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Delhi District Court

Between The vs The on 11 March, 2013

        IN THE COURT OF SH. S.S. MALHOTRA, PRESIDING OFFICER, 
          LABOUR COURT NO. IX, KARKARDOOMA COURTS, DELHI


I.D. NO. 247/10
Unique Case ID No. 02402C0092662010
BETWEEN THE WORKMAN
Sh. Raj Pal s/o Sh. Hoshiyar Singh as represented by Nagar Nigam Karamchari Sangh 
Delhi Pradesh, P­2/624, Sultanpuri, Delhi.
AND THE MANAGEMENT OF
M/s Agricultural Produce Market Committee, B­4, Panchvati, Azadpur, Delhi.

                       Date of Institution                     : 22.03.2010
                       Date on which award reserved            : 11.03.2013
                       Date on which award passed              : 11.03.2013


                                             A W A R D

1       Vide this award, I shall dispose off the reference as sent by the Ld. Deputy Labour 

Commissioner, Distt. North­West, Govt. of the National Capital Territory of Delhi arising 

between   the   parties   named   above   to   this   Labour   Court   vide   Notification   No.   F.

24/ID./434/08/NWD/(564)/09/(NWD)Lab./806­810   dated   5.03.12   with   the   following 

terms of reference:­

        "Whether dismissal of Sh. Raj Pal s/o Sh. Hoshiyar Singh from service by the  

management vide order dt. 21.04.1994 is illegal and/or unjustified; and if so, to what  

relief is he entitled and what directions are necessary in this respect?"

2       After   the   receipt   of   the   reference,   notice   was   issued   to   the   workman   with 

directions to file the statement of claim along with list of witnesses which has been filed 

by workman.

3       Before coming to the facts of the statement of claim, it is necessary to mention 

here that the workman had filed an application on 25.03.11 under order 6 rule 17 CPC 

ID NO.247/10                                                                                         1/17
 r/w section 151 CPC for seeking amendment in the memo of parties  to the effect that the 

workman has wrongly mentioned Municipal Corporation of Delhi as management in his 

earlier memo of parties filed before this court on 20.1.11 and that he wants to substitute 

Agriculture   Produce   Market   Committee   Delhi   as   management   in   its   place.   This 

application of the workman was allowed vide order dated 4.06.11.

3       Brief facts as stated by the workman in his statement of claim are, that he had been 

working with the management at the post of Safai Karamchari and was lastly posted at 

Azadpur Mandi, Delhi and had never given any chance of complaint to the management. 

It is further stated that in the year 1993, the workman has taken leave due to his medical 

problem with the prior permission of the competent authority and after availing the said 

medical leave he has reported for duty with request to allow him to resume the duty 

before the competent authority but he was not allowed to resume the duty and was told to 

approach again and in the meantime the workman has received the letter from the said 

management by which the management has dismissed the workman from the duty on the 

ground   of   unauthorized   leave   and   the   said   order   issued   by   the   management   was 

completely   arbitrary   and   illegal   as   according   to   the   advise   of   the   management,   the 

workman was in way to resume the duty and despite calling the workman to resume the 

duty, the management has issued the dismissal order against him. It is further stated that 

after receiving the dismissal letter he approached the higher authority of the department 

and filed an appeal before the competent authority  which has been decided on 3.03.1999 

and the workman received the copy thereof on 2.04.06. It is further stated that in the said 

matter the action of the management against the workman is totally arbitrary and illegal 

on the grounds that the workman has never been unauthorizedly absent from the duty or 

without permission from the competent authority; that the management has never issued 

any charge sheet against him nor conducted any domestic enquiry in accordance with the 


ID NO.247/10                                                                                          2/17
 principles of natural justice; that the management has failed to comply with the provision 

of section 25 F, G & H of the I.D. Act; that the management has never given prior notice 

nor has paid the notice pay to the workman before passing of the said order against the 

workman and the said dismissal order issued by the management is totally illegal and 

against the law and he is entitled for the reinstatement on the post of Safai Karamchari 

with full back wages with continuity of service alongwith all consequential benefits. It is 

further stated that the workman served a legal demand notice upon the management on 

25.04.06

but the management did not reply the same. Thereafter, the workman initiated the conciliation proceedings which also failed due to non cooperative attitude of the management and ultimately the matter was referred to this court by way of aforementioned reference for adjudication by the Ld. Dy. Labour Commissioner, Distt. North­West and the workman in terms of the directions of the court has filed the present statement of claim with a prayer that the management be directed to reinstate him at the same post with full back wages including benefits of continuity of service and all other consequential benefits.

