M/S Dcm Shriram Consolidated Ltd. vs Shri Jai Singh
2009 Latest Caselaw 2125 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      WP (C) Nos. 13747/2004

                                Judgment reserved on: 02.03.2009

%                               Judgment delivered on:      ,2009


M/s DCM Shriram Consolidated Ltd.                ......
Petitioner
                  Through: Mr. Harvinder Singh, Adv. with
                            Ms. Bhawna Chopra, Adv.

                       versus


Shri Jai Singh                                       ..... Respondent
                            Through: Mr. D.N. Vohra, Adv.

                            AND

                       W.P. (C) No. 6735/2004

Shri Jai Singh                                       ..... Petitioner
                            Through: Mr. D.N. Vohra, Adv.

                       versus

Management of Swatantar Bharat
Mills, New Delhi & Ors.                       ...... respondent
                     Through: Mr. Harvinder Singh, Adv. with
                              Ms. Bhawna Chopra, Adv.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.       Whether the Reporters of local papers may           Yes
         be allowed to see the judgment?

2.       To be referred to Reporter or not?                  Yes


    WP (C) No. 13747/2004                                       Page 1 of 19
 3.    Whether the judgment should be reported                   Yes
      in the Digest?

KAILASH GAMBHIR, J.

*

1. By way of this common order, both the petitions bearing

WP (C ) No. 13747/2004 & 6735/2004 shall be disposed of. By

way of the writ petition bearing No. 13747/2004 filed under

Articles 226 and 227 of the Constitution of India the petitioner

management seeks to challenge the orders dated 2.12.1995,

17.1.1996 and 5.11.2003 passed by the industrial tribunal. The

other writ petition No. 6735/2004 has been preferred by the

workman seeking implementation of the order dated 5.11.2003,

whereby Ld. Industrial Tribunal rejected the application of the

management filed under Section 33 (2) (b) of the I.D. Act.

2. Vide orders dated 2.12.1995 the Industrial Tribunal

decided issue No. 1 in favour of the respondent workman and

against the petitioner management holding that the enquiry

conducted by the petitioner management cannot be said to be

either fair or proper or in accordance with the principles of

natural justice. Vide orders dated 17.1.1996 the application

moved by the petitioner to seek review of the order dated

2.12.1995 was rejected. The final Award was passed against the

petitioner vide order dated 5.11.2003, and the same along with

the said two orders is assailed by the petitioner management in

the present petition. The workman, on the other hand, seeks his

reinstatement as a result of dismissal of application of the

petitioner management filed under Section 33 (2) (b) of the I.D.

Act through the same order dated 5.11.2003. The facts relevant

for deciding the present petition are:-

3. The workman Sh. Jai Singh had joined M/s Sawtantar

Bharat Mills as Fitter Trainee on 14.7.1980 and was declared

permanent as Tackler on 1.9.1982. While on duty on 28.10.1985

at about 5.30 p.m., the Shift Officer asked him to put a shuttle

on Loom No. 021 but he refused to obey the same & when on the

same day the shift officer called him in his office at about 8.50

p.m. to enquire about the reason for disobeying his orders, he

again refused to put the shuttle and caught hold of the collar of

the shift officer, Sh. Jagdish Kr. Sehgal, and also used abusive

language. Other workmen came and saved the said officer but

even while leaving, he threatened the shift officer, that he will

see him outside also. On the complaint of the said Sh. Jagdish

Kr. Sehgal charge sheet was issued & upon unsatisfactory reply

of the workman, disciplinary enquiry was initiated, and upon

completion of the same, enquiry report was filed by the Enquiry

Officer on 19.11.1985 and the management after considering

the said enquiry report imposed the punishment of dismissal on

26.11.1985. An application under S. 33 (2) (b) was made to the

Industrial Tribunal for approval of dismissal, which was rejected

vide order dated 5.11.2003. Aggrieved with the same, the

present petition is preferred by the management.

