Delhi District Court
Pala S/O. Sh. Mansa vs The Deputy Medical Superintendent on 7 August, 2015
Pala Vs. The Deputy Medical Superintendent, AIIMS & Ors. DID No. 300/14
BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)
DIRECT INDUSTRIAL DISPUTE (DID) No. 300/14 (OLD ID No. 410/03)
UNIQUE CASE ID No. 02402C0125922003
In the matter of:
Pala s/o. Sh. Mansa
R/o. V.P.O. Karewari
Distt. & Teh. Sonepat, Haryana ..... Workman / Claimant
Vs.
1. The Deputy Medical Superintendent
All India Institute of Medical Sciences,
Ansari Nagar, New Delhi.
2. The Director Disciplinary Authority
All India Institute of Medical Sciences,
Ansari Nagar, New Delhi.
3. The Administrative Officer
All India Institute of Medical Sciences,
Ansari Nagar, New Delhi. ...... Management(s)
Date of institution : 31.10.2003
Date of reserving for award : 07.08.2015
Date of award : 07.08.2015
AWARD
1. CASE OF WORKMAN AS PLEADED IN STATEMENTOFCLAIM
(DITTO COPY)
"1. That the workman was appointed as a Labourer on the post of
sanitary Attendant Gd. III dated on 1974 as dailwages which is
record.
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Pala Vs. The Deputy Medical Superintendent, AIIMS & Ors. DID No. 300/14
2. That workman has worked honestly, regularly, punctually since my
appointment. Workman has tried to satisfy to all superior under
which workman time to time and workman has not given any chanve
for any complaint to you and other concerned superiors during that
long service period which is well acknowledge to you.
3. That in view of above facts you and others concernd supriors become
very satsfy from my work/duty/ so that you and other appointing
authority etc. plesed to offer me as premanate employs in this
establishment on 1975 and since then workman was performing my
duty with hard labouring without disobeying the orders of my
superious during that service time / periods.
4. That in the year of 1992 my superiors used to take extra work at their
residence for which I become not ready at that time, inspite of that
they compelled to me to offer the extra duties as per promise for
extra duties by way of giving the promise for extra allowances for
this extra duties as per promise of his superors which is well known
to them.
5. That in view of above para no.4 after passing two months Approx.
workman has demanded for his extra allowances but they have not
any single peny to his inspite of that they haves started to live ina
loof differences with his and due to this Zelousy they have reported
falsely to the higher authority against my performance at several
times which is was against the natural justice.
6. That workman has become never absent from my duties which
mentiond in the letter no. F637/75 Estt. (H) dated 26/11/01 and
always workman has taken my leaves by way of prior sanction from
higher authority hence no question aries for absent during the year
of 1994 instead of this you have illegally issued the above said letter
dated; 25/11/01 for which workman has made requests to with draw
this letter verbly and also in writing but no suitable reaply had been
given his to inspite to harsh his arbitrarily with preplaned
conspiracy on the false report his supriors who wanted to destroy his
life due to want of illegaly benefits from his which is well known to
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Pala Vs. The Deputy Medical Superintendent, AIIMS & Ors. DID No. 300/14
you.
7. That after workman had made approched to you for taking his on
duty at several times but you have not listened any requests to me it
is also pertinient to mention here that no proper inquary was
conducted for my satisfaction and no suspension allowances & other
benfits was given the workman which is against the services rules &
regulations for which is against the services rule & regulations for
which you are / were liable to pay the same in accordance of natural
justice which is clear crystal that you have terminated workman
services without any prior notice and holding any inquary which
clearly shows the preplaned conspiracy to destroy his life.
8. That in view of above paras workman has effected with the physical
& mental torture due to being unemployed poorer person so that
workman has become hand to mouth at present, not only this his
family members of his family so therefore the irreparable loss has
been caused by you with bad intention which may be compensation
any manner.
It is therefore prayed before this Hon'ble office that kindly
pass the directions to allow the workman on duty since 1994 with full
back wages & othe benefits since Jan, 1994 by way of declaring the
letter no. F687/75 dated 26/11/01 as null & void in the interest of
natural justice.
Any other relief which this hon'ble office deem fit & proper
be awarded in favour of the workman against the respondences in
accordence of natural law."
2. CASE OF MANAGEMENT AS PLEADED IN WRITTEN STATEMENT OF
DEFENCE
Management in its WS, interalia, took preliminary objection to the effect that
management is not an 'industry' as defined u/s. 2 (j) of the Industrial Dispute Act, 1947
and, therefore, the claim of the claimant is not maintainable and deserves to be
dismissed on this ground alone. Management / AIIMS is not carrying any of activity
which can be termed as manufacture, trade and business and is an Institute of National
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Importance and has been established to obtain self sufficiency in medicine field and
further to carry out research activities in medicine and, as such, AIIMS is not an
'industry'.
