C/O. Delhi Dehati And Shahari Mazdoor ... vs School Of Correspondence Courses And ... on 7 April, 2015

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Delhi District Court

C/O. Delhi Dehati And Shahari Mazdoor ... vs School Of Correspondence Courses And ... on 7 April, 2015

Ajai Shankar Saxena Vs. School of Correspondence Courses and Continuing Education ID No. 461/04

BEFORE LABOUR COURT - XI: KARKARDOOMA COURTS: DELHI
PRESIDING OFFICER: Mr. ANAND SWAROOP AGGARWAL
(Delhi Higher Judicial Service)
(Additional District & Sessions Judge, Delhi)

REFERENCE CASE (ID) No. 461/04 (OLD ID No. 84/87)
UNIQUE CASE ID No. 02402C0407192004

In the matter of:

Ajai Shankar Saxena s/o. Sh. Hari Shankar
R/o. E - 50, Subhash Mohalla, North Ghonda, Delhi.

OTHER ADDRESSES:
(i) A4, S2, Dilshad Plaza, Bhopra, Sahibabad, U.P.

(ii) H. No. 320, Sector1, Vasundhara, Ghaziabad, U.P.

C/o. Delhi Dehati and Shahari Mazdoor Union (Regd.)
E7 / 268 - 269, Sultanpuri, Delhi - 110041
....... Workman / Claimant

Vs.

School of Correspondence Courses and Continuing Education,
(Presently known as School of Open Learning, University of Delhi)
University of Delhi, 5, Cavalry Lines, Delhi - 110007
....... Management

Date of institution : 14.09.1987
Date of reserving for award : 18.03.2015
Date of award : 07.04.2015

AWARD:

1. TERMS OF REFERENCE

Vide ORDER No. F.24(2692)/87Lab./2576873 dated 21.08.1987

Secretary (Labour), Delhi Administration, Delhi made the following reference

under section 10 (1) (c) and 12 (5) of the Industrial Disputes Act, 1947 read

with Govt. of India, Ministry of Labour Notification No. S11011/2/75-DK(IA)

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dated the 14th April, 1975 for adjudication by the Labour Court No. IV:

"Whether the termination of services of Shri Ajai Shankar is illegal and /
or justified, if so, to what relief is he entitled and what directions are
necessary in this respect?"

(Note: On 06.07.2004, as per the order of the Ld. District & Sessions Judge,

this case was transferred to the Court of Mrs. Deepa Sharma, Ld. POLCXI.)

2. CASE OF WORKMAN AS PLEADED IN STATEMENTOFCLAIM

(i) Workman was in the employment of management since 01.06.1966 as an

'Assistant' on last drawn salary of Rs.700/ per month.

(ii) Workman worked to entire satisfaction of management but inspite of

this, services of workman were terminated by the management on 05.01.1983

without any cause or notice.

(iii) Termination of services of workman is totally illegal, unjustified, and,

also, against the principles of natural justice and fair play.

(iv) Workman wrote many letters to protest for his reinstatement to the

management but workman was not reinstated.

(v) Workman served a demand notice by hand and workman obtained

receiving signature and seal of the management on his own copy but inspite of

this workman was neither reinstated nor offered service so far.

(vi) Workman filed an industrial dispute before the Conciliation Officer

Labour Office 15, Rajpur Road, Delhi - 110054 but in spite of this workman

was not reinstated.

(vii) Workman is unemployed since the date of his termination inspite of the

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best efforts to secure a job. Thus, workman is entitled to get reinstatement with

full back wages and the continuity of service with all benefits.

With these averments workman prayed that an award may kindly be

passed for reinstatement with full back wages and continuity of service with all

other benefits as early as possible in favour of workman and against the

management.

3. CASE OF MANAGEMENT AS PLEADED IN WRITTEN
STATEMENT OF DEFENCE.
PRELIMINARY OBJECTIONS

(i) Claim filed by the workman is not maintainable inasmuch as this court

has no jurisdiction to entertain and try the same in view of Rule 78 of the

University Nonteaching Employees (Terms and Conditions of Service) Rules,

1971. The Labour court has no jurisdiction to entertain any appeal against the

decision and orders passed by the Managing Committee and as such the

statement of claim is liable to be rejected forthwith. The reference of the

dispute by the Conciliation Officer to the Labour court is vitiated in view of

aforesaid submission.

(ii) The statement of claim filed by workman is not maintainable inasmuch

as workman has not come to the court with clean hands and has concealed

material particulars from this court. Workman was absent from duty for more

than ninety days without prior permission and had been treated as absconding

from duty and his services as such have been validly terminated.

(iii) The statement of claim filed by the workman is not maintainable

inasmuch as services of workman had been terminated w.e.f. 16.09.1982 by the

Managing Committee on 05.01.1983 and as such the statement of claim filed by

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workman is not within time and no relief can be granted in favour of the

workman.

ON MERITS

On merits, while denying the case as pleaded by workman in the

statement of claim, management took the stand that workman was not working

as 'Assistant' on permanent capacity since 01.06.1966, as alleged. Workman

was appointed as 'ClerkcumTypist' w.e.f. 01.06.1966 and workman was an

Assistant against a temporary leave vacancy w.e.f. 09.09.1971 and during his

probationary period, the Managing Committee of the school in its meeting held

on 24.10.1973 decided to extend his probationary period upto 15.05.1974. The

Managing Committing in its meeting held on 20.03.1975 considered the case of

confirmation of workman and decided not to confirm the workman as an

'Assistant' and reverted him to the original post of 'ClerkcumTypist' from

21.03.1975 onwards. Workman thereafter filed a Civil Writ Petition No.

1348/1976 in the Hon'ble High Court of Delhi against the aforesaid reversion.

A Division Bench of the Hon'ble High Court vide order dated 17.02.1977 was

pleased to dismiss the said Civil Writ Petition. The services of the workman

were placed on temporary basis between 18.10.1977 to 31.07.1978 and against

the substantive post of 'Assistant' w.e.f. 01.08.1978 on purely temporary and

humanitarian grounds by the Managing Committee of the school.

The workman was issued a memorandum to improve his work and

conduct from time to time. The workman's record of service shows that

workman was irregular and irresponsible while discharging his duties and leave

account of the workman between 1980 till June, 1982 is self explanatory.

Moreover workman was evading receipt of letters sent by the management

which is wholly unbecoming on the part of an employee and his services had

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been validly terminated since workman remained absent from duties for more

than ninety days without permission. Workman was treated as absconding from

duties and his services were deemed as terminated in terms of Rule 49 (v) of

the University NonTeaching Employees (Terms & Conditions of Service)

Rules, 1971 which reads as under:

''Except for valid reason and/or unforeseen contingencies, no employee
shall be absent from duty without prior permission. Where an employee
absents himself from duty without permission for a continuous period
of ninety days, he shall be treated as absconding from duty and his
services be deemed as terminated.''

