The Management Of New Delhi ... vs Lt. Governor Of Delhi And Ors.
1993 Latest Caselaw 118 Del

JUDGMENT

Y.K. Sabharwal, J.

(1) The Petitioner-Management of New Delhi Tuberculosis Centre (the Management) terminated the services of its employee Bharat Singh respondent No. 4 (Workman') by issuing a Memorandum dated 13th September 1975 informing the Workman that his services will no longer be required with .effect from the date of the Memorandum. An industrial dispute was raised by the Workman which was referred for adjudication to the Labour Court. The term of reference is as under:- "WHETHER the termination of services of the Workman Sh. Bharat Singh is wrongful and/or illegal and, if so, to what relief is he entitled."

(2) The Workman alleged in his statement of claim that he joined the services of the Management in the month of June, 1956 as a Peon against a permanent regular post and subsequently he was promoted as Daftri in 1968 against a permanent post on the basis of his satisfactory and efficient work and later he was promoted as Record Sorter in the next higher grade and was working satisfactorily and most efficiently till the Management served on him the termination memorandum on 13th September 1975 without assigning any reason and without serving him with any charge sheet or conducting any enquiry. The Workman pleaded that the action of the Management was unilateral, illegal and in violation of the principles of natural justice. He alleged that his services were terminated because, of his activities in the Union as General Secretary and the Management was annoyed with him and it was an act of victimisation and unfair labour practice on the part of the Management to terminate his services. It was also pleaded that he was unemployed since the date of his illegal termination of his services and was entitled to be reinstated with continuity of service and full back wages.

(3) The stand of the Management in brief was that it was a case of discharge simpliciter without attaching any stigma and it was not obligatory on the part of the Management to give reasons leading to the termination of services of the Workman. The Management pleaded that it was not necessary to frame any charge or to hold any enquiry. According to Management the Workman was not fit person to be retained in employment in view of his persistent irresponsible and unsatisfactory manner of working and as such his services were terminated in terms of the letter of appointment. The reasons which led the Management to terminate the services of the Workman, as given in the written statement before Labour Court are:- "(A)Frequent absenteeism without prior leave or intimation for several days at a time. (b) Reporting late for duty by as much as 2 hours at times. (c) Since his work was to take out the patients, treatment cards and put these before the doctor when the patients come for collecting drugs his frequent late coming hampered prompt disposal of patients leading to complaints from patients because they were delayed and put to undue harassment. (d) Leaving his seat of work frequently without permission during duty hours."

(4) In support of these reasons the Management in its written statement has mentioned five specific reports of the year 1974 and 1975.

(5) The admitted case of the parties is that neither show cause notice was served upon the Workman nor any charge sheet was issued nor enquiry held. The fact that the order of discharge is couched in the language of a discharge simpliciter is not conclusive. When an order gives rise to an industrial dispute the form of the order is not decisive and the Labour Court can examine the substance of the matter and decide whether the termination, in-fact, is discharge simpliciter or it is an order of dismissal and punitive though the language of the order is of discharge simpliciter. If the Labour Court is satisfied that the order is punitive or malafide or is made to victimise the Workman or amounts to unfair labour practice it is competent to set it aside.

(6) By the award dated 28th September 1983 the about Court came to the conclusion that the allegations made by the Management against the Workman amount to misconduct on the part of the Workman and thus it was incumbent upon the Management to serve upon the Workman a show cause notice, charge sheet and to hold an enquiry to enquire into the allegations before taking the punitive action of dismissal from service and thus the services of the Workman were wrongfully and illegally terminated and the Workman was entitled to be reinstated with continuity of service with back wages with effect from May, 1978. The Management seeks quashing of the impugned award.

(7) The allegations made by the Management against the Workman as set out in its written statement show that the services of the Workman were terminated not on account of overall dissatisfactory and bad performance record of the Workman. The services were terminated because of five specific reports alleged to have been given in the year 1974 & 1975. The details including the dates of those reports have been mentioned in the written statement of the Management. The Workman has been in employment since 1956 and was promoted as Daftri and Record Sorter. It has not been pleaded by the Management that copies of any of these reports were supplied to the Workman. In the Writ petition now the Management has mentioned various reports and memorandums starting from 1960 onwards. In the written statement there is not even a whisper about these reports and memorandums. The Workman was even promoted after some of the said reports and memorandums. It cannot be held that the services of the Workman were terminated on account of overall bad performance and unsatisfactory and irresponsible manner of working. The Labour Court rightly came to the conclusion that the allegations against the Workman amount to misconduct on the part of the Workman and it was necessary for the Management to comply with the principles of natural justice and issue the charge sheet and hold an enquiry into the said allegation. The alleged misconduct of the Workman, on the facts of the present 'case, was the foundation of the termination memorandum. On the facts and circumstances of the case the conclusion is inevitable that the memorandum terminating the services of the Workman was punitive in character and the form of the said memorandum of discharge simpliciter is not decisive.

