Delhi District Court
The vs The on 15 March, 2012
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
OP No. 03/05
The Applicant/management
M/s Press Trust of India Ltd., PTI Building Ist Floor, 4, Parliament
Street, New Delhi 110001.
Vs.
The Respondent/ Workman
Sh. Vinod Kumar, House No.308C, Gali No.7, Ground Floor, Lalita
Park, Laxmi nagar, Delhi 110092.
Date of institution 03.01.2005
Date of reserving order 02.03.2012
Date of order 15.03.2012
ORDER
1. Vide this order, I shall dispose of three permission applications filed by the management of M/s Press Trust of India against same workman Sh. Vinod Kumar. Vide order dated 21.03.2005 passed in OP NO.3/05, two other approval applications no.4/05 and 5/05 were clubbed OP No. 03/05 Page 1 of 17 with OP No.3/05. Complete pleadings have been filed in OP No.3/05 only and evidence has also been led in OP No.3/05 only. Thus, these three approval applications bearing OP Nos. 3/05, 4/05 and 5/05 are being decided by this common order.
2. The applicant/management has filed present permission applications under Section 33 (3) (b) of Industrial Disputes Act seeking permission for imposing the punishment of dismissal of services of respondent/ workman Sh. Vinod Kumar.
3. It is stated in the application that the respondent/ workman was employed with the management as Sr. Operator in its Transmission Department vide letter No.1232 dated 26.5.1986 and his current gross emoluments are Rs.13,743.67 per month. It is submitted that respondent committed serious misconduct, for which he was charge sheeted vide charge sheet dated 3.12.02. It is submitted that respondent failed to submit his explanation to the charge sheet and thereafter, a domestic enquiry was held against him (respondent), giving him an opportunity to defend himself and rebut the charges levelled against him. It is submitted that intimation of institution of the enquiry was forwarded to respondent at his last known address, but he failed to participate in the enquiry and availed opportunity to defend himself. Thus, enquiry officer was left with no other OP No. 03/05 Page 2 of 17 option but to proceed ex-parte against the respondent. It is submitted that enquiry was held as per principles of natural justice. It is submitted that the enquiry officer submitted his report holding the respondent guilty of the charges. It is submitted that charges against the respondent are such that it was not possible to repose confidence in him.
4. It is submitted that respondent submitted his explanation to the enquiry report, which was considered by the management and found the same unsatisfactory. Thereafter, show cause notice was issued to the respondent, to which reply was submitted by the respondent, which was found unsatisfactory and thus, it has been decided by the applicant to dismiss the service of respondent. It is submitted that charges against the workman are such that it was not possible to repose confidence in him. It is submitted that in the event of enquiry is set aside for any reason, the management reserves its right to lead evidence on the merit of the charges before the Hon'ble Tribunal and prove the charges.
5. It is submitted that various industrial disputes pending before the Industrial Tribunal against the management are not maintainable and the references are without jurisdiction. It is submitted that it is the contention of the opposite party that he is a protected workman and accordingly, the applicant/ management is filing the present permission u/s 33(3)(b) of the OP No. 03/05 Page 3 of 17 ID Act before this Tribunal.
6. In the reply filed by the respondent/workman to the present application, it is stated that workman did not commit any act of misconduct, as wrongly alleged . It is submitted that Sh. MK Razdan, Editor-in-Chief and General Manager, who had issued the charge sheet, was biased and an interested party, as would be evident from the fact that charge sheet, inter alia, referred to alleged demonstration by wives of some staff members and some other outsiders acting as the agents of workman, during which, they were claimed to have made derogatory remarks and used abusive slogans against senior Managers and the management. Sh. Razdan filed a complaint against the workman and other office bearers of the Union before police alleging that workman and others held demonstration at the residence. It is submitted that having himself made such allegation against the workman, Sh. Razdan could not act in an independent and impartial manner and as such he was neither fit to be the disciplinary authority in the workman's case nor competent to issue the charge sheet and to order holding of any enquiry. It is submitted that no one could be a judge in his own cause. It is submitted that workman had written a letter dated 14.2.03 to Mr. Razdan, stating that no useful purpose would be served in his attending such partial enquiry to be OP No. 03/05 Page 4 of 17 conducted by subordinate of Mr. Razdan.
7. Workman has challenged the validity of enquiry on certain grounds as mentioned in his reply. It is submitted that show cause notice dated 25.5.05, was issued after more than 10 months of his response dated 18.8.03, against the findings of enquiry officer. It is submitted that Mr. Razdan discriminated against the workman by not giving him any opportunity of personal hearing.
8. It is submitted in the reply that management has adopted discriminatory attitude against the workman because of his trade union activities. It is submitted that management has also been openly and blatantly victimizing him illegally and unjustifiably and in an arbitrary manner by withholding his LTA for the year 2002-03 and 2003-04, by withholding his ex-gratia amount and his casual leave encashment for the said period.