4 Management was served and it has filed its written statement thereby taking preliminary objections inter­alia that the present claim of the workman is liable to be dismissed on various grounds inter alia that the workman has not served the requisite statutory notice under section 111 of Delhi Agricultural Produce & Marketing Act, 1998 and in the absence of such notice he has rushed to the court thereby causing loss to public exchequer and the workman otherwise had approached the appellate authority of the management against the order of his removal from his services and his appeal has already been rejected on 3.03.1999 and the copy of which has admittedly been received by the workman. There is no finding or material available on record which may show that enormous delay in preferring the petition is not fatal as it was inter alia held in the ID NO.247/10 3/17 judgment titled "Nedungandi Bank Ltd. Vs. K.P. Kandhavankutty & Ors.(AIR 2000 Supreme Court 839) that stale claims are bad and incompetent. It is further stated that the workman otherwise is guilty of concealing of material facts from the purview of the court and it is further stated that the workman was unauthorizedly absent for 114 days and the filing of present false claim is an after thought with a malafide intention so that the management may succumb to the illegal demands of the workman. The management has relied upon the judgment titled DTC Vs. Sardar Singh 2004 (6) SCC 613 wherein it was inter alia held that "the absenteeism without sanction under the standing orders of DTC can form a ground of misconduct and termination notwithstanding the workman being shown as absent without leave in service record maintained by the petitioner" and it is further stated that since the workman was unauthorizedly absent, he was charge sheeted and after finding him guilty his services were terminated and as such it is prayed that the claim of the workman be dismissed.

5 On merits, it is stated that the workman remained unauthorizedly absent from the duty w.e.f. 21.06.1992 to 9.07.1992 and he had submitted his leave application alongwith the medical and fitness certificate on 10.07.1992 and the sanitary inspector thereafter had reported that the medical leave cannot be recommended as the official was absent from the duty without any information and on further enquiry, it was revealed that the workman was a habitual absentee and he was even shown absent for 51 days during the period of September­October 1992 for which the workman had not produced any application. It is further stated that the workman submitted an application on 5.01.1993 vide which he had applied for medical leave for the period from 22.11.1992 to 4.01.1993 and subsequently the sanitary inspector had again reported that he was absent from the duty without any information and he is a habitual absentee and keeping in view all these facts the competent authority decided to issue a memorandum of charges under rule 14 of ID NO.247/10 4/17 CCS (CCA) Rule, 1965 and accordingly, the charge sheet dt. 6.09.1993 was issued to the workman and the same was sent to him at his residential address through registered post and the enquiry officer thereafter was appointed who completed the enquiry and submitted the report on 24.01.1994 and as per the enquiry the charges framed the workman Sh. Raj Pal, the Safai Karamchari were proved and he even admitted the charges framed against him and the copy of enquiry report was supplied to the C.O. For making submission/representation of the report of enquiry and his submission dated 'nil' received on 17.02.1994 wherein he had denied the charges and stated that the alleged period of unauthorized absence has already been regularized by grant of EOL and he also alleged that the applicant had earlier informed telephonically to the management and this part of the statement was not correct and on considering all these facts and circumstances the disciplinary authority imposed the penalty of removal from the service vide order dt. 21.04.1994. It is further stated that the workman thereafter preferred an appeal before the appellate authority against the penalty order passed by the disciplinary authority and the appellate authority vide its order dt. 3.03.1999 had rejected the appeal. The fact as staed in the preliminary objections are reiterated to the extent that the workman was absent for 114 days, enquiry was conducted in which enquiry the applicant/workman did not turn up initially and ultimately preliminary hearing could take place on 20.07.1993 on which date the applicant admitted that he had received the charge sheet dt. 6.04.1993 and categorically denied the charges that he was never been unauthorized absent from the duty. It is further stated that the workman himself has attended the enquiry proceedings and during the enquiry proceedings he had not produced any documents which would tend to show that he was on authorized leave or was absent on medical ground and after giving various opportunities to the workman, he failed to prove such facts and thereafter he was ultimately dismissed from the services. As far as relationship is concerned, the ID NO.247/10 5/17 same is not disputed but it is denied that the workman had intimated the office prior to taking leave on medical ground and it is submitted that initially the workman had not intimated his whereabouts during the period of his absence. It is also denied that he was not allowed to resume the duty after his unauthorized absence as alleged and it is stated that from the records it is evident that the the said Sh. Raj Pal had also availed unauthorized the leave during the months of June to September 1993. It is further stated that the order of penalty was sent at the residential address of the workman through registered post but the same was received unserved with remarks of refusal and it is also denied that the order issued by the management is arbitrary or illegal as alleged. It is further stated that the penalty was imposed upon the workman after completion of enquiry in accordance with procedure laid down under CSS (CCA) Rules, 1965 and therefore, the question of calling the workman to resume the duty does not arise at all. It is further stated that the workman submitted the application on 5.07.1995 vide which he had requested that the copy of termination order may be given to him but thereafter Sh. Raj Pal, the workman did not turn up to collect the same upto 14.08.1995 and thereafter he filed an appeal which was rejected by the appellate authority vide order dt. 3.03.3.1999. All other facts of statement of claim are denied and it is prayed that the claim of the workman be dismissed.

