Delhi District Court
Workman Has Filed The Instant Case ... vs . Labour Commissioner & Ors., 108 (2003) ... on 25 July, 2007
IN THE COURT OF SH. O.P. SAINI, PRESIDING
OFFICER, LABOUR COURT NO. VII, DELHI.
I.D. NO. : 345/2004
BETWEEN
Sh. Mahabir Singh
S/o Sh. Balwant Singh
(Ex.Driver), Badge No. 14287 (Last Depot) Naraina,
C/o Sh. S.N. Gupta, Advocate,
Chamber No. 517, Western Wing,
Tis Hazari Courts, Delhi-110054.
AND
The management of
M/s Delhi Transport Corporation,
Indraprastha Estate,
New Delhi.
AWARD
1. Workman has filed the instant case directly in the
court u/s 10 (4A) of the Industrial Disputes Act
(hereinafter to be referred as the "Act").
2. Brief facts of the case as made out from the record
are that workman was employed by the management as
: 1 :
driver on permanent basis since 1982 with badge number
14287 and pay token number 45811. He was lastly posted
at Naraina Depot. The management served a chargesheet
dated 13.9.2002 upon the workman for availing twenty one
days leave with effect from 30.7.2002 to 19.8.2002 without
any information and sanction. The workman replied to the
chargesheet. However, the management was not satisfied
with the reply and a domestic enquiry was conducted
against him. It is alleged that that the first reporter Sh.
Tulsi Dass reported to the enquiry officer that he had not
filed any absentee report against the workman. It is alleged
that since Sh. Tulsi Dass had reported that he had not filed
any absentee report against the workman, the enquiry
ought to have been dropped, but the enquiry officer
recommended amendment of the chargesheet and another
reporter was called. It is submitted that this is an illegal
act. It is alleged that no chargesheet was issued to the
workman. It is alleged that another reporter Ms. Chanchal
had appeared before the enquiry officer without knowledge
of the workman. It is repeatedly claimed that the enquiry
: 2 :
was conducted in violation of principles of natural justice
as neither any list of documents was supplied to the
workman nor he was given any opportunity to cross-
examine the witness. It is also alleged that Ms. Chanchal
had not prepared any report against the workman. The
chargesheet was not supplied to the workman. It is prayed
that the workman had availed the leave as per rules. It is
prayed that the enquiry report may be set aside and
consequently the removal order of the workman may also
be set aside and the management may be directed to
reinstate him with all consequential benefits including
continuity of service and full back wages.
3. Management contested the claim and filed its
written statement admitting that the workman was
employed with it. It is also admitted that chargesheet was
issued to the workman for remaining absent for twenty one
days from duty with effect from 30.7.2002 to 19.8.2002. It
is repeatedly claimed that the enquiry was conducted fairly
and properly in accordance with principles of natural
: 3 :
justice in which workman had full opportunity to defend
himself. It is prayed that since the enquiry was conducted
fairly and properly and the workman had full opportunity
to defend himself in the course of enquiry, the removal of
the workman is lawful & justified and the claim of the
workman may be dismissed.
4. Workman filed rejoinder to the written statement
denying the averments made therein and reiterating the
averments made in the claim petition.
5. On the pleadings of the parties, following issues
were settled for trial by my learned predecessor vide order
dated 16.3.2005:-
(i) Whether a fair and proper enquiry
was not conducted in accordance with
principles of natural justice?
(ii) Whether the services of the
workman have been terminated
illegally and/or unjustifiably by the
management?
(iii) Relief.
: 4 :
6. In support of his case, workman examined himself
as WW-1 and placed on record his affidavit EX.WW1/A
alongwith documents EX.WW1/1 & 2.
7. On the other hand, management has examined
enquiry officer Ms. Anu Kumar as MW-1, who has placed
on record her affidavit EX.MW1/A alongwith documents
EX.MW1/1 to 5.
8. I have heard the arguments at the bar and have
carefully gone through the file.
9. My findings on the issues are as under:-
ISSUE NO. 1:
10. This issue was disposed of by me vide order dated
20.7.07 with the following observations:-
"It is submitted by learned
Authorized Representative (AR) for the
workman that enquiry officer called the
reporter twice as the first reporter
: 5 :
informed him that he did not prepare the
absentee report of the workman. When
there was no absentee report as per first
reporter how the second reporter
reported that he prepared the absentee
report of the workman for twenty one
days with effect from 30.7.2002 to
19.8.2002. It is further submitted that
he was no offered assistance of a co-
worker and the list of documents was
not supplied to him. It is submitted by
him that for these reasons the enquiry
was not fair and proper and the
workman was prejudiced in his defence.
