Delhi District Court
The vs The on 24 May, 2011
IN THE COURT OF SH. MAHAVIR SINGHAL: POIT,
KARKARDOOMA COURTS, DELHI
I.D. No. 77/08
The Workman
Sh. Ashok Kumar Gupta S/o Sh. Raj Kishore Gupta,
Represented by Municipal Employees Union,
Agarwal Bhawan, G.T. Road, Tis Hazari,
Delhi-110054
Vs.
The Management
M/s. Municipal Corporation of Delhi
Through its Commissioner Town Hall,
Chandani Chowk,
Delhi-110006
Date of institution 15.05.2008
Date of reserving award 10.05.2011
Date of award 24.05.2011
Ref : F.24 (615)/08/Lab./6331-35 dated 12.05.2008
AWARD
1.Workman has raised the present industrial dispute through Union and on failure of conciliation proceedings, GNCT of Delhi referred the dispute to this Tribunal for adjudication in following terms of I.D. No. 77/08 Page 1 of 15 reference:-
''Whether penalty of removal from service imposed upon Sh. Ashok Kumar Gupta S/o Sh.
Raj Kishore Gupta by the management is illegal and/or unjustified and if yes, to what relief is he entitled ?"
2. Statement of claim has been filed by the workman, wherein it is stated that the claimant has joined into the employment of the management in the year 1978 as a daily wager beldar and subsequently, he was regularized in service w.e.f. 01.04.1982 on the post of beldar. Thereafter, a departmental test was conducted in the mid of year 1988, in which the workman was declared successful and consequently, he was appointed as L.D.C. He joined his duties as LDC w.e.f. 08.1.1998. It is stated that he was initially posted as LDC in S.P. Zone in the office of Assessor and Collector. It is submitted that in the month of June 2002, the workman applied for casual leave from 26.06.2002 to 28.06.2002. On 29.06.2002 & 30.06.2002 he discharged his services on election duty. Thereafter, from 1st July 2002 onwards, workman went on Medical Leave as he was suffering some acute problem and thereafter, he also developed some other illness in eyes, lever and also remained patient of jaundice etc. It is stated that the workman was sending letters/information from time to time to the management and had also given medical record to the I.D. No. 77/08 Page 2 of 15 management.
3. It has been submitted by workman in his statement of claim that on 01.09.2006, he received some information from a friend and a copy of order dated 21.06.2006, as per which the management has dismissed him from service on account of unauthorized absence. It is stated that workman immediately enquired and preferred an appeal dated 4.9.06, before the Ld. Commissioner and various reminders were also sent but of no use. It is alleged that the termination/dismissal of the workman vide office order dated 21.06.2006 is totally illegal, bad, unjust and malafide for the following amongst other reasons :-
(i) That the workman has not committed any misconduct of any kind whatsoever and as such be cannot be terminated in the manner it has been done.
(ii) That no show cause notice/charge-sheet was served upon the workman and no domestic enquiry was conducted against him. Infact, the capital punishment of dismissal was imposed upon him without providing him any opportunity of being heard.
(iii) That the workman was very much ill and the absence on account of illness is not a misconduct from any point of view.
He was sending his medical papers to the management from time to time.
(iv) That in the year 1996, the workman concerned was allotted an official accommodation ie 21/6, MCD Quarters, MCD Colony, Model Town-III, Delhi but he did not receive any notice or charge-sheet at his aforesaid address.
(v) That even otherwise, Office order dated 21.06.2006 has been issued by Deputy Law Officer, who has held the workman guilty and has confirmed the penalty of removal from service though he has no authority in this regard because he is not the appointing authority of the workman.
(vi) That even otherwise, it has been mentioned in the office order dated 21.06.2006 that the workman did not send any I.D. No. 77/08 Page 3 of 15 reply to the charge-sheet and the disciplinary authority was of the view that it was not practicable to hold departmental enquiry as the workman was not available and said action was also totally illegal and in contravention of law as even if a person is not available for conducting an enquiry, then an ex- parte enquiry must be conducted by way of leading proper evidence and the enquiry officer must apply his mind to the evidence/documents on record prioer to hilding as to whether charge-sheeted employee is guilty or not.
