Kamal Kishore vs The Union Of India & Ors.
2009 Latest Caselaw 828 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI


+                                W.P.(C) NO.7422/2009

%                                              Date of Decision : 16.03.2009


KAMAL KISHORE                                          .... Petitioner
                           Through Mr. A.Asthanka, Advocate

                                      Versus

THE UNION OF INDIA & ORS.                                     .... Respondents

                           Through Ms.Sonia Mathur, Advocate

HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether reporters of Local papers may be
       allowed to see the judgment?                                  NO
2.     To be referred to the reporter or not?                        YES
3.     Whether the judgment should be reported in
       the Digest?                                                   YES

V. K. SHALI, J.

*

1. The petitioner has challenged the award dated 20th September,

2008 passed by the Presiding Officer, Industrial Tribunal-II,

Karkardooma Courts, Delhi in case titled as M/s Centaur Hotel Vs.

Sh.Kamal Kishore in OP Nos.16/2004, 17/2004 and 18/2004.

2. By virtue of the impugned order, the Industrial Tribunal gave

approval under Section 33 (2) (b) of the Industrial Disputes Act, 1947

(hereinafter referred to as Act) to the respondent/Management for the

dismissal of the petitioner /workman from the services of the

respondent/Management.

3. Briefly stated the facts leading to the filing of the present writ

petition are that the petitioner/workman was working with the

respondent /Management from 16th July, 1982. From time to time,

thereafter, he earned his promotions as House Keeping Attendant,

Assistant Steward, Steward on which post he was confirmed. On 9th

November, 2000, the Management issued a charge sheet to the

petitioner/workman which resulted in filing of his reply which was

found to be unsatisfactory. The allegations in the charge sheet were

that he was not discharging the duties for which he was employed. It

was further alleged that most of the time either he was roaming around

with a female employee namely Ms. Maya Devi, House Keeping

Attendant or sitting idle.

4. The Enquiry Officer/Committee was appointed which went into

the charge sheet against the delinquent official. Parties adduced their

respective evidence before the Enquiry Committee and it came to a

finding that the charges against the petitioner /workman were duly

proved. A copy of the report and other connected documents were given

to the petitioner /workman and the respondent /Management came to

a conclusion that since the allegations against the petitioner were very

serious in nature, therefore, they dispensed with his services by passing

an order of removal after tendering him a cheque for a sum of

Rs.8,795/- drawn on Syndicate Bank, Air Force Station, Palam, New

Delhi being his one month's wage in terms of provision of Section 33(2)

(b) of the Act.

5. Two matters came to be filed before the Industrial Tribunal, one

by the petitioner wherein the issue was as to whether the inquiry which

was inducted by the respondent/Management was valid and proper and

in compliance with the principles of natural justice. This issue was

decided against the petitioner by the Industrial Tribunal vide its order

dated 4th August, 2006 by holding that the inquiry which was

conducted against the petitioner by the Committee was not only valid

and proper but it also complied with the principles of natural justice.

Thereafter, additional issue no.1 was framed, which was in terms as

under:-

"Whether the Management/applicant remitted full one month wage to the respondent at the time of dismissal of the services?"

6. Simultaneously, the respondent/Management on the basis of a

decision to dismiss the petitioner from the services after complying with

the statutory provision of tendering him one month's salary also applied

under Section 33(2)(b) of the Act seeking the approval of the Tribunal.

7. With regard to the remittance of one month's salary in compliance

to the statutory provision, the Management examined AW-5 Sh.Yogesh

Kumar Sharma who filed his affidavit Ex.AW5/A and also proved

documents Ex.AW5/1 to AW5/5. The petitioner/workman examined

himself as RW-1 and tendered his affidavit as RW1/1 to RW1/5. The

Tribunal after hearing the learned counsel for the parties came to the

conclusion that there was sufficient compliance with the statutory

provision of Section 33(2) (b) of the Act inasmuch as, tender one

month's wages was duly made to the petitioner /workman and

accordingly, the approval to the respondent /Management to the

dismissal order of the petitioner was given.

8. The petitioner feeling aggrieved by the said approval having been

granted by the Industrial Tribunal, filed the present writ petition

against the impugned award dated 20th September, 2008.

9. I have heard the learned counsel for the petitioner. It has been

contended by the learned counsel for the petitioner that there is no

compliance with the statutory provision of Section 33(2) (b) of the Act

inasmuch as a cheque which was tendered to the petitioner by the

respondent was not encashed and therefore, it could not be treated to

be a sufficient compliance. It was urged that the said cheque had been

dishonored by the banker of the respondent/Management and

therefore, the approval which was granted by the Industrial Tribunal

was not sustainable in the eyes of law.

