IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SERVICE MATTER W.P. (C) No. 135/1997 Reserved on: 18th July, 2012 Decided on: 23rd July, 2012 M/S SUNDERLAL JAIN CHARITABLE HOSPITAL... Petitioner Through: Mr. A.K. Singla, Sr. Adv. with Mr. Deepak Raja, Mr. Gautam Anand, Advs. versus GOVT. OF NCT OF DELHI & ORS. Through: Mr. Awadhesh Kumar, Adv.... Respondents Coram: HON'BLE MS. JUSTICE MUKTA GUPTA 1. Disputes arose between the Petitioner and its workmen. Thus, vide notification dated 9th February, 1987, 5 references were sent to the learned Tribunal for adjudication out of which only reference No.4 is relevant for deciding the present petition. The terms of reference No.4 are as under: iv) whether the suspension of the workmen Shri Budh Ram, Mangal I, Bhawar Singh, Ashok Ramesh, Babudin, Anand Kumar, Mohan Lal, Smt. Shanti, Vidya Devi, Ram Rati, Sheela Darshana, Daya Vati and Pushpa Sharma is malafide and if so what directions are necessary in this respect? 2. The said reference has been answered by the learned Tribunal in the following terms: ISSUE No. VIII 22. Fourth term of reference is, whether suspension of 15 workmen whose names are mentioned in the reference is malafide and if so, what directions are necessary in this regard. 23. The contention of MW1 Shr. V.K. Jain, Secretary of the management in para 16 of his affidavit is that since workmen had gone on strike, suspension cannot be said to be malafide. It is further alleged by him in para 17 that the management at the intervention of the Labour Department took
back these employees on duty on 26.12.86 but these employees again absented from duty w.e.f. 29.12.86. A copy of the names of the employees who were taken back on duty was also filed by MW1 which is MW1/15 and the same shows that it includes all the names of 15 workmen who were suspended except that of Darshana. It means that all the suspended employees were taken back on duty by the management also on 26.12.86. MW1 also filed a copy of the charge-sheet served on the workmen which is MW1/11 and the same is dated 25.12.86. If, management had taken all the above workmen on duty on 16.12.86, it simply means that management did not want to proceed with the said charge-sheet. However, MW1 in para 12 of his affidavit has stated that management appointed one Maharaj Kishan Saxena, Advocate as Enquiry officer on 6.2.87 and it means that management was proceeding with enquiry but in para 13 it is further stated that since present proceedings were initiated, said departmental enquiries were not concluded. MW1 also stated that no suspension allowance was paid to the workmen A/R of the management tried to justify above confession of the management on the ground that since suspended employees were required to report at least once to the management and since they did not report to the management, no suspension allowance was paid to them and justification of this action was sought. On the basis of provisions of Section 25E(2) of Industrial Disputes Act, said contention of the A/R of the management is not acceptable because paying suspension allowance is entirely different from payment of a compensation to a workman, who has been laid off. If, management suspended the workmen on the basis of said charge-sheet, the contention of MW1 that workmen stopped attending to their duties after 29.12.86 also appears to be not actually correct. The above discussion, therefore, shows that after the management had taken back on duty the 15 workmen whose names are given in term No.4 of reference, management was not justified in suspending them again and if management had in fact suspended them pending departmental enquiry then the management should have completed departmental enquiry within reasonable time and paid suspension allowance to these workmen. I, therefore, hold that suspension of these 15 workmen was malafide. The management is directed to pay 50% of wages as suspension allowance from the date of suspension to these workmen and complete the departmental enquiry within 6 months of the present award becoming enforceable. It may be added here that learned A/R of the management also took the objection that since all the above workmen (15) did not come in the witness box, relief cannot be granted to all of them. So far as, said objection is concerned, since out of these 15 workmen Anand Kumar WW1, Babudin WW3, Ashok WW2,
Bhawar Singh WW4 and Managal WW8 came in the witness box, the case of the other workmen is also similar and, therefore, they will also be entitled to the above relief and said objection is accordingly overruled. Issue No. VIII is decided accordingly. 3. The contention of learned counsel for the Petitioner is that though the workmen were suspended on 25th December, 1986 and a show cause notice calling upon their explanation was given to them, however the said suspension was revoked on 26th December, 1986. All other workers continued working. However after a period of 4 days, 15 workmen whose names are mentioned in the terms of reference stopped reporting to duty. Thus, according to the learned counsel for the Petitioner, the term of reference with regard to these 15 workmen and the adjudication thereon by the learned Tribunal is bad in law as suspension of these workmen was revoked and they had resumed duties. It is further contended that out of 15 workmen, 9 filed their affidavits before the learned Tribunal and out of the said 9 only 5 came in the witness box. These witnesses have spoken only about the suspension dated 25th December, 1986, which was admittedly revoked even according to them and thus no dispute could be raised on this count. According to learned counsel, the learned Tribunal proceeded on the basis as if there was second suspension however there is no material on the entire record to fortify the claim that there was a second suspension. This finding of the learned Tribunal was based on no evidence. 4. Learned counsel for the Respondent No.3 on the other hand contends that the revocation of suspension of the workmen was mala fide as they were taken on duties only for 4 days where after their services were terminated. No suspension allowance was ever paid. The affidavit of the management is incorrect and the management had in fact refused to take the workmen on duty stating that the workmen have been suspended. The workmen received a charge-sheet/ suspension letter dated 25th December, 1986 and much thereafter an enquiry officer was also appointed though no enquiry proceedings were carried out. In view thereof, the workmen though suspended were never paid suspension allowance, rather their services were terminated on 29th December, 1986 i.e. 4 days after the agreement was arrived at between the parties before the Labour Commissioner and thus there is no merit in the present petition and the same be dismissed. 5. I have heard learned counsel for the parties. The short issue involved in the present petition is whether the terms of reference sent to the learned
Adjudicator were legally permissible as being the dispute between the parties. A perusal of the affidavits of the workmen filed before the learned Presiding Officer, Industrial Tribunal admittedly state that they were issued a suspension letter dated 25th December, 1986 on 25th December, 1986 itself. On 26th December, 1986 an agreement was arrived at between the parties before the Labour Commissioner, Delhi pursuant to which the management took all the workmen on duty. The copy of the agreement is exhibited as Ex.WW5/3. Thereafter, the workmen worked for 4 days when they were again turned down from duty without any notice or any pay in lieu of notice and without conducting any domestic enquiry. Thus, the termination of the services of the deponents was illegal, unjustified and in violation of the provisions of Section 25F of the ID Act. The suspension was also stated to be illegal. However, there is no evidence on record that the workmen were suspended a second time. Merely because the witness has stated that an enquiry officer was appointed though no enquiry was conducted, cannot lead to an inference that the workmen were suspended again. 6. It may be noted that the admitted position of the parties is that the suspension was revoked on the next day itself and they were taken on duties. Thereafter, the case of the Petitioner is that the workmen did not report for duties after 4 days whereas the workmen state that their services were terminated and they were not permitted to work. Thus, the actual dispute between the parties was whether the workmen were terminated and if so whether the termination was illegal and to what relief they were entitled to. This was not the term of reference before the learned Adjudicator. Since the dispute was not of suspension but of termination, the proceedings before the learned Adjudicator and consequent award on the issue cannot be sustained and are set aside accordingly. However, the Respondent No.1 would be at liberty to send a fresh reference in terms of the dispute between the parties to the learned Industrial Adjudicator for adjudication thereon. 7. Petition is disposed of accordingly. Sd/- (MUKTA GUPTA) JUDGE JULY 23,2012
W.P.(C) 135/1997 Page 1 of 6