Daya Swaroop Saxena vs The Presiding Officer, Labour ...
2010 Latest Caselaw 2354 Del

                 *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C) 4420/2002

%                                                Date of decision: 4th May, 2010

 DAYA SWAROOP SAXENA                           ..... PETITIONER
                 Through: Petitioner in person


                                      Versus


THE PRESIDING OFFICER, LABOUR COURT
No.VII & ANR                          .......RESPONDENTS
                  Through: Mr. Harvinder Singh with Mr. Mohit
                            Gupta, Advocates for R-2.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.      Whether reporters of Local papers may
        be allowed to see the judgment? No.

2.      To be referred to the reporter or not?     No.

3.      Whether the judgment should be reported
        in the Digest?           No.

RAJIV SAHAI ENDLAW, J.

1. The petitioner workman impugns the award dated 8th April, 2002 of the

Labour Court holding the respondent no.2 M/s Hindustan Times Ltd to have,

before terminating the services of the petitioner workman, held a valid, proper

and legal domestic enquiry and further holding the punishment of removal from

service meted out by the respondent no.2 to the petitioner workman to be

justified and proportionate to the act of misconduct conducted by the petitioner

workman. Rule was issued in the writ petition on 20th November, 2002. The

petitioner workman appearing in person and the counsel for the respondent no.2,

both stated that they have filed written arguments and relied on the same.

2. The petitioner workman was chargesheeted for misappropriation of

monies while performing the duty of collecting cash from the advertisers in the

newspaper of the respondent no.2. A domestic enquiry was conducted in which

the charge was found to have been established / proved. The Disciplinary

Authority vide order dated 12th February, 1973 dismissed the petitioner workman

from service. A criminal case was also lodged against the petitioner workman

relating to the same transaction. The same was in progress at the time of such

removal of the petitioner workman from service. The said criminal case

continued till 30th September, 1986 when the petitioner workman was acquitted

from the Court of the Metropolitan Magistrate. It was thereafter that the

petitioner workman raised the Industrial Dispute against the award wherein

present petition has been preferred.

3. It was inter alia the plea of the respondent no.2 that the reference was bad

and liable to be decided against the petitioner workman for the reason of delay,

laches etc. It was contended that the right, if any, to raise the industrial dispute

had accrued to the petitioner workman immediately on his dismissal from service

on 12th February, 1973 and the petitioner workman could not be permitted to

raise an industrial dispute after 13 years therefrom. The Labour Court however

found that the petitioner workman was entitled to wait for the outcome of the

criminal prosecution and was justified in raising the industrial dispute

immediately thereafter. The counsel for the respondent no.2 has raised the said

argument before this court also and contended that the petitioner workman is not

entitled to invoke the equitable jurisdiction of this court by way of this writ

petition when the industrial dispute was raised after inordinate delay of more

than 13 years.

4. I find merit in the said contention of the counsel for the respondent no.2.

It is a settled principle of law that the decision of an industrial dispute, the facts

whereof are also subject matter of criminal prosecution does not take colour from

the decision of the courts in the said criminal prosecution. The test to be applied

in a domestic enquiry and/or in a labour dispute is entirely different from the test

to be applied in a criminal prosecution. While the outcome of a criminal

prosecution is based on proof beyond doubt, the outcome of a domestic enquiry

and/or a proceeding before an industrial adjudicator depends upon the

preponderance of probability. This court in All India Institute of Medical

Sciences Vs. O.P. Chauhan MANU/DE/0322/2007 has held that though the law

does not prescribe any time limit for the appropriate Government to exercise its

powers under Section 10 of the ID Act, it is not that this power can be exercised

at any point of time and to revive matters which have since settled. It was held

that the appropriate Government should not refer stale and dead disputes. The

reference in that case after ten years and on the same ground, as in this case, of

acquittal by the criminal court was held to be bad in law. It was held that the

termination, in the long period of ten years, had become a settled fact and the

employer could not be expected to keep the post vacant. It was held that such

references of stale disputes disturb rather than promote industrial harmony. The

facts of the present case are squarely covered by the said judgment. The factum

of acquittal by the criminal court was held to be not relevant for the reason of

standards of proof required by a criminal court and in disciplinary proceedings to

be different.

