[CASE NUMBER] IN THE COURT OF MS. [ENTITY]: PRESIDING OFFICER: LABOUR COURT-I : ROOM NO.50: KARKARDOOMA COURTS: DELHI. ID No. 471/2005 DATE OF INSTITUTION: 07.10.2005 RESERVED FOR ORDERS: 08.05.2008 DATE OF DECISION: 17.05.2008 BETWEEN Sh. [ENTITY] S/O Sh. [ENTITY] R/O E-137, Jai Vihar, Najafgarh, New Delhi C/O General Majdoor Union T-43, Karampura, New Delhi- 15. Workman AND M/s E-First Solutions India Pvt. Ltd. F- 26/4, Okhla Industrial Area, Phase-II, New Delhi, PS : Okhla. Management AWARD 1 The workman directly filed the claim petition in pursuance to notification No. F 25/ (I) Secretary/Lab./03/022 dated 27.02.2004 read with Notification no. 15/4 JLC (L)/Lab./03/2821 dated 22.08.2004
contending that he was in employment of the management for the last five years as a Senior Accounts Executive and his last drawn wages were Rs. 6,050/- p.m. His service record was unblemished but still he was not provided any legal benefits. His signatures were also obtained on blank papers. On insistence of the workman for cancellation of those documents and for providing legal facilities, the management got annoyed and terminated him on 03.06.05 illegally, withholding his salary for May 2005. The demand notice sent by the workman to the management as well as complaint made to the labour authorities proved inconsequential. Hence, the claimant was constrained to raise an Industrial Dispute. 2 On notice, the management appeared and filed its statement of defence, rebutting the contentions of the workman. It was stated that in fact there were serious charges against the workman due to which he was served chargesheet and an enquiry was conducted against him, in which, he refused to participate despite repeated notices. Ultimately, he was found guilty by the enquiry officer vide his report dt. 09.11.05. Consequently, the workman was dismissed from service vide letter dt. 10.11.05. 3 The claimant in his rejoinder outrightly denied the service of any chargesheet or of any information of any enquiry and maintained that he had been illegally terminated by the management.
4 On these pleadings following Issues were framed vide order dated 10.05.06.
1) Whether the workman's claim is not maintainable as claimed in preliminary objection no. 1 and 3 in the WS? OPM
2) Whether the services of the workman were dismissed after fair and proper enquiry, as claimed in preliminary objection no.2, if so, its effect? OPM
3) Whether the services of the workman were terminated illegally and unjustifiably by the management? OPW
4) Relief.
5 Issue no. 1 was disposed of as preliminary issue vide order dt. 27.01.07. Thereafter enquiry issue was treated as preliminary issue. After evidence of the parties, enquiry issue was disposed off vide order dated 12.03.2008 in favour of management holding enquiry to be fair and proper. The matter was posted for arguments U/[SECTION] of the [ACT].
6 I have heard AR for both the parties at length, perused the entire records and carefully considered the matter.
My findings on the above issues no. 3 & 4 are as follows:
ISSUE NO.3:-
7 Admittedly the workman has been dismissed from service after a domestic enquiry which has been upheld in the court. The only question that remains to be decided is the propriety of the punishment of dismissal awarded to the workman. The jurisdiction of the court in this regard is circumscribed by [SECTION] of the [ACT] which runs as follows :
[SECTION]:
"Power of Labour Courts, Tribunals and Nationals to give appropriate relief in case of discharge or dismissal of workmen- Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, that Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order or discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require.
Provided that any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter."
