Delhi District Court
13. In The Ruling Of Dtc vs . Sardar Singh, Ari 2004 Sc 4161, The ... on 15 March, 2010
BEFORE THE COURT OF SH A.S. JAYACHANDRA
PO : LABOUR COURT : KKD : DELHI
ID No. 188/08/96
DATE OF REFERENCE : 12.11.1996
DATE OF RECEIPT : 28.11.1996
FIRST DATE BEFORE THIS COURT : 10.12.2008
ORDERS ON ENQUIRY ISSUE : 3.02.2009
ARGUMENTS CONCLUDED : 26.02.2010
DATE OF AWARD : 15.03.2010
Delhi Transport Corporation
IP Estate
New Delhi-110002
........... Management
versus
Surender Singh
Badge No. 7876
Shastri Nagar, Kharkhoda Ward No.-2
Sonepat, Haryana ...........Workman
AWARD
1.This reference dated 12.11.1996, was received from the government vide No. F.24 (4946)/1996/Lab. 51684-88 is as under :
Whether the removal of Surender Singh, from service is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect ?
2. The case of the workman as per the claim statement is that he joined as a 1/8 Assistant Fitter with the management in the year 1982. He contends that on 19.11.1992, he was served with a charge sheet. He was charged for remaining absent from 12.10.1992 to 27.10.1992. He contends that along with the charge sheet, neither the list of witnesses nor the list of documents were supplied as per the rules of the corporation. He denied the charge. Enquiry was held. Workman was not given the chance to engage the services of a defence Assistant. Enquiry proceedings was not read over to him. The proceedings were not recorded properly. Enquiry report was against the workman. The findings are perverse. Based on such a report, the Depot Manager passed an order dated 10.04.1995, removing the workman from service.
3. The management filed the reply. It contended that the workman remained unauthorizedly absent. No information was given to the management. After the report of the PBC, depot Manager issued the charge sheet. Workman replied the same. Reply was not satisfactory. Case was ordered for enquiry. Enquiry was conducted in accordance with the principles of natural justice. Workman admitted his fault. The removal is in accordance with the principles of natural justice. Rejoinder is filed by the workman denying the allegations made in the written statement.
4. Based on the pleadings my Ld. Predecessor had framed the following two issues on 22.10.1999.
a) Whether a proper enquiry was not conducted according to the principles of 2/8 natural justice and if so, is not valid, proper and fair ?
b) As per the terms of reference ?
5. On the point of preliminary issue of enquiry, the workman examined himself as WW 1 and closed his side. The management likewise examined one witness.
6. The arguments on enquiry issue is heard. Based on the available oral and documentary evidence, I have passed separate detailed order dated 3.02.2009, holding the enquiry in favour of the workman and against the management. I have also allowed the management to prove the misconduct on merits.
Thereafter, the management examined MW 1 on merits.
7. After the inquiry issue management has examined MW 1 OP Birdi and MW 2 Suraj Mal to prove the case on merits. The workman Surender Singh got himself examined on rebuttal. I have heard the arguments on both the sides. Now with the available oral and documentary evidence, I am to answer the terms of reference as under:
8. It was contended by the AR for the workman that the charge is for unauthorized absence of 15 days. The workman in his reply to the charge sheet has contended that he intimated but somehow the intimation did not reach the management. Therefore, it was argued that the same be not called as unauthorized.
9. It was argued by the AR for the management that the unauthorized 3/8 absence was based on the report forwarded by one Surajmal. I have given careful thought to the submissions made on either side. In the evidence of MW 1 which is filed by way of affidavit, the deponent OP Birdi deposed that he was a depot manager and the removal order passed by him. From the record, he found that workman was absent from 12.10.1992 to 27.10.1992 without prior permission and sanctioned leave. The matter was reported by one Surajmal. He further testified that an enquiry was given to Late Hari Raj Singh, the then depot manager. He issued a show cause notice based on the enquiry report. Workman had not replied to the show cause notice. Thus, MW 1 confirmed the order of punishment. MW 1, in the cross examination, admitted that he has not checked the basis of the report of Surajmal with the help of master attendance register and SAR. He admits that workman had given the medical certificates at Ex MW1 /W1 and the application at Ex MW 1/W2. He also admits that no order was passed on the application dated 28.10.1992. To the suggestions made by the workman, the same were denied and MW 1 testified that workman was given full opportunity. MW 1 relied on the already exhibited documents at Ex MW 1/1 the report, the charge sheet at Ex WW 1/M1 and the MAR which is at MW 2/1 and the past record, show cause notice, removal letters at Ex MW 2/2 to Ex MW 2/4.
