Delhi District Court
Sh. Surender Kumar vs M/S Jankidass Kapur Memorial Hospital on 31 March, 2009
ID No.301/08
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IN THE COURT OF SH. S.K. KAUSHIK
PRESIDING OFFICER LABOUR COURT NO. XII,
KARKARDOOMA COURTS, DELHI
ID No.301/08
Industrial Dispute Between
Sh. Surender Kumar
C/o Hospital Employees Union,
Aggarwal Bhawan,
G.T. Road, Tis Hazari,
Delhi - 110054.
........Workman
And
M/s Jankidass Kapur Memorial Hospital,
through its Medical Superintendent,
Pandav Nagar, Naraina Road,
New Delhi - 110018.
.....Management
Date of Institution : 14.12.1998
Date of arguments : 30.03.2009
Date of Award : 31.03.2009
Award
1. An Industrial Dispute between the management of M/s
ID No.301/08
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Jankidass Kapur Memorial Hospital through its Medical Superintendent,
Pandav Nagar, Naraina Road, New Delhi - 110018 and its workman
Sh. Surender Kumar C/o Hospital Employees Union, Aggarwal Bhawan,
G.T. Road, Tis Hazari, Delhi - 110054 was referred by Secretary
(Labour), Government of National Capital Territory of Delhi for
adjudication in exercise of powers conferred by Section 10 (1) (c) and
12 (5) of the Industrial Dispute Act 1947 (in short Act) vide his Order No.
F.24(5346)/98/Lab.4100004 dated 07.12.1998 with the following terms
of reference :
Whether the dismissal of Sh. Surender Kumar from
service is illegal and / or unjustified and if so, to what
relief is he entitled and what directions are necessary
in this respect?
2. Notice of the reference was issued to the workman who
appeared and filed his statement of claim alleging that he was working
with the management since 28.01.1991 as an attendant; that his last
drawn salary was Rs.1800/ per month; that he worked sincerely and
diligently and never gave any cause of complaint to the management;
ID No.301/08
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that management was putting some female safai karamcharies to 12
hours continuous duty and no overtime wages were being paid for the
extra work performed by them for which safai karamcharies were
insisting and this dispute was partially settled through mutual discussion
according to which management agreed to recruit other employees for
introducing three shift system for safai karamcharies and also promised
to pay overtime wages and assured to implement this settlement by
1.4.1997; that when management did not honour this settlement, safai
karamcharies raised their voice which was supported by the other staff
members of the hospital; that the safai karamcharies also demanded
payment of their earned wages of February and March 1997 and also
for the payment of overtime wages but management forcibly pushed the
workers outside the hospital with the help of hired goondas and touts
and management also threatened lady doctors and their male
counterparts to leave the hospital through hired goondas and touts; that
workmen or their union never intended to go on strike and they did not
strike work but they were forced by the management to leave the work
ID No.301/08
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and hospital premises though management did not declare closure or
lockout; that workmen remained sitting outside and complained to
Asstt. Labour Commissioner, Karampura, on the basis of which labour
department sent a labour inspector to the management but
management refused to consider the advice of the labour inspector with
regard to payment of the wages to the workman and for permitting the
workmen to resume their duties; that labour inspector also gave notice
to the management to produce the record but management did not
comply the same and did not attend the labour office despite repeated
notice of the Asstt. Labour Commissioner; that management did not
allow workers to resume duty as it was acting on the wrong advice of
Mr. Ashok, a tout of the management, who was misleading both the
parties with malafide intentions; that management also did not pay the
earned wages to the workers till 31.3.1997 and wages of April 1997
were also not paid although workers were allowed to resume their duty;
that workmen Suresh Chand, Babu Lal, Surender and Ranbir were not
allowed to resume duties; that workmen Babu Lal, Suresh Chand and
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Surender were served with suspension order & a chargesheet and a
fake enquiry was started at the office of the Atlas Cycle Industries, Mata
Sundari Lane; that workers were threatened at the enquiry office with
dire consequences and they were coerced and abused by the officers of
the management present over there; that the union made a complaint to
Asst. Labour Commissioner and Labour Officer and wrote letters to the
administrator of the hospital and to the enquiry officer for shifting the
enquiry site from Atlas Cycle Industries' office to the hospital but this
demand was declined and so workers were denied an opportunity of
being heard; that workmen were also denied permission to engage an
advocate of their choice or an office bearer of the hospital union as
defence assistant; that there was nobody in the hospital to assist them
though enquiry officer was an advocate; that enquiry officer was partial
and biased and management did not change him despite demand of the
workmen; that enquiry officer submitted his report which was perverse;
that management served showcause notice of the enquiry report upon
the workman to which he sent his reply through registered AD post
ID No.301/08
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when management did not accept the reply by hand; that management
vide order dated 13.01.1997 dismissed the services of the workman
and the same is illegal as management did not circulate any list of mis
conducts; he was not afforded any reasonable opportunity of being
heard; he was meted out with an insulting behaviour when he attended
the enquiry in the office of Atlas Cycle Industries; management failed to
change the enquiry officer and the site of the enquiry from the office of
Atlas Cycle Industries to the hospital itself; he was not paid any
subsistence allowance for the month of April 1997 and was not given
subsistence allowance @ 75% of salary even after 90 days of his
suspension; copies of the statements recorded in the preliminary
enquiry were not supplied to him and the statements recorded in the
enquiry proceedings were also not supplied.