On the other hand, learned AR
for the management submitted that the
first reporter called by mistake and the
second reporter Ms. Chanchal was
subsequently called as she had in fact
prepared the report and this was only a
clerical mistake. It is further submitted
by him that the workman was offered
assistance of a co-worker but he refused.
It is also submitted that all documents
were supplied to the workman.
A bare perusal of the enquiry
proceedings reveals that Sh. Tulsi Dass,
: 6 :
reporter was called first by the enquiry
officer but the enquiry officer was
informed that he had not prepared the
absentee report of the workman and, as
such, on the next day Ms. Chanchal was
called. This is a clerical mistake and is
of no consequence to the outcome of the
enquiry. I find that enquiry officer had
offered assistance of a co-worker to him
but the workman refused to avail the
same. Workman has nowhere specified
as to which documents were not
supplied to him, as such, it is a vague
submission. Workman has not cross-
examined the reporter Ms. Chanchal and
in his own defence he did not examine
any witness. As such, I find that enquiry
has been conducted fairly and properly.
Workman has failed to show anything
on record which could have prejudiced
him in putting forward his defence. The
issue is accordingly decided in favour of
the management and against the
workman."
ISSUES NO. 2 & 3:
: 7 :
11. Both issues shall be disposed of together as they
are inter-connected.
12. It is submitted by the learned AR for the workman
that removal of the workman from service is unlawful and
unjustified as he remained absent only for twenty one days
with effect from 30.7.2002 to 19.8.2002. It is submitted
that his absence was unavoidable and the workman had
applied for leave in advance and his leave was sanctioned
but he only over stayed the leave. It is repeatedly claimed
by him that termination of the workman for absence from
duty for such a short period is grossly disproportionate to
the misconduct committed by him. My attention has been
invited to an authority reported as Hindustan Prefab Ltd.
Vs. Labour Commissioner & Ors., 108 (2003) Delhi
Law Times 585. It is prayed that some other punishment
may be awarded in place of termination.
13. On the other hand, learned AR for the
management submitted that termination of the workman is
: 8 :
lawful and justified. Workman remained absent for twenty
one days without any intimation to the management. Not
only this, his previous record is extremely bad and he was
awarded punishment as many as eleven times out of which
he was awarded punishment for seven times for remaining
absent unauthorizedly from the duties. It is submitted that
the punishment is lawful and justified and no relief may be
granted to the workman.
14. Section 11-A of the Act provides as under:-
"Powers of Labour Courts,
Tribunals and National Tribunals
to give appropriate relief in case of
discharge or dismissal of workmen.-
Where an industrial dispute relating to
the discharge or dismissal of a
workman has been referred to a
Labour Court, Tribunal or National
Tribunal for adjudication and, in the
course of the adjudication
proceedings, the Labour Court,
Tribunal or National Tribunal, as the
case may be, is satisfied that the order
of discharge or dismissal was not
justified, it may, by its award, set
aside the order of discharge or
dismissal and direct reinstatement of
the workman on such terms and
conditions, if any, as it thinks fit, or
: 9 :
give such other relief to the workman
including the award of any lesser
punishment in lieu of discharge or
dismissal as the circumstances of the
case may require:
Provided that in any proceeding under
this section the Labour Court,
Tribunal or National Tribunal, as the
case may be, shall rely only on the
materials on record and shall not take
any fresh evidence in relation to the
matter."
15. In an authority reported as Life Insurance
Corporation of India Vs. R. Dhandapani, 2006 1 LLJ
SC 329, Hon'ble Supreme Court dealt with powers of court
under section 11A of the Act and observed in paragraphs 8
to 10 as under:-
"8. It is not necessary to go into
in detail regarding the power
exercisable under Section 11A of the
Act. The power under said Section
11A has to be exercised judiciously
and the Industrial Tribunal or the
Labour Court, as the case may be, is
expected to interfere with the decision
of a management under Section 11-A
of the Act only when it is satisfied that
punishment imposed by the
: 10 :
management is wholly and shockingly
disproportionate to the degree of guilt
of the workman concerned. To support
its conclusion the Industrial Tribunal
or the Labour Court, as the case may
be, has to give reasons in support of its
decision. The power has to be
exercised judiciously and mere use of
the words 'disproportionate' or 'grossly
disproportionate' by itself will not be
sufficient.
9. In recent times, there is an
increasing evidence of this, perhaps
well-meant but wholly unsustainable,
tendency towards a denudation of the
legitimacy of judicial reasoning and
process. The reliefs granted by the
Courts must be seen to be logical and
tenable within the framework of the
law and should not incur and justify
the criticism that the jurisdiction of the
Courts tends to degenerate into
misplaced sympathy, generosity and
private benevolence. It is essential to
maintain the integrity of legal
reasoning and the legitimacy of the
conclusions. They must emanate
logically from the legal findings and
the judicial results must be seen to be
principled and supportable on those
findings. Expansive judicial mood of
mistaken and misplaced compassion at
the expense of the legitimacy of the
process will eventually lead to
mutually irreconcilable situations and
denude the judicial process of its
dignity, authority, predictability and
respectability.
