Delhi District Court
Sh. Parmanand vs M/S Delhi Transport Corporation on 29 April, 2008
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IN THE COURT OF MS. NISHA SAXENA, POLC, FAST
TRACK-XXI, KARKARDOOMA COURTS, DELHI
ID No. 42/06/96
Sh. Parmanand,
Badge No. 22865,
H. No. B-150,
Behind Shakti Pith Mandir,
Chhattarpur,
New Delhi-30.
........Workman
Versus
M/s Delhi Transport Corporation,
through its Chairman,
I.P. Estate,
New Delhi-2.
.......Management
ORDER
01. Vide this order, I shall dispose of enquiry issue which is framed in the following terms.
"Whether the management has not conducted a fair and proper enquiry in accordance with the principles of natural justice?"
02. Briefly stated, the facts of the case are that the claimant had been working with the management as a conductor. 2 He was issued with a charge-sheet dated 8.4.93 on the charges of having remained absent from duties for 144 days unauthorizedly from January, 1992 to December, 1992. On the basis of these allegations, a domestic enquiry was initiated against him. He has challenged the enquiry on the ground that it was a defunct enquiry held against the principles of natural justice and also challenged the findings of the Enquiry Officer as perverse. Subsequent to the enquiry, the workman was removed from the services w.e.f. 8.7.94. He has challenged the punishment on the ground that it was unwarranted and against the DTC circular dated 3.1.66. He has claimed that he has been unemployed since his illegal termination and has sought reinstatement in service with full back wages.
03. On the pleadings, parties have led their evidence. Workman filed his affidavit and proved the same as Ex. WW1/A and relied upon the documents Ex. WW1/1 to Ex. WW1/2. On behalf of the management, Shri D.S. Sharma has been examined as MW1 who proved his affidavit as Ex. MW1/A and the documents are Ex. MW1/1 to Ex. MW1/5.
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04. I have heard AR for workman Ms. Rashmi Singh and AR for the management Shri Hardwari Lal and gone through the entire record.
05. My findings on the preliminary issue are as hereunder.
Issue No. 1 : - Whether the management has not conducted a fair and proper enquiry in accordance with the principles of natural justice?
The workman has challenged the domestic enquiry on the ground that neither list of witnesses nor list of documents or copy of preliminary investigation was supplied to him as per DTC circular dated 28.5.80 which is Ex. WW1/1. He has stated that he was ill and had applied for leaves but was never informed that his leaves were not granted. He had submitted medical certificate in support of his illness. His pay had also been deducted and he had been treated as leave without pay and he cannot be punished twice. He has also challenged the findings of the Enquiry Officer as perverse on the ground that Enquiry Officer admitted that the workman submitted medical certificate and applications. However, in his cross-examination, the workman has admitted 4 that he received the charge-sheet dated 28.4.93 which is Ex. WW1/M1 which bear his signatures at point A. He has also admitted that he appeared before the Enquiry Officer and signed the enquiry proceedings Ex. WW1/M2 at point A to H. He admitted that he had been given opportunity to cross-examine the management witness. I have gone through the enquiry proceedings Ex. WW1/M2 which reflects that the workman was given an option to take help of a co-worker or Labour Welfare Inspector for which he declined. The charge-sheet was read over in verbatim to him and he was asked if he admitted the charges. He admitted the charges. In his presence, management examined Shri Jagdish Singh, TTC and the workman cross-examined the witness. The workman was given an option to bring his defence witness for which he declined. He gave his concluding statement in which he stated that he had given application for leave and also submitted medical certificate in support of the application. The leave record of the workman has been filed which is Ex. MW1/1, it reflects that his applications for 93 days were rejected while his 34 5 applications for leave with medical certificate were rejected and he availed 17 leave without any application. Therefore, the total number of unauthorized leave availed by him during period from January 1992 to December, 1992 is 144. The workman has claimed that leave without pay is not a misconduct. However, an employee is not supposed to proceed on leave without having obtained permission of the competent authority. It was incumbent upon the workman to take leave only when it was sanctioned by the competent authority. The workman has failed to bring any document on record to suggest that his leave applications were duly sanctioned. AR for the management has also pointed out that vide order dated 3.1.02, the then Presiding Officer Industrial Tribunal Shri B.B. Choudhary had granted approval under section 33(2)(b) to remove the workman from service and he had also decided the enquiry issue in favour of the management and against the workman vide order dated 6.9.01. He has relied upon 1986 LLJ II High Court of Calcutta General Electric Coy of India vs. Fifth Industrial Tribunal of West Bengal and 6 others, wherein the court held that "It is now well settled that the doctrine of res-judicata has its application in full force in regard to Industrial matters. A decision given by a competent Labour Court would operate as a bar in the trial of the same issue in the subsequent proceedings for constructive res-judicata. So far as the validity of the domestic enquiry is concerned, the findings ought to be treated as conclusive and have a binding effect in subsequent proceedings." In 142(2007) DLT 595 DTC vs. Surinder Pal also the court held that "When an enquiry was held fair and just and the Tribunal gives approval on the application under section 33(2)(b) of the Act and this finding is not challenged, the finding becomes final and shall operate as res judicata between the parties. The Tribunal is bound by earlier findings given between the parties in respect of same dispute and same issue." In view of judgments referred and observations regarding enquiry I hold that the management has conducted a fair and proper enquiry in accordance with the principles of natural justice. Issue no. 1 is accordingly decided in favour of the management and against the 7 workman.
ANNOUNCED IN THE OPEN COURT ON: 29.04.2008 (NISHA SAXENA) PRESIDING OFFICER, LABOUR COURT, KARKARDOOMA COURTS, SHAHDARA, DELHI 8