Delhi High Court
Mahinder Singh vs Presiding Officer Labour Court on 27 September, 2022
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 24.08.2022
Pronounced on: 27.09.2022
+ W.P.(C) 4485/2003
MAHINDER SINGH ..... Petitioner
Through: Mr. Anil Mittal and
Ms. Komal Aggarwal Sinha,
Advocates.
versus
PRESIDING OFFICER LABOUR COURT
& ANR. ..... Respondents
Through: Mr. Sarfaraz Khan, Advocate
for DTC.
CORAM:
HON'BLE MR. JUSTICE GAURANG KANTH
JUDGMENT
GAURANG KANTH, J.
1. The present writ petition is filed under Article 226 of the
Constitution of India for setting aside the Awards dated
11.09.2002 and 24.09.2002 passed by learned Presiding Officer,
Labour Court-IV, Karkardooma Courts, Shahdara, Delhi
("Impugned Awards") whereby the learned Presiding Officer
has held that the termination order passed by the competent
authority after accepting the report of Enquiry Officer dated
14.07.1987 was correct.
Signature Not Verified
Digitally Signed By:RITU
DHIRANIA
Signing Date:28.09.2022
16:32:36
FACTS OF THE CASE
2. The facts borne out of the records leading to the present petition
are that the Petitioner was appointed as a driver with the DTC in
the year 1979. On 21.10.1983, the petitioner was served with a
chargesheet for alleged misconduct. According, to the Charge-
sheet, the petitioner along with his two other associates entered
the office of Mr. K. K. Berry, Depot Manager, DTC and during
the discussion, the petitioner used abusive language and
assaulted the Depot Manager. Petitioner filed a reply against the
allegations levelled against him in the Charge-sheet. However,
the competent authority was not satisfied with his reply and a
regular enquiry was initiated against the Petitioner. After
conducting the enquiry, the Enquiry Officer submitted his report
dated 14.07.1987 wherein the petitioner was found to be guilty of
all the charges levelled against him. Hence vide memorandum
dated 19.06.1987, the respondent removed the petitioner from his
services.
3. The Petitioner raised an industrial dispute against the termination
order dated 19.06.1987 which was referred to the learned Labour
Court, Delhi for adjudication with the following terms of
reference:
"Whether the termination of the services Sh. Mahinder
Singh is illegal and/or unjustified and if so, to what relief
is he entitled to and what directions are necessary in this
respect?"
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DHIRANIA
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4. Initially there was no representation on behalf of the
Management/Respondent before the learned Labour Court and
by way of ex-parte Award dated 06.12.1999, the learned Labour
Court held that the removal of the petitioner from the services is
unjustified and directed for the reinstatement of the petitioner
with full back wages and continuity in service.
5. The respondent filed Writ Petition challenging the ex-parte
Award dated 06.12.1999 passed by the learned Labour Court
which stood dismissed vide order dated 11.07.2000. Against the
dismissal order, the Respondent/Management preferred an
Appeal being LPA No. 630/2000. The Division Bench of this
Court vide order dated 07.08.2002 was pleased to set aside the
order passed by the learned Single Judge of this Court in
W.P.(C) 3616/2000 dated 11.07.2000 and remanded the matter
back to the learned Labour Court with directions to give another
opportunity to the Respondents to lead evidence in support of
their claims.
6. The petitioner examined himself as WW-1 and the Respondents
examined Mr. Yusuf, who conducted the domestic enquiry as
MW-1. After examining the evidence adduced by the parties, the
learned Labour Court vide award dated 04.06.2002 was pleased
to declare the enquiry conducted by the Respondents as vitiated
as no opportunity was given to the Petitioner to cross-examine
the complainant.
7. In view of the same, the learned Labour Court provided
opportunity to the Respondent to prove the alleged misconduct
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committed by the Petitioner. Hence in order to substantiate their
case, the Respondent examined 3 Witnesses, Mr. V.K. Singh.
Mr. R.K. Kasana and Mr. K.K. Berry. The Petitioner examined
Mr. Dhan Singh, Driver as his witness. Mr. Dhan Singh, Driver
who claimed to be an eye witness deposed that he was present in
the matador from 12.30 pm to 6 pm but he did not hear any
commotion or any act of violence against his officer Sh. K. K.
Berry with whom he was attached.
8. After considering the additional evidence adduced by the parties,
the learned Labour Court vide its Award dated 11.09.2002 held
that the petitioner was guilty of misconduct as alleged against
him in the charge-sheet. Vide Award dated 24.09.2002, the
learned Labour Court held that the offence stood established
against the petitioner and are severe in nature and further held
that the termination of the petitioner was neither illegal nor
unjustified.
