Delhi District Court
Sh. Surender Singh vs M/S Delhi Transport Corporation on 7 January, 2008
ID NO. 346/2005
IN THE COURT OF MS. MAMTA TAYAL: PRESIDING OFFICER: LABOUR COURT-I
: ROOM NO.50: KARKARDOOMA COURTS: DELHI.
ID NO. 346/2005
DATE OF INSTITUTION: 14.06.2005
DATE OF DECISION: 07.01.2008
BETWEEN
Sh. Surender Singh
S/O Sh. Subey Singh
Driver Bus No. 14381
R/O Village & Post Assam District,
Rohtak, Haryana.
........ Workman
AND
M/s Delhi Transport Corporation
I.P. Estate,
New Delhi - 110002.
........ Management
ORDER
1 Vide this order I shall dispose of the following preliminary issue framed by ld. Predecessor vide order dated 07.04.06. Issue :-
"Whether the management had conducted fair and proper enquiry against the workman? If so its effect."
2 Before proceeding to dispose of the above issue, the back 1 ID NO. 346/2005 drop in which the present issue has arisen may be recapitulated in brief.
3 Secretary (Labour), Government of National Capital Territory of Delhi has referred this dispute arising between the parties named above for adjudication to this Labour Court vide notification No. F.24 (167)/2005-Lab./3713-17 dated 25.04.2005 with the following terms of the reference:-
"Whether the removal of Sh. Surender Singh S/O Sh. Subey Singh from service is illegal and/or unjustified, and if so, to what sum of money as monetary relief along with consequential benefits in terms of existing laws/government notification and to what other relief is he entitled and what directions are necessary in this respect?"
4 In brief, the case of the workman is that he was working as a driver with the management, D.T.C. as a permanent employee. On 10/07/92, while on duty, he fell sick with severe back ache and had to take a short leave. His condition however did not improve despite medical treatment at his native place. He was advised complete rest, making it impossible for him to resume duty. 2 ID NO. 346/2005 Subsequently, he submitted the leave application dated 15/08/93 for leave w.e.f. 11/07/92 till 15/08/93 along with medical certificate. He again applied for extension of leave till 31/08/93 when he went to join his duty. He was however not permitted to join. It is further stated by the workman that he was issued a chargesheet on 25/11/92, but the same was never served on him. Still, the management appointed an enquiry officer to hold a departmental enquiry against the workman. Again no intimation was sent to him by the management or the enquiry officer and an ex-parte enquiry was conducted in total violation of rules of natural justice. Without recording detailed statement of Smt. Shakuntla Devi, PFC, reporter, findings in favour of the management were given by the enquiry officer. Neither the report of enquiry officer, nor any show cause notice was also served on the workman before the disciplinary action and he was illegally terminated on 23/09/93. Another grievance of the workman as detailed in the claim statement is that charge sheet and the enquiry notices were not ordered to be served on him through pasting as is mandated under provisions of the management corporation. It is further pleaded by the workman that the management had even taken ex-parte approval of the termination of the workman from the industrial tribunal by filing an 3 ID NO. 346/2005 application u/s 33 (2) (b) of the Industrial Dispute Act, 1947. 5 The management in its written statement admitted the relationship, the factum of enquiry, of termination as well as of proceedings undertaken u/s 33(2)(b) of the Act. It was contended that the workman was in habit of remaining unauthorisedly absent and was twice given punishment of warning and his three increments were also stopped for the same misconduct. Still, he again absented himself without any intimation or permission w.e.f. 11.07.92 and failed to join even till 03.09.93, despite repeated notices sent by the management. Keeping in view the seriousness of the matter, he was issued charge sheet which was duly served on him. On failure of the workman to file reply even after reminder dated 28.04.93, enquiry officer was appointed. The workman was issued repeated intimations but he did not join the enquiry. The ex-parte enquiry was conducted as per rules of natural justice in presence of labour welfare officer and the final report was submitted by the enquiry officer. Based on this, show cause notice was issued to the workman. Still no reply was received from him. Hence, the workman was removed from service vied order dated 28.09.93. All other contentions of the workman were rebutted by the management. 4 ID NO. 346/2005 6 In rejoinder, the workman controverted the averments of the management and reaffirmed his own submissions, as contained in the petition.
7 On completion of pleadings, issues were framed on 07/04/06 and the enquiry issue was ordered to be treated as preliminary issue. Both the parties were called upon to lead their respective evidence.
8 The workman appeared as WW1 while Mr.V.K. Gautam, manager (traffic) D.T.C. was examined as MW1. 9 After conclusion of evidence on enquiry issue, I have heard AR for both the parties at length on the controversy in hand. I have carefully considered their rival contentions and perused the records.
