Pawan Parkash Saini vs Aganall Traders Limited
2006 Latest Caselaw 2312 Del

JUDGMENT

Shiv Narayan Dhingra, J.

Page 0304

1. By this writ petition, petitioner has challenged the validity of the order dated 30.4.2005 by which the domestic enquiry against petitioner was held to be conducted fairly and properly by the management and the validity of the Award dated 9.5.2005 whereby the Tribunal answered the reference in favor of the management.

2. Briefly the facts are that one co-workman of the petitioner Roop Singh had indulged into misconduct and was served a charge sheet about the misconduct to the following effect:

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Dear Sir,

It is reported that on 31st January 1987 at 11.30 a.m you picked up quarrel with Shri Prabhu Singh, Chowkidar on the premises of the establishment, when he was on duty. You abused him in filthy language in the name of his mother and sister. You also beat him and threatened him to stab him by knife.

When Shri Shakti Chand, another employee of the company tried to separate you and stop beating of Shri Prabhu Singh Chowkidar, you beat him also and twisted his hand. When he tried to persuade you not to quarrel, you threatened him for further beating and serious consequences. You mis-behaved with him very badly.

You also threatened Shri Mahimanand, another employee on the same day, for killing him and therefore, he is afraid of his life and sought protection from the management.

You are, therefore, charged with having committed the following grave misconduct:

1. Riotous and disorderly behavior during working hours at the establishment or act subversive of discipline.

2. Beating, abusing and threatening the other co-workers at the establishment.'

3. Committing a scene and thereby creating panic and harming the working of the establishment.

You are hereby directed to submit your explanation to the aforesaid charges in writing within three days of the receipt of this charge sheet, as to why disciplinary action should not be taken against you?

In the meantime you are hereby suspended. Should you fail to submit your explanation within the stipulated time, it will be presumed that you have no explanation to offer and the charges as leveled above will be deemed to have been accepted by you as correct and further action may be taken against you without any further reference.

3. The petitioner considered it as an act of victimization of Roop Singh and instead of advising Roop Singh to face enquiry and place evidence before the Enquiry Officer, the petitioner incited other workmen on 17.2.1987 to strike the work and threatened to those workmen who were willing to work. He himself also stopped working. Due to his instigation the other workmen struck work , despite the fact that Conciliation proceedings were pending before the Assistant Labour Commissioner. His act of inciting other workmen to stop working and his act of himself not working and not allowing even willing workers to work was considered as indiscipline and a charge sheet was served upon him for inciting workers and indulging into the acts of indiscipline, threatening willing workers from attending the work and threatening them with dire consequences as given below:

It is reported against you are under:- 18.2.87

That on 17.2.87 at 9.00 A.M. at Palam Vilage Workshop you incited other workers to strike work and your self also stopped working, without any proper notice. In view of the pendency of conciliation proceeding before the Assistant Labour Commissioner, 15 Rajpur Road, Delhi, in the charter of demands, the strikes brought about by you is in contraction of the provisions of the ID Act, and as such deemed to be illegal and unjustified. Page 0306 This strike is also in breech of service contract as per the appointment letter. Due to your instigation, your co-worker has also gone on strike as mentioned above. You have been persistently engineering all sorts of indiscipline among the workers and intimidating those who do not follow your advice to the detriment of the interest of discipline, good name, reputation and the good will of management. You also threatened the loyal workers that if any one of them will attend to his work on 17.2.87, he will have to face dire consequences.

The aforesaid acts/ actions on your part constitute grave and serious misconduct.

You are, therefore, directed to explain in writing within 48 hours from the receipt of this charge sheet as to why disciplinary action should not betaken against you or committing the above mentioned misconducts. In case your explanation is not received within the stipulated period, it would be presumed that you have no explanation to offer and admit the charges. In the meantime you are hereby suspended from duty.

4. An enquiry was instituted against him vide letter of the management dated 14.3.1987. In the enquiry petitioner took the stand that he be paid subsistence allowance . He asked the Enquiry officer not to proceed against him unless subsistence allowance was paid to him. He claimed that he was entitled for full wages as subsistence allowance. However, Enquiry Officer proceeded with the enquiry and concluded it. Since the petitioner did not participate in the enquiry he was proceeded ex parte. The Enquiry Officer gave a report that misconduct of the petitioner was stood proved. The services of the petitioner were terminated by the disciplinary authority after considering the enquiry report and representation of petitioner. After his termination petitioner raised an industrial dispute about legality of his termination which was referred to the Labour Court in the following terms:

Whether the termination of services of Shri Pawan Prakash Sain is illegal and/or unjustified and if so, to what relief is he entitled and what directions necessary in this respect?

5. The Labour Court framed a preliminary issue whether the enquiry was held validly or not. Tribunal came to the conclusion that the petitioner had appointed Mr. T.N. Francis as his defense representative during enquiry. He had also made representation through Mr. Karamvir for change of Enquiry Officer on the ground of bias of the Enquiry Officer. He made a request for conducting enquiry in the Hindi. All these representations and documents were proved by the management. Tribunal held that in view of clause 10 of the appointment letter of the petitioner, petitioner was not entitled to subsistence allowance. During enquiry full opportunity was given to the petitioner but the petitioner failed to avail the opportunity. Tribunal also observed that the petitioner failed to show how non payment of subsistence allowance during the suspension period prejudiced him. Petitioner left the enquiry in between and contested the payment of subsistence allowance before Labour Court where he failed. Therefore, the ground of non payment of subsistence allowance was not available to the petitioner.

6. In U.P. State Textile Corporation v. P.C. Chaturvedi 2006 1 LLJ 413, the issue was whether none payment of subsistence allowance to the workman Page 0307 would vitiate the Award. The High Court had taken a view that non payment of subsistence allowance shall vitiate the Award. The Supreme Court held that the view of the High Court was not tenable. Supreme Court referred to the rules of service governing the workman and found that the workman had not complied with the conditions given in service rules to entitle him to subsistence allowance, therefore, non payment of subsistence allowance was not fatal to the enquiry. Supreme Court also held that workman had failed to show any prejudice was caused to him because of non payment of subsistence allowance and reversed the order of the High Court.

7. The petitioner alleged non supply of enquiry report. However, the petitioner failed to show how non supply of the Enquiry report caused prejudice to him. In fact it is the petitioner who stopped participating in the enquiry and did not bother about the enquiry report. In Managing Director, ECIL, Hyderabad etc. v. B. Karunakar etc AIR 1994 SC 1074, Supreme Court observed:

When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice.

8. The petitioner in the present case failed to show that a prejudice was caused to him because of non supply of the report either before the Tribunal or before this Court. He, despite opportunity, did not participate in the enquiry. Non-supply of enquiry report, as alleged, would have made no difference in such a case. In the present case petitioner deliberately did not appear before the Enquiry Officer and allowed the enquiry to proceed ex parte. The alleged non supply of enquiry report could have made no difference in his case as he did not participate in enquiry.

9. I consider that the employees of a management have right to indulge into legitimate union activities. The legitimate union activities includes bargaining on behalf of the workman, for better facilities, better pay, better working conditions. In the name of union activities employees cannot either black Page 0308 mail the management or prevent the management from holding an enquiry into charges against an employee for misconduct. The only legitimate way with the workman was to lead evidence before the Enquiry Officer to show that he did not indulge in the misconduct. Taking support of other workmen, striking work because one has been served with a charge sheet are not legitimate union activities.

10. In view of the above discussions, I find no ground to maintain this writ petition. Writ petition is hereby dismissed in liming.