9. Being aggrieved by the impugned Awards dated 11.09.2002 and
24.09.2002, the Petitioner preferred the present writ petition.
SUBMISSIONS ON BEHALF OF THE PETITIONER
10. Mr. Anil Mittal, learned counsel appearing on behalf of the
petitioner contended that the Impugned Awards dated
11.09.2002 and 24.09.2002 are liable to be set aside as both are
based on conjecture and surmises ignoring the material evidence
on record. Learned counsel further contended that the learned
Labour Court erred in passing the impugned Awards dated
11.09.2002 and 24.09.2002 against the appellant as the
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testimony of Mr. Dhan Singh, Driver of Sh. K. K. Berry clearly
proves that no such incident as alleged in the charge-sheet has
ever taken place. He further contended that the learned Labour
Court has not followed the directions contained in order dated
07.08.2001 passed by Division Bench of this Court in LPA No.
630/2000 wherein it was clearly observed that both the parties
are at liberty to adduce additional evidence. The very intent of
the directions passed by the Division Bench has been surpassed
by the learned Labour Court as the Presiding Officer, Labour
Court failed to take into consideration the evidence of Mr. Dhan
Singh, Driver.
11. Learned counsel further contended that the testimonies of MW-1
and MW-3 are not trustworthy and have been made with a
vengeance against the petitioner and concocted the whole story
only to remove him from the organisation due to his
involvement in the labour union activities. Learned counsel
further contended that there are material contradictions in the
testimonies of Mr. K. K. Berry, Depot Manager and Mr. V. K.
Singh and the learned Labour Court erred in relying the
testimony of Mr. K. K. Berry, Depot Manager.
SUBMISSION OF THE RESPONDENT
12. On the other hand, Mr. Sarfaraz Khan learned counsel appearing
on behalf of respondent contended that no interference in the
Impugned Awards are called for by this Court as the same have
been passed on the clear, concrete and credible evidence of
Mr.K. K. Berry, Depot Manager. He further contended that there
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is no reason to disbelieve the testimony of Mr. K.K. Berry,
Depot Manager as there is no contradiction in his statements
before the Enquiry Officer and before the learned Labour Court.
He further contended that the enquiry has been conducted
following the principles of natural justice and learned Labour
Court has also passed the Impugned Awards taking into
consideration all the evidences produced before the learned
Labour Court and hence the present writ petition is liable to be
dismissed.
COURTS REASONING
13. Both the parties have produced witnesses in their support of
their case before the learned Labour Court. In order to ascertain
the fact whether the petitioner has been involved in the alleged
misconduct of abusing and assaulting the Depot Manager, it is
relevant to rummage through the evidence produced by the
parties. Mr. K.K. Berry, Depot Manager during his cross-
examination deposed as under:-
"I was appointed as Assistant Foreman in June, 1957. I
do not know name of the day on 10.10.83, as it is a
matter of 20 years old. I did not use to sanction or
reject the leave applications, of the workers working in
my depot. My subordinate used to do the same job. It is
correct that security guards had been deployed at the
gate of the depot. At the time of alleged incident, I was
sitting in my office. I cannot tell the dimension of my
cabin. I am not remembering whether previously
workman ever met with me or not. I cannot say for how
long the workman remained in my cabin. They told me
their grievances which have been recorded in the
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DHIRANIA
Signing Date:28.09.2022
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affidavit. All the three were speaking to me
simultaneously. They were standing in my cabin.
It is 20 years old case. I cannot exactly tell which side
of me they all were standing. They had beaten me
only and not abused me. All the three assaulted me
but exactly I cannot tell which part of my body was
punched by whom
XXXX XXXX XXXX
Mr. V.K. Singh, Assistant Accounts officer and Dhan
Singh driver saved me. V.K. Singh was sitting with
me already at the time of incident. Sh. Dhan Singh
driver came in the office at that moment. It is incorrect
to suggest that I was not assaulted. It is incorrect to
suggest that there were instructions from higher
management that the active members of union should
be sacked by any means. It is further incorrect to
suggest that just follow the alleged instructions, I had
levelled false allegations against the workman....."
14. Mr. V. K. Singh, Assistant Accounts Officer who stated to have
been present with Mr. K. K. Berry, Depot Manager at the time
of alleged incident during the registration of the complaint has
stated as under:-
"On 10th Oct.83, I went to Depot Manager's room to
discuss certain matters about the depot at about 1630
hrs. When I was discussing with the Depot Manager,
3 workers namely S/Shri Mohinder Singh, Driver,
B.No. 7834, Dharam Bir Driver, B.No. 6865 and
Harish Chander Cond. 9529 entered the office of the
Depot Manager. They stated that they would like to
discuss certain difficulties faced by the workers of
SND. During the course of the discussion, the workers
stated that the leave applications of the staff are being
rejected, the recovery of the damage charges from the
driver should not be made at all gad the drivers on
workshop duty should be booked on seniority basis.