Workman remained absent from duty without valid reason and prior

permission w.e.f. 16.9.1982 till 01.01.1983 i.e. for a period of 108 days and his

services were validly terminated by the management. The question of

reinstatement does not arise. Management denied the averments made by

workman regarding service of demand notice upon the management.

Management, further, pleaded that Vice Chancellor vide letter no.

CC/Est/85/207 dated 20.08.1985 and Employees Welfare Officer, University of

Delhi vide letter no. CC/Est/85/350 dated 29th/21st December, 1985 were

informed with reference to the appeal of Ajay Shankar that his services had

been terminated as per resolution passed by the Managing Committee of the

School w.e.f. 16.09.1982 under Rule 49 (v), Section II, Chapter V of the

University NonTeaching Employees (Terms & Conditions of Service) Rules,

1971 since workman was absconding from duty with valid reason. As regards

workman filing industrial dispute before Conciliation Officer, management

pleaded that factum of filing of the proceedings before the Conciliation Officer

are matter of record and need no reply. Further management denied the

averments of the workman that workman is unemployed. At last management

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prayed that statement of claim filed by claimant being false, frivolous and

totally misconceived and be dismissed with costs.

4. APPLICATION UNDER SECTION 10B(1)(e) OF THE INDUSTRIAL
DISPUTES (CENTRAL) RULES, 1957 FOR AMENDMENT OF
PLEADINGS AND NO DISPUTE AWARD DATED 21.04.1993.

Vide order dated 03.10.1988 case was adjourned to 16.11.1988 for

rejoinder, documents and issues. On 17.03.1989, workman moved an

application for amendment of pleadings to which management filed reply on

08.08.1989 and case was fixed for arguments on this application. On

21.04.1993, Sh. D. S. Bawa, POLCIV passed 'No Dispute Award' observing

that, "..... The workman took many dates for arguing the application but did

not do so and ultimately absented himself causing reservation of the award.

Till today no one has turned up to know about the fate of the reference. It

seems that the workman has either settled his dispute with the management or

is not interested in the adjudication of the reference from the court. I,

therefore, have no option but to pass a no dispute award and I pass such an

award accordingly."

5. SETTING ASIDE OF 'NO DISPUTE AWARD'

On 02.07.1993 an application was moved by workman for setting aside

'no dispute award' dated 21.04.1993. This application was taken up for hearing

on 01.09.1994. Management filed reply to the same and vide order dated

05.07.1994, this application was allowed and case was again adjourned for

filing of rejoinder, documents, A/D and issues for 07.11.1994.

6. REJOINDER

Despite opportunities given, workman did not file rejoinder /

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documents.

7. ISSUES

Vide order dated 20.12.1994 ld. predecessor of this Court framed the

following issue:

(i) As per terms of reference.

8. EVIDENCE

Despite many opportunities given, workman led no evidence and vide

order dated 01.02.2000 WE was closed.

9. 'NO DISPUTE AWARD'

'No Dispute Award' dated 01.02.2000 was passed observing that

workman has failed to prove his claim that his services have been terminated

illegally and unjustifiably.

10. SETTING ASIDE OF 'NO DISPUTE AWARD' DATED 01.02.2000

On 06.06.2000, an application was moved for setting aside the 'No

Dispute Award' dated 01.02.2000. This application was taken up for hearing on

08.06.2000 and notice was issued to the management for 14.11.2000. Vide

order dated 08.03.2001 it was observed that management stood duly served

with the notice for 14.11.2000 but none appeared before the Court on that day.

After hearing AR for the workman, the application for setting aside 'no dispute

award' dated 01.02.2000 was allowed and case was adjourned to 29.10.2001 for

WE. Another notice was also issued to the management for informing about

the order passed on 08.03.2001.

11. DISPOSAL OF APPLICATION FOR AMENDMENT OF
PLEADINGS

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Vide order dated 31.05.2002 passed by Sh. Pradeep Chaddah, POLC -

IV, KKD Courts, Shahdara, Delhi application moved by workman for

amendment of pleadings was dismissed.

12. APPLICATION OF MANAGEMENT FOR FILING CERTAIN
DOCUMENTS.

On 16.07.03 an application was moved by ARM for filing certain

documents namely:

Sl. No. Particulars
1. Notice dated 7.12.1971
2. Extracts of Minutes of Meeting dated 24.10.1973
3. Extracts of Minutes of Meeting dated 20.3.1975
4. Official Memorandum dated 19.9.1973
5. Extracts of Minutes of Meeting dated 24.10.1973
6. Memorandum dated 29.8.1974
7. Confidential report dated 7.9.1974
8. Settlement of Extra Ordinary leave of the Workman from 1.1.1975 to
1.1.1976
9. Memorandum dated 17.3.1975
10. Memorandum dated 21.3.1975
11. Letter of Registrar dated 28.4.1975
12. Letter of Management dated 3.5.1975 to the Registrar of University of Delhi
13. Report dated 13.5.1975 of the Management
14. Letter dated 30.6.1975 of the Management
15. Report dated 16.9.1975 of the Management
16. Report of the management dated 19.5.1975
17. Confidential Report of the Management dated 22.11.1975
18. Letter of Accounts Section dated 17.12.1975
19. Letter of Workman dated 19.12.1975

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20. Letter of Prem Bahadur dated 19.12.1975
21. Letter of R. S. Tiwari dated 19.12.1975
22. Letter of management dated 17.12.1975
23. Proceedings of Committee dated 19.12.1975
24. Report of the Enquiry Committee dated 23.2.1976
25. Statement of witnesses before the Enquiry Committee
26. Letter dated 19.12.1976
27. Letter of Workman dated 6.12.1975
28. Warning dated 23.1.1976
29. Confidential report dated 26.2.1976
30. memorandum dated 3.2.1976
31. Confidential report dated 26.2.1976
32. Memorandum dated 6.3.1976
33. Memorandum dated 17.12.1976
34. Memorandum dated 17.12.1976
35. Letter of Workman dated 6.9.79
36. Memorandum dated 20.6.1979
37. Memorandum dated 20.6.1979
38. Memorandum dated 30.8.1979
39. Warning dated 28.9.1979
40. Confidential report dated 19.9.1979
41. Confidential report dated 14.1.1980
42. Letter dated 22.9.1979
43. Confidential report dated 21.7.1979
44. Leave Account of the workman from 3.11.78 to 8.1.80
45. Memorandum dated 2.12.80
46. Memorandum dated 4.12.1980
47. Warning dated 28.4.1980
48. Memorandum dated 19.4.1982
49. Report dated 1.5.1980

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50. Report dated 29.11.1982
51. Report dated 1.1.1983
52. Memorandum dated 1.1.1983
53. Report dated 1.1.1983
54. Memorandum dated 1.1.1983
55. Report dated 1.1.1983
56. Letter of the Management dated 6.1.1983
57. Receipt of Telegram dated 1.1.1983
58. Letter of Management dated 13.1.1983
59. Report of Telegraph department dated 13.1.1983
60. Report dated 13.1.1983
61. Notice dated 17.1.1983

On this application following order was passed by ld. predecessor of

this Court:

"131004
Pr.: AR for the parties.
Workman in person.
Ld. counsel for the workman has submitted that if the
application of the management for filing of documents on record
is allowed subject to a heavy cost. Accordingly, the application is
allowed on payment of cost of Rs.500/.
Case is now fixed for WE and payment of costs on
08.04.2005."

