Ramesh Chand Rana vs Management Of M/S Xerox Modicorp ...
2011 Latest Caselaw 3261 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 11th July, 2011.

+                           W.P.(C) No.6004/2008

%        RAMESH CHAND RANA                                       ..... Petitioner
                    Through:              Mr. Aeltemesh Rein, Ms. Maheravish
                                          Rein, Ms. Shamshravish Rein & Mr.
                                          Siddharth Thapliyal, Advocates.

                                      Versus

    MANAGEMENT OF M/S XEROX MODICORP
    LTD.                                     ..... Respondent
                 Through: Mr. Raj Birbal, Sr. Adv. with Ms.
                           Raavi Birbal & Mr. Abhay Kumar,
                           Advocates.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may               Not necessary
         be allowed to see the judgment?

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 16th February, 2008

of the Industrial Adjudicator on the following reference:-

"Whether the services of Sh. Ramesh son of Sh. Dharam Singh Rana have been terminated illegally and/or unjustifiably by the management, and if so, to what sum of money as monetary relief alongwith consequential benefits in terms of existing laws/Govt. Notifications and to what other relief is he entitled and what directions are necessary in this respect?"

holding that there was no reason to interfere in the penalty of

dismissal awarded by the respondent employer to the petitioner workman on

the basis of domestic inquiry by the disciplinary authority and that the

services of the petitioner workman had been legally and justifiably

terminated.

2. This writ petition has been filed claiming only the following relief:-

"(i) Set aside & quash award dt. 16/2/2008 passed in ID No.853/06/01 by Shri. Rakesh Siddhartha, Presiding Officer, Labour Court No.XVII, Karkardooma Courts, Delhi with all consequential reliefs to the poor worker.

(ii) Award all costs of litigation to the petitioner.

(iii) Pass any other further order / orders / directive / directives / writ or writs according as your Lordships may deem fit and proper in the circumstances of the case in favour of the petitioner."

3. The award dated 16th February, 2008 is subsequent to the earlier order

dated 19th October, 2007 of the Industrial Adjudicator on the preliminary

issue framed as to the validity of the departmental inquiry held and finding

the domestic inquiry preceding the order of termination to have been

conducted in a fair and proper manner. The discussion in the award is thus

only qua the quantum of punishment. The Industrial Adjudicator, in the

impugned award, has held the punishment of termination to be proportionate

to the charge against the petitioner workman of, on 2nd June, 2010 at 1810

hours in the evening having entered into the cabin of the General Manager

(Integrated Marketing) of the respondent employer carrying Toner and black

powder from the photocopying machine and a wreath of old shoes and

chappals wrapped in a gift pack and having abused the said General

Manager, blackened her face and put the wreath of old shoes and chappals

around her neck and of which charge the domestic inquiry had found the

petitioner workman to be guilty of.

4. The petitioner workman has not claimed any relief in the petition qua

the order dated 19th October, 2007 of the Industrial Adjudicator finding the

domestic inquiry to be fair and proper. Rather, the petitioner workman has

not even annexed to the petition a copy of the said order.

5. When the counsel for the petitioner workman sought to raise argument

of the domestic inquiry having been biased, it was enquired from the counsel

for the petitioner workman as to how without impugning the order dated 19th

October, 2007 of the Industrial Adjudicator and without even filing copy

thereof, the said argument could be raised. The counsel had no answer.

Though in my view, the said argument cannot be considered for this reason

alone but since the record of the Industrial Adjudicator has been

requisitioned in this Court, this Court to satisfy the judicial conscience has

considered the challenge to the findings of the Industrial Adjudicator of the

domestic inquiry being fair and proper.

6. The petitioner workman in the writ petition in this regard has stated

that the petitioner workman was in the domestic inquiry proceeded against

ex parte; that the respondent employer's witnesses were not allowed to be

cross-examined; that the application of the petitioner workman before the

Inquiry Officer for setting aside of the ex parte was not considered.

7. The Industrial Adjudicator in the order dated 19th October, 2007 has

on the basis of evidence led before him held that the petitioner workman in

his cross-examination had admitted that he had been attending the

proceedings before the Inquiry Officer and the said proceedings bore his

signatures; that the charge sheet was duly served on him and he had

submitted a reply thereto; that he had cross-examined all witnesses of the

respondent employer; that on the day when he was proceeded against ex

parte, he claimed to have left the inquiry proceedings to withdraw his dues

but there was no reason for the petitioner workman to remain absent since

Accounts Branch was situated in the same building; that the petitioner

workman had abandoned the inquiry; that the Inquiry Officer in his evidence

had asserted that he did not receive any request from the petitioner workman

for setting aside of the ex parte order. The Industrial Adjudicator as such

held that in the circumstances, the petitioner workman could not have lost

track of the domestic inquiry and the Industrial Adjudicator further held that

the petitioner workman had failed to prove that he had applied for setting

aside of the ex parte. It was further held that such plea appeared to have

been taken as an afterthought. It was further held that the petitioner

workman had been unable to prove any specific instance whereby the

inquiry could be termed not fair and the resultant report said to be perverse.

It was yet further held that the onus was on the petitioner workman to prove

that the inquiry was perverse and the petitioner workman had failed to

discharge the said onus.

8. The counsel for the petitioner workman before this Court also has not

been able to find any fault with the order dated 19th October, 2007 of the

Industrial Adjudicator. Though the record of the inquiry proceedings is also

before this Court but the counsel for the petitioner workman has not shown

therefrom also as to what is the perversity, unfairness or unreasonable in the

same. I may notice that the record of the inquiry is voluminous and is found

to be running into over 400 pages. As per the report of the Inquiry Officer,

as many as 20 sittings between 21st June, 2000 and 5th February, 2001 were

held by the Inquiry Officer. Without the counsel for the petitioner workman

being able to show as to at what stage the Inquiry Officer was unfair or

biased against the petitioner workman and in what manner, this Court will

not of its own as an Appellate Court, review the record of the inquiry to form

an opinion whether the same was fair or not. The finding of the domestic

inquiry being fair and proper is a finding of fact, though laced with law and

without any perversity being shown, no case for interference in exercise of

powers of judicial review is made out.

9. I may record that the counsels for the parties at the beginning of the

hearing had stated that counter affidavit had been filed by the respondent

employer and which was not on record. Another copy of the counter

affidavit was handed over by the counsel for the respondent employer in the

Court and which has been taken on record. Similarly, the counsel for the

petitioner workman had handed over Rejoinder thereto in the Court and

which has also been taken on record.

10. There is thus no merit in the petition; the same is dismissed. No order

as to costs.

RAJIV SAHAI ENDLAW (JUDGE) JULY 11, 2011 bs.

(corrected and released on 28th July, 2011)