The position regarding leave application was
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DHIRANIA
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explained to the workers the depot authorities take
utmost care in rejecting only those leave application
which are received late. They were further informed
the leave applications are rejected because of the high
rate of absenteeism prevailing in the depot. They were
also informed by the Depot Manager that if there is
specific case in which leave application has been
rejected without considering the genuine grounds, the
same may be put up to his for consideration.
Regarding damage ones, the workers were informed
that those cases are dealt with in accordance with the
rules and regulations and if they feel that any injustice
has been done with any driver, he should be asked to
file an appeal with appellate authority.
So far as the matter regarding booking of senior
drivers on workshop duty is concerned, it was informed
by the Depot Manager that the same is under process
and will be implanted very soon.
At this S/Shri Mohinder Singh and Mariah Chander
stated that "AAP HAMARI HUNION KALKAAM
NAHI KARTE. HAM AAP SAI DOOSRI TARHAN
SE NIMTENGE". They Booed upon Depot Manager
and gave fist belows on his face. I immediately got up
from my seat and saved Shri Berry. Shri Than Singh,
Driver, B.No.2251 also entered the office of Depot
Manager and help in this respect."
15. Mr. V. K. Singh, Assistant Accounts Officer during his cross-
examination deposed as under:-
"On the date of incident that is, 10,10,83, I was posted
as Asst, Accounts officer, DTC, K,K Bedi was depot
manager S.M, Depot, Around 10,30, I had gone to Mr.
Bedis office, 3 workers were already sitting over
there. They were having discussions with Mr. Berry
regarding some obligations, DM had rejected the leave
applications on the ground that large number of staff
members had started absented themselves. He told
them that in case any problem with his order they
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DHIRANIA
Signing Date:28.09.2022
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could file appeal. Workers were also agitated over
damages/ penalties imposed on them for causing
damage to the DTC, Depot Manager told them that
they would file appeal against his order. Thereafter,
workmen present over there Mr. Berry that he was not
obliging their union members they would teach him a
lesson, I came to know about names of the workmen
as Harish, Mahinder, Dharmveer, I did not know
them before the incident. After the discussion, the
workmen all pounced upon Mr. Berry in my
presence, and gave me blows. I then separated and
they ran away from the room"
16. Mr. Dhan Singh, Driver of Mr. K. K. Berry, who is allegedly
stated to be an eye witness to the incident of assault stated in his
chief examination as under:-
"I was driver to the Depot Manager in the year 1982 to
1986. On 10.10.83, I was posted and on duty at S. N.
Depot from 1 P.M. to 9 P.M. Name of Depot Manager
was Mr. Berry Sahab. No incident of marpeet took
place in my presence on 10.10.83 in my presence. I
had not seen anything or heard anything in the depot
on 10.10.83. I had gone to Depot Manager at 6 P.M. to
Secretariat. I was asked by the Depot Manager to give
in writing something. I do not remember what he had
asked me to write but I told him that I can give in
writing in Urdu only. But they refused to accept any
writing in Urdu. I had not appeared as a witness in the
enquiry against Mahender Singh. It is my first chance
to appear in the court today"
17. Mr. Dhan Singh, Driver during his cross-examination deposed
as under:-
"I retired from my employment with DTC in the year
1987 on 30.4.1987. I am not related to Mahender
Singh workman. I was called for evidence in the court
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DHIRANIA
Signing Date:28.09.2022
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today by Sh. Mahender Singh through one of his
person. Sh. Mahender Singh met me in the court today
only and is told me to give evidence. He did not tell me
what to depose. I do not have very good personal
relations with the workman. Neither I have love nor
quarrel with him.
My duty as a driver to Depot Manager was to at the
Matador which was allotted to him and drive the
vehicle for him whenever he directed. It is correct that
I was not related to the work in the office of Depot
Manager nor I had to do anything to go there. I had
reached the depot on 10.10.1987 at 12.30 noon. I had
at 6 p.m. on that day went in the matador XXX with the
depot manager as per his direction to the Secretariat.
During all the time from 12.30 p.m. to 6 p.m. I was at
the matador only. It is wrong to suggest that I have
good relations with Mahender Singh and to help him I
had come to depose in his favour in the court."
18. From perusal of the aforementioned testimonies, it is evident
that at the time of alleged incident Mr. V. K. Singh, Assistant
Accounts Officer was available in the office of Mr. K.K. Berry,
Depot Manager. Mr. V.K. Singh during his initial statement
recorded by the Enquiry Officer informed in writing that the
petitioner along with two other officials abused and assaulted the
Depot Manager. During his examination-in-chief as well in his
cross-examination he has stated explicitly that he was present in
the room of the Mr. K. K. Berry, Depot Manager at the time of
the alleged incident and he saved the Depot Manager from
further assault.