13. MANAGEMENT BEING PROCEEDED EXPARTY AND SETTING
ASIDE OF THIS ORDER.

Vide order 22.02.2007 management was proceeded exparty. On

26.03.2007 an application was moved under Order IX rule 7 read with Section

151 of CPC for setting aside exparty order dated 22.02.2007. Workman filed

reply to this application. Vide order dated 23.10.2007 this application was

allowed subject to cost of Rs.2000/. The exparty order dated 22.02.2007 was

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set aside.

14. WORKMAN EVIDENCE

On 04.12.2007 affidavit of workman, Ex.WW1/A, was tendered in part

and further examination was deferred. On 31.03.2008 adjournment was

requested by ld. ARM which was strongly opposed by ld. ARW. However,

adjournment was allowed subject to cost of Rs.500/. On 31.05.2008, ld.

predecessor of this Court passed following order:

"31.05.2008
Present: Workman in person with AR.
None for the management.
Today the case was fixed for W.E., however, nobody has appeared
on behalf of the management despite repeated calls. AR for the
workman submits that examination in chief is almost complete and
today workman was to be cross - examined by the management.
He submits that vide order dt.22.2.2007 management was
proceeded exparte, however, lateron management appeared and
filed an application for setting aside the exparte which was
allowed subject to cost of Rs.2000/ vide order dt. 23.10.2007. It
has been further submitted that even on 31.3.2008 adjournment
was granted at the request of AR for the management subject to
cost of Rs.500/. He has submitted that this is delaying tactics on
the part of the management and prays that right of the management
to cross - examine the workman be closed.
I have perused the record carefully. Present case pertains to the
year 1997. In my view, management is not serious in contesting the
case. In these circumstances, management's right to cross -
examine the workman stands closed.
Put up on 17.7.2008 for M.E."

On 13.08.2008 following order was passed:

"13.8.2008
Present: Workman in person with AR.
AR for the Management.

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Reply to the application of management filed by the AR for the
workman. Copy supplied to the AR for the management.
Arguments heard.
AR for the workman submits that he has no objection if the
application is allowed subject to payment of cost.
In these circumstances, I allow the application filed by the
management subject to payment of cost of Rs.500/. Management
is given only one opportunity for the cross - examination of
workman failing which no further opportunity shall be afforded at
any cost.
Put up on 14.8.2008 at 12.30 p.m. for cross - examination of
workman."

15. APPLICATION OF WORKMAN FOR PRODUCTION OF
DOCUMENTS BY MANAGEMENT.

On 12.07.2009 workman moved an application seeking production of (i)

Gradation Ist List of Assistant; (ii) Copy of the appointment letter dated

30.5.1966; (iii) Office order dated 15.3.1973; (iv) Office order dated 9.9.1971;

(v) Office order dated 9.10.1980 No. CC Est/80/00/9158; (vi) Joining letter

dated 5.1.1983; (vii) Copy of the note sheet dt. 1.1.1983; (viii) Leave sanctioned

note sheet dt. 1.1.83; (ix) Note sheet of 1.1.83 submitted by the Estt. And (x)

Copy of termination letter dated 1.1.1983 from the management. Management

filed reply to this application. This application was dismissed as withdrawn

vide order dated 26.02.2010.

16. NOTICE UNDER ORDER XII RULE 8 OF CPC

On 26.02.2010 ld. counsel for workman filed some documents

including a notice under Order XII Rule 8 of CPC ( in respect of the same very

documents for which application seeking production of documents by

management was moved) alongwith supporting affidavit and postal receipts

etc. On 10.02.2011 ld. counsel for management stated that no documents are

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available with the management as required by the workman and ld. counsel

made following statement:

"Statement of Sh. Gaurav Mahajan, Ld. Counsel for the
Management.
At Bar,
I have instructions from the respondent/management that the
documents as sought to be produced vide notice dt. 16.12.2009
U/o 12 Rule 8 CPC are not available and are not in possession
of the respondent/management being an old record as also
stated in the reply dt. 30.10.2009 filed on behalf of the
respondent/management to the application filed by the workman
for production of documents, which was later withdrawn by the
workman. Whatever documents which were available and in
possession of the respondent/management had already been
filed alongwith their written statements/reply to the present
petition."

In view of above statement application under Order XII Rule 8 of CPC

stood disposed of.

17. APPLICATION OF WORKMAN FOR LEADING SECONDARY
EVIDENCE.

On 13.10.2011, ld. ARW moved an application for leading secondary

evidence in respect of documents as mention in notice under Order XII Rule 8

of CPC. Management filed reply to this application. Vide detailed order dated

30.03.2012 this application was dismissed.

18. WORKMAN EVIDENCE

On 31.07.2012 examinationinchief of workman was completed.

Workman relied upon following documents:

Sl. Name of Particulars
No. documents

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01. Mark WW1/1 Photocopy of Departmental letter dated 30.05.1966.
02. Ex. WW1/1 Photocopy of Officer Order dated 15.03.1975 (OS&R)
(Objected to by ld. ARM)
03. Ex. WW1/2 Photocopy of letter dated 4th May, 1968 written by
Directorate of Correspondence Course and signed by Mr.
N. K. Pant (OS&R)
04. Ex. WW1/3 Photocopy of Certificate issued by the management
(OS&R).
05. Ex. WW1/4 Photocopy of Letter dated 21.03.1975 written by
management (OS&R).
06. Ex. WW1/5 Photocopy of minutes of the meeting dated 23.12.1977
(OS&R).
07. Ex. WW1/6 Photocopy of Office Order dated 09/10.10.1980 (OS&R)
(Objected to by ld. ARM).
08. Ex. WW1/7 Photocopy of medical fitness dated 11.09.1982 (objected
to).
09. Mark WW1/2 Photocopy of the Under Postal Certificate.
10. Ex. WW1/8 Photocopy of the medical leave application dated
19.09.1982.
11. Ex. WW1/9 Photocopy of medical leave application dated 02.11.1982.
12. Ex. WW1/10 Photocopy of Medical Certificate dated 04.01.1983
(objected to by ld. ARM).
13. Ex. WW1/11 Photocopy of the fitness certificate dated 05.01.1993
(objected to by ld. ARM).
14. Mark WW1/3 Photocopy of the Joining report dated 05.01.1983.
15. Ex. WW1/12 Photocopy of the Note Sheet dated 01.01.1983 given by
Sh. J. K. Sharma of the management (this document is
admitted and filed by management).
16. Ex. WW1/13 Photocopy of the leave record of the claimant (this
document is admitted and filed by the management).
17. Ex. WW1/14 Note Sheet dated 01.01.1983 running into two pages (this
document is admitted and filed by management).