ON MERITS, management, while denying the case as pleaded by workman in
the statement of claim, pleaded that workman was engaged w.e.f. 26.12.1975 in service
of management. Workman remained very irregular during his service period and
workman was in the habit of remaining absent unauthorizedly and without any
permission and prior sanction. Workman was awarded punishment of withholding of
one annual increment without cumulative effect vide order dated 23.01.1979 for a period
of two years. Even, thereafter, the workman did not show any improvement and
continued remaining absent unauthorizedly. The workman was again awarded
punishment of withholding of two annual increments without cumulative effect vide
order dated 20.08.1986. The service book of workman is full of red entries of E.O.L.
without pay. No extra work was ever taken from the workman i.e. also at the residence
of the superiors as alleged. It is also denied that any report was falsely made against the
workman to higher authorities.
The workman used to remain absent unauthorizedly for long periods, which
shows that the workman was not interested in doing job with the management and
workman never approached the management for duty. Workman remained absent
unauthorizedly for a period of 191 days during the period w.e.f. 16.02.1992 to 31.12.1992.
Workman was repeatedly warned to be careful and not to remain absent from duty
without prior information of the competent authority but workman did not show any
improvement in his work and conduct. The workman again remained absent from duty
unauthorizedly and without any prior permission or sanction w.e.f. 15.01.1993 to
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Pala Vs. The Deputy Medical Superintendent, AIIMS & Ors. DID No. 300/14
28.02.1994, 06.03.1994 to 08.03.1994, 14.03.1994, from 21.03.1994 to 22.03.1994 and
07.04.1993 to 10.04.1994. Workman was called to join duty various times, various
notices including memorandums dated 05.02.1993, 18.03.1993, 05.05.1993, 29.05.1993,
29.07.1993, 08.10.1993 and 12.02.1993, however, the workman did not join duties.
In view of aforesaid misconduct workman was issued chargesheet vide
memorandum dated 15.11.1994. Workman submitted reply to the chargesheet but the
same was not found satisfactory by the disciplinary authority and detailed enquiry was
initiated against the workman. Workman was issued notices dated 19.02.1997,
04.04.1997 and 13.08.1997 to appear before the inquiry officer, however, workman did
not appear before the inquiry officer. Charges leveled against the workman were duly
proved during the inquiry held against the workman. The inquiry officer submitted his
report finding the workman guilty of charges leveled against him vide chargesheet dated
15.11.1994.
The workman was issued show cause notice giving him an opportunity to submit
his representation. Workman did not appear in the inquiry and further did not report for
duty even after various registered letters including 16.02.1997, 13.08.1997, 24.08.2000
and 28.09.2000. Workman was also notified through publication, however, the workman
did not come. The workman came to office and received the copy of inquiry
proceedings and report on 20.07.2001 and submitted his representation dated 25.07.2001,
however the same was not found satisfactory by disciplinary authority. Considering all
the materials on record, inquiry proceedings, inquiry report, past record of the workman,
conduct of workman and further in view of the fact that the workman remained
unauthorizedly absent w.e.f. 16.12.1994 till his removal, the disciplinary authority
imposed punishment of removal of workman from the services of management vide
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Pala Vs. The Deputy Medical Superintendent, AIIMS & Ors. DID No. 300/14
order dated 20/26.11.2001. The enquiry held against the workman was very much legal
and proper and further in accordance with rules and regulations and the principles of
natural justice were duly complied with. The punishment imposed upon the workman is
very much right, legal and valid and, further, just and necessary in view of the conduct
of the workman. At last, management prayed for dismissal of claim of workman with
cost.
3. REJOINDER
The workman filed rejoinder to the written statement of the management denying
the stand taken by the management. Workman in the rejoinder pleaded that management
has given contents in its WS to mislead this Court as the workman worked on permanent
post since 1974 without any break with the management and never became absent from
duty. Workman also pleaded that workman has taken the leaves duly sanctioned by the
higher authorities but the management has shown the absence of workman illegally
without any reasonable cause to destroy the life of workman with preplanned conspiracy
due to want of the illegal benefits from the workman which is against the natural law.
Workman mentioned that contents regarding the enquiry of workman are wrong and no
opportunity for defence of workman was given. No proper inquiry was held against the
workman and suo moto findings of the dispute have been prepared by management to
remove the workman fro service illegally by way of giving major punishment to destroy
the life of workman with preplanned conspiracy.
4. ISSUES
Vide order dated 16.07.2004 following issues were framed:
(i) Whether the inquiry conducted by the management was just and fair?
