Delhi District Court
Sh. Santu Lal vs M/S. Delhi Transport Corporation on 27 January, 2017
IN THE COURT OF SHRI UMED SINGH GREWAL
PILOT COURT/POLCXVII, ROOM NO. 22 : KKD
COURTS :DELHI
ID No.1303/16 (Old ID No.134/13).
Unique ID No.02402C0322572013.
Sh. Santu Lal
S/o Sh. Bihari Lal,
R/o D254, West Vinod Nagar, Delhi91.
Through Engineering and General Karamchari Lal Jhanda Union 35,
Govind Khand, Vishwakarma Nagar, Delhi110095.
............. Workman
Versus
M/s. Delhi Transport Corporation,
DTC Head Quarters, I.P. Estate,
New Delhi110002.
..............Management
DATE OF INSTITUTION : 01.10.2013.
DATE ON WHICH AWARD RESERVED : 25.01.2017.
DATE ON WHICH AWARD PASSED : 27.01.2017.
A W A R D :
1.Vide Order No. F.24(117)/13/ Lab./CD/745 dated 25.09.13, issued by Government of NCT of Delhi, a reference was sent to this Court with the following terms: "Whether the termination of services Sh. Shantu Lal S/o Sh. Bihari Lal have been terminated illegally by the management and if so, what relief is he entitled to and what directions are necessary in this respect?"
ID No. 1303/16. 1/122. Claimants' case is that he was in the employment of management w.e.f. 30.12.2005 as Driver on daily wages of Rs.166/ per day. He worked hard, honestly, diligently and to the entire satisfaction of the management. He never gave any chance of complaint to the management and his tenure was unblemished. His service was terminated w.e.f. 03.05.2007 vide letter No. EVND/PFC (CD) 7/1105 dated 03.05.2007 despite completion of more than 240 days of service with the management without any showcause notice or chargesheet and without holding any domestic enquiry. His appeals were dismissed by higher authorities. He served demand notices dated 16.12.11 and 28.08.12 by registered post, but management did not respond. Conciliation proceedings failed due to rigid attitude of the management. He is jobless since termination of service.
3. Written statement is to the effect that claimant has not come to this Court with clean hands and has suppressed the material facts. Claimant was engaged as a Driver on contract basis by the management initially for a period of 89 days w.e.f. 11.05.2006 to 07.08.2006 at the rate of Rs.163.40 per day on daily wages. He was habitual of violating traffic rules and thereby caused huge financial loss to management. As per his service record maintained by the ID No. 1303/16. 2/12 management, there are three adverse entries. Keeping in view his past record and conduct, his contract was terminated w.e.f.
03.05.2007 vide memo No. EVND/PFC OF/07/1105 dated 03.05.2007. As per the conditions of this agreement for engagement as a driver, under clause 5, 14 and 20 (g), he had violated the terms of the agreement and his contract was terminated on that basis.
4. Following issue was framed on 20.02.15:
1. As per terms of reference.
5. In order to substantiate the case, the claimant tendered his affidavit in evidence as Ex. WW1/A mentioning all the facts stated in the statement of claim. He relied upon following documents : I. Ex.WW1/1 is demand notice dt. 16.12.11. II. Ex.WW1/2 is demand notice dt. 28.08.12. III. Ex.WW1/3 is carbon copy of rejoinder to WS during conciliation proceedings.
IV. Ex.WW1/4 (1), (2), (3) is copy of WS filed by the management alongwith termination letter. V. Ex.WW1/5 is Copy of a certificate issued to workman by DTC.
VI. Ex.WW1/6 is copy of a judgment / order given by Spl. M.M. Sh. D.R. Sehgal.
VII. Ex.WW1/7 is copy of a letter written by workman to ID No. 1303/16. 3/12 chairmancummanaging director dt. 29.05.06. VIII. Ex. WW1/8 is identity card of the workman issued by management.
IX. Ex.WW1/9 is certificate issued to workman by management dt. 19.12.97.
X. Mark A is challan no. 540078.
XI. Mark B is Challan no. 330269 XII. Mark C is Letter dt. 28.03.07 written by Spl. M.M. Sh. S.S. Nimesh.
XIII. Mark D is copy of challan no. 573888.
XIV. Mark E is copy of receipt of payment of Rs. 300/. XV. Mark F is copy of letter dt.07.05.07 written by workman to the Depot Manager, DTC.