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18. Ex. WW1/15 Photocopy of the leave account of the claimant (this
document is admitted and filed by management).
19. Ex. WW1/16 Photocopy of the memorandum issued by the
management dated 01.01.1983 (this document is admitted
and filed by management).
20. Ex. WW1/17 Photocopy of Office Memorandum dated 19.09.1973
issued by management (OS&R).
21. Ex. WW1/18 Photocopy of the minutes of the meeting dated 05.11.1980
(this document is admitted and filed by the management).
22. Ex. WW1/19 Photocopy of the minutes of meeting of management
dated 14.11.1973 running into two pages (OS&R).
23. Mark WW1/4 Photocopy of the minutes of the meeting dated

10.11.1978.
24. Ex. WW1/20 Photocopy of Joining Report dated 05.01.1983.
25. Ex. WW1/21 Page No. 7 of extracts of minutes of the meeting of
Managing Committee.
26. Ex. WW1/22 Appeal (dated 07.01.1983) against the termination of Mr.
Ajay Shankar, Assistant addressed to the Chairman,
Managing Committee, Correspondence Courses &
Continuing Education, University of Delhi.
27. Ex. WW1/23 Letter dated 18.01.1983 written by Mr. R.S.Tiwari,
Convenor, S.C.C, UNIT to Mr. Ajay Shankar.
28. Ex. WW1/24 Letter dated 30.12.1983 written by workman to the
Chairman, Managing Committee, Correspondence
Courses, Delhi University, Delhi.
29. Ex. WW1/25 Letter dated 17 Sept. 1985 written by Mr. Jai Kumar
Bhatia, Employees Welfare Officer to workman.
30. Ex. WW1/26 Appeal against termination of Mr. Ajay Shankar Saxena,
Assistant to the Chairman, Managing Committee,
Correspondence Courses & Continuing Education,
University of Delhi.
31. Ex. WW1/27 Representation dated 03.09.1985 made by workman to
President, Executive Council, Delhi University, Delhi.

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32. Ex. WW1/28 Letter dated 07.03.1986 written by workman to Mr.
J.K.Bhatia, Employees Welfare Officer, Delhi University,
Delhi.
33. Ex. WW1/29 Letter dated 19.09.1986 written by workman to Mr.
J.K.Bhatia, University Employee's Welfare Officer, Delhi
University, Delhi.
34. Ex. WW1/30 Minutes of the meeting of Managing Committee of
School of Correspondence Courses dated October 24,
1973.
35. Ex. WW1/31 Agenda of the Managing Committee meeting dated
14.11.1973

Documents Ex. WW1/22 to Ex. WW1/31 objected to by ld. counsel for

management as the same are photocopies and the mode of exhibiting and

proving the said documents.

On 31.07.2012 ld. counsel for workman requested to file additional

documents in evidence of workman. Ld. counsel for management had no

objection if request of workman is allowed subject to cost. Request of

workman was allowed subject to cost of Rs.500/ imposed on the workman and

payable to management on next date of hearing. On 16.01.2013 the opportunity

of management to cross - examine the workman was closed.

19. APPLICATION OF MANAGEMENT UNDER SECTION 114 READ
WITH SECTION 151 OF CPC 1908 FOR REVIEW OF ORDER DATED
16.01.2013 AND FOR RECALLING THE WORKMAN.

On 17.01.2013 management moved an application under section 114

read with section 151 of CPC 1908 for review of order dated 16.01.2013 and

permitting management to cross - examine the workman / WW1 Mr. Ajai

Shanker Saxena. On 08.02.2013 ld. ARW stated that he had no objection if the

application of management is allowed subject to heavy costs. Order dated

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16.01.2013 was set aside subject to cost of Rs.500/ imposed on management

and payable to workman.

20. CONCLUSION OF CROSS - EXAMINATION OF WORKMAN.

Workman / WW1 Mr. Ajay Shanker Saxena was partly cross -

examined on 03.05.2013 and his cross - examination concluded on 24.05.2013

on which date WE was also closed by Mr. Raj Rishi, Adv. for workman.

21. MANAGEMENT EVIDENCE

Management examined MW1 Mr. Rajesh Kumar, Section Officer.

Examinationinchief of MW1 Mr. Rajesh Kumar was recorded on 13.09.2013.

MW1 Mr. Rajesh Kumar Sharma relied upon documents Ex.MW1/1 to

Ex.MW1/60.

Sl. Name of Particulars
No. documents
01. Ex. MW1/1 Authority Letter dated 21.08.2013 issued by Executive
Director, School of Open Learning in favour of Mr. Rajesh
Kumar.
02. Ex. MW1/2 Letter signed by Mr. Saxena, the then Principal.
03. Ex. MW1/3 Extract of the Minutes of the Managing Committee
Meeting held on 24 Oct. 1973.
04. Ex.MW1/4 Extract of the Minutes of the Managing Committee
Meeting held on 20 March 1975.
05. Ex. MW1/5 Office Memorandum Dated 19th Sept. 1973.
06. Ex. MW1/6 An extract from the Minutes of the Managing Committee
Meeting held on October 24, 1973 and an extract from the
Minutes of the Managing Committee held on 19th August,
1974.
07. Ex. MW1/7 Memorandum dated 29.08.1974.

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08. Ex. MW1/8 Confidential Report dated 07.09.1974 sent by Principal to
Chairman.
09. Ex. MW1/9 Statement of ExtraOrdinary Leave (Without Pay) from
01.01.1975 to 01.01.1976 of Shri Ajai Shankar.
10. Ex.MW1/10 Memorandum dated 17.03.1975.

11. Ex.MW1/11 Memorandum dated March 21, 1975.

12. Ex.MW1/12 Letter dated 28/29th April 1975 written by Dy. Registrar
(Colleges) For Registrar to The Principal, School of
Correspondence Courses and Continuing Education.
13. Ex.MW1/13 Reply dated 3rd/7th May 1975 written by Principal to
Registrar, University of Delhi, Delhi110007.
14. Ex.MW1/14 Memorandum dated 13.05.1975.