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(ii) Relief.
On 14.03.2008 pursuant to order dated 26.02.2008 made by Hon'ble Mr. Justice
Anil Kumar, Judge, Delhi High Court in WP (C) No. 21160/2005 following preliminary
issue was framed:
(i) Whether the respondent / management is an industry or not?
On 29.04.2011 issue no. (i) was recasted as under:
(i) Whether the enquiry conducted by the management was not just and fair?
5. EVIDENCE On the preliminary issues, workman appeared in witness box twice by tendering his examination in chief by way of affidavits Ex.WW1/A and Ex.WW1/B. Workman was cross examined on both the occasions. Workman in his evidence affidavit Ex.WW1/A mentioned documents as Ex.WW1/POLC1 Order of Adm. Officer dated 22.07.1976 confirming the duties of workman / regular service / permanent; Ex.
WW1/POLC/2 to 2A - Illegal letter for absentee from duties 14 days dated 27.04.1978;
Ex.WW1/POLC/3 - Order of removal dated 26.11.2001 and Ex.WW1/POLC/4 -
Demand Notice dated 30.08.2003. In his cross examination conducted on 22.02.2012 pursuant to examination - in - chief of workman on 29.04.2011 vide evidence affidavit Ex.WW1/B the workman was confronted with documents - Ex. WW1/M1 Chargesheet dated 15.11.1994; Ex.WW1/M2 - Reply dated 16.12.1994; Ex.WW1/M3 -
Orders dated 07.01.1995 regarding appointment of Inquiry Officer and Presenting Officer; Ex.WW1/M5 - Order dated 02.08.1995 regarding appointment of Mrs. Basanti Dalal as Inquiry Officer; Mark - A (also exhibited as Ex.MW1/2) - Letter / Memorandum dated 19.02.1997 purportedly sent to workman to join the enquiry on 10.03.1997, Mark - B (also exhibited as Ex.MW1/3) - Letter dated 02.04.1997 Page 7 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:07.08.2015 Pala Vs. The Deputy Medical Superintendent, AIIMS & Ors. DID No. 300/14 purportedly sent to workman asking the workman to appear before the inquiry officer on 11.04.1997; Ex.WW1/M6 - Memorandum dated 13.08.1997; Ex.WW1/M7 - Notice to witness dated 24.08.2000; Mark - C (also exhibited as Ex.MW1/4) - Order dated 09.03.1998 appointing Mr. S. P. Mahla, Accounts Officer as Presenting Officer;
Ex.WW1/M8 - Memorandum dated 28.09.2000 and Ex.WW1/M9 - Order dated 26.11.2001.
Management also led evidence twice and examined MW1 Mr. Kundan Kumar, Administrative Officer, All India Institute of Medical Science and MW1 (sic) Mr. B. K. Singh, Administrative Officer. Both of these MWs tendered their examination in chief by way of separate affidavits exhibited as MW1/A. Management in the evidence affidavit (Ex.MW1/A) of MW1 Mr. B. K. Singh, Administrative Officer relied upon documents namely Ex.MW1/1 - Memorandum dated 14.12.1994 directing the claimant to submit his reply; Ex.MW1/2 (also marked as Mark A) - Letter / Memorandum dated 19.02.1997 purportedly sent to workman to join the enquiry on 10.03.1997; Ex.MW1/3 (also marked as Mark - B) - Letter 02.04.1997 purportedly sent to workman asking the workman to appear before the enquiry office on 11.04.1997; Ex.MW1/4 (also marked as Mark - C) - Order dated 09.03.1998 appointing Mr. S. P. Mahla, Accounts Officer as Presenting Officer; Ex.MW1/5 - Memorandum dated 20.05.1999 advising the workman to report for duty immediately but not later than 05.06.1999 etc.; Ex.MW1/6 - Enquiry Proceedings; Ex.MW1/7 - Memorandum Dated 08.09.2000 (Enquiry Report of Mrs. Basanti Dalal, the Enquiry Officer); Ex.MW1/8 - Memorandum dated 28.09.2000;
Ex.MW1/8 - (Colly. 2 pages) - Newspaper publications.
6. ARGUMENTS ON PRELIMINARY ISSUES I have heard Mr. Atmaram Sharma, Adv. for workman and Mr. Sudhir Gupta, Page 8 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:07.08.2015 Pala Vs. The Deputy Medical Superintendent, AIIMS & Ors. DID No. 300/14 Adv. for management. Written arguments have also been filed by ld. counsel for workman and management.
