Delhi High Court
Mahesh Chand vs Dtc on 15 January, 2013
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 47/2009 & CM 102/2009 (stay)
% Reserved on: 17th October, 2012
Decided on: 15th January, 2013
MAHESH CHAND ..... Petitioner
Through: Mr. Sanjoy Ghose, Advocate.
versus
DTC ..... Respondent
Through: Mr. Parmod Kumar, Advocate.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By the present petition the Petitioner lays a challenge to the order dated 15th January, 2008 passed by the Presiding Officer, Labour Court holding that the inquiry was fair and legal and the award dated 27th March, 2008 holding that the termination of the Petitioner was not illegal or unjustified thus no relief was granted to the Petitioner.
2. Learned counsel for the Petitioner contends that the Petitioner was charge sheeted for being absent from 1st August, 1994 to 15th August, 1994.
The absence on earlier two occasions considered by the Inquiry Officer in the charge sheet, that is, of 117 days in 1993 and 73 days in 1994 was wholly erroneous as penalty of stoppage of four increments and denial of pay for the period concerned was already awarded to him. As regards the period of 1st August, 1994 to 15th August, 1994 there is no finding of the Inquiry Officer that the medical certificate produced by the Petitioner was forged and fabricated. Further the past misconduct of the workman can be looked into only if the present misconduct is proved. The learned Trial Court erroneously held that the inquiry was fair and legal. The Inquiry Officer was W.P. (C) NO. 47 of 2009 Page 1 of 6 misdirected by saying that the medicals produced by the Petitioner could not be looked into. The perversity in the inquiry can be both procedural and substantive. In the present case even if the procedure is fair however, the inquiry conducted was unfair substantively. Reliance is placed on Satender Pal Singh vs. Union of India, W.P. (C) No. 5226/2005 decided on 31 st August, 2007 by the Division Bench of this Court and DTC vs. Nand Kishore, 2012 (130) DRJ 68. Reliance is also placed on Krushnkant B. Parmar vs. Union of India, 2012 (3) SCC 178 to contend that the absence has to be proved to be willful. Thus the impugned order and award be set aside and the Petitioner be directed to be reinstated with back wages.
3. Learned counsel for the Respondent on the other hand states that the medical certificates relied upon by the Petitioner were neither of the relevant dates nor showed any ailment. Reliance is placed on DTC vs. Sardar Singh, 2004 (6) Scale 613 to contend that even if it has been held to be leave without pay, still it would amount to unauthorized absence and misconduct on the basis of which the workman can be terminated. Reliance is placed on State of Haryana vs. Rattan Singh, AIR 1977 SC 1512 to contend that a domestic inquiry can take into consideration all material which are logically probative for a prudent mind and there is no allergy to hearsay evidence provided it has reasonable nexus and credibility. There is no illegality in the inquiry conducted hence the writ petition be dismissed.
4. I have heard learned counsel for the parties and perused the records.
5. Briefly the facts giving rise to the filing of the present petition are that the Petitioner was employed as a sweeper on 5th March, 1983 with the Respondent. On 28th August, 1991 punishment of stoppage of next two W.P. (C) NO. 47 of 2009 Page 2 of 6 increments with cumulative effect was imposed upon him for availing excess leaves without pay. Finally the Petitioner was charge sheeted on 18th August, 1994 for unauthorized absence from duty in the year 1993 for a period of 117½ days, for 74 days from 1st January, 1994 to 31st July, 1994 and then again for being absent from 1st August, 1994 till 15th August, 1994. The Petitioner was directed to join on 10th August, 1994 however, he joined on 16th August, 1994 only. On the basis of the inquiry, the services of the Petitioner were terminated on 5th December, 1994. The Petitioner raised an industrial dispute on which the following terms of reference were sent for adjudication:
"Whether the removal of Shri Mahesh Chand from service is illegal and/or unjustified, and if so, to what relief is he entitled and what directions are necessary in this respect?"
