Delhi District Court
Sh. Ved Singh vs The Chairman on 17 February, 2017
IN THE COURT OF SHRI UMED SINGH GREWAL
PILOT COURT / POLCXVII ROOM NO. 22 :KKD
COURTS: DELHI
LIR 2322/16 (Old ID No.71/12).
Unique ID No.02402C0252572012.
Sh. Ved Singh,
S/o Sh. Jogi Ram,
Vill. Kham Pur, G.T. Karnal Road, Delhi110036.
..............Workman
Versus
The Chairman,
M/s. Delhi Transport Corporation (D.T.C.),
IP Estate, New Delhi02.
............. Management
DATE OF INSTITUTION : 03.09.2012.
DATE ON WHICH AWARD RESERVED : 16.02.2017.
DATE ON WHICH AWARD PASSED : 17.02.2017.
A W A R D :
1.Vide Order No. F.24(68)/12/Lab./CD/578 dated 30.08.2012 issued by Government of NCT of Delhi, a reference was sent to this Court with the following terms: "Whether the services of Sh. Ved Singh S/o Sh. Jogi Ram have been terminated illegally and / or unjustifiably by the management; and if so, to what relief is he entitled and what directions are necessary in this respect?"
LIR 2322/16 1/122. Claimant's case is that he was appointed with the management as Retainer Crew Driver w.e.f. 07.07.1979 and brought on monthly rate of pay as regular employee. His service was terminated w.e.f. 28.09.88 without giving any chargesheet and without holding any domestic enquiry under clause 14(10)b of DRTA (Conditions of Appointment & Service) Regulations, 1952. He fell ill and was unable to attend duties from 11.06.1988 to 10.09.1988. He submitted application for leave on account of illness supported by medical report under registered cover and postal receipt which was duly received and admitted by the management. He had filed a Civil Writ Petition No. CWP 4636/01 before the Hon'ble High Court of Delhi against termination order made by the management. During the proceedings of that case, the management, in order to settle the cases of drivers at the first instance by out of the Court, published an advertisement in various news papers and in response to that advertisement, he approached the management and conveyed consent to the terms of settlement. The management had agreed to reinstate him after having considering his case. His writ petition was dismissed as withdrawn with liberty to approach the Industrial Tribunal. Even after settlement, the management did not reinstate him in service. Conciliation proceedings failed to yield any positive result. He is LIR 2322/16 2/12 unemployed since the date of his termination.
3. Written statement is to the effect that workman remained unauthorizedly absent from duty for many a times i.e. 92 days in the year 1985, 57 days in the year 1986, 47 days in the year 1987 and 96 days upto 10.09.1988. He was advised and cautioned time and again for not attending duty. His absence beyond 10.09.1988 could not be regularized under clause 10/10/b of DRTA Regulations. His reply to showcause notice was not found convincing and so, he was declared as deemed to have resigned from job w.e.f. 11.09.1988. Claim is time barred as claimant was deemed to have resigned in the year 1988 and the present claim was filed in the year 2012. He remained absent from duty without intimation and prior permission w.e.f. 11.06.1988. He was issued a letter dated 18.07.1988 to report for duty or in case he was sick, he should produce medical certificate of Govt. Hospital or report to M.O, DTC Medical Board, but he submitted medical certificate of private practitioner from 11.06.1988 to 03.08.1988.
4. Following issues were framed on 04.02.15:
1. As per the terms of reference.
5. In order to substantiate the case, the claimant tendered LIR 2322/16 3/12 his affidavit in evidence as Ex. WW1/A mentioning all the facts stated in the statement of claim. He relied upon following documents: I. Ex.WW1/1 is copy of termination letter dt. 28.01.88. II. Mark A is photocopy of joint application moved before the Hon'ble High Court in Civil Writ Petition No. 4636/01. III. Mark B is photocopy of affidavit of workman filed with mark A. IV. Photocopy of affidavit of Mr. L.C. Goyal of management filed with mark A as Mark C. V. Photocopy of compromise deed annexed with Mark A as Mark D. VI. Photocopy of order dated 10.11.06 of the High Court passed on joint application Mark A as Mark E. VII. Photocopy of application moved by the workman on 5.3.10 duly received by the management as Mark F.