8 The scope of intervention in a dismissal order passed after a duly conducted enquiry is no longer res-integra. It has been consistently held by the Hon'ble Supreme Court and various High Courts that the scope of the probe that can be made by the Labour Court in case of a penalty imposed after a duly conducted enquiry, is extremely limited. The Courts in India have upheld and consistently followed the tests laid down in 'Wednesbury case ([PRECEDENT]' as reproduced in [PRECEDENT] "[PRECEDENT]" as follows :
"Lord [ENTITY] said in 1948 in the famous Wednesbury case ([PRECEDENT] that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other of the following conditions was satisfied, namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken "
9 Based on the above tests, the Hon'ble Supreme Court has in a number of judgments held that the court will not go into the question whether the punishment awarded by the Administrative Authority was proportionate to the misconduct or not but will only interfere if the same is found shockingly disproportionate. In '[PRECEDENT]' it was observed:
"A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to re- consider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
10 The principles have been followed by the courts in India in a large number of cases. Some of the recent ones are :
i) [PRECEDENT] "[PRECEDENT]"
ii) AIR 2004 SUPREME COURT 4761 "[PRECEDENT]"
iii) AIR 2005 SUPREME COURT 1924 "[PRECEDENT]"
iv) AIR 2005 SUPREME COURT 1993 "[PRECEDENT]"
v) AIR 2005 SUPREME COURT 2006 "Bharat Coking Coal Ltd., M/s. v. Bihar Colliery Kamgar Union"
vi) [PRECEDENT] "D. P. S. Rural Regional Bank vs. Munna Lal Jain"
vii) 2005 LLR 258 " [PRECEDENT]" 11 As noted above the power of this court to interfere U/[SECTION] in the punishment awarded after domestic enquiry is largely limited. In case of '[PRECEDENT]' (Supra), the Apex Court held :
"The discretion which can be exercised under [SECTION] is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence, of any such circumstances, the Labour Court cannot by way of sympathy alone exercise the power under [SECTION] of the Act and reduce the punishment."
12 As per records the claimant was charged with misappropriation of funds received from a regular customer as payment for delivery of some goods. The workman despite adequate opportunities did not bother to challenge or rebut the charges leveled against him. In the order upholding the enquiry, it has been held that the claimant was well aware of the on going enquiry and was duly served with the charge sheet. The management witnesses examined during enquiry have categorically stated that the signatures appearing on money order form in token of receipt of payment from the customer were of the claimant and that he had failed to deposit the said payment with the management. The said deposition of the management witnesses remained uncontroverted. The workman failed to show that he did not receive the said amount or did not misappropriate it. In the case reported as [PRECEDENT], adopting a deterrent policy, Hon'ble Supreme Court held the order of removal of a bus conductor guilty of misappropriation of paltry sum of Rs.1.50 only as justified. Hon'ble Apex Court set aside the order of Labour Court imposing lenient punishment. It was observed that the conductor who was placed in a position of trust by his employer betrayed the said trust and his misconduct was grave justifying dismissal.
13 Similarly, in another case of [PRECEDENT], the court observed that if a person holding a position of trust starts misappropriating the money and pockets the same causing loss to the corporation, it amounts to serious misconduct. The court was of the opinion that such misconduct should be dealt with an iron hand and not leniently.
14 Same was the view of the court in the case reported as [PRECEDENT]. 15 Turning to the fact of the case in hand, the workman was charged with embezzlement. He did not participate in the enquiry despite due notice, nor did he rebut the evidence adduced against him. He failed to give any explanation or justification for his misconduct. After detailed enquiry, the enquiry officer had given his report holding that the charges were proved on the basis of which management dismissed him from service. The enquiry was challenged by the workman but the same has been upheld by this court vide separate order. It has been held that the enquiry was fair and proper and there was no perversity in the findings of enquiry officer and also that the charges of misconduct were proved against the delinquent.
16 In my considered opinion in the case in hand, neither there are any mitigating circumstances, proved by the workman nor the punishment is so disproportionate that it shocks the conscience of the court. Hence, I hold that the punishment imposed on the workman, [ENTITY] is proportionate to the misconduct proved against him. His removal from the service is neither illegal nor unjustified and he is not entitled to any relief as claimed. The issue is decided in these terms.
ISSUE NO.4 :-
17 For the foregoing reasons, I hold that the workman, [ENTITY] is not entitled to any relief or direction in the present claim petition. Claim petition is disposed of accordingly. Copies of the award be sent to the appropriate government for publication as per law after necessary compliance by [ENTITY]. File be consigned to record room.
Announced in the open court ([ENTITY]) On 17th May, 2008 PRESIDING OFFICER LABOUR COURT-I (Six copies attached) KARKARDOOMA COURTS, DELHI