Mrs. Anil Dogra vs Secretary(Labour)&Anr.
2012 Latest Caselaw 4591 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI
%                      W.P. (C) 2586/2008
+                         Date of Decision: 3rd August, 2012


#      MRS. ANIL DOGRA                      ....Petitioner
!                Through: Mr. Atul Nagrajan & Mr. Ajay
                          Khanna, Advocates

                             Versus

$      SECRETARY(LABOUR)&ANR.         ...Respondents
                Through: Mr. S.S. Ray & Mr. C.M. Lal,
                         Advocates

       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN

                         JUDGMENT

P.K.BHASIN, J:

The petitioner-workman has in this writ petition under Article 226 of the Constitution of India challenged the award dated 10.07.2007 of the Labour Court whereby her dismissal from service by her employer, the respondent no.2 herein, had been held to be legal as well as justified.

2. The petitioner-workman was employed with the respondent no.2 Company, The Statesman Limited, since

1972 in the advertising department as a receptionist-cum- typist. She was dismissed from service in the year 1997 after she was found guilty of the following charges of misconduct which had been levelled against her vide charge sheet dated 12.03.1994:-

"It has been noticed that you habitually come late to office and not put the correct time of your arrival inspite of being told to this effect a number of times. You also sign over and above the red mark put against your name and when you come late, even then, you put your arrival time as 10.00 a.m. intentionally showing thereby that you come in time on that day.

During the last three days i.e. from 5th March to 8th March, 1994, you came late by 40 to 50 minutes but marked your arrival time as 10.00 a.m. As your late coming caused considerable difficulty in the smooth work of the Advertisement Department, your departmental head, Mr. Shivaji Samaddar called you on 9th March, 1994 at about 5.00 p.m. and enquired from you about your late coming of the said days. You told him that you came late during the said days due to your children exams. You, however, admitted that you had not taken prior permission for your late coming. You further told him that you will continue to come late throughout the month of March due to your childrens‟ exams and you had tole about this to Mr. Ashok Handa. On being enquired from Mr. Handa it was revealed that you had told Mr. Handa about your late coming only for one day.

Further when Mr. Samaddar drew your attention to the fact that why you signed over and above „A‟ mark for 2nd, 3rd and 4th March, 1994, without his permission, instead of giving any satisfactory reply, you started shouting at him in a very loud tone and in an insulting manner. Your language was very rude and harsh. You continued to shout for about five minutes in his cabin as well as outside of his cabin. Mr. Samaddar tried to pacify you but instead of listening to his reasonable instruction you went on shouting at the top of your voice and told him in a very angry and aggressive tone that „you are a cheap man. Main App ki Tarah Ghatia Baten

Nahi Karti Huin. Maine Bade Managers Dekhe Hain. Main Tum Ko Apni Juti Pe Rakhti Huin. Tum Ne jo Karna Hai Mere Barkhalaf Kar Lena. Main Sab Dekh Loongi." You also said that „You have told Mr. Bhupinder Singh that I used to make STD calls from office. I have got a telephone at my residence and in case if you have to make an STD call, you can come to my residence and can make STD call from there." Thereafter you left his room while shouting at him and continued shouting for few minutes at your seat also.

It has also been observed that a lot of inconvenience was caused to Mr. H.L. Khanna on account of your late coming on duty. When you come late, visitors and clients, both go straight to him for various queries/insertions of their ads. Etc. On 7th March, 1994 when Mr. Khanna complained to you about the inconvenience caused to him on account of your late arrival for duty, you told Mr. Khanna that a „You will come to office at your will and you are least bothered in cases if he lodges a report to the Ad. Manager/Manager about your late arrival."