6 Thereafter opportunity to file rejoinder was given to the workman but he has not filed rejoinder and vide order dt. 7.09.11, following issues were framed:­ 1 Whether the claimant had been working with the management regularly at the post of Safai Karamchari?

2 Whether the claimant had taken leaves on medical problems with the prior permission of competent authority?

ID NO.247/10 6/17 3 Whether the appeal filed by the claimant before appellate authority against order of his removal was dismissed by the appellate authority vide order dr. 3.03.1999?

4 Whether the claimant remained unauthorizedly absent from his duties for 114 days?

5 Whether the services of the workman have been terminated illegally and/or unjustifiably by the management?

6 Relief.

7 After the framing up of the issues, both the parties were given opportunity to lead their evidence to prove their respective contentions/pleas and accordingly, the matter was fixed for workman's evidence. The workman accordingly examined himself as WW1 and then closed his evidence. Thereafter, opportunity was given to the management and the management has examined Sh.K.L. Bhatia (Dy. Secretary--Vigilance of the management) as MW1 and Sh.M.S. Upadhyay, (Enquiry Officer) as MW2 and then closed its evidence. Thereafter, matter was fixed for final arguments. 8 I have heard the arguments and perused the record. My issue­wise findings are as follows:

ISSUE NO. 1 9 The onus to prove this issue was upon the workman and he had to prove that the he had been working with the management regularly at the post of Safai Karamchari. 10 In the entire statement of claim the workman has not mentioned as to on which date he was appointed or as to which date he was terminated. However, he has filed the appointment letter which is Ex.WW1/1 where it is mentioned that the management has appointed him as Safai Karamchari on regular basis w.e.f. 9.03.1987. The management in ID NO.247/10 7/17 the written statement did not controvert such vague statement, rather stated that the contents of para 1 and 2 are matter of record and therefore, in absence of any specific denial, it is held that the workman was working with the management on regular basis w.e.f. 9.03.1987 as a Safai Karamchari. This issue is decided accordingly. ISSUE NO. 2 & 4 11 The onus to prove issue no. 2 was upon the workman and it had to prove that he had taken leaves on medical problems with the prior permission of competent authority, whereas the onus to prove issue no. 4 was upon the management and it had to prove that the workman remained unauthorizedly absent from his duties for 114 days. Since both these issues are inter­related, they are taken up together as if the workman was on leave with the prior permission of the management, then he cannot be held to have been remained unauthorizedly absent and if he remained unauthorizedly absent, then he cannot be held to have been taken the prior permission of the management. 12 The workman in his evidence has deposed in terms of his statement of claim and relied upon the documents i.e. Ex.WW1/1 copy of appointment letter, Ex.WW1/2 copy of legal notice and Ex.WW1/3 postal receipt and Ex.WW1/4 copy of demand notice and nothing more. In cross examination, he deposed that he is illiterate and he admitted as correct that he has not done his duty regularly and he volunteered that he was ailing. He also admitted as correct that he was absent from his duty from 21.06.1992 to 4.01.1993 as he was ailing. He further deposed that he had not given any