Ld. counsel for workman relied upon case law reported as (i) K. V. Durga Prasad & Ors. Vs. Sri Durgamalleswara Swami Vari Devasthanam Vijayawada & Ors. 1996 LLR 329 and (ii) AIIMS Vs. Raj Singh and Others W. P. (C) Nos. 2771 and 5569 of 1999 and CM No. 10583 of 2001 DOD 26.03.2007.
Ld. counsel for management relied upon case laws reported as (i) Physical Research Laboratory Vs. K G Sharma MANU/SC/0434/1997; (ii) State of Gujarat & Ors. Vs. Pratamsingh Narsinh Parmar MANU/SC/1146/2001; (iii) The Management of Safdarjung Hospital, New Delhi Vs. Kuldip Singh Sethi AIR 1970 SC 1407 and (iv) State of U.P. Vs. Jai Bir Singh (2005) 5 SCC 1.
7. On 04.07.2015 preliminary issues were decided by making following observations: "8. My findings on preliminary issues are as under:
(i) Whether the enquiry conducted by the management was not just and fair?
The Ex.WW1/M1 Chargesheet dated 15.11.1994 reads as under: "REGISTERED A.D. ALL INDIA INSTITUTE OF MEDICAL SCIENCES Ansari Nagar, New Delhi29 No. F. 637/75Estt. (H) dated the : 15 NOV 1994 MEMORANDUM The undersigned proposes to hold an inquiry against Shri Pala, Sanitary Attdt. Gd. III under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The substance of the imputation of misconduct or misbehaviour in respect of which the inquiry is proposed to be held is set out in the enclosed statement of articles of charge (Annexure 1). A statement of the imputations of misconduct or misbehaviour in support of each article of charge is enclosed (AnnexureII). A list of documents by which, and a list of witnesses by whom, the Page 9 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:07.08.2015 Pala Vs. The Deputy Medical Superintendent, AIIMS & Ors. DID No. 300/14 articles of charge are proposed to be sustained are also enclosed (AnnexureIII & IV) .
2. Shri Pala, Sanitary Attdt. Gd. III is directed to submit within 10 days of the receipt of this memorandum a written statement of his defence also to state whether he desires to be heard in person.
3. He is informed that an inquiry will be held only in respect of those articles of charge as are not admitted. He should, therefore, specifically admit or deny each article of charge.
4. Shri Pala, Santitary Attdt. Gd. III is further informed that if he does not submit his written statement of defence on or before the date specified in para 2 above, or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, or the orders/directions issued in pursuance of the said Rule, the inquiring authority may hold the inquiry against him exparte
5. Attention of Shri Pala, is invited to Rule 20 of the Central Civil Services (Conduct) Rules, 1964 under which no Government Servant shall bring or attempt to bring any political or outside influence to bear upon any superior authority to further his interests in respect of matters pertaining to his service under the Government. If any representation is received on his behalf from another person in respect of any matter dealt within these proceedings, it will be presumed that Shri Pala is aware of such a representation and that it has been made at his instance and action will be taken against him for violation of Rules 20 of the C.C.S. (Conduct) Rules, 1964.
6. The receipt of this Memorandum may be acknowledged.
sd/ (S.K.Kacker) Director & Discipl Authority Shri Pala Sanitary Attendant GradeIII Through: The Sanitation Officer.
Vill Karvari, 1994, Distt. Sonipat, Tehsil Sonipat Haryana."
"ANNEXUREI STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST SHRI PALA, SANITARY ATTENDANT GRADEIII AT THE AIIMS HOSPITAL.
ARTICLE OF CHARGE NO.1 That the said Shri Pala while officiating as Sanitary Attendant GradeIII has been found wilfully absenting himself from duties without prior permission or Page 10 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:07.08.2015 Pala Vs. The Deputy Medical Superintendent, AIIMS & Ors. DID No. 300/14 sanction of leave by the competent authority. He was, therefore, warned not to remain absent from duty without prior permission or sanction of leave. He, however, did not show any improvement and in the recent past again remained absent from duties w.e.f. 15.1.93 to 28.2.94, 6.3.94 to 8.3.94, on 14.3.94, from 21.3.94 to 22.3.94 and 7.4.94 to 10.4.94.
Shri Pala, Sanitary Attendant GradeIII, has, thus, failed to maintain devotion to duty and amenability to discipline and acted in a manner unbecoming of an Institute employee thereby contravening Rue 3 (1) (iii) of the C.C.S. (Conduct) Rules, 1964, as applicable to the employee of the Institute.