4. Mr. Harvinder Singh, counsel for the petitioner

management contended that full fledged adjudication is not

envisaged under Section 33(2)(b) of the Act where only the

Tribunal has to take a prima facie view on the action of the

management terminating the service of the workman being

justified or not, unlike under Section 10 of the Industrial

Disputes Act where a detailed examination is required. Counsel

for the petitioner further submitted that in a domestic enquiry

the workman has no legal right for representation by an outsider

and also a workman who himself boycotted the domestic enquiry

cannot subsequently challenge the same or to term it illegal or

unfair. Counsel further contended that while passing the order

dated 2.12.1995 the Tribunal wrongly observed that the

respondent workman was not allowed the assistance of Shri

Roshan Lal an employee of the petitioner while the fact was that

the said Roshan Lal was never an employee of the petitioner mill

but was an outsider. Even when the said mistake on the part of

the Tribunal was brought on record by an application dated 20 th

December, 1995 moved by the petitioner management, even

then the Tribunal although realized its mistake in wrongly

terming the said Roshan Lal as an employee of the petitioner,

but still sustained its view of holding the enquiry to be unfair

and improper. Contention of the counsel for the petitioner is that

both the orders passed by the Tribunal dated 2.12.1995 and

17.1.1996 are illegal, unjustified and perverse. The other

contention raised by the counsel for the petitioner is that there

was no question of violation of principles of natural justice on

the part of the enquiry officer as sufficient opportunity was given

to the respondent workman to effectively participate in the

enquiry proceedings. On 16.11.1985 the respondent workman

gave an application to bring an outsider as representative and

the said application of the respondent workman was rejected by

the enquiry officer on 18.11.1985 with clear direction to the

respondent workman to bring only such employee as a

representative who is an employee of the mill and not an

outsider. The proceedings were accordingly adjourned for

19.11.1985 as one day's time was sought by the petitioner to

bring an employee of the mill as his representative. On

19.11.1985 the respondent workman walked out of the

proceedings on the ground that he was not permitted to bring an

outsider. Counsel for the petitioner thus submitted that in view

of such defiant conduct of the respondent workman the Tribunal

wrongly held that the enquiry officer conducted the proceedings

in haste or in violation of the principles of natural justice.

Counsel for the petitioner further submitted that wrong stand

was taken by the respondent workman that he had submitted a

letter dated 19.11.1985 to the management raising grievance

against the enquiry officer for his refusal to bring Roshan Lal as

his representative to get the proceedings adjourned on that

date. No such letter was received by the petitioner management

which in fact was delivered on 26.11.1985 after passing of the

dismissal order, the counsel contended. Even otherwise, as per

the contention of the counsel for the petitioner Roshan Lal was

an outsider and not an employee of Swatanter Bharat Mills and

already request made by the respondent workman to bring

Roshan Lal was not entertained by the enquiry officer. Counsel

thus submitted that under the standing orders of the mill the

respondent workman was not entitled to be represented in the

domestic enquiry by an outsider and, therefore, the enquiry

officer rightly rejected the request of the workman to bring an

outsider as representative in the enquiry proceedings. Merely

because the entire ex parte evidence was recorded on one date

by the enquiry officer and the dismissal order was passed within

a week thereafter, that, by itself would not show that the

enquiry officer acted in undue haste or fair opportunity was not

granted to the respondent workman.