9. It is submitted that workman happened to be President of The Press Trust of India Employees Union, Delhi and has been raising the genuine grievances of the employees with the management. Dismissal of the present application has been prayed for.
10. Rejoinder has been filed by the applicant/management, wherein they have reiterated the contents of approval application and have denied OP No. 03/05 Page 5 of 17 the averments made in the reply.
11. On the basis of pleadings of the parties, following issue was framed by Ld. Predecessor on 19.04.2005:-
Whether the applicant has conducted the legal and valid enquiry? OPA
12. Applicant/ management has examined Sh. Surya Dev Narayan, the Enquiry Officer as AW 1, on the issue of enquiry. On 05.08.2005, the enquiry issue was decided by Ld. Predecessor and the enquiry conducted by the management against the workman was held to be vitiated. On the same date i.e 05.08.2005, following additional issues were framed:-
1. Whether the respondent has committed the misconduct as alleged? OPA
2. Relief.
13. On these additional issues, management has examined Sh. Manish Mishra, its Manager (HR & Personnel) as MW 1. In his affidavit, he has deposed that the women demonstrators, mostly wives of members of PTI Employees' Union, of which workman was the President and Sh. Neeraj Bhushan was the General Secretary, resorted to demonstration, slogan shouting etc. in violation of orders OP No. 03/05 Page 6 of 17 dated 1.2.02 of Hon'ble High Court. It is deposed that demonstrators continued their demonstrations for about 45 minutes till the police force arrived and took them away and during the period of demonstration, the ingress and egress to PTI Building was affected. It is deposed that Sh. Dev Sukh Verma, Sr. Transmission Incharge of management informed in writing to Regional Manager that workman was absent unauthorisedly on 12.10.02 for 2 pm duty.
14. In his cross-examination , MW 1 has deposed that he cannot say exactly, if the delinquent employee ever violated any order of Hon'ble High Court of Delhi. It is denied that no women i.e the wives of members of PTI Employees' Union ever violated the orders of Hon'ble High Court. It is admitted that he had not heard any of the slogans mentioned in his affidavit. MW 1 was not aware whether women mentioned in his affidavit have any relations with the delinquent employee. It is deposed that they are the wives of the members of the Union, of which workman is the President. MW 1 does not recognise any of the women, who were allegedly demonstrating on that day. It is denied that workman never absented unauthorisedly from work. It is denied that Sh. Subimal Choudhary, Sr. Manager and Ms. Padma Alva, Regional manager or any OP No. 03/05 Page 7 of 17 official of management were biased and prejudiced against the workman.
15. MW 2 Sh. H.S. Bawa, Sr. Manager, MW 3 Sh. Shakeel Ahmad, Editor and MW 4 Sh. Rakesh Hari Pathak, Chief of Economic Bureau of management in their affidavits have deposed on the similar line as those of MW 1.
16. In cross-examination, MW 2 has deposed that workman was not present amongst the demonstrators. He has denied that he, Ved Prakash and Ms. Padma Alva conspired to throw out Sh. Vinod Kumar because of his trade union activities. He has deposed that he has not given any written complaint about this incident to the management or to the police.
17. MW 3 in his cross-examination has deposed that he did not witness the incident. He has further deposed that he had not taken the photographs, which he was relying upon. He has deposed that he has no connection with the charge sheet issued against the workman. It is admitted that owners of the newspapers, in which the news items about the demonstration appeared, are Directors or Shareholders of management.
18. MW 4 Sh. Rakesh Pathak, in his cross-examination, has deposed OP No. 03/05 Page 8 of 17 that he did not appear as a witness in the domestic enquiry held against the workman. It is admitted that he had not seen the demonstration on 22.10.02. It is deposed that he did not give any complaint about the incident of 22.10.02. He has not seen any court order, which was violated in this demonstration. It is deposed that he has no concern with the charge sheet.
19. MW 5 Sh. Ved Prakash, Security Guard (Darban) in his affidavit has narrated the incident of demonstration held on 22.10.02. He has deposed that he immediately informed the senior officers of management. He has deposed that Sh. H.S. Bawa, reported the matter to police. He has deposed that due to the said demonstration, ingress and egress of the PTI building was affected.
20. In his cross-examination, MW 5 has deposed that he did not participate in the enquiry against the workman. It is deposed that earlier, he was member of the union of which the workman is President. It is denied that on 22.10.02, he was on leave and did not attend the office. It is deposed that he had not given any complaint in writing to the management.
