1 IN THE COURT OF SH [ENTITY]: POIT-II, KARKARDOOMA COURTS, DELHI OP 02/06 The applicant M/s [ENTITY], B-30, G.T. Karnal Road, Delhi. Versus The respondent
Sh. [ENTITY] S/o Sh. Bashashar Nath J-83, I floor, Gali No 5, Flat No 2, Laxmi Nagar, Delhi 92.
ORDER ON THE VALIDITY OF INQUIRY
1. Management has filed application u/[SECTION] of [ACT] ( hereinafter referred to as the [ACT]) for approval of its action in dismissing the services of the workman. It is alleged in the application that workman was employed with the management. Workman is alleged to have remained intermittently absent from February to August, 2005 for 35 days and also hurled abuses on his senior Officer, therefore, he was chargesheeted on 8.9.05. copy of the chargesheet was allegedly sent to him, notices of the inquiry were also sent to him on number of occasions but he did not turn up to participate in the inquiry. Accordingly, an ex parte inquiry was conducted against him wherein all principles of natural justice were allegedly observed. It is alleged that on the basis of report of inquiry officer, a show cause notice was issued to him, but he did not submit any reply thereto. Accordingly, a dismissal order was passed and the same along with one month wages were remitted ot him.
2. In the WS, case of the workman is that Management issued him a letter dated 8.9.2005 and withdrew work from him and thereafter though he had been reporting for duties but he was not allowed to resume the same. Therefore, not allowing duty to him was illegal termination of his duty and he accordingly got sent a legal notice to the Management which allegedly annoyed the Management and thus a bogus inquiry was consituted against him. It is alleged that when he received copy of the chargesheet, he made a request for providing him either an outsider/ Lawyer as legal Assistant but that was not allowed, therefore, a biased inquiry was conducted against him. It is alleged that principles of natural justice were not followed. It is alleged that inquiry is not just, fair and proper and same is liable to be set aside being violative of principles of natural justice.
3. On the basis of pleadings of the parties following following issue was framed :
Whether the applicant/ management hasconducted a fair and valid inquiry in accordance with principles of natural justice ?
4. Management in order to prove his case has examined [ENTITY], Inquiry Officer as MW 1. Management has also examined Sh. [ENTITY] as MW 2. On the other hand, workman has examined himself.
5. I have heard AR for the parties and have carefully gone through record of the case and inquiry proceedings. My findings on inquiry issue are as under:-
Findings on issue No 1
6. MW 1 Sh. [ENTITY] in his affidavit has deposed that he was appointed Inquiry Officer in this case vide appointment letter Ex MW1/1. He is deposed to have issued notices of inquiry to the workman which are Ex MW1/3, MW1/7 and MW1/11 through registered posts to appear and participate in the inquiry but workman did not turn up. Therefore, he is deposed to have conducted an ex-parte inquiry. Inquiry proceedings have been proved as Ex MW1/13. Workman representations addressed to him and Management are deposed to have been considered and have been proved as Ex MW1/14. On conclusion of the inquiry, he is deposed to have submitted inquiry report Ex MW1/15.
7. On the other hand, WW 1 Sh. [ENTITY] in his affidavit has deposed that Management issued him a letter dated 8.9.2005 and withdrew work from him and thereafter, though he had been reporting for duties, yet he was not allowed to resume the same. It is deposed that not allowing duty to him was illegal termination of his duty and he accordingly got sent a legal notice to the Management which annoyed the Management and thus a bogus inquiry was consituted against him. It is deposed that when he received copy of the chargesheet, he made a request for providing him either an outsider/ Lawyer as legal Assistant but that was not allowed, therefore, a biased inquiry was conducted against him. It is deposed that principles of natural justice were not followed. It is deposed that inquiry is not just, fair and proper and same is liable to be set aside being violative of principles of natural justice.
8. It has been argued on behalf f the workman that charges against him were that he remained intermittently absent between February to August, 2005 for 35 days and secondly he hurled abuses on his senior. It is argued that that chargesheet was signed by Sh. [ENTITY] and he himself appeared as a witness before Inquiry Officer. It is argued that that report of the Inquiry Officer is based n the testimony of Sh. [ENTITY] and he himself had passed order of punishment against the workman which is against principles of natural justice.
9. On the other hand, it has been argued by AR for the management that workman had misbehaved and abused Sh. [ENTITY] who is Executive Director, therefore, he was chargesheeted and an independent inquiry was got conducted against him. It is argued that Inquiry Officer gave report against the workman after complying with principles of natural justice, hence, order of dismissal was passed against him.
10. AR for the workman has relied upon authorities reported as [PRECEDENT]; [PRECEDENT], [PRECEDENT], [PRECEDENT] to press his contention that non permitting of the employee to have representation from outside the company would result into hostile environment and inquiry on the ground of unsuitability of defence assistance was a valid ground to set aside the inquiry.
11. On the other hand, AR for the management has relied upon authorities reported as [PRECEDENT]; [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT] to press his contention that despite notice, when workmanfailed to participate in the inquiry and inquiry Officer proceeded ex parte, workman is estopped from taking the plea of violation of principles of natural justice nor can he allege that he was not afforded opportunity to participate. It was also held that representation in the inquiry through a lawyer can be allowed only when Management is represented by a lawyer.