5. Another ground of challenge raised by the counsel for the

petitioner was that even if the enquiry was considered as

vitiated still the Tribunal erred in passing the final order dated

5.11.2003 on the ground that the petitioner had failed to prove

charges in its additional evidence led before the Tribunal. The

contention of the counsel for the petitioner was that the

petitioner even in additional evidence led before the Tribunal

had fully proved the misconduct on the part of the respondent

workman and the said additional evidence was sufficient enough

to grant approval to the petitioner under Section 33(2)(b) of the

Industrial Disputes Act. The Tribunal committed grave illegality

in not giving any weightage to the statements of the two

witnesses Shri Jagdish Kumar Seghal and Shri Dinesh Kumar

recorded before the enquiry officer even though they might not

have fully corroborated their own testimony in the evidence led

by them before the Tribunal. Contention of the counsel for the

petitioner is that Jagdish Kumar Seghal might have been unable

to recall the exact incidence which took place nearly 18 years

ago from the date of his statement and while the other witness

Dinesh Kumar turned hostile at the instance of the respondent

workman. Both the witnesses were duly confronted with their

statements given by them before the enquiry officer which they

had accepted and based on the same the Tribunal ought to have

granted approval. The counsel urges that the case was not

required to be proved by the petitioner beyond any reasonable

doubt and only prima facie material was to be placed on record

to facilitate the Tribunal to examine whether the decision taken

by the enquiry officer is based on some sufficient or cogent

material or not. In support of his arguments counsel for the

petitioner placed reliance on the following judgments:

1. State Bank of Bikaner vs Balai Chander Sen

1963 II L.L.J 657 (S.C.).

2. Dalmia Dadri Cement Ltd. vs. Shri Murari Lal

Bikaneria 1970 II L.L.J. 416 (S.C.)

3. Delhi Cloth and General Mills Co. Ltd. vs.

Ganesh Dutt & Ors. 1972 I L.L.J. 172 (S.C.)

4. Lalla Ram vs D.C.M. Chemical Works Ltd. 1978 I

L.L.J. 507 (S.C.)

5. Cholan Roadways Ltd. vs. G.

Thirugnanasambandam AIR 2005 SC 570.

6. Delhi Transport Corpn. Vs. Krishan Kumar 2006

LAB.I.C. 4171 (Del).

6. Refuting the said submissions of the counsel for the

petitioner, Mr. D.N. Vohra, counsel for the respondent strongly

contended that while exercising jurisdiction under Article 226 of

the constitution of India this Court will not reappreciate the

findings of fact arrived at by the Tribunal in the same manner as

can be gone into by the Appellate Authority exercising appellate

powers. On 19.11.1985 the respondent workman himself had

appeared before the enquiry officer and sought permission to

bring one Mr. Kamal Narayan to represent him in the enquiry

proceedings. The respondent workman also submitted that he

would not be in a position to effectively participate in the

enquiry proceedings without the assistance from the authorized

representative. Since the respondent workman was not

permitted to bring his authorized representative so there was no

option left to him but to walk out of the enquiry proceedings.

The contention of the counsel for the respondent was that the

enquiry officer had seriously violated the principles of natural

justice by not permitting the respondent workman to bring his

authorised representative and in utter haste on 19.11.1985

recorded the entire evidence of the petitioner and within a

weeks time gave its report on 26.11.1985. Counsel thus

submitted that the Tribunal had passed all the three orders

assailed by the petitioner in the present petition on correct

appreciation of the facts and none of these orders can be termed

as either illegal, irrational or perverse. The petitioner also failed

to prove misconduct on the part of the respondent even after

fresh opportunity was given to the petitioner management to

prove the charges on its merits before the Tribunal. Both the

witnesses produced by the petitioner management gave their

testimony against the case set up by the petitioner management.

MW3, Dinesh Kumar even went to the extent by stating that no

such incident as alleged by the petitioner had happened, while

MW 2 Jagdish Kumar Seghal did not make any imputing

statement against the workman either in his chief or his cross-

examination. Counsel thus submitted that once the petitioner

has failed to prove the charges even on merits, therefore, the

Tribunal has rightly dismissed the approval application of the

petitioner and which order of the Tribunal does not warrant any

interference by this Court.

7. I have heard learned counsel for the parties at

considerable length and perused the record.