(S.K.KACKER) DIRECTOR DISCIPLINARY AUTHORITY"
"ANNEXURE II STATEMENT OF IMPUTATION OF MISCONDUCT OR MISBEHAVIOUR IN SUPPORT OF ARTICLE OF CHARGE AGAINST SHRI PALA, SANITARY ATTENDANT GRADEIII IMPUTATION OF ARTICLE OF CHARGE It has been observed that Shri Pala, Sanitary Attendant GradeIII is in the habit of absenting himself from duties very frequently without prior permission or sanction of leave by the competent authority. Some of the instances on which he remained absent from duty during the period between February, 1992 and 31st December, 1992 are as under: 16.02.92 to 03.08.92 170 days 04.10.92 to 06.10.92 03 days 12.10.92 to 13.10.92 02 days 19.10.92 to 20.10.92 02 days 26.10.92 to 29.10.92 04 days 04.12.92 to 06.12.92 03 days 21.12.92 01 day 26.12.92 to 31.12.92 06 days 191 days Shri Pala was repeatedly warned to be careful and not to remain absent from duty without prior permission of the competent authority. But he has not shown any improvement in his work and conduct. The period of his aforesaid absence from duty had to be treated as E.O.L. without pay as a measure to improve him but he failed to show any improvement in his attendance and punctuality and again remained absent Page 11 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:07.08.2015 Pala Vs. The Deputy Medical Superintendent, AIIMS & Ors. DID No. 300/14 from duty unauthorizedly w.e.f. 15.1.93 to 28.2.94, 6.3.94 to 8.3.94, 14.3.94, 21.3.94 to 22.3.94, 7.4.94 to 10.4.94.
As a result of such continued and frequent absence of Shri Pala, Sanitary Attendant GradeIII, without prior permission or sanction of the competent authority, the work assigned to him has been dislocated. Various spells of his absence without prior permission or sanction of leave during the aforesaid periods, thus, exhibit his tendency of being habitual offender who abstains from duty.
Shri Pala, Sanitary Attendant GradeIII, is, thus, responsible for wilful and unauthorized absence from duty and has acted in a manner unbecoming of an Institute employee thereby contravening Rule 3 (1) (iii) of the C.C.S. (Conduct) Rules1964, as applicable to the employees of the Institute.
(S.K.KACKER) DIRECTOR DISCIPLINARY AUTHORITY"
"ANNEXURE III LIST OF DOCUMENTS
1. Absentee report date 16.1.93 received from Dy. Medical Superintendent.
2. Memo. No. F.637/75Estt. (H) dated 28.1.94.
3. Absentee report date 26.2.93 received from Dy. Medical Superintendent.
4. Memo. No. F.637/75Estt. (H) dated 18.3.93.
5. Absentee report date 16.4.93 received from Dy. Medical Superintendent.
6. Memo. No. F.637/75Estt. (H) dated 5.5.93.
7. Absentee report date 25.5.93 received from Dy. Medical Superintendent.
8. Memo. No. F.637/75Estt. (H) dated 29.5.94.
9. Absentee report date 29.6.93 received from Dy. Medical Superintendent.
10. Memo. No. F.637/75Estt. (H) dated 9.7.93.
11. Absentee report date 20.7.93 received from Dy. Medical Superintendent.
12. Memo. No. F.637/75Estt. (H) dated 8.10.93.
13. Absentee report date 18.8.93 received from Dy. Medical Superintendent.
14. Absentee report date 8.11.93 received from Dy. Medical Superintendent.
15. Absentee report date 10.12.93 received from Dy. Medical Superintendent.
16. Absentee report date 19.1.94 received from Sanitary Superintendent.
17. Memo. No. F.637/65Estt. (H) dated 12.2.94.
18. Memo. No. F.637/65Estt. (H) dated 12.2.94.
19. Absentee report date 28.1.94 received from Dy. Medical Superintendent.
20. Absentee report date 15.4.94 received from Dy. Medical Superintendent.
Sd/ (S.K.KACKER) DIRECTOR DISCIPLINARY AUTHORITY"
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"ANNEXUREIV
LIST OF WITNESSES
1. Shri Pardeep Kumar, Sanitary Inspector.
2. Shri Sulakhan Singh, Sanitary Officer.
3. Mrs. Santosh Kapoor, U.D.C., M.S. Office.
Sd/
(S.K.KACKER)
DIRECTOR
DISCIPLINARY AUTHORITY"
Reply Ex.WW1/M2 submitted by workman to the chargesheet Ex.WW1/M1 reads as under: "S. No. 30 (R) To The Administrative Officer, (H) All India Institute of Medical Science Ansari Nagar, New Delhi - 110029 Through Proper Channel Subject: Disciplinary action against me under Rules - 14 of the CCS (CCA) Rules 1965.