19. Mr. K. K. Berry, Depot Manager categorically stated in his
evidence that during the conversation with the petitioner and his
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DHIRANIA
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colleagues in his office, the petitioner assaulted him. He further
deposed that he was saved from further assault by Mr. V. K.
Singh who was present in his room at the time of the alleged
incident. There is no contraction in the statement of Mr. K.K.
Berry, Deport Manager recorded at the time of complaint and
statement before the learned Labour Court.
20. Petitioner has challenged the impugned Awards on the basis that
the learned Labour Court erred in not considering the testimony
of Mr. Dhan Singh, Driver despite recording of his evidence.
21. This Court has analyzed the testimonies of Dhan Singh minutely
and carefully. Mr. Dhan Singh in his evidence stated that he had
reached the depot on 10.10.1983 at 12.30 noon and during all
the time from 12.30 p.m. to 6 p.m., he was at the matador only.
He further deposed that no incident of "marpeet" took place in
his presence on 10.10.83 and he had not seen anything or heard
anything in the depot on 10.10.83. The incident happened at the
office of Mr. K.K Berry, Depot Manager. Mr. Dhan Singh was
not present there according to his own evidence and hence the
only thing which can be deduced from his evidence is that
Mr.Dhan Singh is not an eye witness to the incident. Mr. K.K
Berry in his evidence stated that Mr. V.K Singh saved him from
the Petitioner's assault. However, Mr. Dhan Singh stated that he
was not present at the time of incident. In the opinion of this
Court, the evidence of Mr. Dhan Singh is not cogent enough to
turn around the decision rendered by the learned Labour Court.
Mr. Dhan Singh during the course of his evidence admitted that
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DHIRANIA
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he was deposing at the behest of the petitioner. Hence Mr. Dhan
Singh cannot be treated as an independent witness. He is already
a retired employee and hence his evidence at the behest of the
petitioner cannot be relied upon.
22. As such no reliance can be placed on the testimony of Mr. Dhan
Singh, Driver. The testimony of Mr. K. K. Berry, Depot
Manager and Mr. V. K. Singh, Assistant Accounts Officer are
corroborative and without any material contradictions.
23. Accordingly, after perusing the testimonies of the
aforementioned witnesses, this Court is of the view that the
petitioner has assaulted Sh. K. K. Berry, Depot Manager in the
presence of Mr. V. K. Singh, Assistant Accounts Officer and has
been saved by Mr. V. K Singh from further assault.
24. The learned Labour Court had dealt with the evidence adduced
by the parties and came to the conclusion that the petitioner is
guilty of the misconduct alleged against him. The relevant
portion of the impugned award reads interalia as follows:
" I have already observed above that there was no
cogent reason for an elderly well-placed person like Mr.
K.K. Berry to make allegation against workman
Mahinder Singh. There is every likelihood Mr.
K.K.Berry was assaulted in his office by the workman. I
therefore, hold that Management has succeeded in
establishing misconduct of the workman by leading
evidence in the Court. It has been established on record
that workman alongwith his associates gave
unwarranted beatings to the Depot Manager Mr. Berry.
They are guilty of assaulting him...".
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DHIRANIA
Signing Date:28.09.2022
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25. The act done by the petitioner assaulting his superior officer at
the workplace amount to gross indiscipline. Even under gravest
of provocation no employee can be allowed to assault his
superior, so the punishment of termination from service cannot
be said to be wholly inconsistent. The courts cannot allow the
employees to break the discipline with impunity.
26. It is well settled principles of law that while exercising
jurisdiction under Article 226 of the Constitution of India, the
order passed by the learned Labour Court is to be interfered
with, only if (i) it suffers from an error of jurisdiction or (ii)
there is a breach of principle of natural justice or (iii) vitiated by
a manifest or apparent error of law. This Court has no
jurisdiction to reappraise the evidence unless the findings of
facts are contrary to the evidence on record.
27. In view of the detailed discussions herein above, this Court is of
the view that the finding of facts arrived at by the learned
Labour Court is based on the evidence on record and hence there
is no perversity or illegality in the findings arrived at by the
learned Labour Court. Hence this Court is not inclined to
interfere with the Awards dated 11.09.2002 and 24.09.2002
passed by the learned Labour Court.
28. Accordingly, the present writ petition is dismissed. No order as
to cost.
GAURANG KANTH, J.
SEPTEMBER 27, 2022
Signature Not Verified
Digitally Signed By:RITU
DHIRANIA
Signing Date:28.09.2022
16:32:36