15. Ex.MW1/15 Letter dated 30.06.1975 written by Principal to Accounts
Officer to the effect that
''Certain Letters sent to Shri Ajai Shanker Clerk/Typist have
been received back undelivered. He may be requested to
intimate the correct Postal Address in writing before making
any payment to him.''
16. Ex.MW1/16 Office noting dated 16.09.1975 regarding grant of leave not
due.
17. Ex.MW1/17 Office report dated 19.05.1975.

18. Ex.MW1/18 Letter sent by workman to Principal requesting /assuring
him for change of post.
19. Ex.MW1/19 Confidential Letter dated 22.11.1975 by Principal to
workman.
20. Ex.MW1/20 Complaint against workman from Mr. R.S.Tiwari.

21. Ex. MW1/21 Letter of Principal directing Inquiry Committee to look
into complaint made by Mr. R.S.Tiwari.
22. Ex. MW1/22 Letter of workman dated 19.12.1975 to Chairman.

23. Ex. MW1/23 Complaint against workman from Mr. Prem Bahadur
(Chaukidar).
24. Ex. MW1/24 Letter of Mr. R.S.Tiwari to Convenor, Enquiry Committee
withdrawing his complaint against workman.

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25. Ex. MW1/25 Proceedings and Report of Inquiry Committee.

26. Ex. MW1/26 Warning dated 23.01.1976 issued by Principal to workman.

27. Ex. MW1/27 Memorandum dated 3rd/ 4th February, 1976 regarding
workman's absence from work.
28. Ex. MW1/28 Letter dated 19.02.1976 issued by Principal declining the
request made by workman for change of post due to
workman's frequent absence from work.
29. Ex. MW1/29 Confidential Report dated 26.02.1976 of the Principal to
the Chairman Mr. C.M.S.Dass enclosing the Report of
Enquiry Committee as well as statement of the employees
in whose presence the workman had used abusive language
and manhandled the complaint Mr. S.Chandra, Supdt.
30. Ex. MW1/30 Confidential Letter dated Feb. 26, 1976 written by
Principal to Professor Mr. C. M. S. Dass Chairman,
Managing Committee, School of Correspondence Courses,
Delhi.
31. Ex. MW1/31 Reply of the Chairman dated February 26, 1976.

32. Ex. MW1/32 Memorandum dated March 6/12, 1976 issued by Principal
to workman stating that a red entry had been made in the
workman's service book due to compliance of orders as
well as evading replies which is against the Service
Conduct Rules.
33. Ex. MW1/33 Memorandum dated 17th Dec., 1976 issued by Principal to
workman stating his irregular presence in the office and
details of workman's absence of his own accord without
seeking permission from the management.
34. Ex. MW1/34 Memorandum dated June 20, 1979 stating monthwise
leaves.
35. Ex. MW1/35 Memorandum dated June 20, 1976 issued to workman by
Principal stating that lot of outstanding work had piled up
on his seat and workman was further directed to clear the
same as per undertaking given by him.

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36. Ex. MW1/36 Memorandum dated August, 30, 1979 asking workman for
reply to previous two Memorandums which had not been
given and explain why workman has been so irregular and
indisciplined towards the discharge of his duties.
37. Ex. MW1/37 Letter dated 06.09.1979 written by workman to the
Principal School of Correspondence Courses, University
of Delhi, Delhi.
38. Ex. MW1/38 Form of Confidential Report On Assistant for the period
ending 31st July, 1979.
39. Ex. MW1/39 Confidential Memorandum dated Sept. 19, 1979 informing
workman about adverse remarks in the Confidential
Report for the period ending 31st July, 1979.
40. Ex. MW1/40 Letter written to the establishment stating that according to
the rules the temporary/probationary posts are not to be
confirmed if their confidential report is not satisfactory.
41. Ex. MW1/41 Warning issued to workman by Principal dated Sept.
26/28, 1979.
42. Ex. MW1/42 Leave Account of Mr. Ajai Shanker for the period from 3rd
Nov. 1978 to 8th Jan. 1980.
43. Ex. MW1/43 Confidential Letter dated 14.01.1980 written by Principal
to Chairman stating that workman still had not become
regular in his duty, does not deserve to be confirmed and
probationary period should be extended by 1 years.
44. Ex. MW1/44 Warning dated April 28/1st May 1980 issued to workman
regarding his indiscipline and irregularity in attending the
work.
45. Ex. MW1/45 Confidential Memorandum dated May 1, 1980 in which
workman was informed of the remarks in his confidential
report for the period ending on 31st July 1979.
46. Ex. MW1/46 Memorandum dated 2nd Dec. 1980 issued by Principal in which
leave record for the months of October and November was
stated in detail and it was also stated that the salary of workman
was to be deducted as his paid leaves were used and all the
leaves were without pay and hence this action; the same was
forwarded to the accounts department also.

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47. Ex. MW1/47 Memorandum dated 4th Dec. 1980 issued by Accounts
Officer stating workman's irregular attendance and
requesting the workman to be regular failing which
disciplinary action will be initiated.
48. Ex. MW1/48 Memorandum dated 19th April, 1982 issued by Principal
detailing workman's leaves for the year 1981 and 1982 and
warning him to be more regular in attending work.
49. Ex. MW1/49 'Immediate' Letter dated 29.11.1982 issued by Accounts
Officer stating the workman's irregular attendance and
requesting the establishment for finding a suitable
replacement as workman had been absent since 17.08.1982
without permission.
50. Ex. MW1/50 Report dated 01.01.1983 treating the workman as
absconding.
51. Ex. MW1/51 Note on the case of Shri Ajai Shanker, Assistant.

52. Ex. MW1/52 Attendance Register Details of workman dated 01.01.1983.

53. Ex. MW1/53 Memorandum dated 1st Jan. 1983 terminating the service
of workman w.e.f. 16.09.1982 i.e. the date from which
workman was absconding.
54. Ex. MW1/54 Leave Account of Shri Ajai Shanker Saxena, Assistant
upto 11.06.1982.
55. Ex. MW1/55 Letter dated 06.01.1983 written by Principal to workman.

56. Ex. MW1/56 Telegraph dated 13.01.1983.

57. Ex. MW1/57 Letter dated 13th Jan. 1983 written by Principal to Incharge,
Subzi Mandi Telegraph Office, Delhi110007 requesting
for supplying attested copy of telegramme No. 54 dated
13th January, 1983 sent to Shri Ajai Shanker E50,
Subhash Mohalla, North Ghonda, PO. Seelampur,
Delhi1100153.
58. Ex. MW1/58 Certified True Copy of N0054 dated 13.01.1983.