Respected Sir, With due respect I state that with reference to the memorandum No. F 637/75Estt. (H) dated 141294, regarding subject cited above. In this regard I request your kind honour that I reside from a long distance in Haryana from the walking place. The period has have been mentioned in the memo actually I was not feeling well submitted medical from the family doctor because from long distance in the illness I could not attend the E.H.S. many times. My children were not feeling well due to above reasons. Unknowly I could not attend duty. I request your kind honour to look into the matter considering my circumstances and do the need full on humanitarian ground.
Thanking you
Dated 16/12/94 Yours faithfully
sd/
(Pala)
Sanitary attendant"
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Report of the Enquiry Officer Ex.MW1/7 reads as under : "ALL INDIA INSTITUTE OF MEDICAL SCIENCES No. FAcctts./Enquiry/Pala/1086 Ansari Nagar, New Delhi - 29 Dated the: 8th Sept., 2000 MEMORANDUM An enquiry initiated against Shri Pala, Sanitary Attendant Grade - III under Rule 14 of the CCS (CCA) Rules, 1965 was entrusted to the undersigned by the Director vide order No. F.637/75Estt(H). dated 02.08.1995.
As per the charge sheet issued to Shri Pala vide order No. F.637/75Estt(H). dated 15.11.1994 the charge framed against him was that the said Shri Pala has been found wilfully absenting himself without permission or sanction of leave by the competent authority.
The enquiry was commenced on 10.03.1997. The Presenting Officer Mr. B. D. Nagpal attended. Shri Pala, did not appear before the enquiry. Thereafter despite issuance of three Registered letters to Shri Pala for attending the enquiry on different dates. Shri Pala did not turn up. The last letter dated 13.08.1997 issued to him contained a specific note that this notice being served to him will be the last notice failing which the proceedings will be held exparte. As the enquiry could not commence / complete because of non appearance of Shri Pala, before the enquiry, the proceedings were initiated exparte. The two listed witnesses viz. Shri Pradeep Kumar and Mrs. Santosh Kapoor were summoned on 04.09.2000. Shri Sulakshan Singh, the IIIrd witness could not appear as he has expired. Shri Pala was also intimated of the proceedings being taken up on 04.09.2000, but he did not present himself again on 04.09.2000. The Presenting Officer viz. Shri S. P. Mahla presented the case. All the listed documents were examined. The witnesses confirmed the listed documents placed at Annexure - III.
In view of the proceedings held the charges framed against Shri Pala stand proved and case stands closed.
(BASANTI DALAL) ENQUIRY OFFICER DIRECTOR, DISCIPLINARY AUTHORITY"
Workman while appearing in the Court as WW1 Sh. Pala in his cross - examination conducted on 22.02.2012 deposed as under: "It is correct that I have received the charge sheet along with the documents which is Page 14 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:07.08.2015 Pala Vs. The Deputy Medical Superintendent, AIIMS & Ors. DID No. 300/14 now exhibited as Ex. WW1/M1. The reply submitted by me to the charge sheet is Ex. WW1/M2(OSR). It is correct that inquiry was conducted by the department qua the charge sheet dated 15.11.1994 which is Ex. WW1/M1 (OSR).......................
It is correct that during the relevant period, I used to reside at Village Karewari, District and Tehsil Sonepat, Haryana. It is correct that I did not appear during the inquiry proceedings. I have not received any letter dated 19.02.1997 calling me to join the inquiry on 10.03.1997. It is wrong to suggest that I have received the said letter. The said letter is Mark A. It is correct that I remained absent during the relevant period. I have not received letter dated 02.04.1997 to appear before the enquiry officer on 11.04.1997. It is wrong to suggest that I received the said letter which is Mark B. It is correct that I have received the letters regarding inquiry including letters dated 13.08.97 and 24.08.2000 Ex. WW1/M6 and Ex. WW1/M7 respectively (OSR). I did not go to attend the inquiry proceedings because I have not received the complete documents. I did not go to the inquiry officer to complain in this regard. It is correct that I had not sent any letter to the department or enquiry officer thereby requesting to supply the complete documents. It is wrong to suggest that I have received all the documents alongwith charge sheet and that is why I have not sent any letter in this regard. It is wrong to suggest that I have received letter dated 09.03.1998 which is Mark C. It is correct that I remained absent from 16.04.1994. It is correct that I have received the letter dated 28.09.2000 through my brother which is Ex. WW1/M8 (OSR). I am not aware as to whether the department has also published in the newspaper Dainik Hindustan and Hindustan Times to call me to join duties and to join the inquiry proceedings. It is correct that my services were terminated vide order dated 26.11.2001 Ex.WW1/M9 (OSR)......".