information to the management regarding his illness but he volunteered that he tendered his medical certificate which was accepted by the management. He further deposed that he does not remember that he was absent from the duty during the period from 22.11.1992 to 4.01.1993 and denied the suggestion that his leave application was never allowed by the management. He has not given any application in advance for taking medical leave. He ID NO.247/10 8/17 admitted as correct that he has not filed any medical record on court file and he volunteered that he has already given the same to the management. When the attendance sheet dt. 15.10.1993 and letter dt. 17.02.1994 were put to him and he was asked whether the same bears his signatures at point A, to which he replied that both these documents do not bears his signatures. He even denied his thumb impression on memorandum dt. 8.02.1994 and when his signatures on the affidavit of evidence were put to him and he was asked whether the same bears his thumb impressions, he also denied the thumb impression on the same but he subsequently admitted the signatures on the statement of claim.

13 MW1 in his evidence has exhibited the documents i.e. Ex.MW1/1 which is photocopy of charge sheet dt. 6.04.1993 (colly.), Ex.MW1/2 which is photocopy of order dt. 24.05.93, Ex.MW1/3 which is photocopy of memorandum dt. 7.06.93, Ex.MW1/4 which is photocopy of memorandum dt. 14.06.93, Ex.MW1/5 which is photocopy of memorandum dt. 22.06.93, Ex.MW1/6 which is photocopy of memorandum dt. 6.07.93, Ex.MW1/7 which is photocopy of memorandum dt. 20.07.93, Ex.MW1/8 which is photocopy of memorandum dt. 17.08.93, Ex.MW1/9 which is photocopy of memorandum dt. 7.09.93, Ex.MW1/10 which is photocopy of memorandum dt. 28.09.93, Ex.MW1/11 which is photocopy of record of proceedings of enquiry, Ex.MW1/12 which is photocopy of memorandum dt. 28.09.93 alongwith copy of postal envelop copy of AD card (colly.), Ex.MW1/13 which is photocopy of memorandum dt. 8.02.94, Ex.MW1/14 which is photocopy of enquiry report dt. 24.01.94 (colly.), Ex.MW1/15 which is photocopy of acknowledgment, Ex.MW1/16 which is photocopy of representation dt. 17.02.94, Ex.MW1/17 which is photocopy of order dt. 21.04.94 alongwith postal envelop (colly.), Ex.MW1/18 which is photocopy of acknowledgment dt. 22.04.94, Ex.MW1/19 which is photocopy of order dt. 3.03.99 (colly.) and Ex.MW1/20 which is photocopy of ID NO.247/10 9/17 dispatch register with postal receipt.

14 In cross examination, he admitted as correct that the workman had applied for medical leave w.e.f. 21.06.1992 to 9.07.1992 with the department after he had taken the leave. The application of the workman for medical leave was considered by the department and the same was rejected and the department has not communicated the workman regarding his rejection of leave application, rather it had only issued the memorandum at the time of enquiry. He further deposed that the total absence period of the workman is 114 days and as per court record, no complaint has been received from any market functionary regarding non­cleaning of concerned area where the workman was posted. He further deposed that management had served the charge sheet upon the workman on 6.04.1993 and it has not filed any document on court record regarding the receipt of the charge sheet by the workman. The management has not considered the leave of the workman as medical leave nor it considered that if the workman is not entitled for medical leave then he may be granted earned leave.