8. It is a settled legal position that the jurisdiction of the

Industrial Tribunal under Section 33(2)(b) of the Industrial

Disputes Act is a limited one. The scope of adjudication in

proceedings under Section 33(2)(b) of the Industrial Disputes

Act is limited and while granting or rejecting approval it does

not sit as a court of appeal to re-appreciate the evidence. It is

no more res integra that under Section 33 (2) (b) of the

Industrial Disputes Act the tribunal has to take a prima facie

view to examine as to whether the conclusions arrived at by the

enquiry officer are based on sufficient material or not. The

management under Section 33 (2 ) (b) of I.D. Act is not required

to prove the case beyond reasonable doubt to establish

misconduct on the part of the workman which led to the

imposition of award punishment. In this regard, the Hon'ble

Apex Court in Workmen v. Balmadies Estates,(2008) 4 SCC

517, observed as under:

"10. It is fairly well settled now that in view of the wide power of the Labour Court it can, in an appropriate case, consider the evidence which has been considered by the domestic tribunal and in a given case on such consideration arrive at a conclusion different from the one arrived at by the domestic tribunal. The assessment of evidence in a domestic enquiry is not required to be made by applying the same yardstick as a civil court could do when a lis is brought before it. The Evidence Act, 1872 (in short "the Evidence Act") is not applicable to the proceeding in a domestic enquiry so far as the domestic enquiries are concerned, though principles of fairness are to apply. It is also fairly well settled that in a domestic enquiry guilt may not be established beyond reasonable doubt and the proof of misconduct would be sufficient. In a domestic enquiry all materials which are logically probative including hearsay evidence can be acted upon provided it has a reasonable nexus and credibility."

9. It is only when it appears that the action of the management

is illegal on the very face of it or the enquiry proceedings

conducted by the management are wholely perverse, illegal,

irrational or based on no material then the findings of the

enquiry officer can be interfered with to decline approval under

Section 33 (2 ) (b) of the I.D. Act and if the findings of the

inquiry officer are based on some material proving mis-conduct

of the workman, then merely because of the fact that the

evidence before the enquiry officer was not sufficient enough or

strong enough to establish misconduct on the part of the

delinquent workman, the findings of the enquiry proceedings

cannot be upset. The jurisdiction of the tribunal under Section

33 (2) (b) of the ID Act has been extensively explained, in

Cholan Roadways Ltd. v. G. Thirugnanasambandam,(2005)

3 SCC 241, by the Hon'ble Apex Court, wherein it observed as

under:

"18. The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in Martin Burn Ltd. v. R.N. Banerjee6. While exercising jurisdiction under Section 33(2)(b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regards the validity or otherwise of the domestic enquiry held against the delinquent, keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act. In Martin Burn case6 this Court stated:

(AIR p. 85, para 27)

"A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham & Carnatic Co. Ltd. v. Workers of the Company7.)"

19. It is further trite that the standard of proof required in a domestic enquiry vis-à-vis a criminal trial is absolutely different. Whereas in the former "preponderance of probability" would suffice; in the latter, "proof beyond all reasonable doubt" is imperative."

10. In the facts of the present case, the tribunal while passing

orders dated 2.12.1995 on the issue No.1 got unduly carried

away with the speed shown by the enquiry officer in concluding

the enquiry proceedings. Simply because of the fact that the

enquiry officer did not adjourn the matter for longer dates or

had concluded the evidence on a single date cannot lead to draw

an inference that the principles of natural justice were not

followed by the enquiry officer. It is well settled that the rules of

natural justice are not embodied rules. The question whether in

a given case the principles have been violated or not has to be

found out on consideration as to whether the procedure adopted

by the appropriate authority is fair and proper or not. In other

words, what is required to be examined is whether the

delinquent knew the nature of accusation against him whether

he was given sufficient opportunity to state his case and whether

the enquiry officer adopted a fair procedure during the

proceedings. If these requirements are satisfied then it cannot

be said that the principle of natural justice were violated. Be

that as it may, mere duration or length of Disciplinary enquiry is

not sufficient to prove that the principles of natural justice were

violated rather the entire circumstances have to be taken into

consideration to reach to any conclusion. It is now a settled

principle of law that rules of natural justice ought not to be

applied in an abstract manner or as a straight-jacket formula.

