Delhi District Court
E) That The Ruling In Dtc vs . Surinder Pal 2007 on 24 March, 2009
BEFORE THE COURT OF SH A.S. JAYACHANDRA
PO : LABOUR COURT : KKD : DELHI
DATE OF RECEIPT : 30.09.2002
ARGUMENTS CONCLUDED ON : 27.02.2009
AWARD PASSED ON : 24.03.2009
ID No. 895/06/02
IN THE MATTER OF : -
Birla Textiles owned by
M/s Taxmaco Ltd. Birla Lines
Subji Mandi, Delhi.
..............Management
versus
1.Sh. Ram Pal Tiwari S/o Late Sh. Ram Tiwari
2. Sh. Moti Lal S/o Sh. Ram Nath C/o S.N. Gupta advocate Chamber No. 517, Western Wingh, Tis Hazari Court, Delhi.
..........Workmen A W A R D
1. The Govt. of NCT of Delhi made this reference bearing number F.24 (1984)/2002/-Lab./17090-94. The terms of reference are as under :
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'Whether the services of (1) Sh. Ram Pal Tiwari S/o Late Sh. Ram Tiwari (2) Sh. Moti Lal S/o Sh. Ram Nath have been terminated illegally and, or unjustifiably by the management and if so to what sum of money as monetary relief alongwith consequential benefit in terms of existing laws/ Government notifications and to what other relief is he entitled and what directions are necessary in respect.?''
2. The case of the workmen :- Both the workmen have filed a common claim statement.
The workman Ram Pal Tiwari had been employed with the management since 1977 as D.B. Foulder on a last drawn salary of Rs. 1,300/- per month.
The workman Moti Lal had ben employed with the management since 1978 as a Badli worker in the ring frame department. His last drawn wages were approximately Rs. 900-1,000/- per month.
The management served a charge sheet on both the workmen on 12.01.1984. The charges are similar and identical. Workmen replied the charge sheet and 2/22 denied the misconduct alleged. They contend that they were not present in the premises of the management at the time of alleged commission of the misconduct. The management conducted a domestic enquiry.
Apart from the above workmen there were 30-35 employees facing similar charges. The management held enquiry by various groups, each group containing 7-8 employees. Each group of the employees were enquired by separate enquiry officers. One Harvinder Singh advocate was the enquiry officer in respect of the charges against present workmen.
Workmen further contend that the enquiry is bad in law since no list of documents were given to the workmen, documents were not supplied, the charges were very vague, no role was detailed in the charge sheet, no opportunity was given to the workmen to defend themselves. The other enquiry officer enquiring into the charges of other workmen granted suspension allowance. The present workmen also demanded the same at full rates but the enquiry 3/22 officer refused to grant the suspension allowance at full rate. Therefore the workmen boycotted the enquiry on 08.01.1985. Workmen also contend that the report is perverse and that there was no material before the enquiry officer to arrive at the findings. The names of the workmen were not found in the initial complaint but merely naming them during the enquiry can not be held as sufficient to arrive at the misconduct alleged. The services of the workmen were terminated on 18.09.1986 without any show cause notice. The management filed an application U/s 33 (2) (b) of the I.D. Act which was allowed by the Tribunal granting approval in favour of the management for the removal of the workmen. Thereafter the workmen approaches the authorities under I. D. Act and hence the present reference. They further urge that the removal is highly disproportionate to the charges and therefore they seek reinstatement along with the back wages on the ground that they are not gainfully employed after the termination, despite their best efforts.
3. The case of the management:-
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The management in its written statement contend that both the workmen were getting salary as per their working days. The mill in which they worked was closed at Delhi w.e.f. 30.11.1996 as per the orders of the Hon'ble Supreme Court dated 08.07.1996. Thereafter the mill was shifted to baddi (H.P.). They were working as badli worker since the mill is shifted, the territorial jurisdiction is questioned by the management in the preliminary objections.
On merits the management contends that a charge sheet dated 12.01.1984 was served on the workmen for their misconduct committed by them on 10.01.1984. The management conducted an enquiry and reasonable opportunity was given to the workmen. They were found guilty. After considering the gravity of the charges, their services were terminated w.e.f 18.09.1986. The management filed an approval petition in O. P. 02/87, which was allowed by the Industrial Tribunal -II by an order dated 01.05.2001. The fairness of enquiry is decided by 5/22 the I. T. in O. P. no. 02/87 and therefore the workmen can not contend on this ground. The present dispute is highly belated after 15 years from the date of their dismissal and hence the dispute is time barred. Further the management submitted that under a conciliation settlement dated 17.05.1983 all the effected employees were laid off. The workmen had no regular work available to them as they were working as badli workers. The department in which they worked is closed permanently w.e.f. 17.05.1983 and the entire mill is closed w.e.f. 30.11.1996. The question of subsistence was also dealt by the Industrial Tribunal. The enquiry was fair and proper. Workmen Rampal Tiwari was proceeded exparte in the enquiry after several communications. The other allegations are denied.