15 This is the entire evidence concerning both these issues. The workman although denied in the cross examination but in the statement of claim he has admitted that he had participated in the enquiry proceedings. His signatures on the enquiry proceedings were obtained by the enquiry officer MW2 and when he was examined before the enquiry officer, he categorically admitted as correct that he was absent from the duty for 114 days without any information and he even admitted this fact as correct under his own signatures On 15.06.1993 he even gave it in writing that he was absent for 114 days without any information and he is making the statement without any force or pressure on him.

16 Attendance register has already been filed on court file alongwith the enquiry proceedings. The enquiry report Ex.MW1/14 further shows that the workman was absent ID NO.247/10 10/17 for 19 days w.e.f. 21.06.92 to 9.07.92, for 15 days w.e.f. 3.09.92 to 17.09.92, for 11 days w.e.f. 20.09.92 to 30.09.92, for 12 days w.e.f. 3.10.92 to 13.10.92 and 16.10.92, for 13 days w.e.f. 19.10.92 to 31.10.92, for 40 days w.e.f. 22.11.92 to 31.12.92 and for 4 days w.e.f. 1.01.93 to 4.01.93.

17 Keeping in view all these facts, it is clear that the workman was absent for 114 days without prior permission of the management and therefore, issue no. 2 is decided by holding that the management has been able to prove that the workman had not taken leaves on medical ground with the prior permission of the competent authority and simultaneously the issue no. 4 is decided by holding that the workman has failed to prove that he was on authorized leave for 114 days. Both these issues are answered accordingly. ISSUE NO. 3 18 This issue appears to have been framed on the different textures as the fact that the workman had filed an appeal before the competent authority has not been disputed by the workman in the statement of claim and therefore, issue no. 3 is re­framed in the form "whether the management has conducted the preliminary enquiry in accordance with law following the principles of natural justice."

19 The workman in his statement of claim has admitted that when he went to resume the duty, he was asked to approach after some time and meanwhile he got the order of dismissal of services and any para 3 of statement of claim he stated that he has approached the higher authority of the department and the appeal before the competent authority has been dismissed vide order dt. 3.03.1999 and the workman received the copy thereof on 2.04.06. Therefore, the fact that the enquiry proceeding has been conducted and the workman has filed the appeal against that order is not even disputed fact but what the workman otherwise is alleging is that the said enquiry was bad and was not conducted in accordance with principles of natural justice as the provisions of sections 25 F, G and ID NO.247/10 11/17 H of the I.D. Act were not complied with and the order of dismissal of the workman from the service is illegal.

20 The management in the written submissions has given chronological order of events and it reiterated that the workman was appointed on 9.03.1987 as safai karamchari on regular basis and he remained unauthorizedly absent from his duties w.e.f. 21.06.1992 to 9.07.1992 without sanction of leave and he used to remain absent from the service. On 10.07.1992 the workman submitted his leave application alongwith medical and fitness certificate and he remained unauthorized absent from the duty for 51 days in September­ October 1992 and the sanitary inspector had reported that his medical leave cannot be recommended and reported that he was absent from the duties without any information and he is a habitual absentee and the workman even has not submitted application for remaining absent in the months of September­October 1992 . He was again absent from the duty w.e.f. 22.11.1992 to 4.01.1993 and the sanitary inspector has not accepted his leave and thereafter memorandum of charges under rule 14 of CCS (CCA) Rule 1965 was issued to the workman and the notice thereof was sent to him at his residential address through registered post but he did not appear and thereafter enquiry officer was appointed on 24.05.1993 and notice was issued to the workman for 7.06.1993, 14.06.1993, 22.06.93 and 6.07.93 on all which dates the workman did not appear and he only thereafter appeared on 20.07.93 where he admitted the receipt of the charge sheet dt. 6.04.93 as well as admitted the charges. Opportunity was given to him and he has not led any evidence. The enquiry officer completed the enquiry on 24.01.94 and submitted the report, copy of which was supplied to the C.O. The workman thereafter submitted a representation to the findings of enquriy officer and on considering all these facts and circumstances, disciplinary authority imposed the penalty of removal from the service on the workman vide order dt. 21.04.1994 and after the gap of more than 3 years the ID NO.247/10 12/17 applicant preferred an appeal against the said order before the appellate authority against the penalty order passed by the disciplinary authority and that appeal was dismissed and after a gap of 11 years he has filed the present statement of claim before the court and he (Ld.ARM) has further argued that until and unless the workman did not appear before the enquiry officer he had not conducted any proceedings despite having issued four notices for his appearance. He has further argued that the workman appeared before the enquiry and participated in the enquiry proceeding but did not lead any evidence and thereafter the enquiry officer has given the report and as such the principles of natural justice have been followed by the management.