5. The Supreme Court recently in Southern Railway Officers Assn. Vs

Union of India (2009) 9 SCC 24 has also held that order of dismissal can be

passed even if the delinquent official has been acquitted of the criminal charge.

It was further held that acquittal in a criminal case by itself is not a ground for

interfering with an order of punishment imposed by the Disciplinary Authority.

The Supreme Court in State of Rajasthan Vs. B.K. Meena (1996) 6 SCC 417

had also reiterated that the principles of natural justice do not require that the

employer should wait for the decision of the criminal court before taking

disciplinary action against the employee and held that it is not in the interest of

administration (in that case of State) that persons accused of serious

misdemeanour should be continued in office indefinitely and for long periods

awaiting the result of criminal proceedings. Such a situation was held to be

serving the interest of the guilty and the dishonest only. To the same effect is

Noida Entrepreneurs Association. Vs. Noida AIR 2007 SC 1161. It was further

held that the purpose of criminal prosecution and departmental enquiry are

different. Disciplinary proceedings were held to be with the purpose of

maintaining discipline and efficiency in service and it was further held that it is

expedient that the disciplinary proceedings are conducted and completed as

expeditiously as possible.

6. The petitioner workman has in his written submissions referred to M.

Ravindran Vs. Bharat Electronics Ltd 2002 Lab. I.C.1011 (Karnataka), Rajib

Lochan Jha Vs. State of Bihar MANU/BH/0263/2004 and Captain M. Paul

Anthony Vs. Bharat Gold Mines Ltd. AIR 1999 SC 1416. Though undoubtedly

in Captain M. Paul Anthony (supra) the order of the disciplinary authority

contrary to that of the criminal court was set aside but on a finding that the same

witnesses were examined and same evidence led before both the fora. In these

facts, it was held that it would be unjust, unfair and oppressive to allow the

evidence recorded in the ex parte departmental proceedings to stand. It is

however not a case of the petitioner workman herein. It was for this peculiar

reason that the Supreme Court in Captain M. Paul Anthony differed from the

general principles as discussed in the judgments supra.

7. Moreover after the Disciplinary Authority had meted out the punishment

of removal from service to the petitioner workman, what first fell for

consideration in the industrial dispute raised by the petitioner workman was the

legality, validity and fairness of the domestic enquiry preceding such dismissal.

The finding on the legality, validity and fairness of the domestic enquiry was not

dependent in any manner whatsoever on the outcome of the criminal prosecution.

The Supreme Court in Delhi Cloth & General Mills Co. Vs. Ludh Budh Singh

AIR 1972 SC 1031 has held that if the industrial adjudicator finds a legal, valid

and fair domestic enquiry to have been conducted, it has no jurisdiction to

re-investigate the charge leading to the punishment meted out to the employee. It

is only if no proper, legal and valid enquiry is found to have been conducted and

further if the employer chooses to prove the misconduct before the industrial

adjudicator, does the industrial adjudicator get the jurisdiction to adjudicate on

that aspect. A perusal of the orders of the Labour Court impugned by the

petitioner workman shows that the petitioner workman challenged the

validity/legality of the domestic inquiry; for the said challenge there was no need

for the petitioner workman to await his acquittal in the criminal prosecution. The

petitioner workman is thus found to have raised the industrial dispute belatedly

as an afterthought and the same constitutes reason enough for this court to refuse

to exercise the discretionary jurisdiction.

8. There is another important related aspect of the matter. The petitioner

workman before the Labour Court pleaded and filed an affidavit to the effect that

he was unemployed since the date of his dismissal on 12th February, 1973 till the

pendency of the industrial dispute before the Labour Court. The respondent no.2

however proved the falsity of the said statement of the petitioner workman. The

respondent no.2 proved before the Labour Court certified copies of records of

another industrial dispute raised by the petitioner workman against another

employer with whom the petitioner workman was employed in the interregnum.