(vii) That even otherwise as per the Office Order dated 21.06.2006, the charge-sheet sent to the workman was received back with the remarks " left without address" and consequently, the management got a notice published in some daily newspaper in March 2006. In this regard, it is the case of workman that the management intentionally did not send any charge-sheet to him at his correct address ie at his official address which was very much within the knowledge of the management.
(viii) That even otherwise the alleged charges levelled against workman are totally false, wrong and without any base.
(ix) That furthermore, the capital punishment was imposed upon the workman without providing him an opportunity of being heard and in gross violation of principle of natural justice.
(x) That the said order of dismissal is bad in law as the management has not applied its mind judiciously to the material on record before passing the impugned order. Infact, the management had pre-decided the issue in controversy and as such they intentionally did not send any charge-sheet/show cause to the workman on his actual/correct address.
(xi) That the said order of termination is bad in law as it amounts to Unfair Labour Practice and victimization. The extreme penalty of termination is even otherwise disproprtionate to the gravity of alleged charges leveled against him.
(xii) That the said order of termination is even otherwise bad in las and liable to be quashed.
4. Workman has claimed to have been unemployed since the date of his illegal termination. It is stated that workman sent demand notice by Regd. AD post vide communication dated 07.12.2007 but no reply has been received. It is prayed that an award be passed and dismissal order I.D. No. 77/08 Page 4 of 15 dated 21.06.2006 be set aside and dismissal/termination be held illegal and unjustified and the workman be held entitled for reinstatement in service with continuity of service and full back wages. It is also prayed that cost of litigation as provided in Section 11 (7) of the Industrial Disputes Act, 1947 may also be awarded to the workman.
5. In the WS filed by the management, it has been stated that the present dispute is not espoused by the Union and that no demand notice has been served upon the management. It is further submitted that present claim is barred by provisions of Section 2(oo) of Industrial Disputes Act as the termination of the claimant has been made by way of punishment inflicted upon by the disciplinary authority after holding domestic enquiry against the claimant. It is submitted that a valid domestic enquiry was held against the claimant. It is further submitted that the claimant is habitual absentee and remained absent on many occasions without intimation to the management. It is submitted that earlier also claimant was warned by his superior to be careful in future and finally vide order dated 18.5.04, competent authority i.e. Dy. Commissioner, West Zone, ordered for major penalty and accordingly, vigilance enquiry was initiated against him. Thereafter, the charge sheet was served upon the claimant on the address recorded in the service book but the said letters was returned I.D. No. 77/08 Page 5 of 15 unserved and finally the service was made by way of publication. It is submitted that despite service, claimant did not turn up and as such the enquiry was concluded against the claimant and consequently, the competent authority in exercise of its powers imposed the penalty of "removal from service which shall not be a disqualification for future employment". It is further submitted that thereafter, claimant filed an appeal dated 4.9.06 to MCD Commissioner, who after hearing the claimant in person on 01.02.07, upheld the order of removal from service. It is further submitted that claimant has been terminated after following principle of natural justice.
6. Rejoinder has been filed by the workman, wherein he has reiterated the contents of his statement of claim and has denied the averments made in the written statement.
7. On the basis of pleadings of parties, following issues were framed by Ld. Predecessor on 12.08.08:-
1. Whether the cause of workman has been duly espoused?
2. Whether the claim is barred by the provisions of Section 2(oo) of the I.D. Act as claimed in P.O. No.4 in the written statement?
3. As per terms of reference.
8. Thereafter again vide order dated 21.07.09, an additional issue I.D. No. 77/08 Page 6 of 15 was framed as under:-
"Whether inquiry conducted against the workman was just, fair and proper."
9. Workman has examined himself as WW 1. In his affidavit he has reiterated the contents of statement of claim. In his cross-examination, he has admitted that he remained absent from 2.7.92 to 14.8.92 and 1.7.02 to 21.6.06. It is stated in the cross-examination that he sent intimation to the department that he was ill during the period from 1.7.02 to 21.6.06. It is deposed that he can produce the diagnostic record issued by the doctor and that he can produce those doctors. It is further deposed that if he has some pathological reports, he can produce the same. It is deposed that he was having liver problem. It is deposed that he has not undergone MRI test, though it was prescribed by the doctor Sh. Ashok Kumar Surekha on 24.6.06. It is further deposed that doctor had issued him fitness certificate on 8.12.02 and he joined his duties on 9.12.02. It is admitted that he remained absent during the period 9.12.02 to 8.2.03 and for this period he did not give any application nor did he produce any medical certificate. It is admitted that in office records, he had given his residential address as E 4/11, Model Town, Delhi and he changed his residence from this address to another address in the year 1996, when he was allotted flat no.21/6, I.D. No. 77/08 Page 7 of 15 MCD colony, Model Town, Delhi. It is further deposed that he has never pointed to his department that his changed address has not been given in his personal file. He could not say if the notice of departmental proceedings was effected upon me through publication in newspaper dated 11.3.06. It is admitted that in response to abovesaid notice, he had filed reply dated 4.9.06 Ex. WW 1/14. It is admitted that he was afforded opportunity of personal hearing by Commissioner, MCD.
