Shri Manmohan Mehta vs The Management Of M/S R V Sales ...
2009 Latest Caselaw 2850 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

                        +   W.P.(C.) No. 6736/2006

%                  Date of Decision: 27th July, 2009


# Sh. Manmohan Mehta
                                                     ..... PETITIONER
!                  Through: Mr. Gajender Giri, Advocate.

                                 VERSUS

$ The Management of M/s R.V. Sales Pvt. Ltd.
                                                       .....RESPONDENT

^                  Through: Nemo.

CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment? YES

2. To be referred to the reporter or not? YES

3. Whether the judgment should be reported in the Digest? YES

S.N.AGGARWAL, J (ORAL)

This writ petition filed by the workman (the petitioner herein) is

directed against an award dated 02.05.2005 passed by the Industrial

Adjudicator by which he has been awarded an amount of Rs.30,800/- as

compensation. The Industrial Adjudicator has found the termination of

the petitioner from the service of the management justified and the

compensation has been awarded to him on account of gratuity etc. taking

into account the service of 11 years rendered by him prior to his

termination.

2 The petitioner in this writ petition is aggrieved by the decision of

the Industrial Adjudicator by which termination of his services has been

found to be legal and justified. According to the petitioner, his

termination from the services of the management based upon the inquiry

report dated 09.02.1996 is vitiated for non-payment of subsistence

allowance to him during the period of his suspension when the inquiry

into the charges against him was going on.

3 Briefly stated the facts relevant for the disposal of this writ petition

are that the petitioner was appointed as a Salesman with the

management (the respondent herein) w.e.f. 07.07.1984 and he was

allegedly confirmed in the service of the respondent w.e.f. 01.09.1986. As

he was allegedly not paid his salary for the period from October to

December, 1995, he filed an application under Section 33(C)(2) in

December, 1995 before the Labour Court for payment of wages to him for

the aforesaid period. He also simultaneously filed a complaint for non-

payment of wages for the period from October, November and

December, 1995 before the Labour Commissioner. On 20.03.1996, the

Labour Inspector visited the factory premises of the management and

found that the management was not taking any work from the petitioner

and was making him to sit idle and despite the management being told

by the Labour Inspector to pay the wages of the workman, the

management refused to pay his wages. The Labour Inspector who had

visited the factory premises of the management on 20.03.1996

submitted his report to the Labour Commissioner which is Annexure P-5

at page 33 of the paper book. In the meanwhile, the petitioner was

charge-sheeted by the management vide charge-sheet dated 31.01.1996

which is Annexure P-3 at page 30 of the paper book. On 09.02.1996, Ms.

Manjula was appointed as Inquiry Officer to inquire into the charges

leveled against the petitioner. Since the management was not paying

subsistence allowance to the petitioner, the petitioner filed a second

complaint before the Labour Commissioner on 08.03.1996 and furiated

by that complaint, the management is alleged to had placed the

petitioner under suspension w.e.f. 01.04.1996. The petitioner refused to

participate in proceedings before the inquiry officer because he was not

paid subsistence allowance by the management during the period of his

suspension. As the petitioner did not participate in the inquiry

proceedings, the Inquiry Officer conducted the inquiry against the

petitioner ex-parte and submitted her report to the management on

23.07.1996. The report submitted by the Inquiry Officer to the

management is Annexure P-10-A at pages 43 to 100 of the paper book.

The management on the basis of inquiry report proposed to dismiss the

petitioner from its services and vide show cause notice dated 09.08.1996

(Annexure P-11 at page 101 of the paper book) called upon the petitioner

to show cause why he should not be dismissed from service. It seems

that the petitioner did not gave any reply to the said show cause notice

and the management treated the said show cause notice itself as

removal of the petitioner from its service. The petitioner under the

circumstances treated himself to have been terminated from the service

of the management w.e.f. the date of his suspension i.e. 01.04.1996.

4 Aggrieved by his termination from the service of the respondent

w.e.f. 01.04.1996, he raised an industrial dispute which was referred by

the appropriate Government for adjudication to the Labour Court. The

Labour Court then presided over by Mr. S.N. Gupta decided the inquiry

issue against the workman/petitioner vide order dated 07.03.2005 and

vide impugned award dated 02.05.2005 held that the termination of the

petitioner from the service of the management was justified and legal but

gave an award of Rs.30,800/- in his favour as compensation taking into

account 11 years of service rendered by him with the management.