XVI. Mark G is copy of demand notice dt. 28.08.12 to management.
XVII. Mark H is challan receipt XVIII. Mark I is challan receipt dt. 30.05.06 XIX. Mark J is challan receipt dt. 22.02.97 XX. Mark K is Order of the court of Sh. S.S. Nimesh Spl. MM dt.
19.01.07.
XXI. Mark L, M & N are the certificates issued by transport department in favour of the workman.
XXII. Mark O is Copy of Identity card issued by management. XXIII. Mark P is copy of Identity card dt. 29.12.05 of the workman issued by DTC.
XXIV. Mark Q, R & S are copies of letter addressed to depot manager, DTC by the workman.
ID No. 1303/16. 4/12XXV. Mark T is copy of letter written by depot manager, DTC to the workman.
6. The management examined its Dy. C.G.M (RM) East as MW1 and he repeated the contents of written statement. He relied upon following documents:
1. Ex.MW1/1 is Short term agreement for engaging driver.
2. Ex.MW1/2 is engagement of driver noting dt. 11.06.06.
3. Ex.MW1/3 is copy notice of challan.
4. Ex.MW1/4 is copy of challan dt. 11.01.07 of Bus No. DL 1PB 6327.
5. Ex.MW1/5 is copy of of challan dt. 19.05.06 of Bus No. DL1PB 6255.
Issue No. 1.
7. Ld. ARM argued that the claimant was engaged as a Driver on contract basis initially for 89 days w.e.f. 11.05.2006 to 07.08.2006 vide contract / agreement Ex. MW1/1. He was habitual of violating traffic rules and thereby caused huge financial loss to management. As per his previous conduct and negligent acts, so many times, traffic police challaned its buses and seized which were driven by him, due to which management suffered financial loss. His contract was extended from time to time. Thereafter, keeping in view his past record and conduct, his contract was terminated w.e.f. 03.05.2007 vide memo No. EVND/PFC OF/07/1105 dated ID No. 1303/16. 5/12 03.05.2007. As per the conditions of this agreement for engagement as a driver, under clause 5, 14 and 20 (g), he had violated the terms of the agreement and his contract was terminated on that basis.
On the other hand, ld. ARW argued that the claimant had joined the management on 30.12.05 as Driver at the last drawn salary of Rs.166/ per day on daily basis. Initially, his service was to last for 89 days. The management used to give him artificial break of one day after every 89 days and then used to employee him by way of fresh appointment letter. By freshly employing the claimant after giving him artificial break of one day, the management was engaged in unfair labour practice because it wanted to deprive him of perks and wages which the regular driver of the management used to get.
8. In Mahender Singh Vs. Indian Airlines Ltd., LPA 63/14 decided by Hon'ble High Court of Delhi on 05.09.16, the appellant was initially appointed as driver on temporary basis on 29.07.1986. His temporary appointment was extended from time to time for a period of 1 to 3 months. He was given regular appointment on the post of Driver on 29.06.1987 vide appointment letter in which there was a clause No. 4 to the effect that he would be on probation for a period of one year and if during the said period, his service was not found satisfactorily, the same may be terminated.
ID No. 1303/16. 6/12His service was terminated on 10.08.1988 as per clause No. 4 of the appointment letter because his service was not satisfactory.
9. In the case in hand, the contract executed between the parties for appointing the claimant for 89 days is Ex.MW1/1 in which clause No. 14 is to the following effect : "The Corporation shall have the right to ask for the removal of any Driver including black listed who is not found to be competent and orderly in the discharge of his duties."
His service was terminated vide termination letter dated 03.05.2007 Ex. MW1/6 with following contents : "Sh. Santu Lal Contractual Driver I.D. No. EVND/051 is habitual for violating the traffic rules, caused huge financial loss to the Corporation. Hence he is not allowed for duty in D.T.C."
10. Perusal of termination letter Ex. MW1/6 shows that the service of the claimant was terminated under clause 14 of agreement executed between the parties. The clause No. 14 of agreement Ex. MW1/1 shows that the management had right to terminate his service if he was not found competent and / or orderly in discharge of his duties. So, the mode and manner of termination of the service of the claimant was provided in his appointment letter. Taking cue from the above cited law, it is held that services of the claimant by the management was terminated in view of that manner and hence, the ID No. 1303/16. 7/12 case of the management is covered under Section 2(oo)(bb) of the I.D. Act, 1947. Termination of service of claimant was not retrenchment as provide under Section 25F of of the I.D. Act, 1947.