: 11 :
10. Though under Section 11-A,
the Tribunal has the power to reduce
the quantum of punishment it has to be
done within the parameters of law.
Possession of power is itself not
sufficient; it has to be exercised in
accordance with law."
16. Even otherwise unauthorized absence from the
duty for a long period without any reason is a serious
misconduct and furnishes a good ground for termination of
service for a workman, more so when the absence is
unduly long and without any reason. In this regard, I am
fortified by an authority reported as Delhi Transport
Corporation Vs. Sardar Singh, AIR 2004 SC 4161,
wherein Hon'ble Supreme Court dealt with a case of
unauthorized absence of an employee from duty and
observed in paragraphs 9 to 11 as under:-
"9. When an employee absents
himself from duty, even without
sanctioned leave for very long period,
it prima facie shows lack of interest in
work. Para 19(h) of the Standing
Order as quoted above relates to
habitual negligence of duties and lack
: 12 :
of interest in the Authority's work.
When an employee absents himself
from duty without sanctioned leave
the Authority can, on the basis of the
record, come to a conclusion about the
employee being habitually negligent
in duties and an exhibited lack of
interest in the employer's work. Ample
material was produced before the
Tribunal in each case to show as to
how the concerned employees were
remaining absent for long periods
which affect the work of the employer
and the concerned employee was
required at least to bring some
material on record to show as to how
his absence was on the basis of
sanctioned leave and as to how there
was no negligence. Habitual absence
is a factor which establishes lack of
interest in work. There cannot be any
sweeping generalization. But at the
same time some telltale features can
be noticed and pressed into service to
arrive at conclusions in the
departmental proceedings.
10. Great emphasis was laid by
learned counsel for the respondent-
employee on the absence being treated as leave without pay. As was observed by this Court in State of Madhya Pradesh V. Harihar Gopal (1969) (3) SLR 274) by a three-judge Bench of this Court, even when an order is passed for treating absence as leave without pay after passing an order of termination that is for the purpose of maintaining correct record of service. The charge in that case was, as in the : 13 : present case, absence without obtaining leave in advance. The conduct of the employees in this case is nothing but irresponsible in extreme and can hardly be justified. The charge in this case was misconduct by absence. In view of the Governing Standing Orders unauthorized leave can be treated as misconduct.
11. Conclusions regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly, when same is unauthorized. Burden is on the employee who claims that there was no negligence and/or lack of interest to establish it by placing relevant materials. Clause (ii) of Para 4 of the Standing Order shows the seriousness attached to habitual absence. In clause
(i) thereof, there is requirement of prior permission. Only exception made is in case of sudden illness. There also conditions are stipulated, non-observance of which renders the absence unauthorized".
17. In the instant case the workman was unauthorizedly absent for twenty one days with effect from 30.7.2002 to 19.8.2002. I have perused the punishment record of the workman placed on record by the management and I find that there are as many as eleven : 14 : punishments awarded to the workman since 1989 to 1998.
He was unauthorizedly absent from duties several times and at one time he availed sixty five days leave without pay. Same was the case on many occasions. Management is engaged in running transport service in city of Delhi and unauthorized absence of staff that too of a driver causes great disturbance in the ordinary schedule of operating the fleet. When buses do not run in time general public is put to lot of inconvenience. In such a situation management cannot afford too many of its staff absenting themselves unauthorizedly. Further more, it causes insubordination and indiscipline at the work place. In such a situation when the workman absented himself from duty ordinary operation of the transport service is hindered. For these reasons, I find that the punishment of removal imposed upon the workman is lawful and justified particularly in view of the past service record. Workman is not entitled to any relief. Both the issues are accordingly decided in favour of the management and against the workman.
: 15 :18. In view of above discussion, award is passed accordingly. Six copies of the award be sent to the appropriate Govt. for publication. File be consigned to record room.
Announced in open court. (O.P. SAINI ) DATED : 25.7.2007 PRESIDING OFFICER :
LABOUR COURT NO.VII : DELHI : 16 : ID 345/04 25.7.2007 Pr.: Workman with AR Sh. S.N. Gupta.
Dealing Asstt. of mgt. with AR Sh. Tapas Tyagi. Arguments on quantum of punishment heard. Put up for order at 2.30 p.m. POLC-VII/25.7.2007 25.7.07 At. 2.30 p.m. Present: As before.
Vide my separate order award is passed in favour of the management and against the workman. Six copies of the award be sent to the appropriate Government for publication. File be consigned to record room.
POLC-VII/ 25.7.07 : 17 :