21. MW 6 Smt. Aarti Pandey has deposed in his examination-in- chief that she had not gone to PTI on 22.10.02 and was not arrested by the OP No. 03/05 Page 9 of 17 police on said date. She has deposed that she did not go to Jantar Mangar. She could not say if she appears in photographs mark X and C as the same is not clear. She has deposed that in photograph mark B she does not appear. She has deposed that she is visible in photographs Ex. MW6/5 and Ex MW 6/6.
22. In her cross-examination, MW 6 has deposed that she does not know any Vinod Kumar and Sh. Neeraj Bhushan. She has deposed that she has no relation with PTI Employees Union, Delhi.
23. MW 7 Smt. Kusum Rawat has deposed in examination-in-chief has deposed that she is visible in photograph Ex MW 6/2 to 6/4 and Ex MW 6/6. She has deposed that police was not there at the place where photographs were taken. She does not know where her husband works or if he is member of any Union. She has deposed that police never took her any where on 22.10.02 and she had not gone to Jantar Mangar on that day.
24. In her cross-examination, MW 7 has deposed that she does not know any Vinod Kumar or Neeraj Bhushan. She has deposed that she has no relation with PTI Employees union, Delhi.
25. MW 8 Smt. Deveshwari in her examination-in-chief has deposed that she is visible in Ex MW 6/2 and Ex MW 6/4. She has deposed that OP No. 03/05 Page 10 of 17 she does not recognise the persons standing behind her. She does not know, if these photographs were taken in front of her house. She does not know when the photographs were taken. She has deposed that her face is not clear in photograph mark D.
26. In her cross-examination , MW 8 has deposed that she does not know any Vinod Kumar or Neeraj Bhushan and she has no relation whatsoever with PTI Employees Union, Delhi.
27. Respondent/workman has examined himself as WW 1. In his affidavit, filed by way of examination-in-chief, he has more or less reiterated the contents of his reply to the present approval petition. He has deposed that he was elected as President of Press Trust of India Employees' Union by secret ballot in 2000 and 2001. It is deposed that he and other office bearers of his union sat on a peaceful Dharna at Jantar Mantar, about one kilometer away from PTI Building, from 11.10.02 to 30.01.03. It is deposed that the Union including himself always faithfully complied faithfully the orders of Hon'ble High Court passed in suit no.241/02 including the order dated 1.2.02. It is deposed that allegations leveled against him by the management vide charge sheet dated 3.12.02 are totally false and baseless and he did not commit any OP No. 03/05 Page 11 of 17 misconduct as mentioned in the charge sheet.
28. In his cross-examination , WW 1 has deposed that in the month of October , 2002, he had performed his duties in the office till 10.10.02. It is deposed that he did not report for duty from 11.10.02 onwards till date. It is denied that his leave from 11.10.02 was not sanctioned. It is deposed that from 11.10.02, he was sitting on a Dharna at Jantar Mantar, New Delhi. He did not know if one Sh. Shashi Pandey, while deposing before Industrial Tribunal-I, had said that he could identify his wife in Ex. MW1/2. It is admitted that the Union and his office bearers were restrained by the Hon'ble High Court of Delhi from demonstrating inside the PTI Premises. It is denied that he or Sh. Neeraj Bhushan or any of his office bearers had called the women at Jantar Mangar and then instigated those women to demonstrate in PTI Building. It is denied that on 22.10.02, any Dharna was held in PTI building or that any Dharna was held by women demonstrators or outsiders at his instigation. It is admitted that in civil suit no.241/02 a restraint order was passed by Hon'ble High Court on 01.02.02 restraining the union, office bearers, agents etc. It is admitted that he had not joined his duties till charge sheet was issued.
OP No. 03/05 Page 12 of 17
29. No arguments have been advanced by the parties on the additional issues framed on 5.8.05, despite opportunity given for the purpose. I have gone through the entire record. My findings on the issues are as follows:
30. Findings on additional issue no.1 Additional Issue no.1 is Whether the respondent has committed the misconduct as alleged? OPA
31. In Indian Iron & Steel Company Ltd. Vs. their workmen, AIR, 1958 SC 130 it was held by Hon'ble Supreme Court as under:-
Undoubtedly, the management of a concern has power to direct its own internal administration and discipline/ but the power is not unlimited and when a dispute arises, Industrial Tribunals have been given the power to see whether the termination of service of a workman is justified and to give appropriate relief. In cases of dismissal on misconduct, the Tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere: (i) when there is want of good faith; (ii) when there is victimisation or unfair labour practice; (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when on the materials the finding is completely baseless or perverse.