21 Ld.ARW on the other hand has argued that although the signatures of the workman are on the enquiry proceedings yet these signatures were obtained by the management on the wrong pretext that enquiry proceeding against him would be dropped if he would admit the charges and he was also assured that he would be regularized in service and since the workman is an illiterate person, he under the impression and believing the officials of the management put his signatures on the enquiry proceedings and even admitted the facts as are being alleged by the management and as such departmental enquiry stands vitiated. He has further argued that MW2 although has denied the suggestion in cross examination that the signatures of the workman were obtained on blank papers in good faith and the same has been used by the management in cooked departmental enquiry. Although this suggestion was denied but the fact remains that the workman is an illiterate person and has put his signatures on the enquiry proceedings only under such assurances by the management.

22 To prove this contention the workman has not led any further evidence. Law otherwise is well settled that if the case of the workman is such that his signatures were obtained fraudulently or on such assurances then he should first plead it in the statement ID NO.247/10 13/17 of claim and then prove it in accordance with law. Here the contention of the workman is self explanatory. In the entire statement of claim he even did not utter a single word with respect to enquiry proceedings which he attended or with respect to the facts that what happened in the enquiry proceedings. In the cross examination he even went to the extent of denying his signatures on the enquiry proceedings, whereas in the cross examination the WW1 has given altogether a new version that the signatures were obtained under such assurances by the management Which fact of the workman has to be treated to be correct can only be appreciated on the basis of evidence and as far as evidence is concerned, neither there is any pleading to that effect nor there is any evidence brought by the workman. Keeping in view the total facts and circumstances, the court is of the opinion that the enquiry proceedings have been conducted by the enquiry officer in accordance with law and by following the principles of natural justice. As far as the evidence which has come on record that the workman was having some earned leave or medical leaves could have been converted into the earned leaves is concerned, the court is of the opinion that the workman had to claim such relief before the department first and then before the enquiry officer and in any case before the appellate authority where he preferred the appeal. Having failed to plead all such facts before the departmental enquiry and appeal, it is being argued for the first time and even this fact was not touched by the workman in the statement of claim or in the evidence. The court otherwise is of the opinion that if the enquiry has been conducted in accordance with principles of natural justice, then the labour court does not sit in appeal against the punishment inflicted, as it was held in the judgment titled J.K. Cotton Spinning and Weaving Mills Co. Ltd. Vs Badri Mali and Ors., AIR 1964 SC 737, (196) 2 SCR 724 and prima facie, the order on appeal also does not appears to be perverse as it was held in the judgment titled DTC Vs. Sardar Singh 2004 (6) SCC 613 that the absenteeism without sanction under the standing orders of ID NO.247/10 14/17 DTC can form a ground of misconduct and termination notwithstanding the workman being shown as absent without leave in service record maintained by the petitioner herein."

23 Therefore, issue no. 3 is decided by holding that the management has conducted the preliminary enquiry in accordance with law and by following the principles of natural justice.