10. Another management witness Surajmal, the reporter in this case deposed that he made a report at Ex MW 1/1 and no application was given by the workman in his presence. In the cross examination, he is unable to say the 4/8 correct dates of absence since 16 years have elapsed. He admits that the leave application are generally given to the incharge of the workshop and that he has not seen the register where such leave application are recorded.
11. In the rebuttal, the workman deposed at his affidavit EX WW 1/B that the report had given contrary dates during the enquiry. The dates given by the reporter Surajmal before the enquiry is 22.10.1992 till 27.10.1992 therefore, the charge sheet is baseless. According to the workman he has not committed any misconduct since he had admitted the applications in time along with the medical certificates. In the cross examination by the management, it is elicited that he was absent during the period for which charges are framed. He volunteers that he was on leave. To a suggestion that he has not given the leave application, workman denied the same. Workman further denied that there are two adverse entries in his past record.
12. I see from the documentary evidence confronted to witness OP Birdi the Ex MW 1/W1 which is a medical certificate received of the office of the DTC, IP Depot. The medical certificate is dated 12.10.1992 advising 16 days rest to the workman Surender Singh. The said document is admitted by the disciplinary authority. Likewise, Ex MW 1/W2, a leave letter sent by the workman is also addressed to the Asst. Engineer IP Depot bearing date 28.10.1992. The workman was an Assistant Fitter and naturally he addressed the leave letter to his immediate superior.
5/8
13. In the ruling of DTC vs. Sardar Singh, ARI 2004 SC 4161, the Hon'ble Supreme Court has observed the standing orders of the DTC. In para 7 and 8 of the ruling is worth reading here :
PARA : 7 In all these cases almost the whole period of absence was without sanctioned leave. Mere making of an application after or even before absence from work does not in any way assist the concerned employee.
The requirement is obtaining leave in advance. In all these cases the absence was without obtaining leave in advance. The relevant paras of the Standing Order read as as follows :
'4. Absence without permission -
(1) An employee shall not absent himself from his duties without having first obtained the permission from the authority or the competent officer except in the case of sudden illness.
In the case of sudden illness he shall send intimation to the office immediately. If the illness lasts or is expected to last for more than 3 days at a time, applications for leave should be duly accompanied by a medical certificate, from a registered medical practitioner or the Medical Officer of the DTS. In no case shall an employee leave station without prior permission.
(ii) Habitual absence without permission or sanction of leave and any continuous absence without such leave for more than 10 days shall render the employee liable to be treated as an absconder resulting in the termination of the service with the Organisation.
19. General Provisions-Without prejudice to the provisions of the foregoing Standing Orders, the following acts of commission and omission shall be treated as misconduct :
(a) .........
(h) Habitual negligence of duties and lack of interest, in the Authority's work.' PARA : 8 Clause 15 of the Regulations so far as relevant reads as follows :
'2. Discipline-The following penalties may, for misconduct or for a good and sufficient reason be imposed upon an employee of the Delhi Road Transport Authority:-
(i) ...........
(vi) Removal from the service of the Delhi Road Transport 6/8 Authority.
(vii) Dismissal from the service of the Delhi Road Transport Authority.
...........'
14. In the very ruling, the Hon'ble Supreme Court noted that '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 of interest in the authority's work. When an employee absents himself from duty without sanctioned leave, the authority can, on the basis of record come to a conclusion about the employee being habitually negligent in duties and an exhibited lack of interest in the employer's work. It further observed that there can not be any sweeping generalization. But at the same time, tell-tale features can be noticed and pressed into service to arrive at conclusions in the departmental proceedings.
