Shriram Institute for Industrial Research v. Rajesh Kumar Gandhi

RAJIV SAHAI ENDLAW, J pk

* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 3rd September, 2012 + LPA 504/2012, CM No.11930/2012 (for stay), CM No.11931/2012 (for exemption) & CM No.11932/2012 (for condonation of delay) SHRIRAM INSTITUTE FOR INDUSTRIAL RESEARCH ..... Appellant Through: Mr. Harvinder Singh & Mr. B.K. Mishra, Advs. versus RAJESH KUMAR GANDHI ..... Respondent Through: Mr. Rajesh Kumar Gandhi, Adv. CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K. SIKRI (ACTING CHIEF JUSTICE): 1. The respondent herein (hereinafter referred to as workman) was employed by the appellant as Junior Analyst Trainee in the Fibre Division. A chargesheet was served upon him which led to initiation of inquiry into those charges. As per the Inquiry Officer, charges were found proved and based thereupon, penalty of dismissal from service was imposed upon the workman vide order dated 30.03.1992. The workman raised industrial dispute challenging the validity of the dismissal order which was referred for adjudication. 2. The Labour Court framed preliminary issue about the validity of the inquiry in addition to the second issue which was in terms of reference made to the Labour Court. The aforesaid preliminary issue was decided in favour of the appellant vide order dated 25.04.2009 holding that the inquiry was conducted in a fair and appropriate manner and in accordance with the principles of natural justice. It was also found that the findings of the Inquiry Officer were not perverse. With this, the only question that remained was the quantum of penalty, as according to the workman even if the charge was established, the penalty of dismissal from service was harsh and disproportionate. After hearing the arguments on this aspect, the Labour Court rendered its Award dated 04.09.2009 inter alia holding that penalty of dismissal should not have been given in this case having regard to the fact that charge against the workman was that he absented from 25.04.1991 to 19.07.1991 and also did not do the work given to him for sometime. Accordingly, the punishment of dismissal was set aside and the appellant directed to reinstate the workman with all legal dues. 3. Challenging this Award, the appellant has filed Writ Petition No. 4019/2010 which is pending adjudication before the learned Single Judge. Along with the writ petition, stay application has also been filed seeking stay of the operation of the Award. Vide order dated 03.06.2010, an ex parte stay of the operation of the impugned Award was granted subject to deposit of 50% of the back wages with the Registrar General of this Court. 4. During the pendency of the said writ petition, workman filed application under Section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as "the ID Act") for payment of wages to him. In this application, the respondent workman stated that ever since his illegal suspension from 05.09.1991, he remained unemployed all throughout and had been having a rough time. He further stated that he was not in gainful employment of any establishment and had not been able to get any employment despite his best efforts. However, at the same time, he accepted the fact that he had got himself enrolled with Bar Council of Delhi but stated that he had failed to earn even bread from this profession for long because of tough competition and he had no office/space to sit in the Court complex. 5. The appellant filed reply thereto contesting the application. It was submitted that since the respondent workman had himself accepted that he was gainfully self-employed, as he was a practicing advocate since 2002, he was not entitled to the benefits under the provisions of Section 17B of the ID Act. It was also mentioned that the respondent was working as associate advocate with one Mr. Swarn Singh, advocate and had been filing income tax return to the tune of Rs.3.05 Lakhs. Application was contested on the aforesaid ground. 6. During arguments, submission of r