(8) Learned counsel for the petitioner further contends that assuming the memorandum of termination was punitive in character and could not have been passed save and except as a result of disciplinary enquiry the said memorandum should not have been struck down as illegal and invalid by the Labour Court as the Management had adduced sufficient evidence before the Labour Court justifying the reasons of termination. Relying upon the decision of the Supreme Court in Municipal Corporation. Greater Bombay Vs. P.S. Malavenkar and others. 1978 (2) L.L.J. 168 counsel contends that it was open to the Management to justify its action before the Labour Court by adducing all relevant evidence before if. Counsel contends that after looking into the said evidence the Labour Court should have decided whether the termination order was illegal or wrongful but the Labour Court has not examined that evidence and has not adjudicated the said issue. It may be open to the Management to avail an opportunity before the Labour Court and adduce relevant evidence to justify termination of services of the Workman. On the facts of the present case, however, for more than one reason the Management cannot be permitted to urge before this Court that it had justified reasons for termination of service of the Workman by adducing relevant evidence. Firstly, no contention appears to have been made before the Labour Court that the Management had proved by adducing relevant evidence the reasons which led the management to terminate the services of the Workman. Secondly, the Management did not ask for an opportunity to adduce evidence and prove reasons before the Labour Court. The Management did not seek the permission of the Labour Court to lead any such evidence and thus on that aspect the Workman was never put to notice. Thirdly, the reasons (a) to (d) given by the management in its written statement because of which it terminated the services of the Workman were conclusions derived from the five reports of the year 1974-75. The Management had annexed only those five documents in regard to the reports Along with its written statement. No other document was annexed. The management examined in the Labour Court only one witness, namely, its Administrative Officer. That witness did not utter a word about any of those documents of the year 1974 and 1975. None of those documents were proved or exhibited. The contention that the Workman had admitted certain documents/memos of the year 1965,1969 and 1971 is not relevant as these documents and memorandums were not the reasons given by the Management. The Administrative Officer does not refer to any of the reports mentioned in the written statement of the Management.Thus, the contention that the evidence was led before the Labour Court to prove the reasons and the Lower Court ought to have examined it before invalidating the memorandum of termination is without any substance.

(9) The innocent looking order of termination simpliciter passed by the Management was rightly set aside by the Labour Court. Reference in this regard may be made to the decision of the Supreme Court in L.Michael and another Vs. M/s. Johnson Pumps India Ltd. 1975 (1) L.L.J. 262, Justice Krishna Iyer speaking for the Supreme Court said:- "THEabove, study of the chain of rulings brings out the futility of the contention that subsequent to Murugan Mills case (supra) colourable exercise of power has lost validity and loss of confidence had gained ground. The law is simply this: the tribunal has the power and, indeed, the duty to x-ray the order and discover its true nature if the attendant circumstances and the ulterior purpose to dismiss the employee because he is an evil to be eliminated. But if the management, to cover up the inability to establish by an enquiry, illegitimately but ingeniously passes an innocent- looking order of termination simpliciter, such action is bad and is liable to be set aside. Loss of confidence is no new armour for the management; otherwise security of tenure, ensured by the new industrial jurisprudence and authenticated by a catena of cases of this Court, can be subverted by this neo-formula. Loss of confidence in the Law will be the consequence of the loss of Confidence Doctrine."