HERE admittedly workman was served with chargesheet Ex.WW1/M1 and workman replied the same vide reply Ex.WW1/M2. Workman admittedly received letter Ex.WW1/M6 and Ex.WW1/M7 regarding inquiry but still workman did not appear during the enquiry proceedings. Reason as deposed by workman for not attending the inquiry proceedings does not call for any credence from the judicial mind inasmuch as if workman had not received complete document the workman as a ordinary prudent person workman, atleast, must have sent a letter to department or enquiry officer thereby requesting to supply complete documents but workman admittedly did not do so.
Admittedly workman remained absent during the relevant period mentioned in chargesheet. This admission on the part of workman is inconsistent with the averments made by workman in the statement of claim. The material on record before the enquiry officer in the form of documents as mentioned in Annexure - III as produced before thr Enquiry Officer by witness namely Mr. Pradeep Kumar and Mrs. Santosh Kapoor, were sufficient to make the Enquiry Officer to conclude against the Page 15 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:07.08.2015 Pala Vs. The Deputy Medical Superintendent, AIIMS & Ors. DID No. 300/14 workman as regards charges framed against the workman. Witness namely Sh. Sulakshan Singh could not appear before the Enquiry Officer because the said witness stood expired. Workman did not join the enquiry and took to steps to prove the stand as taken by workman in the reply Ex.WW1/M2 filed by him as reply to chargesheet Ex.WW1/M1. It is also pertinent to note that workman even did not make averments corresponding to reply Ex.WW1/M2 in the statement of claim. Rather in the statement of claim workman made averments inconsistent with the contents of reply Ex.WW1/M2. Notably workman did not file any documentary proof (namely medical from family doctor as mentioned in the reply) alongwith his reply to the chargesheet before the Enquiry Officer.
Workman voluntarily / wilfully did not appear before the enquiry officer to prove the stand taken by it in the reply Ex.WW1/M2 to chargesheet Ex.WW1/M1. There is every reason to believe that stand taken by workman in the reply Ex.WW1/M2 was not correct in the totality of facts and circumstances of this case inasmuch as (i) workman is not taking consistent stand(s); (ii) workman while admitting his absence from duty during the relevant period as mentioned in the chargesheet did not even volunteered that workman was absent on account of reasons as alleged in reply Ex.WW1/M2 and (iii) even otherwise reasons for his absence assigned by workman as mentioned in Ex.WW1/M2 on their face value also cannot be taken as good and sufficient reasons particularly in view of long period (i.e. from 05.01.1993 to 28.02.1994) of absence of workman from his duty. The reason assigned by workman in reply Ex.WW1/M2 may be good and sufficient reasons for his absence for very short period.
It is well established that the principles of natural justice cannot be put in a straight jacket formula. Its application depends on the facts and circumstances of each case. Here when workman himself absented from the enquiry and did not join the same without assigning any good and sufficient cause for the same. In such an eventuality principle of natural justice is deemed to have been waived and workman is estopped from raising the question of noncompliance of principle of natural justice. (Boards of Directors, H.P.T.C. & Anr. K.C. Rahi MANU/SC/1138/2008 relied).
Hon'ble Supreme Court of India in case law reported as State Bank of India and Ors. Vs. Narendra Kumar Pandey AIR 2013 SC 904 has observed as under: "20. We are of the view that the High Court also committed an error in holding that since no witness was examined in support of charges, it was a case of no evidence. In an ex parte inquiry, in our view, if the charges are borne out from documents kept in the normal course of business, no oral evidence is necessary to prove those charges. When the charged officer does not attend the inquiry, then he cannot contend that the Inquiring Authority should not have relied upon the documents which were not made available or disclosed to him. of course, even in an ex parte inquiry, some evidence is necessary to establish the charges, especially when the charged officer denies the charges, uncontroverted documentary evidence in such Page 16 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:07.08.2015 Pala Vs. The Deputy Medical Superintendent, AIIMS & Ors. DID No. 300/14 situation is sufficient to prove the charges."
Admittedly, workman received through his brother letter dated 28.09.2000 (Ex.WW1/M8) vide which workman was asked to make representation to the disciplinary authority within 15 days qua the memorandum / enquiry report Ex.MW1/7. But as the facts suggest workman did not make any representation against memorandum / enquiry report Ex.MW1/7. Admittedly services of workman were terminated vide order dated 26.11.2001 Ex.WW1/M9.
In view of above detailed discussion it cannot be said that enquiry conducted by the management was not fair and proper. In the totality of the facts and circumstances of this case no fault can be found in the finding arrived at by the Enquiry Officer qua the charges against the workman on the basis of material before the Enquiry Officer.
ISSUE No. 2:
(ii) Whether the respondent / management is an industry or not?