59. Ex. MW1/59 Receipt dated 14.01.1983 given by Telegraph Office.

60. Ex. MW1/60 Notice dated 17th Jan. 1983.

During his cross - examination, MW1 Mr. Rajesh Kumar produced

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Ex.MW1/W1x - Details of last drawn salary of workman. Documents

Ex.MW1/6, Ex.MW1/9, Ex.MW1/50, Ex.MW1/52, Ex.MW1/54,

Ex.MW1/55 and Ex.MW1/56 were objected to by ld. counsel for workman

being documents without signatures. Also mode of proof with regard to all the

document was also disputed by ld. counsel for workman. On 25.10.2013, ld.

counsel for management submitted that he will try to bring on record the

signed copies of these documents, if available. On 17.01.2014 certain

documents were filed by ld. counsel for management to meet out the objections

referred to in order dated 25.10.2013. On 12.02.2014 passed following order:

"12.02.2014
Present: Workman with Mr. Raj Rishi, adv.
Mr. Rohit Oberoi, adv. for the management with
MW1 Mr. Rajesh Kumar.
Today hearing was given to counsels for both
the parties regarding objections as to the exhibition of
documents referred in order dated 25.10.2013. Today ld.
counsel for management has filed on record one document
which has been exhibited as Ex.MW1/6. Copy supplied. Ld.
counsel for management submits that whatever was the best
possible way for the management to prove the documents
referred to in order dated 25.10.2013 has been adopted by the
management.
In my opinion, instead of deciding objections as
to the exhibition of abovesaid documents raised by the
workman at this stage it would be appropriate that all issues
including issue regarding exhibition of these documents are
decided at the time of final outcome of the case taking into
account the totality of the fact is and circumstances of this case
on the basis of entire material on judicial file. Ld. counsel for
workman has no objection to the same.
Put up for cross examination of MW1 Mr.
Rajesh Kumar on 05.03.2014. If any other witness is to be
examined by the management copy of affidavit of said witness

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be supplied to the ld. counsel for workman within a week
positively."

On 26.04.2014 ld. proxy counsel for management submitted that

management had been served with a notice under Order 12 Rule 8 CPC dated

12.04.2014 requiring the management to produce certain documents (i)

Original Leave application dated 19.9.1982 and (ii) Original Leave application

dated 2.11.1982. It was submitted that the record is very old and management

needed time to make an attempt to produce the said record. Ld. counsel for

workman filed on record copy of said notice under Order XII Rule 8 of CPC

alongwith postal receipts. On 21.05.2014, management filed reply to notice

under Order XII Rule 8 of CPC. MW1 Mr. Rajesh Kumar was partly cross -

examined on 11.07.2014. On 23.08.2014 MW1 Mr. Rajesh Kumar filed certain

documents pursuant to order / direction dated 11.07.2014. On 10.10.2014

MW1 Mr. Rajesh Kumar was further cross - examined and remaining cross -

examination was deferred with a direction to bring leave record as well as

service book of workman. On 02.12.2014 MW1 Mr. Rajesh Kumar was partly

further cross - examined and remaining cross - examination was deferred on

the ground that counsel for workman had not been supplied with full copy of

Ex.MW1/52. Also MW1 Mr. Rajesh Kumar was directed to produce personal

file of workman. Cross - examination of MW1 Mr. Rajesh Kumar was

concluded on 16.12.2014 and ME was closed by Mr. Vipin Bhaskar, Adv. for

management.

22. ARGUMENTS

I have heard Sh. Raj Rishi, Adv. for workman and Sh. Rohit Oberoi,

Adv. for management. Ld. counsel for workman relied upon case laws reported

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as (i) Uptron India Limited Vs. Shammi Bhan & Anr. 1998 I CLR 1043; (ii) D.

K. Yadav Vs. M/s. J. M. A. Industries Ltd. 1993 LLR 584; (iii) Kamal Nayan

Mishra Vs. State of M. P. & Ors. 2010 II AD (S.C.) 52; (iv) State Bank of India

and Others Vs. Ranjit Kumar Chakraborty and another 2009 (3) L. L. N. 42;

(v) M/s. Scooters India Ltd. Vs. M. Mohammad Yaqub 2001 LLR 54; (vi) C. N.

Malla Vs. State of Jammu and Kashmir and Others 2009 LLR 1318; (vii) H. M.

T. Watch Ltd., Nainital Vs. Labour Court, Haldwani & Ors. 2014 III CLR 178;

(viii) New Delhi Municipal Council Vs. O. P. Sethi & Others 1999 LLR 845;

(ix) Chief Engineer, Central Zone, Andhra Pradesh State Electricity Board,

Vijayawada and Ors. Vs. K. Naga Hema 1996 LLR 411; (x) The Management of

Modella Woolens Ltd. Vs. Presiding Officer, Labour Court, U. T. Chandigarh

and Anr. 1993 LLR 876; (xi) The Lohar Majra Kalan Cooperative Agriculture

Service Society Limited Vs. The Presiding Officer, Labour Court, Ludhiana

and another 2012 (4) LLN 814 (P & H); (xii) Sanjeevan Gramin Vaidyakiya &

Samajik Sahayata Pratisthan through its Chairman and Others Vs. Gorakhnath

Popat Bandhane and Others 2012 - IV - LLJ - 23 (Bom.); (xiii) Bir Singh Vs.

Delhi Transport Corporation 2015 (144) FLR 317; (xiv) Ram Paul, Ex.

Conductor of CTU, Chandigarh Vs. The Presiding Officer, Labour Court,

Union Territory Chandigarh & Anr. 1993 LLR 877; (xv) Guru Nanak Dev

University, Amritsar, Presiding Officer, Labour Court, Amritsar & Anr. 2015

CLR 728; (xvi) D. T. C. Vs. Shri Shish Pal 2000 (85) FLR 431 and (xvii)

Lakshmi Precision Screws Ltd. Vs. Ram Bahagat (2002) 6 SCC 552.

Ld. counsel for management relied upon case laws reported as (i)

Mahesh Chand Vs. D. T. C. MANU / DE / 0121 / 2013; (ii) University of Delhi

Vs. Suresh Chand MANU / DE / 9756 / 2006; (iii) Delhi Transport Corporation

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Vs. Sardar Singh MANU / SC / 0619 / 2004 and (iv) The Punjab National Bank

Ltd. Vs. Its Workmen MANU / SC / 0120 / 1959.

23. My ISSUEWISE findings are as under:

ISSUE No. 1: As per terms of reference.
("Whether the termination of services of Shri Ajai Shankar is illegal and / or justified,
if so, to what relief is he entitled and what directions are necessary in this respect?")
Workman in his cross examination deposed that, "...... I got

employment in the year 1966 as clerk cum typist. It is correct that I was on

probation when I got employment as a clerk cum typist....". During cross -

examination of MW1 Mr. Rajesh Kumar conducted on 11.07.2014, MW1 Mr.

