Delhi District Court
Umed Singh (Tyreman) vs Delhi Transport Corporation on 31 March, 2009
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IN THE COURT OF SH BABU LAL: POIT-II,
KARKARDOOMA COURTS, DELHI
I.D. No.171/03
Umed Singh (Tyreman) Workman
S/o Sh. Rishal Siingh,
Badge no 8123, Token No 35504,
R/o Village Samaspur Khaslra,
PO Ujwa, New Delhi 110073.
Vs.
Delhi Transport Corporation Management
through its Chairman,
I.P.Estate, New Delhi.
AWARD
1.workman has raised the present industrial dispute and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this tribunal in the following terms of reference :-
'' Whether the removal of Sh. Umed Singh S/o Sh. Rishal Singh from service of the Corporation by the management vide its order dated 30.7.92 is illegal and / or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect ?''.
2. Workman appeared and filed statement of claim alleging that he had been working as tyreman with the management since 1981 and had been discharging his 2 duties deligently. Workman is alleged to have been issued a chargesheet dated 30.3.1992 for remaining absent for a period of 63 days during period 1.1.1991 to 31.12.1991. Workman is alleged to have filed reply to the chargesheet and management not finding his reply satisfactorily conducted inquiry against him, found him guilty of the charges levelled against him and ultimately his services were dispensed with vide order dated 30.7.1992. Management is alleged to have filed approval application U/s 33(2) of the I.D.Act but same could not be contested by the workman allegedly due to paucity of money. Therefore, workman served a demand notice on the management claiming reinstatement with back wages and continuity in service but of no avail. Management is alleged to have invited applications from employees whose services were dispensed with and as such workman had moved application for settlement of his dispute on 18.1.2000 but the the same has not been allegedly decided till date. Therefore, present dispute was raised. It is alleged that inquiry conducted against the workman was not just, fair and proper. It is alleged that management had already regularized the absence of the workman as '' leave without pay'' before issuance of chargehseet. An award 3 claiming reinstatement with full back wages and continuity in service has been prayed for.
3. In the WS, case of the management is that workman was habitual of remaining on leave unauthorizedly. It has been denied that leave for a period of 63 days in the year 1991 were regularized by the management as '' leave without pay''. It is alleged that workman never submitted application for leave, therefore, question of acceptance and rejection of his application did not arise. It is alleged that workman had remained on leave without pay for a period of 158 days in the year 1989 and 90 days in the year 1990 and ultimately his services were dispensed with. It is alleged that reply filed by the workman to the chargesheet was not found satisfactory, therefore, departmental inquiry was conducted against him after complying with principles of natural justice. It is alleged that approval application filed by the management against dismissal of workman was disposed of in the year 1999 in favour of management. It has been denied that workman had filed application for settlement of his dispute with the management. It is alleged that workman is not entitled to any relief.
4. In the rejoinder, workman has reiterated and 4 reaffirmed all the facts as alleged in statement of claim and denied all the facts as alleged in the WS.
5. On the basis of pleadings of the parties, following issues were framed :-
(1) Whether removal of the workman is without holding legal and proper inquiry ?
(2) Whether the removal of workman is illegal and unjustified ?
(3) As per terms of reference.
6. In order to prove his case, workman examined himself as WW- 1 whereas management has examined three witnesses, namely, MW- 1 Sh. Santosh Kumar Sharma, Asst. Engineer, MW--2 Mukesh Kumar, and MW--3 R.B.L.Srivastava.
7. I have gone through the record of the case on have heard submissions of ARs for both the parties. My issuewise findings are as under :-
8. Findings on issue No 1 Issue No 1 is whether removal of the workman is without holding legal and proper inquiry ? This issue has already been decided vide order dated 30.1.09 and inquiry conducted against the workman was vitiated and as such was set aside. Hence, the Management opted to prove misconduct against the workman before this Tribunal. 5
9. Findings on issue No 2 & 3 Issue No 2 is whether the removal of workman is illegal and unjustified ? Issue No 3 is as per terms of reference. Terms of reference are Whether the removal of Sh. Umed Singh S/o Sh. Rishal Singh from service of the Corporation by the management vide its order dated 30.7.92 is illegal and / or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect ? Both these issues are interconnected, therefore, they shall be decided together.
