Delhi District Court
) Whether The Domestic Enquiry Was Not ... vs Sardar Singh on 8 April, 2010
BEFORE THE COURT OF SH A.S. JAYACHANDRA
PO : LABOUR COURT : KKD : DELHI
ID NO. 296/08/96
Unique case no. 02402C0001951996
DATE OF REFERENCE : 01.11.96
DATE OF RECEIPT : 18.11.96
FIRST DATE BEFORE THIS COURT : 05.12.08
ORDERS ON ENQUIRY ISSUE : 04.06.09
ARGUMENTS CONCLUDED : 05.04.2010
DATE OF AWARD : 08.04.2010
IN THE MATTER OF :
Delhi Transport Corporation
through its chairman,
I. P. Estate, New Delhi.
...........Management
versus
Sh. Dilbagh Singh Badge NO. 11280
R/o Village Bajitpur Thakran,
P.O. Nangal Thakran, Delhi.
..........Workman
AWARD
1.The Govt. of NCT of Delhi has made a reference bearing number F.24 (4942)/96-Lab./48502-06 dated 01.11.98, in the above matter and the terms of reference is as under :
''Whether the removal of Sh. Dilbagh singh from service is illegal and/ or 1/12 unjustified and if so, to what relief is he entitled and what directions are necessary in this respect? ''
2. Upon receipt of the reference, notices were ordered to the workman and the management. Claim statement by the workmen is filed.
3. Case of the workmen:- Workman claims that he was appointed in the year 1982 as a driver. He was issued with a charge sheet on 20.08.87. The charge against him is that he remained absent from duty from 01.01.87 to 31.07.87 as leave without pay for 161 days. Workman contends that he was constrained to avail leave as he was suffering from typhoid and his wife was also ill. His wife died due to prolonged illness. He contends that he sent the application properly to the Depot Officials and the leave was granted without pay. Despite his explanation to the charge sheet, enquiry was ordered. Enquiry proceedings were recorded wrongly and he was denied opportunities. Enquiry was held against the principles of natural justice. He was not given the help of a co-worker. Workman had not admitted the charge before the enquiry but explained his position. No list of documents were supplied and no list of witnesses were also given. Documentary evidence relied by the enqiry officer was never confronted to him nor given a chance to explain his stand. Workman is unemployed since then. Workman seeks reinstatement with full back wages.
4. Case of the management:- Management in its reply denied the claim averments. It contends that the workman had not intimated the department of his sickness nor did he produce any documents. During the enquiry the charges are 2/12 proved. Show cause notice was given to him and the workman was given an opportunity before removal from service. Workman was irregular in his duties. Workman was habitual absentee and had shown lack of interest. Workman had not given proper reply to the charge sheet. Thus the enquiry was held. He was given all the opportunities. Workman participated in the enquiry. The report was submitted. Enquiry officer was impartial and conducted the enquiry following the principles of natural justice. There is no infirmity in the enquiry. Workman is not unemployed. He is making his livelihood. Management has sought to prove their case on merits if the enquiry is held bad.
5. Rejoinder was filed by the workmen denying the allegations made in the written statement.
6. After completion of the pleadings, my Ld. Predecessor had framed the following issues on 07.08.98 as under :
1) Whether the Domestic enquiry was not conducted according to the principles of natural justice and is therefore not fair and valid??
2) In terms of reference?
7. To substantiate their claim on the enquiry issue, workman examined himself as WW-1 and closed the side. On behalf of the management one witness is examined and the evidence is closed. By a separate order dated 04.06.09, the enquiry issue is held in favour of the workman and against the management.
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8. Management was given an opportunity to lead evidence on merits. On merits management examined MW-2 V.K. Gupta and closed its side. In rebuttal workman examined himself and closed his side. Heard the arguments. Written arguments of the workman is filed. Perused the same. Workman had given the facts and submitted that he has never shown lack of interest in the work of the management. He contended that he was constrained to take the leave since he was suffering from typhoid and his wife was also ill. He submitted the medical certificates for the period of un-authorized absence. Further in the written arguments, it is stated that the management is trying to improve their case. According to him the MAR at Ex. MW 2/1 nor the charge sheet show any absence of the workman since MW 2/1 only shows that workman availed leave without pay which is not misconduct. Leave applications were sent. The monthly pay slips never revealed the sanction leave or rejected leave. The rejection was never communicated to him. Some of the leave applications are withheld by the management. Therefore the workman argues that the extreme penalty of removal is highly harsh and not justified. AR for the workman in the written arguments submits that the management having deducted the pay can not further impose a penalty of extreme nature by dismissing him from service. With the available oral and documentary evidence, I proceed to answer the issues as under:-
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ISSUE NO. 1.