Rajesh Kumar, interalia, was directed to produce date and documentary proof

of confirmation, if any of the workman. Pursuant to this direction, on

23.08.2014 MW1 Mr. Rajesh Kumar, interalia, filed extracts (2 pages) from

the minutes of the meeting of committee as per which committee approved the

confirmation of workman as Clerk / Typist since 01.06.1966. Neither in the

statement of claim nor in the evidence affidavit Ex.WW1/A of the workman

there is a specific averment / deposition as to with effect from what date

workman was promoted to / working as Assistant. Workman in the statement

of claim pleaded that, " 1. That I have been in the employment of management

above mentioned since 1.6.1966 as an 'Assistant' on last drawn salary of Rs.

700/ per month." Obviously, this averment of workman is not correct

inasmuch as on 01.06.1966 workman joined the management as 'Clerk cum

Typist' and not as an 'Assistant'. Workman in his evidence affidavit

Ex.WW1/A deposed that, "2. That I joined the service of the management

w.ef. 01061966 as an clerk on last drawn salary of Rs.900/ per month.

Lastly I worked as an assistant with the management.". Workman has not

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specifically deposed as to since what date workman was working as an

'Assistant' with the management. Regarding his promotion as 'Assistant'

workman in his cross - examination deposed as under:

"......I was promoted as Assistant on probation and later on I was
confirmed on the said post. I was promoted in the year 1971. It is
wrong to suggest that I was never confirmed on the said post. I
have filed documentary evidence in the court record in this
regard. I was confirmed in the year 1975 on the said post.
At this stage the claimant is confronted to a office memorandum
dated 21.03.1975 which is signed by the Principal. I never
received the same letter. I was not confirmed till 21.03.1975 on
the post of Assistant. I do not remember the date when I was
confirmed on the said post of Assistant..."

As per above deposition of workman, workman was confirmed in the

year 1975 on the said post i.e. 'Assistant'. Workman further deposed that

workman was not confirmed till 21.03.1975 on the post of 'Assistant'. As per

document relied upon by workman himself as Ex.WW1/4 Managing

Committee had decided not to confirm workman as 'Assistant' and reverted the

workman to the post originally held by him as Clerk - typist w.e.f. 21.03.1975

(afternoon). Workman is also relying upon documents Ex.WW1/5 and

Ex.WW1/6. Document Ex.WW1/6 was objected to by ld. ARM. However, it

is noted that as per document Ex.MW1/51 workman was advised to be placed

against substantive post of 'Assistant' which was available from 01.08.1978 from

the said date. Management in the WS pleaded / admitted that services of

workman were placed on temporary basis since 18.10.1977 to 31.07.1978 and

against substantive post of 'Assistant' w.e.f. 01.08.1978 on purely temporary and

humanitarian grounds by the Management Committee of the School. MW1

Mr. Rajesh Kumar in his cross - examination deposed as under:

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".... Workman herein was a permanent employee of the
management and service book / personal file was also
maintained in respect of workman Mr. Ajay Shankar......
Q. Kindly tell whether workman was confirmed employee of
the management or not?
A. As far as I remember today workman was a permanent
employee as a Junior Assistant. As per procedure of the
management a permanent employee is confirmed subsequently
after observing his conduct for a period of one year. I do not
remember whether workman was a confirmed employee or not. I
can tell so after going through the records.
Witness is permitted to check the records which is available with
him. This record is not available with the witness, witness to
produce the same on the next date of hearing......".

Thereafter, on 23.08.2014, as already noted, MW1 Mr. Rajesh Kumar,

interalia, produced extracts (2 pages) from the minutes of the meeting of

committee as per which committee approved the confirmation of workman as

'Clerk' / 'Typist' since 01.06.1966. Thus, it is observed that workman herein

was a confirmed employee of the management as 'Clerk' / 'Typist' since

01.06.1966 and on the date of termination of his services by the management,

workman was working as 'Assistant'. As per depositions made by MW1 Mr.

Rajesh Kumar workman was a permanent employee as an 'Assistant'.

MW1 Mr. Rajesh Kumar in his cross - examination deposed as under:

".....Q. It is put to you that workman worked with the management
for 17 ½ years continuously and uninterruptedly. What you have
to say?
A. Workman worked since 01.06.1966 to 01.01.1983.
(Vol. workman was quite irregular.)..."
HERE, case of the workman is that services of workman were

terminated by the management on 05.01.1983 without any cause of notice,

illegally, unjustifiably and against the principles of natural justice and fairplay.

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As per management, workman remained absent from duties without valid

reason and prior permission w.e.f. 16.09.1982 till 01.01.1983 i.e. for a period of

108 days and his services were validly terminated by the management.

Management further pleaded that workman was treated as absconding from

duties and his services were deemed as terminated in terms of Rule 49 (v),

Section II, Chapter V of University Non - Teaching Employees (Terms and

Conditions of Service) Rules, 1971 which reads as under:

MW1 Mr. Rajesh Kumar in his crossexamination deposed as under:

"......Q. Kindly tell whether workman was served any
chargesheet/memo. before removing him from the service of
management?
Ans. No chargesheet/memo. was given.
No domestic enquiry was conducted against the workman.
I have no idea whether management had written any letter to
workman calling him to join the duty as workman was (allegedly)
unauthorizedly absenting from duties. I have full knowledge
about the documents exhibited in my evidence.
Q. It is put to you that none of these documents calls upon
the workman to join his duties as workman was (allegedly)
unauthorizedly absenting from his duties. What have you to say?
Question pertains to document already on record.
However, witness to answer the question?
Ans. No such letter was written to the workman at the time of
his removal from services..............................................................
Q. It is put to you that before dismissing the workman from
service workman was not given opportunity of personal hearing
by the management. What have you to say?
Ans. It is correct to suggest that before dismissing the
workman from service workman was not given opportunity of

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personal hearing by the management.
Q. It is put to you that no compensation was paid to
workman at the time of dismissing him from the service. What
have you to say?
Ans. The workman was terminated from services for remaining
absent without information for more than 90 days and thus he
was not eligible for any compensation......"