4. Rejoinder is filed by the workmen denying the allegations found in the written statement. Based on the pleadings my Ld. Predecessor had framed the following three issues on 07.10.2004:-
ISSUES 6/22
a) Whether the enquiry against the workmen was not held by the management in a fair, just and proper manner? if so its effect? OPW
b) Whether this court has no jurisdiction to entertain the claims of the workmen as pleaded in the WS? OPM
c) Terms of reference.
5. While the matter was fixed for workmen evidence by my Ld. Predecessor as a last opportunity on 15.02.2008, the management has filed an application for passing an interim award.
6. After hearing both the parties, my Ld. Predecessor had passed a speaking order on 06.05.08. By this order, my Ld. Predecessor had already held as under:-
a) That the fairness of the enquiry and the basis of the charge sheet is already scrutinized by the Industrial -II in O. P. No. 02/1987 based on the evidence adduced by either side.
b) That the Industrial Tribunal concluded that the enquiry is not vitiated.
c) That the orders in O.P. No.02/1987 is not 7/22 challenged by the workman.
d) That the orders in O. P. No. 02/87 attained the finality.
e) That the ruling in DTC Vs. Surinder Pal 2007 LLR 1012 is applicable and therefore recording evidence on enquiry issue would be a judicial impropriety.
f) The evidence on findings recorded in O.P. 02/87 shall be binding on the parties in the present proceedings.
7. After observing as above, my Ld. Predecessor had taken up the matter for arguments on quantum of punishment.
8. Thus in the present reference there is no evidence on either side. The matter was argued by the Ld. AR on both the sides. The Ld. AR for the workmen relied on Delhi Cantonment Board Vs. Central Govt. Industrial Tribunal & Others, 2006 LAB I. C. 1140, of our Hon'ble High Court. It was also argued by the Ld. AR Sh. S.N. Gupta for the workmen that the present workmen were not involved in the 8/22 misconduct. The police record do not show the names of these workmen. It was further argued that by a single stroke 30-35 employees were removed without ascribing the specific overt Acts of mis conduct. Therefore he submits that the removal of the workman from service is highly disproportionate.
Sh. M. Y. Khan Ld. AR for the management argued that the workmen gheored the CEO of the company and committed unpardonable misconduct. Their dismissal is approved by the Industrial Tribunal and that the orders thereon having not been challenged, the workmen now can not seek to unsettle the findings. Even if the lenience is to be shown U/s 11A of the I. D. Act, the same can not be extended to the workmen for the gravity of the misconduct. He relied on :--- a) Depot Manager, APSRTC, Karim Nagar-I Depot vs. Mohd. Ghani & Anr. 2007 (115) FLR 745 AP. b) General Secretary, South Indian Cashew Factories Workers Union vs. Managing Director, Kerela State Cashew Development Corporation Ltd. & Ors. AIR 2006 SC 2208 c) SBI vs. Tarun Kumar 9/22 Banerjee & Ors. 2000 (87) FLR 322 (SC) d) L.K. Verma vs. HMT Ltd. 2006 Lab. IC 964 (SC) e) Karnataka State Road Transport Corporation & Anr. vs. S.G. Kotturappa & Anr. 2005 Lab. IC 2263 (Kar.) f) M/s Bharat Iron Works vs. Bhagubhai Balubhai Patel & Ors. 1976 (I) SCC 518 g) Jay Engineering Works Ltd. vs. State of West Bengal AIR 1968 Calcutta 407.
9. I have given careful thought to the submissions made on either side. Now I am to answer the issues in the above back drop of the facts based on the available oral and documentary evidence.
10. ISSUE NO. 1: - In view of the orders passed by my Ld. Predecessor in this case dated 06.05.2008 , precisely culled out at para-6 (supra) and there being no evidence, issue no. 1 stands answered in favour of the management.
11. ISSUE NO. 2:- This issue relates to the jurisdiction of the court, raised by the management. Case of the management is that there is already a finding rendered by the competent Industrial Tribunal Delhi in O.P. 02/1987, wherein they 10/22 successfully obtained approval for removal of the workman. Having thus obtained the approval, the management can not be allowed to approbate and reprobate at the same time regarding the jurisdiction of this Tribunal. Therefore I hold issue no. 2 in favour of the workmen and against the management. Further I hold that this court has got the territorial jurisdiction to answer the reference.