15. In a recent unreported ruling of the Division Bench of our High Court in the matter of Vijay Singh v/s DTC (LPA 499/09, DD : 23.11.2009), It is observed that "para 6 of the judgment in Sardar Singh shows that the Supreme Court was dealing with a batch of appeals in which the number of days of absence in different cases alone was noticed. Those cases were ultimately remanded for a fresh consideration."
16. Keeping in view of the above position of law, I am to look into the special features of this case to find out whether the order of penalty of removal of service 7/8 passed by the management is justified or not.
17. The tell-tale features of this case are that :
a) That the workman had furnished intimation of leave alongwith the medical certificate which are at Ex MW1/W1 and Ex MW1/W2. The medical certificate is for the period 12.10.1992 till 27.10.1992.
b) The charge sheet is for the period 12.10.1992 till 27.10.1992 for which the workman had submitted leave application on 28.10.1992.
c) MW 1 OP Birdi admits that no order is passed on the application of leave given by the workman.
d) The above facts shows that workman has communicated the reasons or sufficient cause for his absence, which itself belies the allegation of workman exhibiting lack of interest in the working of the Corporation.
e) The management having not passed any order on the application by rejecting of the workman and intimating him so in time, is not justified in removing the workman from the services of the corporation.
f) Within the scope of section 11 ID Act, I have also looked into the evidence of Surajmal, the reporter of this case. Before the enquiry officer, Surajmal has given the dates of absence as 22.10.1992 till 27.10.1992.
g) Even in the enquiry there was no material before the disciplinary authority to have dismissed the workman.
h) Based on such untenable evidence, the order of removal cannot be 8/8 sustained in law especially when the workman had given proper rebuttal evidence though MAR are produced before this court gives the dates of absence at Ex MW 2/1 as stated in the charge sheet.
18. With the above points emerging clear from the record pertaining to the removal of the workman, the removal order is unjustified. Therefore the workman is entitled to be reinstated. I have also considered the grant of back wages. The workman has not pleaded in his claim statement that he remained unemployed despite best efforts. Only in the affidavit of rebuttal evidence, there is a mention regarding his remaining unemployed despite efforts. It should be kept in mind that granting of back wages is a mere discretion of the court. In this case, I have considered the other relevant factors also. The past record of the workman is not in his favour to grant back wages as he had suffered major penalty for having left the duties without any permission earlier. It is also noted in the charge sheet that he used to desert the duties. Therefore, following the rulings of the Hon'ble Supreme Court in the matter of grant of back wages, in 2009 LLR page no. 1, UP State Electricity Board Vs. Laxmi Kant Gupta and Rajasthan Lalit Kala Academy Vs. Radhey Shyam, 2008-III, LLJ 562, Talwara Co-op. Credit & Service Society Ltd. vs. S. Kumar 2009-I-LLJ 328 SC, I am of the considered opinion that the workman is not entitled for any back wages.
19. In a recent ruling his lordship Justice Kailash Gambhir held in Ramesh 9/8 Chand v/s DTC in WP No. 14148 of 2009 DD : 23.02.2010 that ''Therefore, there as a long gap of 13 years and due to this gap the petitioner should have led a positive evidence to plead and prove that he was not gainfully employed after the date of his termination. In the absence of any evidence led by the petitioner, I do not find that the finding given by the Ld. Labour Court denying the back wages to the petitioner can be held to be perverse or illegal''.
20. In the circumstances, the order of removal of the workman dated 10.04.1995 is held as unjustified. No back wages are granted. However, the workman is awarded a sum of Rs. 30,000/- (Rupees Thirty Thousand Only) towards litigation expenses. The workman be reinstated within 30 days after publication of this award with continuity of service. Reference is answered accordingly. Let requisite number of copies be forwarded to appropriate govt. for publication. File be consigned to RR.
15th March, 2010 (A.S. JAYACHANDRA) POLC/KKD/DELHI/XVII 10/8