Delhi District Court
Sh. Hari Ram vs M/S. Allied Computer Technics Pvt. Ltd on 21 July, 2009
I.D. No. 254/08
1
IN THE COURT OF SH. S.K. KAUSHIK,
ADDITIONAL DISTRICT & SESSIONS JUDGE,
PRESIDING OFFICER, LABOUR COURT NO. XII,
KARKARDOOMA COURTS, DELHI.
ID No. 254/08
INDUSTRIAL DISPUTE BETWEEN
Sh. Hari Ram
S/o Sh. Ram Swaroop
R/o H. No. 91/3, Vill. & PO Samalka
New Delhi 110 037
.........Workman
AND
M/s. Allied Computer Technics Pvt. Ltd.
F18, IIIrd Floor, BlockA,
Local Shopping Center,
Ring Road, Naraina,
New Delhi - 110 028
.........Management
Date of institution : 20.11.1998
Date of argument : 07.07.2009
Date of award : 21.07.2009
AWARD
1.An Industrial Dispute between the management of M/s. Allied Computer Technics Pvt. Ltd. F18, IIIrd Floor, BlockA, Local I.D. No. 254/08 2 Shopping Center, Ring Road, Naraina, New Delhi - 110 028 and it's workman Sh. Hari Ram S/o Sh. Ram Swaroop R/o H. No. 91/3, Vill. & PO Samalka New Delhi 110 037 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 (5512)/98/Lab.3697891 dated 10.11.1998 with the following terms of reference:
"Whether the services of Sh. Hari Ram S/o Sh. Ram Swaroop have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. Notice of the claim was issued to the workman. Workman filed his statement of claim alleging that he was appointed on 6.11.1989 by the management and his job was clerical in nature; that he was discharging his duties to the entire satisfaction of the management and he was never issued any chargesheet; that being I.D. No. 254/08 3 satisfied with his work management gave him increments from time to time; that management illegally suspended him on 10.9.1997 and subsequently terminated his service on 30.05.1998 after holding an illegal and biased enquiry; that in March 1992 claimant alongwith with other employees demanded payment of conveyance allowance and other remunerations due to which management got annoyed and stated adopting harsh and adament attitude towards him and other employees; that displeased with his legal demands, management promoted his junior Vinod Dixit, and compelled him to work under him and stopped giving increment to the him; that during 199495 management completely stopped increments of all its employees which ignited agitation in them which further annoyed the management, leading to illegal termination of the claimant; that claimant alongwith other employees resorted to pen down strike w.e.f. 08.9.1997 but the attitude of the management did not change; that management illegally retrenched 10 employees vide letter dated 28.2.1998 without issuing any show cause notice, during pendency I.D. No. 254/08 4 of the conciliation proceedings; that despite letter dated 15.9.1997 issued by labour department to management for appearance with record and for settlement of dispute on 18.9.1997 at 11 am, none appeared for the management before labour department; that management him issued enquiry notice on 10.10.1997 informing him about appointment of Sh. G.C. Walesha as enquiry officer; that in pursuance of the enquiry management terminated his service vide their letter dated 30.5.1998; that illegal termination of workman is bad in law and is not sustainable due to following reasons :
(a) That before issuing charge sheet, no
domestic enquiry was initiated.
(b) That there is no basis for impugned charge
sheet dated 12.9.97.
(c) That the charge sheet is vague and absurd
and does not specify any specific charge.
(d) That before issuing the chargesheet no
opportunity of being heard was given to the
workman/petitioner.
(e) That the consent of the workman was not
obtained in appointment of the enquiry officer I.D. No. 254/08 5 who is on the pay roll of the company.
(f) That the enquiry office being on pay roll of the company was not in a position to discharge his function in a fair manner.
(g) That the workman was denied to be
represented through a counsel.
(h) That the statement of the prosecution
witnesses were recorded in a mechanical
manner and not as per law.
(i) That the workman was not given documents
relied upon by the management.
(j) That the workman was not allowed to cross
examine the prosecution witnesses and was
not allowed to lead any evidence in his
defence and was rather forced to sign the
blank papers.
(k) That the enquiry was an eye wash.
3. Claimant has also alleged that management terminated his service by giving one month salary but stated that following amounts are due to him:
I.D. No. 254/086
(a) Bonus @20% of Basic salary Rs.9300/ (approx.)
(b) Gratuity for 10 years @15 per day 5 x 6000=30,000/.
(c) Salary with increments and bonus from date of termination till reinstatement (Salary @Rs.6240/ + bonus + future increment)
(d) Rs. 10 lacs for mental agony and torture due to illegal termination.
(e) Litigation expenses Rs.15,000/.