(10) I may notice an alternative contention urged on behalf of the Workman. Learned counsel for the Workman contends that assuming without admitting that the award of the Labour Court setting aside the memorandum of termination was bad in law, the Workman would still be entitled to the relief granted to him by the Labour Court for the reason that the memorandum of termination amounts to retrenchment within the meaning of Section 2(00) of the Industrial Disputes Act, 1947 and since the retrenchment had been effected without fulfillling the conditions precedent stipulated in Section 25F of the said Act, the memorandum of termination, in any case, would be illegal and invalid. The contention is well founded and is squarely covered in favor of the Workman by decision of the Division Bench of this Court in Management of M/s. Bharat Kala Kendra Pvt. Ltd. Vs. R.K. Baweja and another, 1981 Vol.2 Labour & Industrial Cases, 893. The facts of that case are that the discharge of the Workman was not bonafide directed the Management to reinstate the Workman with continuity in service and halfback wages from the date of termination of his services till he was taken back at the rate last drawn by him. The writ petition filed by the Management was dismissed by a learned Single Judge of this Court so also the writ petition filed by the Workman aggrieved against the directions for payment of only half back wages. The Management and the Workman preferred separate Letters Patent Appeals. In appeal, the Division Bench came to the conclusion that the order of Labour Court setting aside the order of termination had to be quashed. At that stage a last minute contention was raised on behalf of the Workman that his termination amounted to retrenchment and since retrenchment had been effected without fulfillling the conditions precedent stipulated, therefore, in Section 25F of the Industrial Disputes Act, 1947, the termination was illegal and deserves to be set aside. In view of the unassailable contention of the Workman the Management took objection that the Workman should not be allowed to raise that contention at that late stage because if the objection had been raised at initial stages it could have been remedied by suitable action and the management also contended that if it is only the question of compensation that worries the Workman the Company is quite ready and willing to pay the requisite amount to him. On the other hand the contention of the Workman before the Division Bench was that the Workman should be allowed to use the purely legal argument atleast to support or sustain the order of the Labour Court, the validity of which had been impugned by the Management. The Division Bench expressed the opinion that there was force in the contention of the Management that if the ground about non compliance of Section 25-FF had been raised by the Workman earlier the Management could have set the position right by immediate appropriate action and as such the Workman should not be allowed to raise that point after such a long time to get the relief which he has not got so far. Inspite of the aforesaid conclusion the Division Bench found force in the plea of the Workman that he should not be deprived of his right as a respondent in the appeal of the Management and he should be allowed to contend that despite the conclusion of the Division Bench on the validity of the order of termination he should be allowed to retain the relief granted to him under the order of the Labour Court for the reasons of non compliance of Section 25-FF. The Division Bench said that though the Workman cannot make use of the argument to seek reinstatement and full back wages as if there had been no termination at all but he must succeed in his plea that the order of the Labour Court and of the learned single Judge to the extent they are in favor of the Workman should not be upset. In view of these conclusions, the Letters Patent Appeal of both the Workman and Management were dismissed. On facts there is no dispute between the parties that provisions of Section 25F of the Industrial Disputes Act, 1947 were not complied with. The termination of the Workman was, accordingly, illegal. Thus the workman would be entitled to succeed in his contention for uphold- ing the award assuming the memorandum of termination was bad for any other reason. In view of the Division Bench decision the contention of the management that at this late stage the workman should not be permitted to urge that the order of termination was illegal for non compliance of provisions of Section 25F of the Act cannot be accepted. In order to overcome the decision in Bharat Kala Kendra's case learned counsel for the petitioner, placed reliance on an earlier Division Bench decision of this court in Lachman Das and another Vs. M/s. Indian Express Newspapers (Bombay) Pvt.Ltd. and another, 1977, Labour & Industrial Cases, Page 823. This case is clearly distinguishable and in no manner lays the law different than laid down in Bharat Kala Kenora's case. The Workman in the case cited by the management had been unsuccessful before the Labour Court and in the writ petition wanted to urge the invalidity of the termination order on the ground of non-compliance of Section 25-FF which was not allowed by the Division Bench holding that if the petitioner wanted to urge that the termination of services was an illegal retrenchment then he should have taken up the stand before the Labour Court. The law laid down in Bharat Kala Kendra's case is also to the same effect. In that decision, as noticed above, the Division Bench held that though the Workmen would not be entitled to raise the question of invalidity of the order of termination on ground of non compliance of Section 25F of the Act at the late stage, he, at the same time, was entitled to raise it as a defense to support the order of reinstatement made in his favor by the Labour Court. The award of the Labour Court is thus liable to be sustained, as contended on behalf of the Workmen, on the aforesaid infirmity alone.