11. Ld. ARW argued alternatively on this issue. His first argument is that service of the claimant was terminated on the basis of misconduct without conducting any enquiry. He referred to termination letter to show that his service had come to an end due to habitually violating the traffic rules. The management was required to conduct enquiry which it did not and hence termination is bad in law. He relied upon (1). Himanshu Bhatt Vs. Indian Railway Catering and Tourism Corporation & Ors., LPA 881/2013, decided on 28.09.2015 and (2) V.P. Ahuja Vs. State of Punjab & Ors. decided on 09.03.2000. Alternatively, he argued that even if service of the claimant was not terminated on misconduct, the termination letter is definitely founded on the allegations of misconduct. In support, he relied upon Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors. (1999) 3 Supreme Court Cases 60.
12. Para No. 12 of Himanshu Bhatt Vs. Indian Railway Catering and Tourism Corporation & Ors. shows that services of appellant was terminated because he was not serious in discharging ID No. 1303/16. 8/12 of his duties. It was mentioned in the termination letter that a committee had found that appellant had committed serious misconduct.
Similarly, in V.P. Ahuja Vs. State of Punjab & Ors. (supra), it was mentioned in the termination letter that he had failed in performance of his duties administratively and technically and hence his services were being terminated with immediate effect.
But in the present case, as witnessed by termination letter Ex. WW1/4, the service was not terminated on misconduct. So, the citations relied upon by claimant are not applicable.
13. Alternative plea of ld. ARW is that though it is not mentioned expressly in termination letter that his service was terminated on misconduct, but the action of the management was definitely founded on the allegations of breaching of traffic rules levelled against the claimant. He further argued that the inducing factor for the management to terminate the service was definitely allegations of misconduct. The management should have conducted enquiry but it passed termination order without such enquiry.
14. Now, it is well settled law that if termination is on the foundation of misconduct i.e. if the termination was the result of inducement caused by the misconduct of the claimant, then domestic ID No. 1303/16. 9/12 enquiry is must. But, if termination is simply the motive of misconduct, then domestic enquiry is not required. In, State of Punjab Vs. Sukh Raj Bahadur, AIR 1968 SC 1089, a charge memo for a regular enquiry was served, reply given and at that stage itself, the proceedings were dropped and simple termination letter was issued. It was held that the order of simple termination was not founded on any findings as to misconduct. In that case, the Hon'ble Supreme Court had referred A.G. Benjamin Vs. Union of India (1967) I LLJ 718 (SC) in which a chargememo was issued, explanation was received and Enquiry Officer was also appointed but before the enquiry could be completed, the proceedings were dropped and simple order of termination was passed. The reason for dropping the proceedings was that departmental proceedings would take a much longer time and the management was not sure that it would be able to deal with the delinquent official in the way he deserved. The Apex Court upheld termination. Similarly, it was held by the Apex Court in Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors. (supra) as under : "21. If findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as `founded' on the allegations and will be bad. But if the inquiry was not held, no finding were arrived at and the ID No. 1303/16. 10/12 employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."
It is the admitted position of both parties in the present case that no showcause notice / chargesheet issued by the management to the claimant. The management did not appoint any Enquiry Officer, did not issue chargesheet to the claimant and did not conduct any domestic enquiry. The facts of this case are on better footing than the facts of State of Punjab Vs. Sukh Raj Bahadur (supra). In that case, it was held by the Apex Court that the termination of service of workmen was not founded on allegations but those allegations were the motive for the management to terminate their service.
This case is squarely covered by DTC Vs. R.K. Tiwari and Anr. 2012 LLR 1973. In that case, the management had not conducted any enquiry though there was report made by checking officials of DTC to the disciplinary authority in reply of checking of bus of the workman in which the raiding team officials had found ID No. 1303/16. 11/12 one passenger in possession of used ticket and the other used ticket was found in the possession of the workman. Domestic enquiry was not conducted and the management terminated his service without assigning any reason. In the case in hand also, no reason has been assigned in termination letter Ex. WW1/4 why the service of claimant was terminated.
15. So, both grounds taken by claimant have failed. This issue is decided in favour of the management and against the claimant.
Relief.
16. Consequent to decision on issue No. 1, it is held that claimant is not entitled to any relief. Statement of claim is dismissed.
17. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 27.01.2017. PILOT COURT/POLCXVII KKD COURTS, DELHI.
ID No. 1303/16. 12/12