10. I have considered this submission of the learned counsel for the

petitioner/workman. However, this submission has absolutely no

merit. It is not in dispute that a cheque for sum of Rs.8,795/- drawn

on Syndicate Bank, Air force Station, Palam, New Delhi bearing

No.403038 dated 8th April, 2004 along with dismissal order was sent to

the petitioner in terms of provisions of Section 33(2)(b) of the Act. As a

matter of fact, he has admitted the receipt of the cheque. It has been

contended by the learned counsel for the petitioner that the cheque on

presentation was dishonored. The averment about the dishonour of the

cheque is nowhere made by the petitioner in the pleadings before the

Industrial Tribunal much less the proof of the same by him before the

Court. On the contrary, the learned Tribunal has observed that the

petitioner has been trying to conceal the material facts. Further, the

Industrial Tribunal has referred to the judgment of the Supreme Court

in case titled as Management of Delhi Transport Undertaking Vs.

The Industrial Tribunal, Delhi & Anr. AIR 1965 SC 1503 wherein it

has been held that under the proviso of Section 33 (2) (b) of the Act, the

payment of wages of one month's does not mean the actual payment to

the workman. What is to be shown to the Industrial Tribunal is that

the money is actually tendered and if this is shown to be so that will be

treated with a sufficient compliance of the aforesaid provision. The

language used by the Supreme Court is as under:-

"The proviso does not mean that the wages for one month should have been actually paid, because in many cases the employer can only tender the amount before the dismissal but cannot force the employee to receive the payment before dismissal becomes effective. In this case the tender was definitely made before the order of dismissal become effective and the wages would certainly have been paid if Hari Chand had asked for them. There was no failure to comply with the provision in this respect."

11. In the light of the aforesaid observation by the Supreme Court

and the fact that one month's wage were tendered to the petitioner,

which admittedly have been received by him. This is sufficient

compliance of Section 33(2) (b) of the Act and it could not be said that

there has been no compliance of the said statutory provision which will

make the grant of approval by the learned Labour Court as

unsustainable in the eyes of law. On the contrary, it seems that not

only the petitioner /workman is raising the false and frivolous plea, but

he is deliberately concealing the facts as has been observed by the

learned Labour Court. This is being done only to ensure that he gets a

favourable order. If such is the conduct of the petitioner/workman

even before the quasi-judicial forum, one shudders as to what he must

have been doing with the respondent/management on the

administrative side. Therefore, this submission of the learned counsel

for the petitioner does not have any merit.

12. Next it was contended by the learned counsel for the petitioner

that he was victimized on account of the fact that he was the Chairman

of the Scheduled Casts and Schedules Tribes Welfare Association.

Further, he was espousing the cause of his fellow colleague Ms.Maya

Devi being a widow lady and therefore, he was being victimized by the

respondent/Management. It was also urged that the petitioner has 22

years of service to his credit which is totally unblemished and therefore,

he is seeking reprieve against the order of dismissal.

13. The question that the petitioner was a Chairman of the Scheduled

Casts and Schedules Tribes Welfare Association may be a statement of

fact. It may be also that he may be espousing the cause of her fellow

workman Ms.Maya Devi, but there is absolutely no evidence or defence

taken by the petitioner before the Industrial Tribunal that these were

the grounds for which he was being victimized by the

respondent/Management. It is for the first time that the petitioner

before this Court is raising these pleas which are essentially pleas of

fact. Having not taken these pleas before the Court below, this

becomes an afterthought and cannot be a ground for setting aside the

award of the Industrial Tribunal. As regards the past unblemished

service record of the petitioner /workman, I may only add that the past

record is not of relevance because it cannot absolve the petitioner of the

misconduct of which he has been found guilty by the Enquiry

Committee. The past misconduct may be relevant only if the

respondent/Management was trying to rely on past bad conduct for the

purpose of enhancing the punishment to be imposed on the

petitioner/workman. There is no such evidence, much less discussion

in the learned Industrial Tribunal's award that the order of dismissal

has been passed on the ground other than the misconduct of which he

was found guilty. Therefore, this argument also does not have any

merit.

14. For the reasons mentioned above, I am of the considered opinion

that there is no infirmity in the award dated 20th September, 2008

passed by the Industrial Tribunal-II in OD Nos.16/2004, 17/2004 and

18/2004 nor has the petitioner been able to show that there is any

violation of principles of natural justice in rule and regulation or it

suffers from any infirmity, which was warrant any interference in

exercise of power of judicial review under Article 226.

15. Accordingly, the writ petition is dismissed in limine.

File be consigned to the Record Room.

MARCH 16, 2009                                              V.K. SHALI, J.
RN