12. ISSUE NO. 3:- In this issue, I am to answer the legality or otherwise of the termination / removal of the workman by the management and the consequences. As already held by my Ld. Predecessor by an order dated 06.05.2008, only the adequacy of the penalty is the bone of contention between the parties. The removal of the workman is already approved by the Industrial Tribunal. 12A. It was argued by the Ld. AR for the workman that at the time of the alleged misconduct, the present workman were not found in the premises and the police record do not show their involvement. 11/22 The management has furnished the enquiry report. I have gone through the enquiry report. The present workers did not participate in the enquiry. At page 12 of the enquiry report, I find the following which is very relevant for the purposes of this case.
" I now discuss the case of Raj Kumar, Ram Pal Tiwari and Moti Lal. As far as these three workers are concerned, they are not specifically, named by Sh. Hemant Kumar. Sh. Bachchan Singh, Watchman has stated that three workers along with a large number of other workers were participants in raising slogans and giving abuses to Hemant Kumar, in the office room and not permitting him to go to bathroom. This has also been stated by Sh. Tarkeshwar that these workers along with others indulged in gherao of Sh. Hemant Kumar and gave him abuses and threats. According to Moti Lal, he worked in the ring department till 01.30 p.m. and thereafter he collected his wages and went outside mill gate. This shows that he was in the mill on that day and available for participating in the gherao if he wanted to do so. Sh. Ram Pal Tiwari, stated that he returned on 10.01.1984, and thereafter, he fell sick. His explanation itself shows that he came to the mill on 10.01.1984 and nothing prevented him from participating in the gherao. Raj Kumar, did not give any written reply to the charge sheet. Since all these workers did not fully participate in the enquiry and did not produce their defence, their defence is not available in preference to the 12/22 statements of management witnesses who saw them participating in the gherao. In view of the above, I am of the opinion that the charge sheeted workers are guilty of the charges as mentioned herein above."
13. After going through the statements of Tarkeshwar and Bachchan Lal, which is found on the file, I find that the present workmen also entered into the room of Hemant Kumar, after the altercation that had taken place between Ram Swaroop and Hemant Kumar. No doubt the presence of the workmen in the room of Hemant Kumar, is clearly made out. The charges against the workmen Moti Lal and Ram Pal Tiwari, are similar. As per the statements of the watchman, Bachchan Singh, the initial altercation was not between the present workmen and the chief Executive Hemant Kumar. As per the statements in the enquiry, these workers also entered the chambers of Hemant Kumar and prevented him from discharging his duties despite warnings from the watchman not to enter the chambers of CEO without permission.
14. The entire enquiry report as furnished by the management reveal that the misconduct alleged 13/22 against these two workmen is that they have entered the chambers without permission and without caring for the warning by the watchman and further gathered in the chambers of Hemant Kumar and gheraoed him.
15. They were removed from the service on these proved misconduct.
16. The contention of the AR for the management is that the labour Court can not interfere with the findings of the disciplinary authority and the courts can not interfere with the quantum of punishment. Reliance is placed on various rulings which I discuss hereunder.
In Depot Manager (supra), the AP High Court held that the labour Court erred in arriving at the conclusion solely based on non-examination of a passenger in respect of a misconduct committed by a conductor.
The Hon' Supreme Court in General Secretary, South Indian Cashew Factories Worker's Union (supra), has held that 'if enquiry is fair and proper, in the absence of any allegation of victimization or unfair labour practice, the labour 14/22 Court has no power to interfere with the punishment imposed. Section 11 A of the ID Act, is only applicable in the case of dismissal or discharge of a workman.
In SBI vs. T.K. Banerjee (supra), the Hon' SC noted that once the misconduct is proved, the Tribunal can not interfere in the punishment except where such punishment suggests victimization.
In L.K. Verma, vs. HMT (supra), the Hon' SC had held that the Tribunal would not normally interfere with the quantum of punishment imposed by the employers unless an appropriate case is made out therefor.
In KSRTC vs. SG Kotturappa (supra), the Hon' SC while dealing with Section 45 of KSRTC (C&R Regulations) had held that a badli worker does not acquire any legal right to continue in service.
In Bharat Iron Works (supra), the Hon' SC has held that victimization must be properly pleaded and proved giving all particulars. Victimization can not be vague. The onus is on the workman. All the particulars are to be weighed by the tribunal and a 15/22 conclusion should be reached on the totality of the evidence.
In Jay Engg. Works Ltd. (supra), the Calcutta High Court defined the word gherao. It is the physical blockade of a target either may be a person or persons. Encirclement by a crowd may be due to various reasons. It could be by a hostile crowd who wrongfully encircles to confine the managers to make them concede to their demands. I have gone through the rulings relied by the management.
