Full Text
HIGH COURT OF DELHI
Date of Decision: 05.05.2026
YOGINDER SHARMA .....Appellant
Through: Mr. H. K. Chaturvedi, Mrs. Anjali Chaturvedi and Mr. Sagar Chaturvedi, Advs.
Through: None.
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
V. KAMESWAR RAO, J. (ORAL)
JUDGMENT
1. This intra Court appeal lays a challenge to the order dated 02.04.2013 passed by the learned Single Judge whereby the writ petition was dismissed. The challenge in this appeal is primarily to an award made by the Labour Court-01, Karkardooma Courts, Delhi in ID No.489/1992, whereby the Labour Court answered against the appellant with respect to his termination.
2. The facts as noted are that the appellant was terminated on 27.09.1988, on the purported ground of misconduct. The case of the appellant before the Labour Court was that the termination is in violation of the principles of natural justice.
3. The learned Single Judge noted that the respondent/management established the charge against the appellant before the Labour Court and the witnesses produced by the respondent/management were cross-examined on behalf of the appellant. The learned Single Judge also noted that the Labour Court after analyzing the evidence concluded that the alleged misconduct was that the appellant has not obeyed the directions given by the respondent/management to collect the payment from customers of the respondent, which was part of his duty. On the basis of the evidence, the Labour Court concluded that the charge against the appellant is proved, which resulted in an award whereby the Labour Court had answered in favour of the respondent/management.
4. In the writ petition various submissions were advanced including the violation of principles of natural justice, the penalty being disproportionate and that, even if the management had proved the charge before the Labour Court, the appellant shall be entitled to the back wages from the date of termination till the date of award.
5. The learned Single Judge answered all the submissions made on behalf of the appellant in the impugned order, in the following manner:-
20. The purpose of setting out the respective submissions is also to demonstrate that the endeavour of the petitioner is to require this Court to reappreciate the evidence, as if this Court is sitting in appeal over the impugned award. However, ld. Counsel has not been able to point out any perversity, or fundamental error of approach in the impugned Award. It is well-settled that this Court-while exercising power of judicial review under Article 226 of the Constitution of India, in respect of an order passed by a Tribunal, does not sit in appeal and it is not for this Court to re-appreciate the evidence on merits. Consequently, the finding of guilt returned by the Labour Court does not call for interference by this Court in exercise of writ jurisdiction.
21. Learned counsels have made substantial arguments on the second plea of the petitioner, i.e., with regard to the date from which the termination order should take effect. The submission of the petitioner is that because the respondent management did not hold any domestic inquiry whatsoever before issuing the letter of termination dated 27.09.1988 and the inquiry was conducted for the first time before the Labour Court and, on that basis, the termination order has attained legality, the date of termination should be taken as date of the award and the petitioner should have been held as entitled to pay & allowances up to the date of the award, i.e., 06.11.2003. The petitioner has sought to place reliance on Gujarat Steel Tubes Ltd. (supra) in support of this submission. xxxx xxxx xxxx
28. Reliance placed by Mr. Chaturvedi on Prem Chand (supra) is of no avail since this decision proceeds on the basis of Gujarat Steel Tubes Ltd. (supra), which has been held to be per incuriam, as aforesaid, and the decision in the later decision in
Division Bench when it rendered its decision in Prem Chand (supra). The argument of Mr. Chaturvedi that Gujarat Steel Tubes Ltd. (supra) being a decision of three Hon’ble Judges, whereas the decision in R. Thiruvirkolam (supra) being a decision of two Hon’ble Judges, the decision in Gujarat Steel Tubes Ltd. (supra) should be followed by this Court, has no merit. This is for the reason that the Supreme Court while deciding R. Thiruvirkolam (supra) has examined all the relevant decisions on the subject including Gujarat Steel Tubes Ltd. (supra) in the light of the Constitution Bench judgment in Kalyani (supra) and has concluded that Gujarat Steel Tubes Ltd. (supra) is per incuriam. That being the position it is not for this Court to disregard the later decision in R. Thiruvirkolam (supra). Consequently, the decision in Devender Roy (supra) has no application in the facts of the present case.
29. There is yet another aspect that needs to be taken note of. The employer has two options while dealing with delinquent workman. The employer may serve a charge-sheet on the delinquent workman, hold a departmental inquiry and then take disciplinary action against the workman. Alternatively, it may take disciplinary action against the workman on the basis of the misconduct which it may attribute to the workman. In the first case, if an industrial dispute is raised and the punishment is questioned, the Industrial Adjudicator would firstly determine the issue with regard to the validity of the domestic inquiry. If the domestic inquiry is found to be in compliance with the principles of natural justice, and the applicable rules, the Industrial Adjudicator would examine whether the findings returned in the domestic inquiry are perverse, or not. The scope of the examination undertaken by the Industrial Adjudicator in relation to the domestic inquiryonce it is held to be in compliance of the principles of natural justice and validly held, is limited. The Industrial Adjudicator does not sit as a Court of appeal. Therefore, unless the findings returned in the domestic inquiry are perverse, the Industrial Adjudicator does not interfere with the same. Even if the Industrial Adjudicator would have come to a different conclusion on the appreciation of the evidence on record, it is no ground for the Industrial Adjudicator to interfere with the findings reached in the domestic enquiry, if the view taken by the Inquiry Officer is a plausible view.