10. MW- 1 Smt. Rajni Narula, Asst. Law Officer, Vigilance Department has reiterated the facts of written statement in her affidavit filed by way of her examination-in-chief. In her cross-examination, she has admitted that Charge Sheet in this case was not personally served upon the workman but was served through publication when he was not traceable. She did not know whether accommodation No.2/16, MCD Quarters, MCD Colony, Model Town III, Delhi was allotted to the workman.
11. MW- 2 Sh. Jagpal Singh, Executive Engineer of MCD has deposed in his affidavit that claimant was always in habit of remaining absent for long periods without intimation. It is deposed that claimant was also given so many warnings and memos to remain I.D. No. 77/08 Page 8 of 15 careful in future but he did not mend his ways and continued the said habit of remaining absent willfully and without intimation. It is deposed that during the period of his absence, the claimant initially sent the applications on various dates on medical grounds but none of the applications was supported with medical certificate. It is deposed that after 11.9.02 claimant never sent any application of leave or medical advice for extension of leave and as such a departmental enquiry was proposed against the workman. It is further deposed that Charge Sheet was served upon the last known address of workman at E 4/11, Model Town, Delhi but the same was returned unserved and ultimately the service was affected through publication. It is deposed that claimant never intimated about the change of his address and as per service record and copy of ration card, submitted by the claimant, the above is the address of claimant. It is further deposed that claimant was at last terminated by the Additional Commissioner MCD, against which he filed an appeal before Commissioner, MCD and after hearing and considering all the documents of claimant, penalty of removal from service was upheld. I.D. No. 77/08 Page 9 of 15
12. In his cross-examination, MW- 2 has admitted that Charge Sheet in this case was not personally served on workman but was served through publication. He did not know as to whether an accommodation No.21/6, MCD Quarters, MCD Colony, Model Town III, Delhi was allotted to workman. He could not say whether Accommodation N.21/6 MCD Quarters, MCD Colony, Model Town III, Delhi was issued to workman w.e.f. 1.2.96 and since then HRA is being deducted from his salary and whether on the said address no Charge Sheet was sent. It is deposed that as per record, Charge Sheet was sent by post on his permanent address i.e. 4/11, Model Town, Delhi on 30.11.05. MW- 2 could not say whether any Charge Sheet was served on the workman or any domestic inquiry was conducted against him. It is admitted that workman sent applications for medical leave in July, 2002 but it is voluntarily stated that claimant did not submit any medical certificate alongwith the application. It is denied that workman was very much ill and that absence on account of illness is not a misconduct.
13. I have heard arguments from Sh. Mohd. Farukh, Ld. Counsel/AR for the workman and Sh. H.C. Bhartiya, Jr. Law Offider of management/ MCD. I have perused the entire record. My findings on the issues are as under:-
I.D. No. 77/08 Page 10 of 15
14. Findings on issue no.1 Issue no.1 is Whether the cause of workman has been duly espoused? On this issue, no evidence has been led by either of the parties. Section 2 A of Industrial Disputes Act is reproduced as below :-
Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an individual dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.
15. Present is a case of termination of services of workman. Therefore, in view of Section 2-A of Industrial Disputes Act, referred above, espousal by any union is not required in the present case. Issue no.1 is decided accordingly.
16. Findings on issue no.2 Issue no.2 is "Whether the claim is barred by the provisions of Section 2(oo) of the I.D. Act as claimed in P.O. No.4 in the written statement?" Present case is not of retrenchment but of termination for misconduct of remaining absent from duty. Hence, objection in this regard, raised by the management, is devoid of any merit. Accordingly, this issue is decided in favour of workman and against the management.