17. The workmen relied on the ruling of our Hon'ble High Court in Lab and IC page no. 1140, in the matter of Delhi Cantonment Board Vs. Central Government Industrial Tribunal, wherein it is held that every person employed in an industry, irrespective of whether he is temporary, permanent or probationer is a workman provided he is doing the kind of work mentioned in section 2(s). (para 8).
18. From the reading of the rulings, the interference on the quantum of punishment is very limited unless it is a case of gross victimization. I find that this is a case where the order of 16/22 punishment requires modification, interference, for the following reasons:-
a) In this case, the victim Hemant Kumar having not specifically ascribed any specific overt acts against workmen Ram Pal Tiwari and Moti Lal, their case can be looked into from the extenuating circumstances. They stand on a different pedestal when compared to the other workmen who participated in the gherao.
b) That the watchman and other witnesses only named them having entered the chambers.
c) Whether these workmen raised slogans or not is a matter of doubt looming large, apart from the act of preventing CEO.
d) Though Moti Lal was a badli worker the relief can not be turned down in view of the ruling of High Court in Delhi Cantonment Board (supra).
e) I find the dismissal from service is disproportionate to the proved misconduct namely having entered unauthorizedly the chambers of CEO Hemant Kumar, which can not be treated as unpardonable act.
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f) Hence, I find that this is the case where the order of termination is to be modified according to the gravity of charges since the charges can be held as only partly proved based on documents unquestioned.
19. Whether reinstatement is possible? In this case reinstatement is not the viable option since the management has shifted the factory, there has been a long lapse of time from the date of termination i.e. 18.09.1986. Therefore following the ruling of our Hon'ble High Court in Parmod Kumar's case, I find that compensation is the only option.
20. The ruling of our High Court in Parmod Kumar and another Vs. Presiding Officer and another, 123, DLT 509, DB, has held at para 11 as under:-
'Para 11. In a number of matters, this court has also examined the same issue and it has been repeatedly held that where a long period has lapsed since the date of termination, compensation 18/22 should be paid in lieu of re-instatement and back wages. Reference in this regard may be made to the judgments in the cases of Murari Lal Sharma Vs. Nehru Yuva Kendra Sangathan, 96 (2002) DLT 412 (DB) and K. H. Pandhi Vs. The Presiding Officer, Addl. Labour court and another, 110 (2004) DLT 101 and Pal Singh Vs. NTPC Ltd. 96 (2002) DLT 877.
21. Considering the above position of law, I find that the workman are entitled for compensation in lieu of reinstatement. In the case of Ram Pal he worked from 1977 at a last drawn salary of Rs. 1,300/- per month. Therefore he completed nine years of service.
In the case of Moti Lal he worked from 1978 as a Badli worker at a last drawn salary of Rs. 1,000/- per month. Therefore he completed eight years of service.
Awarding compensation @ 15 days salary for each completed year of service, the same comes to Rs. 5,850/- towards Ram Pal and Rs. 4,000/- in case of 19/22 Moti Lal. Apart from this I find that a suitable compensation of Rs. 30,000/- each would be the reasonable and just compensation towards consequential benefits including the cost of litigation and other incidental expenses since there is no evidence for grant of back wages. I have also kept in mind, the recent ruling of the Hon'ble Supreme Court regarding back wages. In 2009 LLR page no. 1, UP State Electricity Board Vs. Laxmi Kant Gupta, the Hon'ble Supreme Court observed as under:-
Para 11. Thus it is evident that there has been a shift in the legal position which has been modified by this court and now there is no hard and fast principle now that on the termination of service being found to be illegal, the normal rule is re-
instatement with back wages.
Compensation can be awarded instead at the discretion of the Labour Court 20/22 depending on the facts and circumstances of the case.
22. For the aforesaid reasons, I pass the following award:-
A W A R D The termination of Ram Pal Tiwari and Moti Lal by the management is held as unjustified in the wake of above discussion.
Consequently the workmen are entitled for monetary relief.
The management is directed to pay a sum of Rs. 35,850/- (Rs. thirty five thousands eight hundred and fifty only) to the workman Ram Pal Tiwari.
The management is directed to pay a sum of Rs. 34,000/- (Rs. thirty four thousands only) to the workman Moti Lal.
The payments be made within 30 days after publication of the award, failing which the workmen are entitled to recover the same along with the interest of 18% per annum from the date of award 21/22 till realization.
Reference is answered accordingly. Copies of this award be sent to appropriate government for publication. File be consigned to record room.
DATED : 24.03.2009 (A.S. JAYACHANDRA) PO : LABOUR COURT - XVII, DELHI 22/22