3. Workman alleged that since the illegal dismissed from service,
he is unemployed. He stated that he served a demand notice dated
19.02.1998 through regd. AD post to which no reply was given and
ID No.301/08
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conciliation proceedings failed because of noncooperative attitude of
the management. Workman prayed for an award in his favour holding
that his dismissal from service was illegal and unjustified and he was
entitled to reinstatement with continuity of service, full back wages and
other consequential benefits alongwith cost of litigation.
4. Management contested the claim by filing written statement.
Management stated that hospital is not an industry under the I.D. Act.
Management stated that workman was initially appointed as unskilled
worker on 29.06.1991 and later on was promoted as attendant w.e.f.
1.1.1995 but was never paid below minimum wages rates.
Management denied that last drawn salary of the workman was
Rs.1800/. Management stated that contents of para 2 of the statement
of claim are vague, unspecific and irrelevant and have been made with
ulterior motive to create bias against the employer and to confuse the
issues. It is alleged that all these allegations are incorrect.
Management alleged that the act committed by the workman very much
ID No.301/08
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amounted to misconduct apart from being acts subversive of discipline.
Management stated that workman committed misconduct as
enumerated in the chargesheet dated 15.4.1997 and hospital has its
own service rules which are part of the service condition of the workmen
and were accepted by the workman himself and were also confirmed by
him vide letter dated 28.07.1991. Management stated that workman
was served with chargesheet dated 15.4.1997 and an enquiry was
conducted as per letter dated 1.5.1997. It is stated that enquiry was
conducted as per principles of natural justice and punishment awarded
was legal and justified. Management stated that contents of the enquiry
proceedings, report of the enquiry officer, chargesheet, showcause
notice/letter dated 22.12.1997 were sent to the workman for his
comments and dismissal order dated 13.01.1998 contained correct
contents. It is also stated that all the letters and communications
received by the employer or the enquiry officer were duly dealt with.
The management denied that enquiry officer was partial or biased and
stated that there was no propriety of changing the enquiry officer.
ID No.301/08
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Management denied that it refused to receive the reply of the workman
submitted by hand. Management admitted that service of the workman
was terminated vide letter 22.12.1997. Management refuted allegations
of the workman levelled against the enquiry officer and the enquiry
proceedings. Management stated that enquiry was conducted in a
peaceful and safe atmosphere. Management also stated that workman
was never denied subsistence allowance and he received the full
suspension allowance from 1.5.1997 till the date of termination of his
service. Management stated that no principle of natural justice was
violated and the enquiry conducted was fair and proper. Management
stated that it has lost confidence in the workman and he is not entitled
for any relief. Management stated that in case court holds that the
enquiry stood vitiated then it be given an opportunity to prove the
charges.
5. In rejoinder to the written statement workman controverted the
averments as contained in the written statement and reaffirmed the
ID No.301/08
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averments as contained in the statement of claim.
6. From pleadings of the parties following issues were framed for
trial :
1. Whether respondent is an industry within the meaning
of section 2 (j) of the I.D. Act.
2. Whether the enquiry conducted against the workman is just, fair and proper? OPW
3. As per terms of reference.
7. Both the parties were directed to lead evidence on the enquiry issue by way of affidavit. Workman filed his affidavit Ex.WW1/A. He relied upon twenty three documents Ex.WW1/1 and Ex.WW1/23. He was cross examined by authorized representative of management.
8. Management filed the affidavit Ex.MW1/A of enquiry officer MW1 Sh. Mukesh Kumar Sharma. MW1 relied upon eight documents Ex.MW1/1 to MW1/8. MW1 was cross examined by authorized ID No.301/08 11 representative for workman.
9. I have heard Ld. Authorized Representative (hereinafter to be referred as AR) for the parties and gone through the record. Findings on the issues are as under:
ISSUE NO. 1
10. During final arguments management did not press this issue. Accordingly no findings are required to be given on this issue. ISSUE NO. 2
11. This issue was treated as preliminary issue and was disposed of vide separate order dated 30.03.2009 whereby it was held that the workman had failed to prove that the enquiry conducted by the management was not fair and proper and that it was conducted in violation of principles of natural justice. Accordingly this issue was decided against the workman and in favour of management. The order ID No.301/08 12 on enquiry issue is to form a part of this award.