10. WW--1 Umed Singh in his affidavit has deposed that he had been working as tyreman with the management since 1981 and had been discharging his duties diligently. Workman is deposed to have been issued a chargesheet dated 30.3.1992 which is Ex WW1/1 for remaining absent for a period of 63 days during period spreading 1.1.1991 to 31.12.1991. Workman is deposed to have filed reply Ex WW1/2 to the chargesheet and management not finding his reply satisfactorily conducted inquiry against him, found his guilty of the charges levelled against him. Show cause notice Ex WW1/3 was issued to him by the management and he had sought time to file reply thereto vide his application Ex WW1/4. Reply filed to 6 show cause notice by the workman has been proved as Ex WW1/5. Services of the workman are deposed to have been dispensed with vide order dated 30.7.1992 Ex WW1/6. Management is deposed to have filed approval application U/s 33(2) of the I.D.Act but same could not be contested by the workman due to paucity of money. Therefore, workman has served a demand notice on the management claiming reinstatement with back wages and continuity in service but of no avail. Management is deposed to have invited applications from employees whose services were dispensed with and as such workman had moved application for settlement of his dispute on 18.1.2000 but that has not been decided till date,therefore, present dispute was raised. It is deposed that inquiry conducted against the workman was not just, fair and proper. It is deposed that management had already regularized the absence of the workman as '' leave without pay'' before issuance of chargehseet. An award claiming reinstatement with full back wages and continuity in service has been prayed for.
11. MW--1 Santosh Kumar Sharma is the witness who was Inquiry Officer and had conducted inquiry against the workman. According to him, workman had admitted 7 charges contained in chargehseet of his own accord. Workman is deposed to have got recorded his statement in his defence and stated therein that he admitted all the charges framed against him vide chargesheet dated 30.3.1992 without any pressure from any quarter. Workman is deposed to have also stated in his statement before him that he did not take leave intentionally and that he remained on leave on account of his own illness and illness of his wife. He is deposed to have also stated that he had sent leave application supported by medical certificates to the Officer of the management within time.
12. MW--2 Mukesh Kumar who was looking after leave records of employees of the management. He has stated that from attendance register/ record of the workman, he came to know that workman remained unauthorizedly absent from duties from 1.1.1991 to 31.12.1991 for 98 days out of which for a period of 63 days and that he even did not submit any leave application. He has also stated that workman did not submit any medical certificate of his illness or illness of his wife. He has also deposed that as per record, workman had also remained absent for 158 days in 1989, for 90 days in 1990 and for 98 days in 1991.
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13. In his cross examination, MW--2 has stated that he had received 35 leave applications of the workman. He has also stated that Manager( Mechanical) was the Competent Authority to sanction or reject leave of the workman. However, this witness has not brought these applications which were received by him from the workman.
14. MW--3 Sh. R.B.L.Srivastata was the Disciplinary Authority in the present case. He is deposed to have awarded penalty of removal of workman from service after perusing the inquiry report. He is deposed to have issued show cause notice Ex WW1/3 to the workman prior to awarding penalty. It is deposed that punishment given to the workman is reasonable and justified inasmuch as he remained absent from duty for a period of 98 days out of which for a period of 63 days he even did not give any application for leave or intimation and failed to give any satisfactory explanation for such absence. He has stated that workman did not submit any applications for leave nor did he ever furnish any medical certificate of his illness or illness of his wife.
15. The misconduct imputed to the workman is that he allegedly remained absent for a total period of 98 days 9 from 1.1.91 to 31.12.91 out of which for 63 days without any permission which is neglect of duties and carelessness. Such a conduct is a misconduct by virtue of para no.4 and 19 (h) and (m) of rules governing service conditions of the workman. The management has examined 3 witnesses whose evidence has been summarised earlier. The question arises whether the management has proved the misconduct.
16. It has been argued on behalf of workman that MW R K Srivastava was not competent authority to issue charge sheet inasmuch as neither he was disciplinary authority of the workman nor he was delegatee of such powers, therefore, action taken against the workman on the basis of such charge sheet is ab initio void. On the other hand AR for the Management has submitted that once the inquiry proceedings against the workman have been set aside by this tribunal, the management has a right to prove the misconduct against the workman before this court. He has also argued that whether the authority who had issued charge sheet was competent to do so or not has lost significance inasmuch as the inquiry proceedings against the workman have been set aside. It has been argued that whatever may be the reasons for 10 setting aside of the inquiry, there is no difference in a case where the workman has been removed from service on the basis of a defective inquiry or he has been removed from service without holding inquiry inasmuch in both the situation management has a right to prove misconduct before the court, therefore, the initial illegality in the charge sheet has no meaning on the right of the management to prove the misconduct against the workman.
17. In the present case the inquiry proceedings were set aside vide my order 30.1.09. When the inquiry proceedings have been held vitiated, in that eventuality, the management has a right to prove that the workman had committed misconduct alleged against him. In my opinion there is no difference in cases where the services of the workman have been terminated without holding any inquiry or where the inquiry against him has been found to be illegal or vitiated. In both the situations the management has a right to lead evidence of misconduct against the workman before this Tribunal. Therefore, I am of the view that initial illegality in issuing charge sheet against the workman will not taken away the right of the management to prove the misconduct on the part of the workman before this Tribunal.