4. He also alleged that conciliation proceedings failed due to adamant attitude of management; that since the illegal termination of his service he is unemployed and could not get any service despite his best efforts. He claimed that he is entitled to reinstatement with continuity of service and full back wages.
5. Notice of the claim was issued to the management. I.D. No. 254/08 7
Management contested the claim by filing written statement. Management stated that applicant is not a workman within the meaning, scope and definition of Section 2(s) of ID Act 1947 as he was employed as Assistant Manager in the Share Transfer Department. Management stated that workman was responsible for the entire administration in his department including ensuring attendance, punctuality of employees and ensuring that office expenses were incurred economically. It is stated that workman was recommending and granting leave of the employees and was also looking after the serves of shareholders of client companies and was providing periodical updates and status in respect of share transfer and other financial transactions to the clients of the company. Management further stated that workman was also maintaining statutory records of the client companies and he was also responsible for distribution of work amongst employees. It is also alleged that in 1992 due to boom in the capital market and increase in its client companies, it also engaged Sh. Vinod Dixit as Senior I.D. No. 254/08 8 Manager and workman continued to work as Assistant Manager. It is stated that on 04.01.1992 workman tendered his resignation on the ground that he was finding it difficult to cope up with the responsibilities entrusted to him but the same was not accepted and he was told that management would appoint another person to facilitate the smooth and efficient working in the establishment. It is alleged that workman never reported to Sh. Vinod Dixit and he was independently looking after the work of client companies and management granted him special increment of Rs.500/ per month for two successive years i.e. 1993 to 1994. It is also stated that in June 1995 it transferred its vehicle in the name of workman based on written down book value and the payment thereto was on the basis of a monthly contribution of Rs.250/ per month by him. It further alleged that his last drawn wages were Rs. 6,240/ per month (Basic 3900/ + House rent allowance Rs.1,560/ + conveyance Rs.780/) and he was paid Rs. 500/ per month towards petrol expenses.
I.D. No. 254/089
6. It is alleged that applicant was issued appointment letter dated 06.11.1989 and he was appointed as Secretarial Officer but subsequently in April 1992 he was promoted as Assistant Manager. It is further alleged that as per the contract of employment it was clearly stipulated that one month's clear notice on either side or one month's salary in lieu of notice pay will be applicable for purpose of termination / resignation from service. Management stated that chargesheet dated 12.9.97 was given to the workman, wherein it th th th was stated that on 08 , 09 and 10 September 1997 workman did not perform his duties in the Establishment. Management alleged that on each of the said days he collected a large number of employees, exhorted them not to perform their duties on the plea that the management had not granted annual increments to the employees and he threatened the management with dire action including resorting to strike and coercing the management to accede to the demand for grant of annual increment. It is alleged that I.D. No. 254/08 10 applicant was advised by S/Sh. D.N. Dalal, Y.K. Singhal, S.P. Gupta, V.M. Joshi, All Vice Presidents and Sh. P.S. Wahi Manager th th th on 08 , 09 and 10 September 1997 that resorting to stoppage of work and refusal to perform duties amounted to an illegal strike for which the workman along with others was liable to disciplinary action but despite that and subsequent communication in writing in that regard by Sh. P.S. Wahi, Manager in the presence of Sh. Sunil Kumar, Manager and Sh. G.L. Kaushal, Administration Office, the workman refused to receive the letters after going through the same. Management stated that workman was duly conveyed that refusal to receive official communication while on duty was a grave and serious act of misconduct, which amounted to willful insubordination and disobedience. Management alleged that workman was also charged for going on an illegal strike, inciting, abetting, instigating and for indulging in commission of misconduct.
7. It is also alleged that applicant indulged in grave and I.D. No. 254/08 11 serious acts of misconduct for which he was chargesheeted vide letter dated 12.9.1997 and disciplinary proceedings were instituted, wherein applicant fully participated and charges were proved in that enquiry. It is stated that in case this court arrives at the findings that enquiry did not meet the requirement of law management reserves its right to adduce both oral and documentary evidence to justify its action. Management denied that it suspended the workman from service on 10.9.97 and alleged that the applicant had indulged in grave and serious acts of misconduct and so disciplinary action was initiated against him. Management alleged that services of the workman were terminated after holding a legal, valid and proper domestic enquiry, in accordance with principles of natural justice wherein applicant was granted full and fair opportunity to adduce oral and documentary evidence in his defence. It is stated that services of workman were terminated for proved misconduct on 30.5.98 and it merely discharged him from service with immediate effect in terms of his letter of appointment dated 06.11.89 enclosing I.D. No. 254/08 12 therewith a cheque for one month's salary in lieu of notice. Management denied that in March 1992 the employees demanded the conveyance allowance and also other remuneration which annoyed management resulting into adamant and harsh attitude of management towards workman and other employees. Management denied that it promoted Sh. Vinod Dixit, who was junior to him and alleged that Sh. Vinod Dixit was far more qualified and experienced person. Management stated that it is a blatant contradiction that on one hand workman is saying that he is workman and on the other hand he is also alleging that he was senior to Mr. Vinod Dixit.