The main test is whether any real prejudice has been caused to

the respondent workman or not. In the present case, it cannot be

said that any real prejudice has been caused to the respondent

workman by the fact that the enquiry officer examined all the

management witnesses on one single day, viz. 19.11.1985, the

day when the workman conveniently walked out of the enquiry

and refused to participate in it even after being given due and

adequate opportunity.

11. Perusal of the enquiry report rather shows that sufficient

opportunity was given to the respondent/workman to prove his

case but he deliberately adopted dilatory tactics to prolong the

proceedings. The enquiry proceedings commenced on 6.11.1985

after the respondent workman had submitted his explanation on

4.11.1985 and on the very first date despite service he did not

choose to appear. The enquiry proceedings were thereafter

adjourned for 7.11.1985 and a fresh notice to this effect was

served upon the respondent/workman. He although avoided his

appearance on 7.11.1985 but still more opportunities were

granted to the workman and the matter was adjourned by the

enquiry officer for 8.11.1985 and again a notice to this effect

was sent to him. But since he again did not put appearance, the

matter was adjourned for 11.11.1985 and for this date again

notice was issued by the enquiry officer. On this date the

workman/respondent appeared in person and made a request for

adjournment as he wanted to engage the services of a

representative and sought the matter to be fixed after

15.11.1985 due to the impending festival of Diwali. The matter

on his request was adjourned to 16.11.1985 when again he

moved an application to bring an outsider to represent him in

the case which request of the respodnent/workman was

disallowed and the matter was adjourned as no outsider could be

permitted to represent his case during the enquiry proceedings

and the matter was accordingly adjourned for 19.11.1985. It

was also made clear to the respondent workman that no further

date will be given and after 19.11.1985 the enquiry proceedings

will be held from day to day. On 19.11.1985 the workman

appeared and told the enquiry officer that unless he was allowed

to bring an outsider he would not participate in the enquiry

proceeding. He was again told that outsider cannot be allowed

to represent him in the enquiry proceedings. He was also told

that in the event of his not participating in the enquiry the ex-

parte proceedings shall be held against him. On this, the

respondent/workman told the enquiry officer that let him do

whatever he liked and he will not participate in the enquiry

proceedings. It is under these circumstances the enquiry

proceedings were held against the respondent/workman ex-parte

and the management examined four witnesses on 19.11.1985

and in the enquiry report the enquiry officer held that all the

charges as leveled against him in the chargesheet dated

30.10.1985 stood fully proved. It would be thus evident that no

haste was shown by the enquiry officer in conducting the

enquiry proceedings, rather sufficient opportunity was given to

the respondent which opportunity was not availed by the

respondent himself. I, therefore, do not find that the enquiry

officer did not observe the principles of natural justice in

conducting the enquiry proceedings and simply because of the

fact that enquiry proceedings culminated in a short span that

would not lead to the conclusion that principles of natural justice

were violated by the enquiry officer. Even otherwise, the

respondent was well aware that under given rules he could not

be represented through a outsider and this position was made

clear to him when his request was declined by the enquiry

officer by passing a speaking order on 18.11.1985. The conduct

of the respondent clearly demonstrates that he was trying to

delay the proceedings and even had the temerity to walk out of

the proceedings without bothering with the outcome of the

same. The conduct of the employees in this case was utterly

defiant and irresponsible and can hardly be justified.

12. In view of the above discussion, the writ petition bearing

No. 13747/2004 filed by the management challenging the orders

dated 2.12.1995, 17.1.1996 and 5.11.2003 passed by the

industrial tribunal is allowed and the aforesaid orders are

quashed. Resultantly, the writ petition No. 6735/2004 filed by

the workman seeking reinstatement & implementation of the

order dated 5.11.2003, whereby Ld. Industrial Tribunal rejected

the application of the management filed under Section 33 (2) (b)

of the I.D. Act is dismissed.

13. The petitions are disposed of in terms of the above

directions.

May 19 , 2009                     KAILASH GAMBHIR, J.
rkr