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18. It is also argued that there was no system of issuing acknowledgment of the leave application. It is also submitted that MW 2 has admitted in his cross examination that application used to be submitted by leaving the application in the leave box. He has also stated that he can not say if application for 63 days was given by the workman but he has added that he has not received application. It is also submitted that the workman has sent the application alongwith MC because he was ill and sometimes his wife used to remain ill, therefore, it can not be said that workman has not given application. On the other hand It has been argued that the workman did not give application for 63 days and remained unauthoriseldy absent for the abovesaid period which is a serious type of misconduct on his part, therefore, misconduct against him stands proved beyond the reasonable doubt.
19. In his affidavit, workman has stated that he had submitted leave applications and medical certificates for the period of absence from time to time and the fact was brought on record during inquiry proceedings. According to him, leave applications were either put in the wooden box kept in the office of the management or they were directly submitted to his immediate superior. According to 12 him, he had submitted leave applications for the entire period of his absence. To whom he had given applications has not been explained by him. Whether he had sent applications by post or he had himself come to the office of the management to give applications has not been explained by him. Even he has not explained if he gave application to any specific person. He has not specified for what period he remained absent for his own illness and for what period he remained absent due to illness of his wife or on any other ground. If he or his wife remained under treatment, certainly, he could have examined the doctor that for a specific period either he or his wife remained under his treatment. No such evidence has been brought on record.
20. On the other hand, MW--2 Mukesh Kumar who was working as leave clerk has specifically stated that he had not received any application from the side of workman, though he has stated that he can not say if workman had moved application for the period of 63 days to the Incharge or not. But he is specific that he had not received leave application for the period of 63 days. In his affidavit, he has also stated that workman remained absent for 158 days during 1989, 90 days in 1990 and for 98 days in 13 1991. On the basis of evidence on record, management has proved on record that application had not been received from the side of workman for the period of 63 days during 1.1.1991 to 31.12.1991. Workman has failed to probabilise that he had sent applications for this period to the management. Therefore, I am of the view that he remained absent without any intimation or without information for 63 days during the year 1991.
21. Even though for the sake of argument, it be taken that he might have given application for this period, in my considered opinion that was not sufficient to send application. Mere submitting leave application is nothing but an intimation to the employer regarding his intention to remain absent for a specified period on the ground specified in the application. It does not mean that employer does not have a right to call upon the workman to show that grounds on which leave was applied for were just and reasonable. It was the duty of the workman then to produce convincing evidence before representative of the management to support his cause for absence during specified period.
22. In the present case, either he remained absent due to his own illness or illness of his wife as is his case. 14 But he has produced no evidence in this regard either before the Inquiry Officer or before this Tribunal. If he had taken treatment from any hospital or any private doctor, certainly he could have examined as witness from the hospital or the doctor to prove that he had a reasonable and sufficient cause to remain absent for a specified period. But no such evidence has been led by him before this Tribunal. Therefore, I am of the view that even he has failed to prove cause of his illness. He has not proved either before the Inquiry Officer or before this Tribunal that the cause for which he remained absent was reasonable or sufficient. Therefore, it was within the discretion of the management to reject the applications for leave even if he had applied for. Grant of leave is not a matter of right. It is the discretion of the employer to sanction leave applied for. For that purpose the employee is under obligation to set up grounds or when leave has been applied for and produce medical evidence from Competent Authority in accordance with rules. Nothing of that sort was done by the workman for a period of 63 days of disease. Therefore, he has failed to prove sufficiency of cause of his disease.
23. Ld AR for the management has submitted that 15 past leave record of the workman shows that he was a habitual absentee. He has submitted that workman remained absent for a period of 158 days in 1989, 90 days in the year 1990 and 98 days in the year 1991 which shows that he was a habitual absentee.
24. I am unable to accept this contention of AR for the management. Charge against the workman is that he remained absent without intimation and without a reasonable or sufficient cause for a period of 63 days during the period 1.1.1991 to 31.12.1991. It was not the charge against him that workman remained absent for a period of 158 days in the year 1989 and 90 days in the year 1990.
25. It has been argued by AR for the workman that punishment awarded to the workman is disproportionate to the misconduct imputed to him, therefore, it is unreasonable and excessive. On the other hand, it is argued by AR for the management that workman was a habitual absentee inasmuch as he remained absent for a period of 158 days during the year 1989, 90 days in the year 1990 and 98 days in the year 1991. It is also argued that if a workman starts behaving in this fashion, it is very difficult to run a transport corporation whose duty it is to 16 provide transport facilities to lacs of people in the NCT. It is submitted that keeping in view the fact that management corporation is a public utility department, any habitual conduct on the part of its employee in remaining absent without intimation will jeopardise its functioning, therefore, punishment awarded to the workman can not be said to be illegal or unjustified.
