Delhi District Court
Sh. Ashok Kumar vs M/S. Delhi Transport Corporation ... on 23 August, 2016
IN THE COURT OF SHRI UMED SINGH GREWAL
POLCXVII ROOM NO. 22 :KKD COURTS: DELHI
LIR 3175/16 (Old ID 27/09).
Unique ID No.02402C0316082009
IN THE MATTER OF :
Sh. Ashok Kumar
S/o Sh. Hans Raj
R/o H - 1/90, Jahangir Puri,
Delhi110033
Through LRs
(i) Neera Wali, W/o Late Sh. Ashok Kumar
(ii) Dharmender, S/o Late Sh. Ashok Kumar
(iii) Rekha, D/o Late Sh. Ashok Kumar
(iv) Kanwal Jeet, D/o Late Sh. Ashok Kumar
(v) Sunil, S/o Late Sh. Ashok Kumar
(vi) Karan, S/o Late Sh. Ashok Kumar (minor)
(Through his mother Neera Wali)
All R/o H.No. 82/81, Cigrate Wala Bagh
Model Town, Delhi110009.
..............Workman
Versus
M/s. Delhi Transport Corporation (D.T.C.)
IP Estate, New Delhi110002.
............. Management
DATE OF INSTITUTION : 23.10.2009.
DATE ON WHICH AWARD RESERVED : 10.08.2016.
DATE ON WHICH AWARD PASSED : 23.08.2016.
A W A R D :
1. Vide Order No. F.24(98)/09/Lab./CD/88 dated 06.10.09
LIR 3175/16 1/21
issued by Government of NCT of Delhi, a reference was sent to
this Court with the following terms:
"Whether the services of Sh. Ashok Kumar,
S/o Sh. Hans Raj has been dispensed
illegally and/or unjustifiably by the
management and if so, to what relief is he
entitled?"
2. Claimant's case is that he was appointed by the management
as retainer crew driver vide appointment letter dated 03.05.1989
and his service was terminated vide letter dated 24.01.1990 w.e.f.
25.01.1990 illegally against which he filed an appeal and he was
taken back on duty w.e.f. 27.12.1990, but on a new badge number
and his past service of 78 months was not considered. His service
was again terminated on 15.11.1991 on the ground that he was
unauthorizedly absent for 175 days from 27.12.1990 to 15.11.1991.
During that period, his wife had expired and his son was burnt
severely due to which he could not attend duty regularly. He had
sent leave applications. His absence during that period was neither
deliberate nor intentional.
3. Written statement is to the effect that the claimant has
approached the court after elapse of 20 years and hence, he is guilty
of latches. So, no relief should be granted to him. He was
unauthorizedly absent for 162 days from May, 1989 to 10.01.1990
LIR 3175/16 2/21
and hence, his service was dismissed vide letter dated 24.01.1990
w.e.f. 25.01.1990 under para 4(xiv) of Executive Instructions
regarding the employment of retainer crew driver. He had filed an
appeal for fresh appointment and the same was considered in his
favour and he was given fresh appointment as retainer crew driver
vide letter dated 27.12.1990, but he was again unauthorizedly
absent for 175 days from December, 1990 to November, 1991. He
was directed to appear before medical board, but he did not appear
there for his medical examination. He did not join duty and hence,
his service was again dispensed with under para 14(xiv) of
Executive Instructions.
4. Following issues were framed on 28.04.2010:
(a) Whether the reference is bad in law for inordinate delay
of 20 years as contended by the management?
(b) Terms of reference.
5. In order to substantiate the case, the claimant tendered his
affidavit in evidence as Ex.WW1/A mentioning all the facts stated
in statement of claim.
6. The management examined its Depot Manager Mr. Virender
Kumar as MW1 who repeated the contents of written statement and
relied upon following documents:
(i) Ex.MW1/1 (running into back to back 2 pages) is copy of
LIR 3175/16 3/21
letter training dt. 30.08.88.
(ii) Ex.MW1/2 (running into back to back 3 pages) is copy of
dt. 02.09.88 regarding terms and conditions accepted by the
workman.
(iii) Ex.MW1/3 (running into back to back 3 pages) is copy of
letter dt. 02.05.89 whereby the workman was offered
appointment as Retainer Crew Driver.
(iv) Ex.MW1/4(running into back to back 4 pages) is copy of
letter dt. 2/3.5.89 whereby the workman was appointed as
Retainer Crew Driver
(v) Ex.MW1/5 (running into back to back 4 pages) is copy of
report regarding unauthorized absence of workman dt.
19.12.89.
(vi) Ex.MW1/6 is copy of noting dt. 21.06.90 considering
reappointment of workman.