30. In the situation where the domestic inquiry is not held at all, and the delinquent workman is punished by the management without such an inquiry, but is later or simultaneously made aware of the charges against him, the management consciously takes the decision that in case the workman raises an industrial dispute, it would have to establish the charge before the Industrial Adjudicator by leading evidence. Therefore, the management by straightaway taking disciplinary action against the delinquent workman conveys its willingness to establish the charge before the Industrial Adjudicator. The scope of the inquiry before the Industrial Adjudicator in this eventuality is much wider, since the Industrial Adjudicator decides for itself whether, or not, the charge is established by the management.
31. The second situation, i.e., where no prior inquiry is held before the delinquent workman is punished, would be a situation which places the delinquent workman in a more advantageous position inasmuch, as, the inquiry is conducted before an independent judicial officer and not in-house by the employer-where the scope of interference by the Industrial Adjudicator is somewhat limited. In my view, there is no reason why a management-which is willing to prove the charge before an Industrial Court, rather than resort to an in-house inquiry, should be burdened with payment of wages up to the date of the award even when the charge against the delinquent workman stands proved before the Industrial Court.
32. Lastly, the submission of Mr. Chaturvedi that the punishment of dismissal from service was not justified, even if the charges are assumed to be proved, may be examined. The order of dismissal makes allegations of indiscipline and negligence on the part of the petitioner. Indiscipline has been attributed on account of non-compliance of the instructions by the petitioner of his senior Mr. H.P. Lakhotia, who had asked the petitioner to collect deposit from Bahadurgarh on account of the company. This charge stands duly proved. This charge, by itself, is serious enough to warrant dismissal from service. Refusal by workman to obey the orders given to him which fall within the scope of his duties clearly tantamounts to insubordination. Such insubordination strikes at the very root of the employer and employee relationship, as the employee is duty bound to obey lawful and justified instructions of the employer. If the employee does not obey orders of the management which are legitimately given, and is still allowed to continue in employment, the same would completely destroy and vitiate the atmosphere in the industry. It would breed indiscipline, insubordination and make it impossible for the industry to thrive. Others would be encouraged to adopt such conduct without fear of termination. It would adversely affect the interest of the larger body of workmen who believe in disciplined conduct, as the industry would suffer due to the misconduct of a handful of indisciplined workmen. Such indiscipline should certainly invite the punishment of dismissal from service. The said punishment cannot be said to be unjustified or disproportionate.”
6. Mr. H. K. Chaturvedi, learned counsel for the appellant makes identical submissions as were advanced before the learned Single Judge.
7. Insofar as, the submission of Mr. Chaturvedi that the termination was in violation of the principles of natural justice is concerned, the respondent/management having examined the witnesses, and proved the charge against the appellant before the Labour Court, the plea that the termination was in violation of the principles of natural justice is clearly unsustainable.
8. This we say so for the reason that, even assuming that the initial termination was contrary to the principles of natural justice, the management has produced the witnesses and proved the charge against the appellant through the process known to law in conformity with the principles of natural justice before the Labour Court resulting in the termination. As such, the plea of Mr. Chaturvedi cannot be accepted.
9. On the aspect of proportionality, the learned Single Judge clearly held that, given the nature of charge alleged against the appellant, the penalty of termination would be justified. We agree with the said conclusion drawn by the learned Single Judge for the reason that part of the duty of the appellant was to collect money from the clients of the company and the refusal of the appellant to obey the orders given by the respondent/management, depicts insubordination on the part of the appellant.
10. Another submission of Mr. Chaturvedi is that the initial termination having been found contrary to the principles of natural justice and the respondent/management having proved the charge only before the Labour Court, the appellant shall be entitled to the back wages from the day of the termination till the award.
11. The said submission does not appeal us for the simple reason that the issue is covered by the judgment of the Supreme Court in the case R. Thiruvirkolam v. Presiding Officer and Another, (1997) 1 Supreme Court Cases 9, wherein the Supreme Court has in paragraph nos. 4 and 13, held as under:-
13. As a result of the aforesaid decision it must be held that the only point involved for decision in the appeal is concluded against the appellant by the Constitution Bench decision of this Court in Kalyani [(1964) 2 SCR 104: AIR 1963 SC 1756: (1963) 1 LLJ 679] and the observations to the contrary in Gujarat Steel [(1980) 2 SCC 593: 1980 SCC (L&S) 197: (1980) 2 SCR 146] are, therefore, per incuriam and not binding. The order of punishment in the present case operated from 18-11-1981 when it was made by the employer and not from 11-12-1985, the date of Labour Court's award. The appellant is, therefore, not entitled to any relief.”
12. Suffice to state, the said judgment was also considered by the learned Single Judge to hold that the appellant is not entitled to the back wages. In view of the above, the submission made by Mr. Chaturvedi is unmerited.
13. We are of the view that the learned Single Judge was justified in dismissing the writ petition. Accordingly, this appeal being without any merit is dismissed.
V. KAMESWAR RAO, J
MANMEET PRITAM SINGH ARORA, J MAY 05, 2026