26. The management is a Public Transport Corporation which provides vital transport facility to lacs of people living in Delhi. Functioning of the Corporation has direct bearing on the mobility of lacs of people living in Delhi. It is true that management has to adopt a reasonable approach whenever any case of absentism has been reported to it. It is under a duty to examine if the workman had a reasonable or sufficient cause to remain absent. If the workman shows a reasonable or sufficient cause to remain absent, in my opinion the management should adopt a liberal approach in granting leave. But at the same time, it should also be kept in mind that smooth functioning of the DTC which provide transport facilities to lacs of Delhites is likely to be affected adversely if its employees are allowed to remain absent either without intimation or without any reasonable or sufficient cause. 17 Though past absentism on the part of workman can not be taken into consideration to judge the charge levelled against him nevertheless in my considered opinion past absentism certainly is one of the factors to be taken into consideration while imposing punishment on the workman.
27. In the present case, workman remained absent for a period of 158 days in the year 1989, 90 days in the year 1990 and 98 days in the year 1991. Though he had accounted for reasons for remaining absent for rest of the days but not for 63 days for which neither he had submitted leave applications nor he had apprised the management nor the cause given by him was found to be reasonable or sufficient. Workman was a habitual absentee. He has not been able to show before this Tribunal even that he had reasonable or sufficient cause for remaining absent for a period of 63 days. I, therefore, come to the conclusion that workman remained absent for a period of 63 days without intimation or information or without reasonable or sufficient cause. Therefore, I do not find any reasons to come to the conclusion that punishment awarded to the workman is either disproportionate to the misconduct proved against him or is unreasonable.
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28. It is also argued by act of the Management that action against the workman was taken in the year 1992 and workman raised the present industrial dispute in the year 2003 i.e. after a period of 11 years, therefore, the claim of the workman can not be entertained due to delay and latches.
29. On the other hand, AR for the workman has argued that no limitation has been prescribed for raising industrial dispute, therefore, when dispute has been raised in 2003 and punishment was inflicted on the workman in 1992, it is not fatal for adjudication of the present industrial dispute.
30. Workman was removed from service on 30.7.1992. After infliction of punishment, workman woke up in the year 1999 and served demand notice on the management on 6.9.1999. Thereafter, he is deposed to have made representation to the management on 18.1.2000 and moved mercy petition on 27.2.2003 and ultimately raised industrial dispute before Conciliation Officer by filing statement of claim on 27.2.03. From 30.7.1992, date of infliction of punishment on the workman, till 6.9.1999 when he served demand notice on the management, he kept sleeping over his rights for more 19 than 7 years.
31. In S.Shalimar Works Limited vs Their Workmen AIR 1959 SC 1217, it was held that though no limitation is prescribed for making reference of the dispute to an Industrial Tribunal, nevertheless, it has to be made within a reasonable period. In that case delay of 4 years in raising industrial dispute was held to be fatal. In another Authority reported as Nedungadi Bank Ltd vs K.P. Madhavakutty and others AIR 2000 SC 839, delay of 7 years was held to be fatal and disentitled the workman to any relief. Similar view was reiterated in S.M. Nilajkar and others vs Telecom District Manager, Karnataka 2003(4) SCC 27. Relying upon abovesaid authorities, our own Hon'ble High Court in Satbir Singh vs Management of Suptd. Engineer and others 138(2007) DLT 528 ( DHC), has been held that inordinate and unexplained delay in raising industrial dispute would defeat the rights of the workman and would disentitle him to any relief.
32. Coming to the present case, punishment was awarded to the workman on 30.7.1992 and he, for the first time, served demand notice on the management requesting for his reinstatement on 6.9.1999 i.e. after more than 7 years and raised industrial dispute before 20 Conciliation Officer only on 27.2.2003 i.e. after a period of 11 years. Applying aforesaid authorities to the facts of the present case, workman is not entitled to any relief only on the sole ground of delay and latches in raising present dispute after such a long gap.
33. In view of above discussion, I come to the conclusion that removal of the workman from service was neither illegal nor unjustified. I also come to the conclusion that in view of misconduct imputed to him and proved against him, he is also not entitled to any relief. These issues are accordingly decided in favour of management and against the workman.
34. Relief:- In view of my findings on issue Nos 2 and 3, removal of the workman from service was neither illegal nor unjustified nor he is entitled to any relief. Reference is accordingly answered. Award is accordingly passed. Same be sent to GNCT of Delhi for publication. File be consigned to record room.
Announced in open court on 31.03.09 (BABU LAL)
Presiding Officer Industrial Tribunal-II Karkardooma Courts, Delhi.