32. In Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. Vs. The management (1973) 1 SCC 813, Hon'ble Supreme Court considered the affect of newly inserted Section 11-A of Industrial Disputes Act on applications for permission/approval u/s 33 of the said Act and observed as under:-
OP No. 03/05 Page 13 of 17
It is to be noted that an application made by an employer under Section 33(1) for permission or Section 33(2) for approval has still to be dealt with according to the principles laid down by this Court in its various decisions. No change has been effected in that section by the Amendment Act. It has been held by this Court that even in cases where no enquiry has been held by an employer before passing an order of dismissal or discharge, it is open to him to adduce evidence for the first time before the Tribunal. Though, the Tribunal is exercising only a very limited jurisdiction, under this section neverthless, it would have applied its mind before giving permission or approval. Section 33 only imposes a ban. An order or dismissal or discharge passed even with the permission or approval of the Tribunal can form the subject of a dispute and as such referred for adjudication. Quite naturally, when the dispute is being adjudicated, the employer will rely upon the proceedings that were already held before a Tribunal under Section 33. They will form part of the materials on record before the Tribunal. The contention of Mr. Deshmukh, that if no enquiry is held, the order of dismissal will have to be set aside, if accepted, will lead to very incongruous results. The Tribunal would have allowed an employer to adduce evidence before it in proceedings under section 33 for the first time, even though no domestic enquiry had been held. If it is held that another Tribunal, which adjudicates the main dispute, has to ignore those proceedings and straight away order reinstatement on the ground that no domestic enquiry had been held by an employer, it will lead to very startling results. Therefore, an attempt must be made to construe Section 11A in a reasonable manner. This is another reason for holding that the right to adduce evidence for the first time recognised in an employer, has not been disturbed by Section 11-A.
33. The charge against the workman is that he instigated the wives of employees of management to hold demonstration and Dharna with slogans and thereby, affected the ingress and egress of PTI Building. It has also been charged against the workman that he was absent without auhthorisation from duties from 12.10.02. Further, it has been charge against the workman that he has been undermining the interest of OP No. 03/05 Page 14 of 17 organisation by making baseless and wild allegations through circulars, notices and false public statements including the one that there was a strike in PTI, which adversely affected the business of the company and its interest. It is alleged by management in the charge sheet that prima facie his alleged acts in this regard constitute misconduct by way of actions prejudicial to the interest and reputation of the company. It is further charged against workman that he and other office bearers of his union got the All India General Mazdoor Trade Union to send a letter to General manager to hold demonstration at his residence in N. Delhi outside the PTI Building and to burn his effigy in support of his union. The letter clearly threatened the management and asked it to reach a settlement with the workers of the union, of which the workman is president.
34. It is worth noting that in the present case, it is admitted by MW 1 in his cross-examination that he had not heard any of the slogans mentioned in his affidavit. MW 1 was not aware whether women mentioned in his affidavit have any relations with the delinquent employee. In cross-examination, MW 2 has deposed that workman was not present amongst the demonstrators. It is admitted by MW 3 that owners of the newspapers, in which the news items about the demonstration appeared, are Directors or Shareholders of management. OP No. 03/05 Page 15 of 17 MW 4 Sh. Rakesh Pathak, in his cross-examination, has admitted that he had not seen the demonstration on 22.10.02. It is deposed that he did not give any complaint about the incident of 22.10.02.
35. Women demonstrators examined by the management as MW 6 to MW 8 in their cross-examination have deposed that they do not know any Vinod Kumar and Sh. Neeraj Bhushan. They have further deposed that they have no relation with PTI Employees Union, Delhi.
36. Thus, the demonstrators examined by the management have deposed that they do not know any Vinod Kumar (workman). MW 1 has not heard any slogan as mentioned in his affidavit. MW 2 has denied the presence of workman amongst demonstrators. MW 4 has not seen any demonstration nor he has given any complaint in this regard. The photographs relied upon by the management also do not show presence of workman in the demonstration.
37. As regards charge of absence from 12.10.02, it is admitted in the charge sheet that workman sent a letter to General manager to hold demonstration. This admission itself clarifies the reason of absence of workman from duties.
38. As regards allegations of management regarding undermining the interest of the organisation, no evidence has been brought by the OP No. 03/05 Page 16 of 17 management in this regard as to how workman has made the management to suffer because of his conduct. Further, management has failed to establish any link between the present workman and letter sent by All India General Majdoor Union.
39. From the above discussion, I am of the considered opinion that management has not been able to prove the charges leveled against him. The respondent/workman has not committed the alleged misconduct and his dismissal or discharge is sought only to victimise him despite the fact that he was protected workman being President of the Union. The issue is decided accordingly.
40. Relief.
In view of my findings on additional issue no.1, the permission applications in all the three cases are rejected. Signed copy of this order be placed in all the three files bearing OP Nos. 3/05, 4/05 and 5/05.
41. Copy of this order be sent to GNCT of Delhi for information. File be consigned to Record Room.
Announced in open court
on 15.03.2012 (MAHAVIR SINGHAL)
Presiding Officer, Industrial Tribunal
Karkardooma Courts, Delhi.
OP No. 03/05 Page 17 of 17