6. In the claim statement of the Petitioner it was stated that there was no complaint against the Petitioner and he was charge sheeted on the basis of forged and fabricated charges of absence. The Petitioner had taken leaves from time to time due to illness. The Management used to treat the said leaves as leave without wages and deduct salary. In the inquiry conducted, the Inquiry Officer first asked to give his statement and thus violated the principles of natural justice. The charges were proved against the Petitioner by the Inquiry Officer despite refusal of the Management to cross-examine the Petitioner. Thus he was removed illegally on the basis of a sham inquiry. In response the Management took an objection that the Respondent is not an industry. It was further stated that the Petitioner had availed excessive leaves without pay during the calendar years 1993 and 1994. The Petitioner was granted full opportunity to defend his case and the inquiry was W.P. (C) NO. 47 of 2009 Page 3 of 6 conducted in accordance with the principles of natural justice and in conformity with the rules and regulations of the Corporation. There is no error in the finding of the Inquiry Officer and punishment of termination is legal. On the basis of the pleadings of the parties, issue of fairness of inquiry in accordance with the principles of natural justice was framed as a preliminary issue. The principal challenges of the Petitioner before the learned Trial Court were that no Management witness was examined by the Inquiry Officer, the Petitioner was not given due opportunity to put his defence before the Inquiry Officer and the Inquiry Officer did not follow the proper procedure as he should ask the Management to give the evidence first. As no Management witness gave the statement before him, the entire inquiry proceedings were vitiated. The learned Trial Court observed that since the Petitioner himself admitted the charges, there was no requirement of examining any Management witness and there was no violation of the principles of natural justice if the Petitioner was first examined by the Inquiry Officer. In Management, Pallavan Transport Corporation Ltd. vs. Presiding Officer Industrial Tribunal and another, Vol. 97 FJR 494 Madras High Court held that in case the workman does not deny the charges but gives explanation, it amounts to admission of guilt and in such a situation the Management witness is not required to be examined.
7. I have gone through the Trial Court record. After the charge sheet was issued to the Petitioner, he was asked whether he has to produce any evidence which he denied. He accepted the allegations in the charge sheet and stated that he took the leaves because either he was unwell or his son was unwell due to which he was upset and for this reason he gave medical W.P. (C) NO. 47 of 2009 Page 4 of 6 certificates again and again. The Inquiry Officer examined the medical certificates however, found no justification and thus held that the charges were proved. In a case where the delinquent accepts his misconduct and does not render an explanation there is no necessity for examining the witnesses of the Management. Strict rules of evidence are not applicable to domestic enquiry. Thus there is no error in the finding of the learned Trial Court on the preliminary issue.
8. Thereafter the learned Trial Court considered the evidence on record. The main prayer of the Petitioner was that a very harsh punishment has been awarded to him, that is, the punishment was highly disproportionate to the misconduct proved against him. Habitual negligence of a worker cannot be said to be misconduct entailing minor penalty. Irresponsible worker is not entitled to be continued in services. In Delhi Transport Corporation v. Sardar Singh (2004) 7 SCC 574 it was held that when an employee absents himself from duty, even without sanctioned leave for long period, it prima facie shows lack of interest in work. Further it was held that conclusion regarding negligence and lack of interest can be arrived at by looking into the period of absence. Moreover, the burden is on the worker who claims that there was no negligence or lack of interest, to establish it by placing relevant material.
8. I have also looked into the medical certificates filed by the Petitioner. A perusal of these certificate shows that either they are not for the relevant period or they are just certificates prescribing rest for a particular period and no ailment has been noted.
W.P. (C) NO. 47 of 2009 Page 5 of 69. I find no infirmity in the impugned order and award. Petition and application are dismissed.
(MUKTA GUPTA) JUDGE JANUARY 15, 2013 'vn' W.P. (C) NO. 47 of 2009 Page 6 of 6