ISSUE NO. 5 24 The onus to prove this issue was upon the workman and he had to prove that his services have been terminated by the management illegally and/or unjustifiably. 25 Ld.ARW has argued that just because of absence of 114 days of the workman from the duty, the workman who had been working with the management since 1987 should not have been terminated, rather a lesser penalty could have been inflicted upon the workman keeping in view the fact that the earned leaves of the workman have been pending on the date of his termination and all the dates when the enquiry proceedings were conducted are contrary to law and as such his services have been terminated illegally.

26 The management on the other hand has argued that the claim of the workman is liable to be rejected as the workman has already approached the appellate authority against the order of removal of his services on 3.03.1999 and the present reference otherwise has been filed after a gap of 11 years which prima facie is time barred and if the present claim is considered from the date of order of removal which was passed in 1994, the workman has approached the court after 15 years of the date of order of removal from his services and as such the present claim of the workman otherwise is not sustainable as there is no evidence on record which is sufficient to show that the management has done anything without following the principles of natural justice and by ID NO.247/10 15/17 relying upon the judgment titled DTC vs Sardar Singh 2004 (6) SCC 613 he has argued that absenteeism without sanction under the standing orders of DTC can form a ground of misconduct and termination notwithstanding the workman being shown as 'absent without leave' in service record maintained by the petitioner. He has further argued that the medical certificate relied upon by the workman is neither relevant nor the same is able to prove the ailment of the workman and even if the fact that he has been treated on EOL, then EOL are granted only for the purpose of maintaining the record and not for the purpose of regularization of the employee on the service.

27 The management has also relied upon the judgment titled Mahesh Chand vs DTC WP (C) 47/09 & CM 102/09 where the workman was absent for 117 days in 1993 and 73 days in 1994 and he was terminated from the services and the counsel for the workman has raised an argument before the Hon'ble High Court that the punishment inflicted upon the workman is very harsh and the same was highly disproportionate to the misconduct by the workman. The Hon'ble High Court did not accept this contention rather inter alia relied upon the judgment titled DTC v. Sardar Singh (2004) SCC 574 and it was held that "when an employee absents himself from the duty, even without sanctioned leave for long period, it prima facie shows lack of interest in work and punishment to such an employee was held to be not perverse." Further, there is no explanation from the workman side as to why he has been remained silent for about 7 years after the dismissal of the appeal by the appellate authority. The judgment of the Hon'ble High Court of Delhi titled Diamond Toys Co.(P) Ltd.vs Toofani Ram & Anrs. becomes relevant in the present facts and circumstances, in which it was inter alia held that "several pocket unions have been floated by some advocates and self proclaimed union leaders, who run these unions on contract basis. These union catch hold of such employees and enter into ID NO.247/10 16/17 a contract with them of giving them a percentage of the money received from employer. These unions exploit the lacunae in labour laws to fullest possible extent for their own benefit. It is for this reason that in all such statement of claims always one reason of termination is given: 'Workman made demand for legal facilities and he was terminated.' This court has come across cases where written contracts are entered by union for receiving percentage of amount received by workman, even if the amount is under Section 17­B of Industrial Disputes Act for maintenance of workman." 28 Keeping in view the totality of the facts and circumstances, the court is of the opinion that the workman has failed to prove that his services have been terminated by the management illegally nor he has been able to prove that punishment inflicted upon him is harsh.

RELIEF (ISSUE NO. 6):­ 29 Keeping in view my issue­wise findings on issues no. 2 to 5, it is held that the workman is not entitled to any relief against the management and reference is answered accordingly.

A copy of this award be sent to the Deputy Labour Commissioner, Government of NCT of Delhi of Distt/Area concerned for publication as per rules and judicial file be consigned to Record Room as per rules.

ANNOUNCED IN THE OPEN COURT                                               (S.S. MALHOTRA)       
ON 11th March, 2013                                              POLC­IX/EAST DISTRICT/
                                                           KARKARDOOMA COURTS/DELHI




ID NO.247/10                                                                                           17/17