My findings on the preliminary issue are as follows:
ENQUIRY ISSUE
10 From the above narration of pleadings, it is evident that 5 ID NO. 346/2005 the workman admits that he remained absent without prior intimation or permission w.e.f 11/07/92 and the first application submitted by the workman to the management in this regard, as per the claim petition was dated 15/08/93. It is the case of the management that enquiry was initiated against the workman for the misconduct of unauthorised absentism. Onus was on the workman to prove that the enquiry was unfair or improper. 11 The first objection raised by the workman is that the chargesheet and the notices of the enquiry were never served on him. To rebut this MW1 has, in his evidence, proved on record the copies of the letters, the chargesheet, and the reminders sent to workman along with their postal documents as Ex. MW1/1 to MW1/15. He further proved the letters sent by the enquiry officer to the workman along with their postal documents as Ex. MW1/16 to MW1/21. In cross examination he highlighted the report of postal authorities on one such letter Ex. MW1/13, wherein it was reported that workman had refused to accept the same. He also clarified that proof of actual service could not be produced as the AD cards were not received back. He denied the suggestion that the chargesheet, notices, etc. were not served on the delinquent as at 6 ID NO. 346/2005 the relevant time, he was admitted in hospital. These suggestions point towards the fact that the workman does not dispute the posting of those documents by the management and he is only denying the receipt thereof. In the case of M/s Trina Engineering company (p) Ltd. Vs. The Secretary (Labour) and Ors. 2006, LLR 51, it was held the letters sent by the management through registered post at the recorded address of the workman as given by him are sufficient to hold proper service even when they are not delivered. 12 Moreover, in cross of MW1, it has not been suggested even once that the letters, notices or their postal documents were forged or fabricated documents or that they do not bear the correct address of the workman.
13 Further, if the workman wants to convass that he could not receive those letters etc. as he was admitted in hospital, onus was on him to prove this. But till date, the workman has not produced even an iota of evidence in this regard.
14 On the basis of various letters, notices, duly stamped 7 ID NO. 346/2005 postal documents, the report of postal authorities and enquiry proceedings recorded by the enquiry officer, it can be safely concluded that the workman was repeatedly called upon to join the enquiry proceedings and he was granted sufficient opportunity to put forth his case and to test the veracity of the management witnesses. He was proceeded ex-parte only on his failure to respond to numerous intimations addressed to him for the purpose. He has though alleged that as per rules, the notices were required to be served through pasting before proceeding ex-parte but no such rule has been shown or proved till date.
15 The AR for workman has though made a sincere endeavour to convince that the enquiry was unfair, improper and lopsided, however, to decide whether an enquiry was unfair and improper the ultimate test is the test of prejudice or the test of fair hearing. In the present case it cannot be said that workman was not granted a fair opportunity to put forth his case. In fact, sufficient notices were sent and served on the workman about the enquiry. He was granted repeated opportunities to participate but he refused to join.
8 ID NO. 346/2005 16 In a recent case Hon'ble High Court of Delhi in the case reported as Ramesh Kumar Vs. Punjab National Bank, 2000 LLR 682 observed that An enquiry which has been held ex-parte is not violative of principles of natural justice when the delinquent officer despite information did not participate in the proceedings.
17 Same was the view of Apex Court of India in the case of New India Insurance Company Ltd. Vs. S.M.I Kazib and Ors. 2001 LLR 825 18 In the case of Mohan Singh Vs. Jaipur Metals and Electricals Ltd. 1996 LLR 448, it was held that When a delinquent does not participate in an enquiry it is not open to him to raise the objection that he has been deprived of the opportunity to defend himself.
19 In Bank of India Vs. Apurba Kumar Saha (1994) 2 SCC 615, it was laid down that On refusal of the workman to participate in enquiry without any valid reason, violation of natural justice cannot be pleaded at a later stage.
9 ID NO. 346/2005 20 It may also be borne in mind that the management has already, by taking recourse to section 33 (2) (b) of the Act, taken approval of Industrial Tribunal for removal of the workman. Vide order dated 24/04/95, the Tribunal had approved the enquiry held and the punishment imposed on the workman. The said order has never been challenged by the workman and has attained finality. 21 Lastly, it is pleaded that the finding of the enquiry officer is not based on facts and material on record and is totally perverse. It is settled law that a finding arrived at in a domestic enquiry can be held to be perverse only if it is based on no evidence or is entirely against the evidence on record or is based on irrelevant evidence. It is also emphasized by the Superior Courts repeatedly that even if there is some evidence on record, however little it may be to support the findings there is no perversity. Reliance is placed on Delhi Cloth and General Mills Co. Vs. L.B. Singh 1972 (1) SCC 595 and Parry & Co. Ltd. Vs. P.C. Pal 1970 90 LLJ 429 SC.
22 In a recent case of Vasant P. Patil Vs. IIT Powai, Mumbai & 10 ID NO. 346/2005 Ors. 2006 LLR 452, it was held that where the documentary evidence on record is considered by enquiry officer, the findings cannot be perverse or legally untenable. I have perused the entire enquiry proceedings alongwith the report of the enquiry officer. In the course of enquiry proceedings, the management has examined the material witness who has deposed against the workman and her statement has been considered by the enquiry officer while giving his report. The enquiry report shows that it is based on unrebutted testimony of witness and on official records and therefore it cannot be called perverse or based on no evidence. In fact, the enquiry was conducted in presence of labour welfare officer which was another safeguard for a fair and proper enquiry. The enquiry officer has neither misconducted himself nor the enquiry has been conducted in violation of the principles of natural justice. Accordingly, the issue is decided in favour of the management and against the workman. I hereby hold the enquiry to be fair and proper.
Announced in the open court (MAMTA TAYAL)
on 7 January, 2008
th
PRESIDING OFFICER LABOUR COURT-I
(SIX COPIES ATTACHED) KARKARDOOMA COURTS, DELHI
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