(vii) Ex.MW1/7 is copy of representation dt. 7.6.90 of
workman.
(viii) Ex.MW1/8 is copy of representation dt. 21.11.90 of
workman.
(ix) Ex.MW1/9 (running into back to back 4 pages) is copy of
noting dt. 18.09.90 considering the case of the workman for
reappointment.
(x) Ex.MW1/10 is copy of letter dt. 27.12.1990 reappointing the
workman as Retainer Crew Driver.
LIR 3175/16 4/21
(xi) Ex.MW1/11 (running into back to back 3 pages) is copy of
report of absence without information of workman dt.
22.08.1991.
(xii) Ex.MW1/12 is copy of letter dt. 15.11.1991 whereby the
services of the workman were dispensed with under Para 4
(XIV) of the Executive Instruction regarding employment of
Retainer Crew.
(xiii) Ex.MW1/13 is copy of progress report dt. 13.11.1991 of
the workman.
(xiv) Ex.MW1/14 (3 pages) is copy of appeal noting dt. 5.12.91
on representation filed by the workman.
(xv) Ex.MW1/15 is copy of letter dt. 5.3.1997 whereby the
appeal of the workman regarding reappointment was
disposed of.
(xvi)Ex.MW1/16 is copy of letter dt. 3.09.98 whereby mercy
appeal of the workman was disposed of.
(xvii) Ex.MW1/17 is copy of letter dt. 24.01.1990 whereby the
services of the workman were dispensed with for the first
time.
(xviii) Ex.MW1/18 (running into 5 pages) is copy of Executive
Instructions regarding the employment of Retainer Crew
Issue No. b:
7. Ld. ARW argued that it becomes apparent from written
LIR 3175/16 5/21
statement that on both occasions, service of the claimant was
terminated on the ground of his unauthorized absence. Being
absent unauthorizedly is a misconduct for which the management
should have conducted domestic enquiry before terminating his
service, but no such enquiry was conducted.
On the other hand, Ld. ARM argued that performance of
claimant was not satisfactory and hence, para 4(xiv) of Executive
Instructions was used on both occasions to terminate his service.
He was only a retainer crew driver. He had yet not come on
monthly rates. After coming on monthly rate, the employee is to
undergo the probation period of one year. That stage had yet not
reached in the case in hand. Even during probation period, the
management can terminate the service of the employee if his
performance is not satisfactory.
8. It becomes clear from first appointment letter Ex.MW1/2 that
the claimant was appointed as retainer crew driver on 03.05.19989.
It is mentioned in that letter that retainer crew driver would not be
absent on any day during the month. It is mentioned in leave record
Ex.MW1/6 that claimant was on 176 leaves without pay from
03.05.1989 to 21.01.1990 and hence, his service was terminated
vide letter Ex.MW1/17 dated 24.01.1990 w.e.f. 25.01.1990. The
claimant had moved an application Ex.MW1/7 dated 07.06.1990
for fresh appointment. Consequently, he was appointed freshly
LIR 3175/16 6/21
w.e..f 27.12.1990 vide appointment letter Ex.MW1/10 dated
27.12.1990. His leave record shows that the claimant again
unauthorizedly absent / leave without pay for 175 days from
December, 1990 to November, 1991 and hence, he was again
terminated vide letter dated 15.11.1991 Ex.MW1/12 under para
4(xiv) of Executive Instructions.
9. As per Executive Instructions applicable to the daily rated
operational crew of buses division of Daily Transport Undertaking,
following kinds of workers were employed with the
management :
1. Classification of Employees :
(a) Employees shall be classified as follows :
(i) Regular (Permanent)
(ii) Probationers
(iii) Temporary
(iv) Casual
(b) 'Regular' (Permanent) employee means an employee
other than a casual or temporary employee or a probationer, who
holds a lien on a permanent post sanctioned by the Delhi Transport
Committee or the Municipal Corporation of Delhi as the case may
be under Section 90 of the Delhi Municipal Corporation Act, 1957
having been permanently appointed to it by a written order of the
Appointing Authority and includes an employee appointed
LIR 3175/16 7/21
permanently to a post but promoted to any higher post or re
mustered to any equivalent or near equivalent post temporarily.
(c) 'Probationer' means an employee who has been
appointed on probation against a permanent or temporary post and
who has not successfully completed his probationary period.
Such probationary period shall be for a period of one year in the
first instance. It can be extended by the appointing authority in
the case of a particular individual if the appointing authority
considers it necessary for reasons which should be recorded
provided that in no case, the period of probation shall exceed 2
years. A probationer shall cease to be so and shall be deemed to
have completed the peiod of probation satisfactorily only when a
written order to that effect has been issued by the competent
authority.
