Sh. Kewal Kishore Arora vs M/S. Rajiv Motors Pvt. Ltd. & Anr.
2011 Latest Caselaw 3968 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 16th August, 2011
+                                 W.P.(C) 12281/2009

         SH. KEWAL KISHORE ARORA                     ..... Petitioner
                      Through: Petitioner in person.

                                         versus

    M/S. RAJIV MOTORS PVT. LTD. & ANR. ..... Respondents
                  Through: Mr. S.P. Gautam, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                        Not necessary.

2.       To be referred to the reporter or not?                 Not necessary.

3.       Whether the judgment should be reported                Not necessary.
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner workman impugns the award dated 4th October, 2008

of the Industrial Adjudicator on the following reference:-

"Whether the termination of services of Sh. Kewal Kishore Arora is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

and holding that the respondent employer had conducted a valid and proper

enquiry in accordance with the principles of natural justice and the

punishment of dismissal from service meted out to the petitioner workman

was justified and the petitioner workman was thus not entitled to any relief.

2. Notice of the petition was issued. The record of the Industrial

Adjudicator has been received and pleadings have been completed. The

petitioner workman appearing in person and the counsel for the respondent

employer have been heard.

3. The Industrial Adjudicator has in the award noticed that the

following issues were framed in the proceedings before the Industrial

Adjudicator on 21st December, 1989:-

"(i) Whether there is no industrial dispute between the parties?

(ii) Whether the applicant is not a workman within the definition of Section 2(s) of the I.D. Act?

(iii) As per terms of reference."

and subsequently on 27th November, 1991 the following additional issues

were framed:-

"(iv) Whether a valid and proper inquiry was held in accordance with the principles of natural justice?

(v) Whether the reference is bad for reasons as stated

in para 2 of preliminary objections?"

4. The Industrial Adjudicator has in the award also noticed that the

issue of inquiry was treated as a preliminary issue and the case fixed for

evidence thereon and vide order dated 23rd May, 2002 the inquiry

conducted by the respondent employer into the charges against the

petitioner workman was held to be not in accordance with the principles of

natural justice and hence vitiated. The Industrial Adjudicator further

notices in the award that vide subsequent order dated 6th May, 2003 the

respondent employer was permitted to amend its written statement to seek

permission to prove the charges against the petitioner workman before the

Industrial Adjudicator and which application was allowed on 6th May,

2003 and whereafter evidence was led by the respondent employer to

prove the charges.

5. The Industrial Adjudicator however inspite of holding so, in the

award again took up the issue no.(iv) aforesaid as to the inquiry and has

concluded in para 26 of the award that a valid and proper inquiry was held

against the petitioner workman in accordance with the principles of natural

justice. Having held so, the Industrial Adjudicator proceeded to determine

whether the quantum of punishment was proportionate to the charge found

to have been made out against the petitioner workman in inquiry and

having held it to be, so denied any relief to the petitioner workman.

6. The aforesaid would show a perversity in the award. The Industrial

Adjudicator could not have in the award dated 4th October, 2008 decided

the issue of validity of the inquiry again after the same had been decided

vide order dated 23rd May, 2002. Rather, the Industrial Adjudicator has

under issue no. (iii) aforesaid failed to address whether the charge against

the petitioner workman stood proved or not. There is no finding

whatsoever on the said aspect in the award of the Industrial Adjudicator.

This is found to be a grave error in procedure committed by the Industrial

Adjudicator concerned. The same shows a total non-application of mind

and is reflective of the Industrial Adjudicator having dealt with the matter

in a casual and cavalier manner without being seized of the same. The

Registrar General of this Court to have a copy of this judgment along with

a copy of the award dated 4th October, 2008 placed before the Committee

of Judges to write the Annual Appraisal Report of the concerned Industrial

Adjudicator for consideration thereof by the said Committee while

appraising the work of the Industrial Adjudicator.

7. The petitioner workman appearing in person also did not highlight

the said aspect during the hearing. The counsel for the respondent

employer also did not invite attention to the same. The petitioner workman

only argued that suspension allowance had not been paid to him. The

counsel for the respondent employer highlighted that the petitioner

workman after termination of his services in 1985 from the respondent

employer had joined M/s Aiyer & Co. in the year 1992 and attained

superannuation therefrom in the year 2000 and had also filed industrial

disputes against M/s Aiyer & Co. without disclosing the industrial dispute

against the respondent employer. He has urged that the petitioner workman

is a compulsive/habitual litigant and is not entitled to any relief. The

petitioner workman on the contrary contended that even though he had

attained the age of supernnuation but if his termination by the respondent

employer is found to be illegal, he would be entitled to compensation.

8. I am of the opinion that no adverse view can be taken against the

petitioner workman for, in the proceedings against M/s Aiyer & Co., not

disclosing the industrial dispute qua the respondent employer. The

employment of the petitioner workman with M/s Aiyer & Co. was long

after the termination of services with the respondent employer and the

dispute of the petitioner workman with the respondent employer had no

relevance whatsoever to the dispute against M/s Aiyer & Co. Moreover the

dispute with M/s Aiyer & Co. is stated to have been amicably settled.

9. It thus remains to be adjudicated as to whether the respondent

employer on the basis of the evidence on record of the Industrial

Adjudicator has proved the charge for which the petitioner workman was

dismissed from services. Though the record of the Industrial Adjudicator is

before this Court and the dispute is old, of the year 1985 and I am tempted

to adjudicate the same on the basis of the records which have been perused

but opportunity for addressing arguments thereon having not been given, it

is deemed expedient to remand the matter to Industrial Adjudicator for

hearing arguments on the aforesaid aspect and for decision thereon.

10. The petition accordingly succeeds. The award dated 4th October,

2008 of the Industrial Adjudicator is set aside and the matter remanded to

the Industrial Adjudicator for hearing arguments on the basis of the

existing records and to pass an award afresh in accordance with law. The

records of the Industrial Adjudicator be returned forthwith and the parties

to appear before the Industrial Adjudicator concerned on 20 th September,

2011. The Industrial Adjudicator is requested to endeavour to dispose of

the matter on or before 31st December, 2011. The respondent employer to

also pay costs of these proceedings of `15,000/- to the petitioner workman

before the Industrial Adjudicator.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 16 , 2011 pp..