This is not the first time that you have come late on duty and have signed over and above the red mark. While going through your service record, we find that you were cautioned to be punctual in duty vide management‟s letter dt. 25th January, 1977. You were also asked to explain the reasons for recording wrong timings in the attendance register and subsequently changing the name by over-writing showing incorrect hours of work vide Management‟s letter dt. 20th February, 1978. We further find that you were issued a note dated 27th August, 1978 for making wrong entries in the attendance register. In a reply to our this note, you admitted vide your letter dt. 30th August, 1978 that you did make the wrong entries in the attendance register and as such, you were advised to be more careful in future while making entires in the attendance register vide Management‟s letter dated 1st September, 1978.

Thus you have committed the following misconducts;

(a) You habitually come late to office and not put the correct time of your arrival in the attendance register.

(b) You are in the habit of signing over and above the red mark put against your name in the attendance register.

(c) You signed over and above „A‟ mark without permission/authority on 5th, 7th & 8th March, 1994.

(d) That on 9th March, 1994 at about 5.00 p.m. you misbehaved with Mr. Shivaji Samaddar in a very rude and in an insulting manner and have levelled false allegations against him.

(e) You have neglected your work by habitually coming late on your duty.

(f) By shouting at your Departmental Head in his cabin as well as outside his cabin, you not only crated a scene but also disrupted the normal work of the office."

3. She had then approached the labour authorities for her re-instatement in service but since she could not get that relief in conciliation proceedings from the respondent no.2- management the dispute about her dismissal from service was referred for adjudication to the Labour Court with the following term of reference:-

"Whether the dismissal of Mrs. Anil Dogra from service is illegal and/or unjustified, and if so, to what relief is she entitled and what directions are necessary in this respect?"

4. The petitioner-workman filed her statement of claim before the Labour Court in which she claimed her dismissal from service to be illegal as the management was always trying to victimize her since she was demanding her due grade as per Bachawat Wage Board's recommendations and according to her case that was evident from the fact that on 12.3.94 the management charge-sheeted her on some false

allegations and thereafter on 23.03.1994 had awarded to her punishment of suspension for a period of 4 days without any enquiry. When she protested against that decision of the respondent no.2-management vide her letter dated 01.04.94 the management again suspended her on 02.04.1994 and an enquiry was also ordered into the same allegations which were levelled in the charge-sheet dated 12.03.94 and for which acts of misconduct she had already been punished and after holding the enquiry in arbitrary manner imposed on her pre-determined and extreme penalty of dismissal.

5. The management filed its written statement in which it denied all the submissions made by the petitioner and submitted that the enquiry was ordered after she had protested that she had been punished without any enquiry and the enquiry was conducted properly and since she was found guilty of the charges of misconduct levelled in the charge- sheet dated 12.03.94 and since those charges were quite serious her dismissal from service was legal and justified even though earlier a lenient view to suspend her for a period of 4 days only was taken as a punishment.

6. The Labour Court initially framed a preliminary issue regarding the validity of the enquiry and decided that issue in

favour of the management vide order dated 06.03.2007. Thereafter, the Labour Court vide final award dated 10.07.07 held that the punishment of dismissal from service was also justified in view of the nature of allegations proved against the petitioner-workman.

7. Feeling aggrieved, the petitioner-workman filed this writ petition for quashing of the award of the Labour Court and the punishment of her dismissal from service. The correctness of the order on the issue of enquiry was also challenged.

8. The learned counsel for the petitioner-workman had made two submissions only during the course of arguments before this Court. The first one was that since the respondent no. 2-management had already suspended her for a period of 4 days as a measure of punishment on the basis of allegations leveled against her in the charge-sheet dated 12.03.94 it could not have initiated fresh disciplinary proceedings against her in respect of the same allegations and particularly when she had already suffered the stigma of having remained under suspension for four days as a measure of punishment for the alleged acts of misconduct. Therefore, counsel further contended the punishment of dismissal from service awarded

to her subsequently in respect of the acts of misconduct mentioned in the charge-sheet dated 12.03.1994 amounted to double jeopardy and so that action of the management was illegal and it also amounted to her victimization because of her not having accepted the earlier punishment and she was made to suffer just because she had protested that she had been suspended earlier for no fault of hers.