(d) 'Temporary employee means :
(i) an employee who does not hold a lien on a permanent
post sanctioned by the appropriate authority under Section 90 of
the Delhi Municipal Corporation Act and includes a probationer
(ii) an employee appointed temporarily against a temporary
or a permanent post and includes an employee who has
successfully completed his probationary period but who has not
been declared permanent either for want of a permanent post or
otherwise.
LIR 3175/16 8/21
(e) 'Casual' employee means an employee whose
employment is of a casual nature and includes an employee
appointed on daily rates of pay or as a retainer. Casual employees
are paid wages only for the days they are given work or put on
duty. The terms and conditions of employment of retainer drivers
and conductors are governed by the executive instructions issued
on the subject (Annexure I).
Following terms and conditions of employment of retainer
drivers and conductors as contained in Executive Instructions are
highly relevant for the present case :
(v) They shall be paid wages by Undertaking at the rates
indicated below subject to the provions of Clause (iv) below only
for the days on which they are put on duty and actually perform
such duty :
Driver. Rs. Four per day per head for a duty of eight hours
or even nine hours if
Conductor Rs. Three per day per head required (excluding rest
interval)
In the event of their being given duty, for the purpose of
payment of wages, their duty would be treated as having
commenced from the moment they are given the Driver's Memo or
Conductor's Waybill and ticket box as the case may be. No credit
shall be given to the waiting time howsoever long it may be and
neither will it be counted as time spent on duty.
LIR 3175/16 9/21
(xiii) They shall comply with the executive instructions regarding
the duties of driver and conductor as the case may be in relation to
the discharge of their duties to the extent that they are not
inconsistent with these instructions.
(xiv) The services of the retainer crews can be dispensed with by
the Undertaking without notice and without assigning any reason.
Further, their services can also be dispensed with if they fail to
turn up at the Units or performe duty as laid down in these
instructions for five days continuously, without permission of the
officer under whom they are working and without adequate
reasons.
The above terms and conditions are Executive Instructions
prove that there was a contract between claimants and
management stating the manner in which their services can be
terminated. As per that contract, their services may be terminated
at any time without assigning any reason. Section 2(oo) (bb)
contains two parts. Case of the management is covered under
second part of Section 2(oo)(bb) to the effect " of such contract
being terminated under a stipulation in that behalf contained
therein". Services of the claimants were terminated by following
that clause.
10. Facts of Rakesh Muni Tyagi Vs. DTC, 2003 LLR 835
decided by the Hon'ble High Court of Delhi on 01.07.2013 are
LIR 3175/16 10/21
exactly similar to the present case. In that case, the claimant was
appointed as RC Conductor on 07.08.1998 and his services were
terminated on 29.10.2003. He had served the management only for
about one year from 27.12.1990 to 15.11.1991 before his services
were terminated. In the present case, the claimants had served
only for three years. Following observations of the Hon'ble Hihg
Court of Delhi in that case are highly material :
"7.The Executive Instructions regarding the
employment of Retainer Crews has been placed
on record. Some of the clauses which are
relevant in this Executive Instructions read as
follows:
... They apply only to the dailyrated
operational crews of the Buses Division of
the Delhi Transport Undertaking.
x x x
Definition: 2. In these instructions, unless
the context otherwise requires "Retainer
Crews" mean the dailyrated drivers and
conductors and appointed and declared as
such by the Undertaking and posted to work
at any of its Units, as distinguished from the
monthlyrated drivers and conductors.
x x x
vii) If, on any day any member of the
retainer crew is not put on duty and does not
earn the full wages prescribed in clause (v)
above, or half wages as prescribed in clause
(vi) (a) above, retainer allowance as
indicated below shall become payable to
him subject to fulfillment of the conditions
set forth under this clause:
LIR 3175/16 11/21
Driver ........One rupee per day per head.
Conductor.......One rupee per day per head.
(a) If he does not refuse duty offered to him
by the officer under whom he is posted to
work at the Unit at which he is posted or at
any other Unit to which he may be directed.