8. By an order dated 04.06.09, I have held the issue no. 1 in favour of the workman and against the management.
ISSUE NO. 2.
9. MW-2, V.K. Gupta in his affidavit at Ex. MW 2/A deposed that he was the disciplinary authority and on the basis of the report of Sh. Narain Singh (reporter) this witness issued the show cause notice of removal and thereafter confirmed the punishment of removal. In the cross examination by the workman he admits that the show cause notice was in english and later at the request of the workman hindi version was also given to him. The MW-2 further produced Ex. MW 2/1 the MAR and the past record of the workman at Ex. MW 2/2, the show cause and removal order at Ex. MW 2/3 and MW 2/4. He further (in the cross examination) admits that the leave applications are not acknowledged by separate receipts and there is a control room where such applications are dropped by the workman. He admits that the rejection of the leave was not separately communicated. He further deposed that in the monthly attendance register the absence of the workman is treated as leave without pay. According to this witness in the cross examination, the workman had not given leave applications for 155 days. To a suggestion that he has given the leave applications, MW-2 denied.
10. In the rebuttal evidence, the workman produced his affidavit at Ex. WW 1/ 5/12 B and contended that he was constrained to go on leave due to the illness of himself and his wife for which he submitted the leave applications along with the medical certificates. He testifies that the leave applications were sent through his father and sometimes, one Raj Singh to the Nangloi Depot. The leave applications were dropped in the box.
11. Now to answer whether the misconduct is proved in this case or not, the conjoint queries also crop up. They are :-
a) Whether the applicant had submitted the leave applications for 155 days or not?
b) Whether there was intentional absence on the part of the workman?
c) Whether the lack of interest in the working of the corporation is exhibited by the workman?
12. In the ruling of DTC vs. Sardar Singh, AIR 2004 SC 4161, the Hon' Supreme Court has observed the standing orders of the DTC. In para 7 and 8 of the ruling is worth reading here :
PARA : 7 In all these cases almost the whole period of absence was without sanctioned leave. Mere making of an application after or even before absence from work does not in any way assist the concerned employee.
The requirement is obtaining leave in advance. In all these cases the absence was without obtaining leave in advance. The relevant paras of the Standing Order read as as follows :
'4. Absence without permission -
(1) An employee shall not absent himself from his duties without having first obtained the permission from the authority or the competent officer except in the case of sudden illness.6/12
In the case of sudden illness he shall send intimation to the office immediately. If the illness lasts or is expected to last for more than 3 days at a time, applications for leave should be duly accompanied by a medical certificate, from a registered medical practitioner or the Medical Officer of the DTS. In no case shall an employee leave station without prior permission.
(ii) Habitual absence without permission or sanction of leave and any continuous absence without such leave for more than 10 days shall render the employee liable to be treated as an absconder resulting in the termination of the service with the Organisation.
19. General Provisions-Without prejudice to the provisions of the foregoing Standing Orders, the following acts of commission and omission shall be treated as misconduct :
(a) .........
(h) Habitual negligence of duties and lack of interest, in the Authority's work.' PARA : 8 Clause 15 of the Regulations so far as relevant reads as follows :
'2. Discipline-The following penalties may, for misconduct or for a good and sufficient reason be imposed upon an employee of the Delhi Road Transport Authority:-
(i) ...........
(vi) Removal from the service of the Delhi Road Transport Authority.
(vii) Dismissal from the service of the Delhi Road Transport Authority.
...........'
13. In the very ruling, the Hon'ble Supreme Court noted that 'when an employee absents himself from duty even without sanctioned leave for very long period, it prima-facie shows lack of interest in work. Para 19 (h) of the standing order as quoted above relates to habitual negligence of duties and lack of interest in the authority's work. When an employee absents himself from duty without sanctioned leave, the authority can, on the basis of record come to a conclusion about the employee being habitually negligent in duties and an 7/12 exhibited lack of interest in the employer's work. It further observed that there can not be any sweeping generalization. But at the same time, tell-tale features can be noticed and pressed into service to arrive at conclusions in the departmental proceedings.
14. In a recent unreported ruling of the Division Bench of our High Court in the matter of Vijay Singh v/s DTC (LPA 499/09, DD : 23.11.2009), It is observed that "para 6 of the judgment in Sardar Singh shows that the Supreme Court was dealing with a batch of appeals in which the number of days of absence in different cases alone was noticed. Those cases were ultimately remanded for a fresh consideration."
15. Keeping in view of the above position of law, I am to look into the special features of this case to find out whether the order of penalty of removal of service passed by the management is justified or not.