9. The second submission was that even if any enquiry could be ordered after the petitioner had already been punished, the punishment of dismissal from service could not be given to her since on the same very allegations earlier the management had considered the punishment of her suspension for four days to be sufficient and, therefore, for this reason also the said punishment, which was upheld by the Labour Court mechanically, is liable to be set aside.

10. The learned counsel for the respondent no.2- management, on the other hand, while supporting the impugned award had submitted that though earlier to the imposition of the punishment of dismissal from service the petitioner was awarded the punishment of suspension for four days for the allegations of misconduct set out in charge sheet dated 12.03.1994 and subsequently she was awarded the

major penalty of dismissal from service in respect of the same very acts of misconduct enumerated in the charge-sheet dated 12.03.1994 but in the facts and circumstances of this case it is clear that this not a case of double jeopardy as was being sought to be projected from the side of the petitioner. Learned counsel also contended that in her reply to the charge sheet dated 12.03.1994 the petitioner had admitted her fault and had felt repentant also so it was decided not to hold any regular enquiry against her and also to let her off with a minor punishment of her suspension for four days but she did not accept that penalty gracefully and instead hadstarted claiming that injustice had been done to her, the management had then decided to revoke the punishment already awarded to her and to hold a regular enquiry which she herself wanted to be held. In the enquiry also she was found guilty and, therefore, thereafter the management was fully justified in imposing the penalty of dismissal from service on the petitioner since that penalty was the only appropriate penalty in view of the serious nature of allegations established during the enquiry. So, in these circumstances, counsel further contended, the petitioner was not justified in raising a grievance that she had been punished twice. The learned counsel for the management further argued that since the

Labour Court has also approved the punishment of dismissal there is no scope of any interference with that punishment by this Court.

11. After having considered the submissions made on behalf of both the parties and going through the record of this petition, I find myself in full agreement with both the submissions made on behalf of the petitioner by his learned counsel. It is admitted case of both the parties that the petitioner had been punished earlier by the respondent no.2- management by suspending her for four days for the same charges for which she was subsequently dismissed from service. I am of the view that the management could not have punished her twice for the same set of acts of misconduct and more particularly after the petitioner had already remained suspended for four days. For this view, I take support from the judgments of various High Courts reported as "Girish Chandra Singh v. State of U.P."; 2008 (1) AWC 906, "Leela Singh v. Punjab Electricity Board, Patiala"; 2006 Lab.I.C. 1491, "Depot Manager, A.P.S.R.T.C. v. N. Ramulu and others"; 1997(75) FLR49 and "Ganga Deen v. U.P. State Road Transport Corporation and Others";

1992 (3) AWC 1484, cited by the learned counsel for the petitioner-workman.

13. This Court is also of the view that even if the management could initiate an enquiry against the petitioner into the charges levelled against her in the charge sheet dated 12.03.94 the punishment of dismissal could not have been awarded to her and approved by the Labour Court also considering the fact that for the same allegations the punishment of suspension for four days was earlier considered by the management itself to be sufficient. I find force in the submission of the learned counsel for the petitioner that this extreme punishment was awarded to her because she had earlier protested that she had been punished without any enquiry and this decision of the management smacks of vindictiveness on its part. The Labour Court also should not have approved of this punishment since the petitioner was being punished twice for the same offence and also because for the same allegations the management itself had awarded punishment of suspension for four days to the petitioner. That aspect was totally ignored by the Labour Court. So, this becomes a fit case to interfere in the award of the Labour Court.

14. This writ petition is, therefore, allowed and the punishment of dismissal from service awarded to the petitioner is set aside and resultantly she has become entitled to all the consequential benefits including that of reinstatement in service, if she has not already crossed the age of retirement as per the rules of the management, as well as back wages from the date of her dismissal onwards.

P.K. BHASIN, J AUGUST 3, 2012