(b) If he reports at the Unit to which he is
attached at the time or timings fixed by the
officer under whom he is posted to work and
waits there for duty for a period not less
than eight hours on any day continuously or
intermittently as may be laid down by the
said officer. For the purpose of calculation
of this period, the time taken for travel from
one Unit to another as may be roughly
assessed by the officer concerned shall be
taken into account. No retainer allowance
shall be payable if the total waiting period is
less than 8 hours on any day.
x x x
(xiv) The services of the retainer crews can
be dispensed with by the Undertaking
without notice and without assigning any
reason. Further their services can also be
dispensed with if they fail to turn up at the
Units or perform duty as laid down in these
instructions for five days continuously,
without permission of the officer under
whom they are working and without
adequate reasons.
x x x
Absorption of retainer crews in the monthly
rated establishment:6. The retainer crews
will be absorbed in the monthly rated
LIR 3175/16 12/21
temporary establishment of drivers and
conductors as the performance while
working as a retainer crew, as quickly as
possible subject to temporary or permanent
vacancies on monthly rates of pay in the
respective categories...
8. The appointment letter dated 04.08.1998
issued by the respondent to the petitioner
offering the post of Retainer Crew Conductor for a temporary period containes, inter alia, the following conditions:
5. His appointment as R/C conductor is purely on temporary basis. His services can also be dispensed with at any time without notice and without assigning any reason whatsoever in this regard.
6. He will be paid wages for the days he actually performs duty according to the prescribed rates from time to time.
9. The Executive Instructions above extracted show that the Retainer Crew is not engaged on a monthly basis. The engagement is only as a daily wagertheir services being utilized only in the event of the deployed Driver/Conductor being absent. That is why they are distinguished from monthly rated Drivers & Conductors.
10. Clause (vii) of the Executive Instructions extracted above shows that the Retainer Crew may not be put on duty on a given date and, in that eventuality, he would not earn the wages as prescribed in clauses (v) & (vi) in the said LIR 3175/16 13/21 instructions. He is paid nominal retainer allowance, subject to the compliance of the conditions mentioned in clause (vii).
11. Clause (xiv) explicitly states that the services of the Retainer Crew can be dispensed with by the undertaking without notice and without assigning any reason. Their services can also be dispensed with if they fail to turn up at the Units or perform the duty as laid down in these instructions for five days continuously, without permission of the officer under whom they are working and without adequate reasons. Retainer Crew are absorbed on monthly rated temporary establishments of Drivers and conductors in order of merit, seniority, conduct and performance.
12. A perusal of the aforesaid instructions as well as clauses 5 and 6 of the appointment letter dated 04.08.1998 issued to the petitioner offering the post of retainer crew driver for a temporary period leaves no manner of doubt that the termination of the services of the petitioner has been undertaken under a stipulation in that behalf contained in the conditions applicable to the petitioners appointment. The termination of the petitioners service, therefore, does not tantamount to retrenchment as defined in Section 2(oo) of the Act since it is covered by the exception carved out in clause (bb) thereof. The mere completion of 240 days of service in the year preceding the petitioners termination does not vest the petition with the right to claim compensation LIR 3175/16 14/21 under section 25F of the Act, since the terms of appointment in no uncertain terms made it clear that:
(i) The appointment was as a daily rated conductor and not a monthly rated conductor;
(ii) It was not necessary for the respondent to take from the petitioner, even when he offered himself for service, on any given day and all that he was entitled to, subject to fulfillment of certain conditions was retainer allowance;
(iii) The services of retainer crew conductor could be dispensed with without notice and without assigning any reason;
(iv) The absorption of the retainer crew conductor in the monthly rated establishment was dependant upon, inter alia, the conduct and performance of the conductor while working as a retainer crew.
Therefore, the conduct and performance of the petitioner was under watch i.e. he was on probation for being considered to be placed as a monthly rated temporary establishment conductor.
13. The termination of the services of a probationer does not tantamount to retrenchment as held by me in the judgment delivered in W.P.(C) No. 5311/2000 and other connected writ petitions today. In the light of the aforesaid discussion, I find no merit in this petition and dismiss the same leaving the parties to bear their respective costs."
LIR 3175/16 15/2111. As per para 4(xiv) of Executive Instructions regarding the employment of retainer crew pertaining to DTC, the service of retainer crew can be dispensed with by undertaking without notice and without assigning any reason. Though it has been admitted by MW1 that service of the claimant was terminated on the ground of unauthorized absence, but his oral deposition is not gaining strength from both termination letters Ex.MW1/17 and Ex.MW1/12 because it is mentioned in those letters that service of the claimant was being terminated under para 4(xiv) of Executive Instructions.
12. In Pinaki Ghos Vs. International Airport Authority of India And Ors., 2007 LLR 1238, termination of workman was on the ground of unsatisfactory performance during probation period. His termination was upheld by the Hon'ble High Court.
In Parvanendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences and Another, (2002) 1 SCC 520, following was held by the Apex Court : ".......Generally speaking when a probationer's appointed is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is LIR 3175/16 16/21 also not stigmatic. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job"
In B.S. Chopra Vs. The Management of Karnataka Handloom Development Corporation Ltd. and Anr., 2006 LLR 204, it was held by the Hon'ble Delhi High Court that even when a no enquiry is held after showcause notice, it does not mean that the probationer stands confirmed.