12. In my opinion when the workman has misbehaved with Executive Director of a company who is responsible for running day-to-day affairs of the company himself, in my opinion, there is nothing wrong which prevents him from issuing chargesheet. If argument of AR for the workman is taken to be correct, it will be difficult to initiate any inquiry against delinquent workman. What is to be seen is whether in the domestic inquiry, an independent person has been appointed to hold inquiry and secondly if principles of natural justice were complied with during the course of inquiry. If the court comes to the conclusion that principles of natural were ensured to the workman, rest of the things will follow on the basis of result of inquiry. In the absence of any evidence that principles of natural justice were not followed it is not sufficient to warrant a conclusion that inquiry was not just, fair and proper.
13. It is further argued on behalf of the workman that he wrote letter dated 8.11.05 demanding wages but he was not paid the wages nor the Inquiry Officer ordered paymet of wages, therefore, it was violative of principles of natural justice.
14. The record does not show that at any point of time, workman was placed under suspension, therefore, when he was not placed under suspension, question of payment of subsistence allowance does not arise. However, his case is that he was not paid wages. Nothing has been placed on record as to for what period he was not paid wages. Inquiry was initiated against him but he did not participate in the same and remain absent. It is not his case that leaves were due and after sanction of the leave, he was entitled for wages. When there is nothing on record in this regard and when workman has failed to produce any evidence that he was entitled for payment of wages for any period he had worked, it can not be said that principles of natural justice were violated.
15. It has been argued on behalf of the worman that he wanted the assistance of a lawyer but he was not allowed. It is further argued that he wanted assistance of [ENTITY] and [ENTITY] but no order was passed by the Inquiry Officer in this regard. On the other hand, it has been argued by AR for the management that Management was not represented by a lawyer, therefore, request of the workman for being represented through a lawyer was not valid.
16. So far as provisions of a lawyer is concerned, unless Management was represented by a lawyer, workman had no right to have assistance of a lawyer. It is not case of the workman that Presenting Officer from the side of the Management was a lawyer. It is not case of the workman that he had taken any person with him. Rather he remained absent despite notices sent to him for 12.11.05, 2.12.05 and 10.12.05. Workman has admitted in his cross examination that he had received these letters. It is his case that he was not allowed to enter the factory by the Security. He has not named the person who had stopped him from enterting the factory, therefore, this argument is nothing but an after thought. Secondly, he has placed letters on record Ex WW1/4, WW1/5 and WW1/6 addressed to the Inquiry Officer in which there are no allegations that he was not being allowed to participate in the inquiry and was not being allowed to enter the premises of the company. Therefore, on this count also, it can not be said that there was any fault in the inquiry.
17. It has been argued by AR for the workman that witnesses examined by the Management were biased, inquiry Officer himself was a lawyer who was also interested, therefore, inquiry is bad. On the other hand, it has been argued by AR for the management that Inquiry Officer was an independent person and witnesses were not interested.
18. There is no bar in law that a lawyer can not be appointed as Inquiry Officer. Witnesses were examined before the Inquiry Officer. Workman was called to participate in the same but he did not join the inquiry. The record shows that workman had been sending letters to the Management in response to notices sent by the Management through his lawyer Sh. [ENTITY], Advocate. In other words, it is clear that workman was taking assistance of a lawyer in communicating with Management/ Inquiry Officer. It appears that perhaps he did not appear during the course of inquiry so that all these points could be raised at later stage. Therefore, no fault can be found with the inquiry on this count also. Nothing has been placed on record as to how Inquiry Officer was biased, therefore, all these allegations are nothing but an after thought.
19. Management has placed on record Ex RW1/M-6 which is an award in ID No 92/06 titled [ENTITY] vs D.D. Industries. A dispute was raised by the workman regarding termination of his services by the Management. Ex RW1/M-6 is an order of the Court on the validity of inquiry conducted against the workman. Inquiry conducted in that case was held to be just, fair and proper. Therefore, this is an evidence which operates as res judicata in the present proceedings. Therefore, on the basis of principle of res judicata, it can not be held that inquiry held against the workman in the present case is not just, fair and proper.
20. Workman challenged the order of inquiry Ex RW1/M-6 in a writ petition. By its order Ex RW1/M-8, Hon'ble High Court had dismissed that writ petition upholding validity of the inquiry. Therefore, findings on inquiry in ID case operates as res judicata in the present case and thus inquiry in the present case can not be said to violative of principles of natural justice.
21. In view of reasons given above, it can not be said that inquiry was violative of principles of natural justice. Inquiry was just, fair and proper. This issue is accordingly decided.
Announced in open court on 02.03.10 ([ENTITY])
Presiding Officer, Industrial Tribunal-II Karkardooma Courts, Delhi.
2.3.10 Present None for the parties
Vide separate order on inquiry issue, inquiry conducted against the workman has been held to be just, fair and proper. Additional issues regarding remittance of one months wages in compliance of provisions of [SECTION] of [ACT] and whether Management is entitled for approval of the action as claimed in the application have already been framed vide order dated 24.7.09.
Case is fixed for arguments on remaining issues on 19.03.2010.
( [ENTITY]) POIT-II/KKD COURTS DELHI/ 2.3.10