6. The management examined its P.B.C. Sh. Mahesh Chand as MW1 who deposed that workman remained absent from duty without intimation and prior permission w.e.f. 11.06.1988. He was issued letter dated 18.07.1988 Ex. MW1/1 to report for duty or in case he was sick, he should produce certificate of Govt. Hospital. But he produced medical certificate of private practitioner from 11.06.1988 to 03.08.1988. He was again directed to report to DTC Medical Board vide letter dated 12.08.1988 Ex. MW1/2. The reply given by him was not found convincing. His LIR 2322/16 4/12 absence beyond 10.09.1988 could not be regularized under clause 10(10)(b) of DRTA (Conditions of Appointment & Service) Regulations, 1952 and so, he was deemed to have resigned w.e.f. 11.09.1988 vide order dated 28.09.1988. He was issued show cause notice dated 12.09.1988 which is Ex. MW1/3(Ex.WW1/1). His past record He relied upon following documents :
1. Ex.MW1/1 is photocopy of letter dt. 18.07.1988.
2. Ex. MW1/2 is photocopy of letter dt. 12.08.1988.
3. Ex. MW1/3 is photocopy of letter dt. 12.09.1988.
4. Ex. MW1/4 is photocopy of past record of claimant.
5. And already exhibited Ex.WW1/1.
Issue No. 1.
7. Ld. ARW argued that workman was terminated illegally on 28.09.88 vide termination letter Ex. WW1/1 without giving any chargesheet and without holding any domestic enquiry. He was on leave due to his illness from 11.06.1988 to 10.09.1988. He had submitted leave applications with medical certificate, but despite receipt of the same, the management terminated his service which is in violation of Section 25F of the I.D. Act. He had filed a CWP No. 4636/10 in the Hon'ble High Court against termination. During pendency of that writ petition, the management had agreed to reinstate his service. The workman and management had moved LIR 2322/16 5/12 a joint application Mark A alongwith their affidavits Mark B and C respectively before the Hon'ble High Court. The writ petition was dismissed as withdrawn by Hon'ble High Court vide order dated 10.11.06 and he was granted liberty to approach the Industrial Tribunal. But despite signing the application, affidavit and settlement deed, the management failed to reinstate him.
Ld. ARM argued that claimant was absent from duty without intimation and prior permission w.e.f 11.06.1988. Despite directions by the management to report for duty with medical certificate issued by Govt. Hospital, claimant submitted medical certificate issued by private practitioner. He was directed to appear before DTC Medical Board but he did not do so. His reply was not found satisfactory and his absence beyond 10.09.1988 could not be regularized. So he was deemed to have resigned from job w.e.f. 11.09.1988.
8. In Delhi Transport Corporation Vs. Om Kumar And Ors. 95(2005) DLT 425, the management had deemed claimant to have resigned from the job under clause 14(10)(c) of DRTA (Conditions of Appointment and Services) Regulations, 1952. The Hon'ble High Court of Delhi held as under : "14... Therefore, before taking any action putting an end to the tenure of an employee / workman fair play requires that a reasonable LIR 2322/16 6/12 opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice.
15. In this case admittedly no opportunity was given to the appellant and no inquiry was held. The appellant's plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented from reporting to duty, nor was he permitted to sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the management had power under Clause 13 of the Certified Standing Orders to terminate with the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the Standing Order No. 13(2) (iv). Otherwise it would become arbitrary, unjust and unfair violating Article 14. When so read the impugned action is violative of the principles of natural justice.
9. In the present case, the statutory rule is not nullified by insisting that the management enable the delinquent workman to be heard before his services were terminated on the premise of 'deemed resignation'. On the management issuing a notice to the workman, he may furnish an explanation which a responsible management would accept with alacrity. It would empower the management to apply the Regulation after a due consideration of LIR 2322/16 7/12 the cause shown by the workmen. Granting an opportunity to be heard does not inexorable result in an enquiry calling for being held.
10. Even, the management has issued following circular on 06.02.1991: "DELHI TRANSPORT CORPORATION (A GOVT. OF INDIA UNDERTAKING) I.P. ESTATE, NEW DELHI. No. Adm.I3(28)/01 Dated 06.02.91 It has been decided not to invoke Clause 14(10)(C) of D.R.T.A. (Conditions of Appointment and Services) Regulations, 1952 in the cases where the employee remain / are found absent without permission or prior sanction of leave and instead the Unit concerned are advised to take disciplinary action against such employees in accordance with the standing Orders governing the conduct of D.T.C. employees.