8. Management stated that it did not grant increment to employees in 1997 in view of adverse financial circumstances. Management stated that it grants increments on performance, productivity and financial health of the company. Management admitted that previously it has been regularly granting increments to the employees. Management stated that workman received annual I.D. No. 254/08 13 increment since his joining the services of the management and in the years 1993 and 1994 was awarded an amount of Rs.500/ per year. Management alleged that as it was passing through financial crises and due to that overall growth and productivity of management was also affected so management vide their letter dated 30.5.92 issued to the workman revised his pay scale w.e.f. 01.4.92 and conveyed that increments would be effected only in April every year and that the quantum of such increment would solely depend upon his devotion of duties and performance during the year and at the discretion of management and the said letter was duly received by workman.
9. Management denied that workman along with other employees lodged complaints in writing with it in protest of denial of of their legitimate rights which resulted into their exploitation by management. Management stated that employees resorted to a pen down strike on 08.9.97 and in pursuance thereto it served a letter I.D. No. 254/08 14 dated 10.9.97 to the workman wherein action of resorting to illegal strike was disapproved and he was warned for the same. Management denied that vide letter dated 28.2.98 it retrenched ten employees during proceedings before conciliation officer. Management denied that it did not participate in proceedings before the authorities.
10. It is stated that it appointed Sh. G.C. Walesha as Enquiry Officer who conducted the enquiry as per principles of natural justice. Management stated that as consequence of the Enquiry and facts and circumstances of the case it discharged workman from service vide its letter dated 30.5.98.
11. Management denied that Enquiry Officer was on the pay roll of the management. It is stated that workman was given opportunity to be presented by a counsel. Management denied that it did not provide documents relied upon by it. Management denied that it did I.D. No. 254/08 15 not provide opportunity to the workman to cross examine management witnesses and he was not allowed to lead lead any evidence in his defence at the enquiry or that he was forced to sign on blank papers. Management stated that claim of workman for bonus, gratuity, salary with increment and a sum of Rs.10 lacs on account of alleged mental agony and torture due to alleged illegal termination and also the claim of Rs.15,000/ towards litigation expenses are all misconceived and not maintainable and are beyond the jurisdiction and scope of terms of reference. Management accordingly prayed for dismissal of the claim.
12. In rejoinder to the written statement, workman controverted the averments as contained in the written statement and reaffirmed the averments as stated in the statement of claim.
13. From pleadings of the parties the following issues were framed by the Ld. Predecessor for trial:
I.D. No. 254/0816
1. Whether the claimant is a workman within the meaning of Section 2(s) ID Act?
2. Whether the enquiry conducted against the workman is just, fair and proper?
3. As per terms of reference.
14. On 22.4.04 following additional issue was framed:
Whether the management had closed its business activities w.e.f. May 2002? if so to what effect? OPM
15. Both the parties were directed to lead evidence by way of affidavit. Workman filed his affidavit Ex.WW1/A in evidence. He relied upon twenty documents Ex.WW1/1 to Ex.WW1/20. He was crossexamined by authorized representative for the management.
16. Management filed affidavit Ex.MW1/A of Enquiry Officer MW1 Sh. G. C. Walesha in evidence who relied upon two documents Ex.MW1/1 and Ex.MW1/2. He was crossexamined by authorized representative for the workman.
I.D. No. 254/0817
17. I have heard authorized representatives (hereinafter to be referred as 'AR') of the parties and have gone through the record. Findings on the issues are as under:
ISSUE NO.1
18. This issue was framed because management has alleged in the written statement that claimant was not a workman within the meaning of term U/s 2(s) ID Act. Thus it was for the claimant to establish that he was a workman under ID Act. AR for management submitted that during cross examination claimant admitted several material facts which have a bearing on determination of this issue. He also submitted that from these depositions of the claimant it is clear that claimant was not a workman under the ID act. Accordingly depositions of the claimant during cross examination need to be discussed which I proceed to discuss.
I.D. No. 254/0818
19. During cross examination claimant admitted that management had promoted him to the post of Assistant Manager Share Transfer Department. He also admitted that the Assistant Manager was required to interact with the client companies, prepare share transfer register, resolve the grievances of investors and to perform such other duties. He deposed that in 1992 he was authorized signatory on behalf of the company in respect of issuance of share certificates to various shareholders. He stated that he did not remember the name of the staff who use to report to him during performance of duty and he recalled names of Mr. Sunil Mishra, Mr. Ashok Kumar and Mr. Virender Sharma in this regard. He also stated that he had only 4/5 staff members reporting and working under him.