Division Bench of Hon'ble High Court of Delhi in A.I.I.M.S. Vs. Raj Singh MANU / DE / 1206 / 2008 has held the A.I.I.M.S. to be an industry. The case laws relied upon by ld. counsel for management in this regard have been considered by Hon'ble Delhi High Court while giving the abovesaid finding. Thus, this Court is left with no option but to hold that AIIMS is an 'industry'. This issue is accordingly decided in favour of workman and against the management....."
On 04.07.2015 case was adjourned to 09.07.2015 for arguments on the point of quantum of punishment to be awarded to workman on account of charges found to have been proved against him.
8. On 31.07.2015 workman filed written submissions under his signatures and signatures of Dr. Atmaram Sharma, Adv.. The written submissions read as under: "1. That the above said case is pending before this Hon'ble court for the final disposal in the interest of natural justice and the same is fixed for today.
2. That the argument has been occured on the last hearing which is acknowledge to this Hon'ble court on behalf of the workman against the Management who have played the suo - moto action to destroy the life of the workman intentionally by way of making the self absentee in his record and without holding any inquiry properly and on he suo - moto action he was not allowed on duty even after making so many requests before this management which Page 17 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:07.08.2015 Pala Vs. The Deputy Medical Superintendent, AIIMS & Ors. DID No. 300/14 is the violation of the natural justice regarding the very poorer workman who has become hand to mouth at present alongwith family members who were depended for survival of their lives upon the earning and gaining of workman.
3. That it is pertinent to mention here that it is well settled law that the A.I.I.M.S. (Respondent) comes under the provisions of I. D. Act as ref. by Labour Commissioner and decided by Hon'ble Delhi High Court in the year 2007 Raj Singh and Others Versus A.I.I.M.S. in which it has been decided that the A.I.I.M.S. comes / is the industry hence it is clear crystal that the case has been proceed properly before this Hon'ble court and the management is misguided to the Hon'ble court with preplaned conspiracy.
It is, therefore prayed before this Hon'ble court that kindly pass the order for reinstate the workman by way of declaring the order of removal of service as null and void in the interest of natural justice.
Any other relief which this Hon'ble court may deem fit and proper be awarded in favour of the workman against the Management in accordance on natural law.
Prayed accordingly"
Ld. counsel for workman relied upon case law reported as (i) K. V. Durga Prasad & Ors. Vs. Sri Durgamalleswara Swami Vari Devasthanam Vijayawada & Ors. 1996 LLR 329; (ii) S. Nailasamy Vs. Second Additional Labour Court, Madras and others 1996 LLR 330 and (iii) AIIMS Vs. Raj Singh and Others W. P. (C) Nos. 2771 and 5569 of 1999 and CM No. 10583 of 2001 DOD 26.03.2007. On 07.08.2015 workman submitted that written arguments prepared by his counsel have already been filed and court may proceed with the disposal of the case after considering those written arguments.
Material available on judicial file perused very carefully.
9. MY FINDINGS ON THE ASPECT OF QUANTUM OF PUNISHMET:RELIEF Here vide order dated 26.11.2001 Ex.WW1/POLC/3 penalty of removal from service which shall not be disqualification for future employment under the government was imposed on the workman after finding that charges as are mentioned in para. 7 here Page 18 to 19 (ANAND SWAROOP AGGARWAL) POLC - XI:KKD:DELHI:07.08.2015 Pala Vs. The Deputy Medical Superintendent, AIIMS & Ors. DID No. 300/14 inabove have been proved against the workman in the course of enquiry conducted by the management. Court has already decided that it cannot be said that enquiry conducted by the management was not fair and proper. Now court has to decide whether abovesaid penalty imposed by the management was proper or not. The written arguments and case laws submitted by ld. counsel for workman does not help the workman in any manner to decide the quantum of punishment to be imposed on the workman. I have perused the personal file of workman which is available in original before the Court. I have also considered the contents of Annexure - II in Ex.WW1/M1.
It is well settled that punishment / penalty to be imposed upon the workman against whom charges of misconduct have been proved has to be proportionate to the seriousness / gravity of the misconduct committed by the workman. As per order dated 26.11.2001 vide which abovesaid penalty was imposed upon the workman, workman unauthorizedly absented from duty w.e.f. 16.12.1994 and did not report for duty till the date of issue of said order. In my considered opinion penalty as imposed vide order dated 26.11.2001 on account of proof of misconduct as mentioned in the chargesheet Ex.WW1/M1 can be said to be quite justified in the totality of facts and circumstances of this case. Hence workman is held to be entitled to no relief.
10. A copy of the award be sent to Office of the concerned Deputy Labour Commissioner for further necessary action.
11. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 07.08.2015
(ANAND SWAROOP AGGARWAL)
POLCXI, Karkardooma Courts, Delhi*
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