ISSUE NO.3
12. Since enquiry issue has been decided in favour of the management and against the workman and so now the only point for consideration is whether punishment of dismissal from service by the management needs to be interfered by this court.
13. With the insertion of Section 11 - A in the Industrial Dispute Act, a Labour Court can interfere in the punishment awarded by the management but it will do so only when it is found that the punishment is disproportionate to the misconduct. It is a settled law that the management has power to direct its own internal administration and discipline but the power is not unlimited and when the dispute arises, Labour Courts have been given powers to see whether termination of service of a workman is justified. In cases of dismissal on misconduct a Labour Court does not, however, act as Court of Appeal and cannot ID No.301/08 13 substitute its own judgment for that of the management.
14. In a case reported as Chairman & Managing Director: United Commercial Bank and others Vs. P.C. Kakkar: 2003 LLR 436 (SC) Their Lordships after referring to several authorities, held in para 11 and 12 of the judgment as under:
"11. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was a defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the court would not go into the correctness of choice made by the administrator open to him and the court should not substitute its decision to that of the administration. The scope of judicial review is limited to the deficiency in decisionmaking process and not the decision. ID No.301/08 14
12. To put differently unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court / tribunal, there is no scope for interference. Further to certain litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority, to the appellate authority to reconsider the penalty imposed."
15. In a case reported as Anantnathi Maharaj Jain Temple and its Sadharan Funds, Mumbai Vs. Rajan G. Pandey and another:
2001 LLR 645, Their Lordships in para 4 of the judgment observed as under:
"It is very well settled that when the misconducts are proved in a fair and proper domestic enquiry, it is for the employer to ID No.301/08 15 consider the question of punishment and it is not for the court to interfere with such punishment unless it is shockingly disproportionate and unless no reasonable man would act in that manner....................."
16. In the present case charges against the workman were that on 11.4.97 he came at the main gate with the help of coworker Suresh Chand and forcefully started displaying banners at the main gate and when he was requested by SI Ganga Ram not to do so, he threatened him with dire consequences and then went inside the hospital alongiwth coworkers and threatened the administrative staff consisting of Administrator, Sh. Ashok Kumar and Dr. R.P. Sharma and also abused them in filthy language and prevented the entry of patients and then he stopped Mr. S.B. Menon by obstructing his way by lying down on ground and at about 4 pm he with the help of coworkers Suresh Chand, Vijay Kumar, Babu Lal and Ravinder Kishore held demonstrations and raised slogans in abusive and filthy language against the hospital ID No.301/08 16 management. As held while deciding enquiry issue vide separate detailed order, management conducted the enquiry into the misconduct charges as per the chargesheet dated 15.7.97. This enquiry was conducted ex.parte as workman did not appear before the enquiry officer. Case of the management is that on the basis of the report of the enquiry officer, workman was dismissed from service.
17. Point for consideration is whether under the facts and circumstances of the case, this court can interfere into the punishment of dismissal awarded by the management. Here it is useful to refer to the judgment of the Apex Court reported as Apparel Export Promotion Council Vs. A.K. Chopra: AIR 1999 SC 625 wherein Their Lordships observed that courts are not to normally interfere with either the factual findings regarding guilt or punishment imposed. Another judgment that can be referred in this behalf is the judgment reported as Chairman & MD V.S.P. & Ors. Vs. Goparaju Sri Prabhakara Hari Babu: 2008 IV AD (S.C.) 382 wherein their lordships in para 17 of the judgment ID No.301/08 17 observed that once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. It is was further observed that the superior courts, only in some cases, may invoke the doctrine of proportionality and if the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. Their Lordships referred to the earlier judgment reported as Sengeroid Remedies Ltd. Vs. Union of India & Ors.: (1999) 1 SCC 259.
18. On a careful consideration of the nature of charges against the workman I hold that the punishment of dismissal from service cannot be held to be shockingly disproportionate to the charge and shocking to the conscience of the court and it is not a case for interference in the correctness of the choice made by the management. I, therefore, hold that dismissal of the workman from service under these facts and circumstances was neither illegal nor unjustified. This issue is ID No.301/08 18 accordingly decided in favour of the management and against the workman.
RELIEF
19. In view of foregoing findings on issue No. 2 & 3, I hold that workman is not entitled for any relief.
20. Award is passed as per foregoing findings on the issues and reference stands answered accordingly. Copy of the award along with copy of the order on the enquiry issue be sent to learned Secretary (Labour) Government of National Capital Territory of Delhi for necessary action. The award be also sent to server (www.delhicourts.nic.in). The file be consigned to record room.
Announced in the open court
st
on 31 Day of March 2009 S.K. Kaushik
Presiding Officer Labour Court No. XII,
Karkardooma Courts, Delhi.