In Hawa Singh Vs. P.O. Labour Court, 2006 LLR 949, Hon'ble Delhi High Court held that the employer can terminate the services of a probationer during probation period. It is not material as to why the services of the probationer were not terminated immediately after happening of incident.
In Muir Mills Unit of NTC (UP) Limited Vs. Swayam Prakash Srivastava and Another (2007) 1 SCC 491, termination letter was issued to the employee stating that his performance was not found satisfactory. He had failed to complete the probationary period successfully. It was further mentioned that his services was being terminated with immediate effect. Termination was upheld by the Apex Court.
13. It becomes clear from above citations that even as an employee who is undergoing probation has no lien over the job LIR 3175/16 17/21 during that period. The management may terminate his service if his performance is unsatisfactory. The case of the claimant was worse than the case of employee undergoing the probation period because he was merely a retainer crew driver who was yet to come to monthly rates. After coming on monthly rates, he was to undergo probation period, but that stage has yet not arrived.
14. Claimant was unauthorizedly absent for 176 days from 03.05.1989 to 21.01.1990 during his first assignment with the management. He was again unauthorizedly absent for 175 days from December, 1990 to November, 1991 i.e. during his second tenure. He did not place on record any leave application etc. which he may have sent to the management. He did not place on record medical certificate of his son to prove that he was burnt due to which the claimant could not attend to his office. He has failed to justify his absence.
15. On unauthorized absence, the case of the case of the management is well covered by Bharat Bhushan Vs. Delhi Transport Corporation WP(C) No. 1771/2008, decided by Hon'ble High Court of Delhi on 25.10.2010:
16. In the case of DTC v. Sardar Singh 2004 SCC (L&S) 946, the Apex Court at page 950 in para 9 has observed as under:
9. When an employee employee absents himself LIR 3175/16 18/21 from duty, even without sanctioned leave for a very long period, it prima facie shows lack of interest in work. Para 19(h) of the Standing Orders 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 the record, come to a conclusion about the employee being habitually negligent in duties and an exhibited lack of interest in the employer's work. Ample material was produced before the Tribunal in each case to show as to how the employees concerned were remaining absent for long periods which affects the work of the employer and the employee concerned was required at least to bring some material on record to show as to how his absence was on the basis of sanctioned leaves and as to how there was no negligence. Habitual absence is a factor which establishes lack of interest in work.
There cannot be any sweeping generatlisation. But at the same time some telltale features can be noticed and pressed into service to arrive at conclusions in the departmental proceedings.
17. In the case of Indian Iron Steel Co. v. Their Workmen MANU/SC/0084/1957: AIR 1958 SC 130, it was held:
Mere fact that the workman applied for leave is no ground for excusing him when the leave was refused.
(18) In view of the settled law as on the facts and circumstances in the matter, I am of the considered view that the Tribunal was justified by not interfering with the LIR 3175/16 19/21 punishment imposed by the respondent and this court does not find any valid ground mentioned in the writ petition to interfere with the same. The writ petition is dismissed. No orders as to cost.
Issue No. a:
16. Claimant's service was terminated on 15.11.1991 and he filed the present case on 23.10.2009 i.e. after elapse of 18 years. In Shalimar Works Ltd. Vs. Their Workmen AIR 1959 SC 1217, it was held by the Apex Court 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. Delay of 4 years in raising industrial dispute was held fatal. In Nedungadi Bank Ltd. Vs. K.P. Madhavakutty and others AIR 2000 SC 839, delay of 7 years was held was held fatal and it was further held that the claimant was not entitled to any relief. Similar view was reiterated in S.M. Nilajkar and others Vs. Telecom District Manger, Karnataka 2003 (4) SCC 27. In Satbir Singh Vs. Management of Suptd. Engineer and others 138 (2007) DLT 528 (DHC), Hon'ble High Court of Delhi held that inordinate and unexplained delay in raising industrial dispute would defeat the rights of the workman and would disentitle him any relief.
17. Taking cue from above citations, it is held that the case of the claimant has become stale. This issue is decided in favour of LIR 3175/16 20/21 management and against claimant.
Relief:
18. Consequent to decision on issue Nos. a & b, it is held that claimant is not entitled to any relief. Statement of claim is dismissed. Parties to bear their own costs. Reference is answered accordingly. Award is passed accordingly.
19. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 23.08.2016. POLCXVII/KKD, DELHI.
LIR 3175/16 21/21