The petitioner workman did not dispute the said documents and rather did not

cross examine the witness who proved the said documents on this aspect. It thus

stands established that the petitioner workman had sworn a false affidavit in the

proceeding before the Labour Court. The entire jurisprudence in

labour/industrial matters is tilted towards the workman who is treated as unequal

to the employer and a much weaker party in the dispute, deserving protection

of/from the law and the courts. However, if such workman is found to be

twisting the said law, already heavily loaded in his favour, to his unfair

advantage and/or found to be playing hide and seek with the court and thus

abusing the process of the court, such a workman cannot be treated as one who

deserves the protection from the court. Moreover, such a workman as a bad fish

brings a bad name to the workmen generally and runs the risk of tilting balance

of sympathy of the courts away from the workman. Such workman has to be thus

dealt with a heavy hand so as to be a deterrent for other workmen from indulging

in such conduct/practice. Moreover, I do not find any need/necessity for the

petitioner workman to have indulged in such conduct. The petitioner workman

could have deposed that though he had sought employment in the interregnum

but had problem there too. However, the petitioner workman showed scant

regard for the law and its machinery and did not show any hesitation whatsoever

in making a false statement on oath. Such litigants do not deserve any sympathy

at all of the courts and are required to be shown the door for the said reason

alone. I am inclined to dismiss the present writ petition on this ground alone.

9. However, it is deemed expedient to deal with other aspects also.

10. The petitioner workman in his written submissions has contended that the

order of the Labour Court is illegal for the reason of holding that "merely

because the Inquiry Officer asked few questions and cross questions, the same

cannot be a ground to vitiate the departmental proceedings". The petitioner

workman in this regard relies on Meenglas Tea Estate v. Its Workmen AIR 1963

SC 1719. However there is no merit in the said contention also of the petitioner

workman. This court in Smt. Sushma Rani Vs. The Divisional Engineer,

Phones Special Services, MTNL and General Manager, MTNL

MANU/DE/9159/2006 had held that an Inquiry Officer is not barred from asking

questions from the witness and if the Inquiry Officer asks questions to the

witnesses, he does not become a prosecutor. It was further held that Inquiry

Officer is supposed to find out the truth of the matter and has right to ask

questions to the witnesses, if necessary, and such an act of the Inquiry Officer

shall not vitiate the enquiry. The Supreme Court also in Mulchandani Electrical

and Radio Industries Ltd. Vs The Workmen AIR 1975 SC 2125 held that if the

Inquiry Officer puts questions to witnesses it does not lead to the conclusion that

he has done something that was not fair or proper. It was rather held that Inquiry

Officer in a domestic enquiry can put questions to the witnesses for clarification

wherever necessary and if he allows the witnesses to be cross-examined

thereafter, the inquiry proceeding cannot be impeached as unfair.

11. The petitioner workman has also contended that the enquiry report is

perverse because the charge of misappropriation was not established. Such

challenge cannot be entertained. The Labour Court on perusal of the inquiry

proceedings has not found the inquiry report to be perverse. In any case, the

arguments raised requires this court to reappraise the evidence led before the

Inquiry Officer and which is clearly impermissible.

12. The petitioner workman has next contended the inquiry to be bad for the

reason of non-payment of subsistence allowance and also relied on certain

judgments of this court. However, the Labour Court has found that no such plea

was raised by the petitioner workman at the contemporaneous time and further

held the petitioner workman to have raised the said dispute as an afterthought.

No ground is made out for interference in the said finding of the Labour Court.

13. The petitioner workman has next contended that he was not provided with

legal assistance. The Labour Court has held that no such plea was taken by the

petitioner workman at the contemporaneous time. The petitioner workman seeks

to justify the same by contending that he was not aware of his legal rights then.

The Supreme Court in Kalindi Vs. Tata Locomotive & Engineering Co. Ltd AIR

1960 SC 914 has held that a workman against whom an enquiry is being held by

the management has no right to be represented at such enquiry by a

representative of his union, though of course an employer in his discretion can

and may allow his employee to avail himself of such assistance. The same view

was reiterated recently in Biecco Lawrie Ltd. Vs. State of West Bengal AIR

2010 SC 142. Moreover, the Labour Court has rightly found that no prejudice

has been caused to the petitioner workman therefrom.

14. No case for interference in the impugned award is made out. The petition

is dismissed. However, no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 4th May, 2010 M