(11) Coming now to the question of relief, it was vehemently contended on behalf of the Management that it was not a fit case where the Workman should be permitted to retain the relief of reinstatement as the Management was a Hospital. The contention is that the Workman was required to take out the patient's cards and thus the retention of the Workman in the hospital is not conducive to the interest of the patients and it would lead to undue harassment to the patients and would not be conducive to the interest of the hospital In support reliance is placed on decision of Bombay High Court in Jaslok Hospital and Research Centre Vs. B.V. Chavan, Industrial Tribunal and two Others, 1983, Vol.46,F.L.R, Page 209. Learned single Judge of the Bombay High Court while dealing with the case of Jaslok Hospital and Research Centre while upholding the finding of the Industrial Tribunal that the termination of the employees was punitive in nature denied the relief of reinstatement to the employees on consideration of the circumstances of that case. The circumstances noticed in that case to deny the relief of reinstatement were that the Hospital and the Medical Research Centre were sensitive institutions and were engaged in saving human lives and success of such institutions depend upon the confidence generated by the staff working there and that the cure of patients depends upon the care and attention lavished then on the medicines administered; the employees were 70 in number and had resorted to a lightening strike which was wholly unjustified. It also noticed that inspite of competent forum declaring the strike as illegal the striking employees obdurately refused to report back for duty and resorted to violence and not only gave threats to several members but assaulted even the Nurses: the property of the hospital and Research Centre was dam aged and the lightening strike resorted to cause untold hardship to helpless patients; the employees declined to report back for duty even when the management permitted. On aforesaid peculiar circumstances the Court concluded that employees involved in the reference belonged to that category who refused to see any reason or care for orders passed by forums constituted under law and firmly believed that all their wishes could be fulfillled by resort to violent methods and thus held that it would be inappropriate to direct reinstatement of such employees in the Hospital and Research Centre. In the present case there are no such circumstances. It is a case of a single Workman. Except the ipse dcdt of the Management there are no peculiar circumstances to deprive the Workman of the relief of reinstatement granted to him by the Labour Court. Likewise, the Supreme Court in The Management of Monghyr Factory of I.T.C. Ltd Vs. The Presiding Officer, Labour Court, Patna (Bihar) & Ors., 1978 Labour and Industrial Cases, 1256 denied the relief of reinstatement to the employee on the peculiar facts and circumstances of that case. The Supreme Court said that the service record of the employee showed that he had committed several faults in the past and was sometimes warned, sometimes suspended and sometimes reprimanded for all these omissions and commissions. In the incident which was in question in that case he was clearly guilty of neglect of duty in putting wrong slides although they were wrongly supplied to him while packing the cigarettes on the packing machine. On the facts and circumstances of that case the Supreme Court opined that it was not a fit case where the High Court ought to have sustained the order of reinstatement passed by the Labour Court. As said above there are no such circumstances in our case. In Workman of Coimbatore Pioneer 'B' Mills Ltd. Vs. Presiding Officer. Labour Court, Coimbatore, 1980 Vol. 40 F.L.R. 371 the question whether 39 workers were entitled to relief of reinstatement was not examined as the Labour Court had refused to grant reinstatement to the workers and the award had been upheld by the High Court. In that decision the Supreme Court was only considering the question of the enhancement of compensation. In M/s. International Industries Vs. K. G. Sawant. Hasam bhai Jetha Chawl and others, 1984 Vol. 48 F.L.R. 376 the Bombay High Court did not go into the question of quashing the order of the Labour Tribunal in so far as it had ordered reinstatement as none of the five reinstated workman chose to be reinstated. A useful reference may also be made to case of Mohan Lal Vs. Bharat Electronics Limited, 1981 vol. 2 L.L.J. Page 70 where relying upon its earlier decision in State of Bombay Vs. The Hospital Mazdoor Sabha, 1960(1), L.L.J.251,the Supreme Court held that the failure to comply with the requirements of Section 25-FF which prescribes conditions precedent for a valid retrenchment renders the order of retrenchment invalid and inoperative and said that:- "IN other words, it does not bring about cessation of service of the workman and the workman continues to be in service."

(12) Reference may also be made to latest decision of the Supreme Court in Punjab LandDevt.& Reclamation Corporation Ltd, Chandigarh etc. and several others Vs. Presiding Officer, Labour Court, Chandigarh etc. and several others, 1990 Vol. 2, L.L.J. Page 70 upholding the decision of reinstatement which had been ordered by the Labour Court taking the view that order of termination amounted to retrenchment and the provisions of Section 25-FF of the Act having not been complied with the termination was illegal.

(13) It maybe open to the Court to deny to a Workman an order of reinstatement even on finding the termination to be illegal because of certain special circumstances or equities of the case but in absence of any such circumstances in the present case it is not possible for this Court to modify the relief granted to the Workman by the Labour Court and deprive him the natural relief of reinstatement.

(14) For the reasons stated above, I do not find any infirmity in the award of the Labour Court. The writ petition is, accordingly, dismissed with costs. Counsel's fee Rs. 2,000.00.