17. Findings on Additional Issue framed on 21.07.2009 I.D. No. 77/08 Page 11 of 15 Additional issue is "Whether inquiry conducted against the workman was just, fair and proper." It is the case of the management that charge sheet was sent to the workman by post at the address available with the management but the same was returned unserved and thereafter, same was served by publication. It is further the case of the management that when despite service through publication, claimant did not turn up, the enquiry was concluded and punishment of removal from services was imposed upon him.
18. On the other hand, it is the case of workman that charge sheet was not sent at his correct address, which was very well available with the management. It is deposed by workman that in office records, he had given his residential address as E 4/11, Model Town, Delhi and he changed his residence to another address in the year 1996 when he was allotted flat no.21/6, MCD colony, Model Town, Delhi. As admitted by MW- 2, charge sheet was sent to the workman at the address 4/11, Model Town, Delhi. Workman has proved on record Office Order Ex. WW 1/8 issued by MCD, vide which Quarter No -6, Block-XXI, Type -II, Model Town has been allotted to workman Sh. Ashok Kumar Gupta. It is therefore, clear that this address was very well within the knowledge of MCD, in view of Ex. WW 1/8 issued by MCD itself. Hence, charge I.D. No. 77/08 Page 12 of 15 sheet was supposed to be sent at this very address and not at the address 4/11, Model Town, Delhi. Moreover, it is admitted by MW- 1 and MW- 2 that charge sheet was not personally served upon workman.
19. In view of above discussion, it is held that charge sheet was not served upon the workman at his correct address i.e. 21/6, MCD Colony, Model Town, Delhi which was very well within the knowledge of the management. Enquiry is, therefore, vitiated on this ground. Accordingly, the additional issue is decided in favour of workman and against the management.
20. Findings on issue No 3.
Issue No 3 is "As per terms of reference". Terms of reference are ''Whether penalty of removal from service imposed upon Sh. Ashok Kumar Gupta S/o Sh. Raj Kishore Gupta by the management is illegal and/or unjustified and if yes, to what relief is he entitled ?"
21. As stated above, in decision of additional issue, the enquiry has been vitiated. Management in its written statement has not prayed that in case the enquiry is vitiated, an opportunity be given to it to produce further evidence to prove the misconduct alleged against the workman. In Shambhu Nath Goyal vs. Bank of Baroda and others, 1984 (1) SCR 85 it was held by the Hon'ble Supreme Court that:-
I.D. No. 77/08 Page 13 of 15
But when the question arises in a reference under Section 10 of the Act after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry there is no question of the management filing any application for permission to lead further evidence in support of the charge or charges framed against the workman, for the defect in the domestic enquiry is pointed out by the workman in his written claim statement filed in the Labour Court or Industrial Tribunal after the reference had been received and the management has the opportunity to look into that statement before it files its written statement of defence in the enquiry before the Labour Court or Industrial Tribunal and make the request for opportunity in the written statement itself. If it does not choose to do so at that stage, it can not be allowed to do it at any later stage of the proceedings by filing any application for the purpose which may result in delay which may lead to wrecking the morale of the workman and compel him to surrender which he may not otherwise do.
22. This view was further approved by Hon'ble Supreme Court in Karnataka State Road Transport Corporation vs Lakshmidevamma and anothers 2001 AIR (SC) 2090. In view of these judgments of Hon'ble Supreme Court, I find no occasion to give opportunity to the management to lead any further evidence to prove the alleged misconduct against the workman, in the absence of any such prayer in the written statement.
23. Since, the enquiry conducted against the workman has been vitiated and no opportunity can be given to the management to lead further evidence to prove the alleged misconduct against the workman, the alleged misconduct remains un-established. Therefore, it is held that penalty of removal from services imposed upon workman Sh. Ashok Kumar Gupta is illegal and unjustified. Hence, the workman is entitled I.D. No. 77/08 Page 14 of 15 to be reinstated with full back wages and continuity of services alongwith all other consequential benefits.
24. Award is passed in the above terms. Copy of the award be sent to GNCT of Delhi for publication. File be consigned to Record Room. Announced in open courts on 24.05.2011 (MAHAVIR SINGHAL) Presiding Officer, Industrial Tribunal Karkardooma Courts, Delhi.
I.D. No. 77/08 Page 15 of 15