Delhi High Court

I.E.C Air Tools Pvt. Ltd. vs Guru Dutt on 24 December, 2010

Author: Veena Birbal

*            HIGH COURT OF DELHI AT NEW DELHI

%                  Judgment delivered on : December 24, 2010

+     W.P.(C) No. 16986/2006


I.E.C Air Tools PVT. LTD.                     ..... Petitioner
                  Through:     Mr. Jay Savla with Mr. Pravin Sharma,
                               Advocates

                        -versus-

Guru Dutt                                    ..... Respondents
                   Through:    Mr. Piyush Sharma, Advocate

CORAM:-
HON'BLE MS. JUSTICE VEENA BIRBAL

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

2.    To be referred to the Reporter or not?

3.    Whether the judgment should be reported in Digest?

VEENA BIRBAL, J.

1. By way of this petition, petitioner/management has challenged

the impugned award dated 03.10.2006 by which the Labour Court

has awarded relief of reinstatement with 50% back wages along

with continuity of service and other legal benefits to respondent.

2. As per the case of petitioner/management, respondent was

working as a Sales and Service Representative in the Delhi office of

petitioner/management. It is alleged that during the course of

employment, respondent committed certain acts of misconduct and

as such was charge sheeted vide charge sheet dated 23.06.2000.

An enquiry was conducted in respect of alleged charges against him

by the petitioner/management and thereafter the respondent was

removed from the service vide order dated 12.08.2000. Thereafter,

respondent raised an industrial dispute. The Secretary (Labour),

Government of NCT of Delhi referred the same for adjudication to

the Labour Court with the following terms of reference :

"Whether the termination of services of Shri Guru Dutt Roy is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

3. Pursuant thereto respondent filed a statement of claim before

the Labour Court alleging therein that he had been working with the

management from 03.10.1989 on the post of Sales and Service

Representative. Respondent along with other employees made a

complaint to the petitioner/management against Shri Vivek Kamboj,

Regional Manager. Thereafter, management turned hostile and

vindictive and started harassing the respondent and other workers.

On 19.06.2000, the respondent as well as other two workers were

suspended and on 23.06.2000, a charge sheet was issued to him

which was duly replied and thereafter Enquiry Officer was

appointed. It is stated that no notice was given and an ex parte

enquiry was conducted and respondent was removed from service

on 12.08.2000. Respondent had prayed for reinstatement with full

back wages before the Labour Court.

4. Petitioner/management filed a written statement before the

Labour Court wherein the allegations made by the respondent were

denied and it was categorically stated that in case of vitiation of

domestic enquiry conducted against the respondent/workman, the

management be given an opportunity to prove the alleged

misconduct before it by leading evidence. It was also alleged that

the respondent was a Sales & Service Representative and was not

covered under the definition of workman under the Industrial

Disputes Act. The issues were initially framed by the Labour Court

on 28.01.2004. On 19.11.2005, issues were amended. In all the

following issues were framed:-

"1. Whether management conducted legal, fair, proper and according to principles of natural justice domestic enquiry?

2. Whether workman is not a workman within definition of Section 2 (s) of the Industrial Disputes Act? OPM

3. Whether the termination of services of Shri Gurudutt Roy is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?

5. As noted in the impugned award, Issue no. 1 was treated as a

preliminary issue. On 02.12.2005, the Labour Court directed the

respondent/workman to file fresh affidavit on enquiry issue. On

21.04.2006, the enquiry issue was decided against the

petitioner/management and in favour of workman. The grievance of

the petitioner/management is that after deciding the issue of

enquiry against the petitioner, the Labour Court passed the

impugned award by observing that the management has not

averred a single word in the written statement to claim right to lead

evidence to prove misconduct in the event of vitiation of enquiry by

the court and as such vide impugned award dated 04.09.2006

granted reinstatement to the respondent with 50% back wages.

6. Aggrieved with the same, the present writ petition is filed.

7. Counsel for the petitioner has contended that in the written

statement filed before the Labour Court a categorical stand has

been taken that fair opportunity has been given to the respondent

to defend himself before the Enquiry Officer and if the court arrives

at a finding that the enquiry is not fair, the management seeks

liberty to prove the alleged charges of misconduct before the court.

It is contended that despite having taken a specific stand in the

written statement/reply, the Labour Court has not given any

opportunity to petitioner/management of leading evidence before it

to prove the alleged charges of misconduct. It is contended that

Labour Court failed to read the written statement and after deciding

the issue of validity of enquiry against the petitioner/management,

passed the impugned award observing that the management has

not taken plea in the written statement seeking opportunity to lead

evidence before the Court in case enquiry is vitiated as such passed

the impugned award against the management. It is contended that

failure on the part of the Labour Court to read the written statement

filed by it and thereby depriving the petitioner/management of its

valuable right to lead evidence to prove the alleged misconduct

before Court is a non application of mind, as such the impugned

award is liable to be set aside.

8. On the other hand, the stand of the respondent/workman is

that after enquiry issue was decided on 21.04.2006, the

management did not appear before the court nor appraised that

such a stand, as stated above, has been taken in the written

statement and as such the impugned award is legal and valid in all

respects and does not call for any interference.

10. I have considered the submissions made and perused the

material on record.

11. Vide order dated 21st April, 2006, the Labour Court has held

that the management has failed to establish that enquiry conducted

against the workman is fair and as such, decided the said issue in

favour of workman. Thereafter, the Labour Court listed the matter

for final arguments. The Labour Court also noted in the order dated

21st April, 2006 that the management has not taken any plea to

lead evidence before court in case enquiry is vitiated.

I have perused the written statement on record. There is

categorical stand in the written statement that if the court arrives at

a finding that the inquiry is not fair the management seeks liberty to

prove the charges of misconduct before this court. The relevant

portion of the written statement/reply is reproduced which is as

under:-

"xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx However if this Hon'ble court arrives at a finding that the inquiry conducted by the Management was not fair or proper, the Management be allowed to prove the misconduct before this court by leading the evidence."

In view of the categorical averment in the written statement,

the finding of the Labour Court in the impugned award that the

management has not taken any plea in the written statement

seeking opportunity to lead evidence in the event of vitiation of

enquiry, is an apparent error on record. In these circumstances, the

Labour Court ought to have listed the matter for leading evidence

by the management to prove alleged misconduct before the court

as per the settled law. Reference in this regard is made to (i) The

Workmen of M/s Firestone Tyre & Rubber Co. of India (Pvt.) Ltd Vs.

The Management & others 1973 (1) LLJ 278; (ii) Karnataka State

Road Transport Corpn Vs Lakshmidevamma AIR 2001 sc 2090; (iii)

Amrit Vanaspati Co.Ltd Vs Khem Chand & Anr 2006 (6) SCC 325 &