5 It is aggrieved by the aforesaid award of the Labour Court that the

petitioner has filed the present writ petition challenging its findings

relating to his termination.

6 Notice of this writ petition was sent to the respondent but the

respondent management refused to accept the service of the summons

as recorded in the order dated 05.12.2006. The respondent, thereafter,

was proceeded ex-parte vide order dated 09.08.2007.

7 As the respondent has not appeared to defend the present writ

petition despite opportunity given to him, this Court is left with no option

but to hear the counsel for the petitioner in his absence ex-parte.

8 Mr. Gajender Giri learned counsel appearing on behalf of the

petitioner has relied upon a Constitutional Bench judgment of the Hon'ble

Supreme Court in Ghanshyam Das Shrivastava Vs. State of Madhya

Pradesh (1973) 1 LLJ 414 and on the strength of this Constitutional

Bench judgment of the Supreme Court , he has argued that since in the

present case also the petitioner was not paid his subsistence allowance

during the course of domestic inquiry, the inquiry against him is vitiated.

It is also submitted by learned counsel that the termination of the

petitioner from the services of the respondent also cannot stand the test

of judicial scrutiny because according to him the said termination is,

based upon ex-parte inquiry conducted by the Inquiry Officer, contrary

to law. Learned counsel has taken me through the record of this case to

show that the subsistence allowance as required under the Rules was not

paid to the workman in the course of conduct of domestic inquiry against

him. He has contended that the findings of the court below in the

impugned award that the petitioner had refused subsistence allowance

from the management on the plea that he wanted 100% salary as

subsistence allowance instead of 50% offered to him by the management

is totally perverse and is contrary to the observations of the inquiry

officer in the inquiry report itself. He has drawn my attention to page 61

of the paper book to show that the Inquiry Officer herself has recorded

that the petitioner was insisting for payment of Rs.1,400/- per month as

subsistence allowance which was 50% of the admitted wages of

Rs.2,800/- paid to him at the time of his suspension w.e.f. 01.04.1996.

9 It is clear from the finding on the point of payment of subsistence

allowance contained in the report of the Inquiry Officer (at page 61 of the

paper book) that the findings recorded by the Industrial Adjudicator

relating to payment of subsistence allowance for 100% payment is

contrary to material on record. From the same, it cannot be said that the

petitioner had refused to receive subsistence allowance offered to him by

the management. The management was not justified to make any

deduction on any count from the subsistence allowance of the petitioner.

The payment made to a workman under suspension on account of

subsistence allowance is in the nature of maintenance and applying the

analogy of principle contained in Section 60(l) of the Code of Civil

Procedure, 1908, I am of the view that no deduction could have been

made by the employer from the subsistence allowance admissible to the

petitioner during the course of domestic inquiry.

10 In Ghanshyam Das Shrivastava's case (Supra) also the

Constitutional Bench of Hon'ble Supreme Court quashed the dismissal of

a forest ranger based upon the ex-parte inquiry into certain charges

framed against him as he was also not paid the subsistence allowance

during the course of domestic inquiry and therefore the Inquiry

proceedings were held vitiated as violative of Section 311(2) of the

Constitution. I feel myself bound by the Constitution Bench judgment of

the Hon'ble Supreme Court which is directly applicable to the facts of the

present case.

11 In the present case since the petitioner was not paid subsistence

allowance during the course of the domestic inquiry held against him, the

ex parte inquiry proceedings as well as the inquiry report is vitiated and

the impugned termination of the petitioner based upon such inquiry

proceedings also stands vitiated and, therefore, cannot be sustained.

12 For the foregoing reasons and having regard to the facts of the

case, the impugned termination of the petitioner from service of the

respondent is hereby quashed. This writ petition is allowed. The

impugned award of the Industrial Adjudicator dated 02.05.2005 is hereby

set aside. Liberty is, however, granted to the respondent to start a fresh

inquiry in accordance with law against the petitioner.

13 In view of the above, this writ petition stands disposed of with no

orders as to costs.

JULY 27, 2009                                  S.N.AGGARWAL, J
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