The above decision has been taken with the approval of ChairmancumMD in consultation with Legal Deptt. It will remain in force till further order.
Sd/ (A.S. Srivastava) Administrative Officer(HQ)"
11. The management did not take view of the claimant before deeming him as resigned from service. It did not follow principles of natural justice. Due to that reason, this issue decided in favour of the claimant and against the management.
LIR 2322/16 8/12Relief.
12. Ld. ARM argued that service of the claimant was terminated way back on 28.09.1988 and he filed statement of claim on 09.10.12. He was sleeping over his right for 24 years and hence he should not be granted any relief. He further argued that date of birth of claimant is 02.02.1953. Retirement age of the drivers is 55 years, in case he is not found medically fit. If found medically fit every year, retirement age is 60 years. So, the claimant has already attained the retirement age of 55 years on 28.02.2008. He further submitted that claimant had filed writ petition against termination of his service which was dismissed as withdrawn on 10.11.2006. He chose a wrong forum for the relief. So, he should not be granted any relief.
13. Ld. ARW argued that relief of reinstatement be granted to his client. The claimant had filed WPC No. 4636/01 in the Hon'ble High Court of Delhi which was dismissed as withdrawn on 10.11.06. He was not aware of the legal technicalities and that is why he had approached the Hon'ble High Court for relief. He submitted that retirement age of drivers is 60 years.
LIR 2322/16 9/1214. Following facts are undisputed :
1. The claimant had joined management as RC Driver on 07.07.1979.
2. He came on monthly rate salary on 07.04.1980.
3. His date of birth is 02.02.1953.
4. Date of termination of his service is 28.09.1988.
5. Retirement age of drivers in DTC is 55 years, if he is not found medically fit. If found medically fit, it is extendable by one year each time.
6. The claimant had reached the age of 55 years on 28.02.08.
7. Reference is dated 30.08.2012.
8. Statement of claim was filed on 09.10.2012.
9. Writ petition of the claimant was dismissed as withdrawn on 10.11.06.
15. The claimant has also reached the age of 55 years on 28.02.08. If he would have been in regular service, he would have to undergo a medical examination test. If he was found fit, he would have been allowed to continue for one more year. In the absence of any medical test, this Court cannot hold that claimant was medically fit to do job even after attaining the age of 55 years. Moreover, the claimant has already reached the age of 60 years on 28.02.2013.
So, relief of reinstatement is totally ruled out.
LIR 2322/16 10/1216. There is no document on the file which may help the Court to reach to the conclusion as to on which date WP No. 4636/01 was filed by the claimant against termination of his service. Number of the writ petition suggests that it was filed in 2001. So, the date and month of filing is presumed as 01.01.01. Before it, the claimant was sleeping over his right from the date of termination of his service till approaching the Hon'ble High Court i.e. from 28.09.1988 to 01.01.01. So, no relief is granted to him for that period.
In DTC Vs. Arun Kumar, WPC No. 3345/2000 decided by Hon'ble High Court of Delhi on 18.03.2010, the claimant had approached the right forum and he was granted back wages of 50% of emoluments. But in the present case, the claimant was contesting legal battle before the wrong forum from 01.01.01 to 10.11.2006. It was the fault of claimant that he fought legal battle at a wrong forum. Taking cue from the above citation, 25% back wages from 01.01.01 to 10.11.06 are granted to the claimant.
From 11.11.06 to 28.02.2008, no amount is awarded in favour of the claimant because after dismissal of his writ petition in the Hon'ble High Court on 10.11.06, he neither approached the Labour Department nor Labour Court for the relief.
LIR 2322/16 11/1217. In view of above discussion, the management is directed to give 25% back wages to the claimant from 01.01.01 to 10.11.06 and retirement benefit like pension (if he had opted for the same) and other consequential benefits. The management is directed to pay said benefits to the claimant within a month from the date of publication of the award failing which it shall be liable to pay interest @ 9 per cent per annum from today till realization. Award is passed accordingly. The reference is answered accordingly.
18. 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 17.02.2017. PILOT COURT/ POLCXVII KKD COURTS, DELHI.
LIR 2322/16 12/12