16. For the above purposes of probing into the special features of the case, I have already formulated the conjoint queries arising in this case at para 11 above. Now I am to take up the first query. It is the contention of the management that the workman had not submitted the leave applications. In order to establish this fact, the management had put up a documentary evidence at Ex. MW 2/1, wherein the master attendance register certain portions are noted as NA which according to the ARM that the same stands for no applications. To prove this document, the author of the same is not examined. MW-2 in his 8/12 evidence had not stated that he is the author of this document. Further more from the evidence of Ex. MW 2/A the affidavit, the witness had not stated that the workman had not submitted the leave applications for 155 days. This contention of the management is found only in the cross examination of the workman. Even the reporter Sh. Narain Singh who reported the absence to the disciplinary authority is not examined. The management witness admits that there is no procedure to give any acknowledgment to the leave applications but the same would be dropped in a box. In the absence of the evidence of the author of the report and the author of MAR, it becomes difficult to hold that the workman has not submitted the leave applications especially in view of the say of the workman that he sent the leave applications through his father and one Raj Singh having not been demolished in the cross examination.
17. Now I will to have go for answering the second query. The second query is that whether there was intentional absence on the part of the workman. Workman in his rebuttal evidence contended that he was constrained to go on leave due to his own illness and that of his wife. According to him he submitted the medical certificate also. I find from the record submitted by the workman on 28.05.08 a photocopy of certificate issued from the MCD Leprosy Home that workman Dilbagh Singh was under treatment from January 1987 to July 1987 on different dates. This document is not proved on record by the workman. Though this document is not proved on record, the say of the workman in his rebuttal that 9/12 he was constrained to go on leave due to his illness and that of his wife is not demolished. Hence it can not be said that the workman was intentionally absent from the duties.
18. Coming to the third query, I find from the final statement of the workman recorded during the enquiry he had stated that he was constrained to go on leave since his wife was ill. There were none to take care of her except him and that he was also on the prolonged illness and that he has submitted medical certificates to the control room. Considering the explanation that is found in the final statement which is at Ex. WW 1/M-4, the consistent stand of the workman that he has not lost the interest in the working of the corporation seems probable. Hence, I find that the special features of the case would fall in favour of the workman to question the proportionality of the punishment. I find that the same is on the higher side in view of the tell tale features of the above case. Hence the workman is entitled to be reinstated but at the lowest stage of pay.
19. In the recent ruling of our Hon'ble High Court in Ramesh Chand v/s DTC in WP No. 14148 of 2009 DD : 23.02.2010, held that "therefore, there as a long gap of 13 years and due to this gap the petitioner should have led a positive evidence to plead and prove that he was not gainfully employed after the date of his termination. In the absence of any evidence led by the petitioner, I do not find that the finding given by the Ld. Labur Court denying the back wages to the petitioner can be held to be perverse or illegal.' 10/12
20. The grant of back wages is a matter of mere discretion. I am also aware of the rulings in 2009 LLR page no. 1, UP State Electricity Board Vs. Laxmi Kant Gupta and Rajasthan Lalit Kala Academy Vs. Radhey Shyam , 2008- III, LLJ 562, Talwara Co-op. Credit & Service Society Ltd. vs. S. Kumar 2009-I-LLJ 328 SC. in 2009 LLR page no. 1, UP State Electricity Board Vs. Laxmi Kant Gupta and Rajasthan Lalit Kala Academy Vs. Radhey Shyam , 2008-III, LLJ 562, Talwara Co-op. Credit & Service Society Ltd. vs. S. Kumar 2009-I-LLJ 328 SC. In the light of the above rulings and more particularly in this case, I see that the past record of the workman assumes significance. The past record of the workman is not in his favour as he has already suffered a major penalty of reduction of pay to the initial stage. Further more the workman has not stated that he has tried for alternate employment. He has only stated that he remained unemployed since the date of termination in the claim statement. The workman stated for the first time in the rebuttal evidence that he tried for an alternate employment which becomes an after thought. I find from the facts of the case that the workman is not entitled for any back wages. Hence, I pass the following award :
AWARD The claim of the workman is allowed. The management is directed to reinstate the workman at the lowest stage of the pay scale with continuity of services for the purposes of seniority and pension, gratuity and other benefits. 11/12 The workman be reinstated within 30 days after publication of this award. Back wages are not granted.
Reference is answered accordingly. Let a copy of this award be sent to the appropriate government for publication.
File be consigned to RR.
08th April, 2010 (A.S. JAYACHANDRA) PO : LABOUR COURT - XVII, DELHI 12/12