calculate the interest. In one FD, she calculated more interest of about Rs.2,000/.
14. As the claimant was maintaining ledger, it was her duty to enter the factum of loan of any customer. One Sh. Mukesh LIR No.1185/17 14/17 Kumar Saini, customer No.7428, had taken a loan of Rs.10,000/ from management on 14.02.2010, but the claimant did not enter that loan in the ledger book. When that customer came for other transaction, Sh. Akash Saini came to know of that fact from computer. It shows that claimant was not doing her duty properly.
15. In Ved Prakash Gupta Vs. Delton Cable India (P) Ltd. (Supra) and Rama Kant Misra Vs. State of U.P. & Ors. 1982 AIR 1552, decided by Supreme Court on 21.10.1982, the allegations against the workmen were that they had abused senior officers in indecent language. Despite it, the Apex Court did not uphold the order of termination of their service. In the case in hand, the claimant had quarreled with three officials of the management and had used indecent language against them. Two of them are ladies. She doubted their character. Such were not the fact in the cited law. Moreover, there are some additional charges also against claimant.
In M.C.D. Vs. Sh. Daulat Ram (Supra), facts were that a truck carrying paddy was intercepted. Terminal tax Moharrir was absent on that day and hence, the workman prepared and issued terminal tax receipt of Rs.784/ because the driver had told him that he was transporting desi khand. However, when the driver explained that he was actually carrying desi dhan, he corrected the receipt and charged Rs.8/ from the importer. It was alleged against LIR No.1185/17 15/17 the workman that he had, by correcting and overwriting on the terminal tax receipt, caused a loss of Rs.776/ to the petitioner. In this way, he was complicit in cheating and misappropriation. In domestic enquiry, the workman had admitted guilt by explaining the circumstances in which the overwriting had occurred. The labour court did not find his termination as per law because he had explained the error committed by him and that explanation was neither challenged nor rebutted and the explanation was very much possible. Such are not the facts of the present case. About monetory loss, the allegation against the claimant is that she made wrong calculation of interest and made wrong total of amounts. She was required to mention factum of loan of customers in ledger book which she did not mention. Such allegations are totally different from the allegations leveled against the workman in the cited law.
16. It is again repeated that claimant's duty was to maintain ledger. Her duty was to make total of the amounts received and disbursed from and to the customers. She was to calculate the interest on FDRs of the customers. She was required to behave properly with colleagues. She defaulted in all her duties. As she had caused financial loss to the management not once but twice and hence, no fault can be found with the management in losing confidence in her. The management is a small society engaged in LIR No.1185/17 16/17 the business of lending and borrowing money. It had employed only six officials including claimant. The claimant had created trouble for all officials of the management. The management did not have any other branch. So, it was the compulsion of the management to terminate her service because it was not congenial for the claimant and other officials to work together. So, this issue is decided in favour of management and against claimant.
Issue No.3:
17. Consequent to decision on issue Nos. 1 & 2, it is held that claimant is not entitled to any relief. Statement of claim is dismissed. Parties to bear their own costs. Reference is answered accordingly. Award is passed accordingly.
18. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 11.09.2017. PILOT COURT/POLCXVII KKD COURT, DELHI.
LIR No.1185/17 17/17