20. Claimant also deposed during cross examination that before joining the service of the company he was working with MCS Ltd. Holding independent charges in the Secretarial Department and on I.D. No. 254/08 19 joining present company also he was also doing the same job. He stated that as an officer he was entrusted several company clients and was required to provide them complete secretarial services in respect of all matters pertaining to share, their purchase, sale transfer etc.
21. A careful perusal of the deposition of the claimant during cross examination, reproduced as above clearly shows that the claimant was acting independently. He was to take his own rational decisions and he was assisted by a staff of 4/5 persons. Deposition of the claimant during cross examination reproduced as above clearly shows that he was using brain and not brawn and he was discharging very responsible duties while acting as authorized signatory in the year 1992 for issue of share certificates to various shareholders. In my considered view these depositions of the claimant clearly establish that he was not discharging any manual, clerical, technical or operational duties of routine nature mainly I.D. No. 254/08 20 performed by workman. Accordingly I hold that claimant has failed to prove that he was a workman within the meaning of the term U/s 2(s) ID Act. This issue is accordingly decided against the claimant and in favour of the management.
ISSUE NO. : 2
22. Onus to prove this issue was upon the claimant. During cross examination claimant admitted that he fully participated in the enquiry and copies of the enquiry proceedings were simultaneously handed over to him by the Enquiry Officer. He admitted that enquiry record is a faithful reproduction of what transpired in the enquiry. He also admitted that his letter dated 25.2.98 Ex.PW13 was taken on record by the Enquiry Officer, it was duly considered and orders were passed on this letter. He further admitted that after the abovesaid letter he did not submit any other letter in the enquiry. He further admitted that the Enquiry Officer at the very first sitting of the enquiry duly explained the procedure to be followed in the enquiry. I.D. No. 254/08 21 He stated that enquiry suffered from two shortcomings 1) he had to press the enquiry officer to write regarding his rights, 2) he (Enquiry Officer) used to guide the management. Claimant deposed that these two shortcomings in the enquiry were never pointed out by him to the Enquiry Officer or to the management. He stated that he did not give anything in write in this regard to them. Claimant also deposed that he could not show from his affidavit Ex.WW1/A as to how the domestic enquiry was not in accordance with law or in violation of principle of natural justice. These depositions of the claimant during cross examination clearly establish that enquiry conducted by the Enquiry Officer was as per principle of natural justice and that claimant has failed to prove that the Enquiry Officer violated any principle of natural justice. Accordingly this issue is decided against the claimant and in favour of the management. ADDITIONAL ISSUE NO. 1
23. This issue was framed as management has alleged that it I.D. No. 254/08 22 has closed its business activities w.e.f. May 2002. Management has led evidence in support of this issue and there is no challenge of the same by the claimant. Accordingly this issue is decided in favour of the management. Effect of decision of this issue is that claimant cannot seek any reinstatement as business of the management stands closed.
ISSUE NO. : 3
24. This issue is as per terms of reference. Terms of reference are regarding determination of legality and /or illegality of termination of service of the claimant. Case of the management is that claimant was simply discharged from service as per terms and conditions of his appointment so that any stigma is not attached to him. As held while deciding issue No. 1, claimant has failed to prove that he was a workman within the meaning of the term under the ID Act and so claimant has no industrial rights and for this reason he is not entitled for any relief.
I.D. No. 254/0823
25. Even if it be taken for a while that claimant was a workman within the meaning of the term under the ID Act then it is to be noted that while deciding issue No. 2, it has been held that claimant has failed to prove that the Enquiry Officer violated any principle of natural justice. Thus on the basis of the report of the enquiry officer that charges stood proved against the claimant, management could make its choice regarding punishment to be awarded to the claimant. However management simply discharged the claimant from service and paid him one month's salary in lieu of the notice. In my considered view the action taken by the management by discharging the claimant 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 and so discharge of the claimant from service was neither illegal nor unjustified. This issue is decided accordingly against the claimant. I.D. No. 254/08 24 RELIEF
26. In view of the foregoing findings on issue No. 1, 2 & 3 I hold that claimant is not entitled for any relief. His claim is dismissed.
27. Award is passed as per the foregoing findings on the issues and reference stands answered accordingly. A copy of the award be sent to Secretary (Labour) for necessary action and be also sent to server (www.delhicourts.nic.in). The file be consigned to the record room.
Announced in Open Court on this 21 day of July 2009 st S.K. Kaushik Presiding Officer Labour Court No. XII, Karkardooma Courts, Delhi.