At this juncture, it would be relevant to refer to following observation

made by Hon'ble Supreme Court of India in case law reported as D. K. Yadav

Vs. M/s. J. M. A. Industries Ltd., (supra.) observed as under :

"11. The law must therefore be now taken to be wellsettled
that procedure prescribed for depriving a person of livelihood
must meet the challenge of Art. 14, and such law would be liable
to be tested on the anvil of Art. 14 and the procedure prescribed
by a statute or statutory rule or rules or orders effecting the civil
rights or result in civil consequences would have to answer the
requirement of Art. 14. So it must be right,just and fair and not
arbitrary, fanciful or oppressive. There can be no distinction
between a quasijudicial function and an administrative function
for the purpose of principles of natural justice. The aim of both
administrative. inquiry as well as the quasi.judicial enquiry is to
arrive at a just decision and if a rule of natural justice is
calculated to secure justice or to put it negatively, to prevent
miscarriage of justice, it is difficult to see why it should be
applicable only to quasijudicial enquiry and not to
administrative enquiry. It must logically apply to both.
12. Therefore, fair play in action requires that the procedure
adopted must be just, fair and reasonable. The manner of
exercise of the power and its impact on the rights of the person
affected would be in conformity with the principles of natural
justice. Art. 21 clubs life with liberty, dignity of person with
means of livelihood without which the glorious content of dignity
of person would be reduced to animal existence. When it is
interpreted that the colour and content of procedure established
by law must be in conformity with the minimum fairness and

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processual justice, it would relieve legislative callousness
despising opportu nity of being heard and fair opportunities of
defence. Art. 14 has a pervasive processual potency and versatile
quality, equalitarian in its soul and allergic to discriminatory
dictates. Equality is the antithesis of arbitrariness. It is, thereby,
conclusively held by this Court that the principles of natural
justice are part of Art. 14 and the procedure prescribed by law
must be just, fair and reasonable.
13. In Delhi Transport Corpn. v. D. T. C. Mazdoor Congress
and Ors, [1991] Suppl. 1 SCC 600 this court held that right to
public employment and its concomitant right to livelihood
received protective umbrella under the can copy of Arts. 14 and
21 etc. All matters relating to employment includes the right to
continue in service till the employee reaches superannuation or
until his service is duly terminated in accordance with just. fair
and reasonable procedure prescribed under the provisions of the
constitution and the rules made under the provisions of the
constitution and the rules made under proviso to Art. 309 of the
Constitution or the statutory provisions or the rules, regulations
or instructions having statutory flavour. They must be
conformable to the rights guaranteed in Part III and IV of the
Constitution. Art. 21 guarantees right to life which includes right
to livelihood, the deprivation thereof must be in accordance with
just and fair procedure prescribed by law conformable to Arts. 14
and 21 so as to be just, fair and reasonable and not fanciful,
oppressive or at vagary. The principles of natural justice is an
integral part of the Guarantee of equality assured by Art. 14. Any
law made or action taken by an employer must be fair,just and
reasonable. The power to terminate the service of an
employee/workman in accordance with just, fair and reasonable
procedure is an essential inbuilt of' natural justice. Arts. 14
strikes at arbitrary action. It is not the form of the action but the
substance of the order that is to be looked into. It is open to the
court to lift the veil and gauge the effect of the impugned action
to find whether it is the foundation to impose punishment or is
only a motive. Fair play is to secure justice, procedural as well as
substantive. The substance of the order is the soul and the affect

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thereof is the end result.
14. It is thus well settled law that right to life enshrined under
Art. 21 of the Constitution would include right to livelihood. The
order of termination of the service of an employee/workman
visits with civil consequences of jeopardising not only his/her
livelihood but also career and livelihood of dependents.
Therefore, before taking any action putting an end to the tenure
of an employee/workman fair play requires that a reasonable
opportunity to put forth his case is given and domestic enquiry
conducted complying with the principles of natural justice. In D.
7. C. v. D. T.C. Mazdoor Congress and Ors. (supra) the
constitution bench, per majority, held that termination of the
service of a workman giving one month's notice or pay in lieu
thereof without enquiry offended Art. 14. The order terminating
the service of the employees was set aside."
Further, Hon'ble Supreme Court of India in case law reported as Uptron

India Ltd. Vs. Shammi Bhan & Anr. (supra.) observed as under :

"21. This Court in D.K. Yadav vs. J.M.A Industries Ltd. (1993) 3
SCC 259 has laid down that where the Rule provided that the
services of an employee who overstays the leave would be treated
to have been automatically terminated, would be bad as violative
of Articles 14, 16 and 21 of the Constitution. It was further held
that if any action was taken on the basic of such a rule without
giving any opportunity of hearing to the employees, it would be
wholly unjust, arbitrary and unfair. The Court reiterated and
emphasised in no uncertain terms that principles of natural
justice would have to be read into the provision relating to
automatic termination of services."

In view of above referred depositions made by MW1 Mr. Rajesh Kumar

in his crossexamination it can be safely concluded that management failed to

comply with the law as laid down by Hon'ble Supreme Court of India in the

abovesaid case laws. Reference can also be made to the latest case law reported

as Guru Nanak Dev University, Amritsar Vs. Presiding Officer, Labour Court,

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Amritsar & Anr. (supra.) where Hon'ble Punjab & Haryana High Court

observed as under :

"8. Action of the petitionerUniversity is sought to be justified on
the strength of Statute 75 (vi) contained in Chapter 2, Vol.2 of the
Guru Nanak Dev University, Volume I, which reads as under:
"If a Class 'C' employee overstays his leave, he shall forfeit all
his salary during the time of his absence, and if he overstays for
more than one week, his post shall be liable to be declared
vacant."
9. Such provision at best can be construed as an enabling
provision under the Service Rules for the employer to take action
against an employee on account of unauthorized absence from
duty. However, by taking resort to such provision, the University
could not have put to an end to the service tenure of a workman
without complying with the principles of natural justice.
Admittedly, the workman was a regular and confirmed employee
of the University. It is also the conceded position of fact that no
enquiry was initiated and held by the University on the charge of
unauthorized absence from duty. Action on the part of the
Management/employer to have straightway taken under the
Standing Orders/Service Rules to dispense with the services of an
employee and to bring to an end to his tenure without resorting to
holding of an enquiry has been frowned upon by the Hon'ble
Supreme Court in DK Yadav v. M/s J.M.A.Industries Ltd.,
1993(3) RSJ 696. Such judgment was thereafter followed in
Uptron India Ltd. v. Shammi Bhan and another, AIR 1998 (SC)
1681 and M/s Laxshmi Precision Screws Ltd. v. Ram Bhagat, AIR
2002 (SC) 2914.
10. It is also the conceded position of fact that prior to taking
decision dated 2.12.1981, the University did not serve notice or
grant pay in lieu of notice period or release retrenchment
compensation to the workman. Under such circumstances, the
finding recorded by the Labour Court in the impugned award as
regards there being violation of Section 25F of the Act would not
require any interference and such finding is rather affirmed."

SECTION 2(oo) of the Industrial Disputes Act, 1947 reads as under :

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"2. Definitions. In this Act, unless there is anything repugnant in
the subject or context;
(a) .....
(b) .......
........

(oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the nonrenewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or

Termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, falls under the definition of "retrenchment". Punishment of termination of service of a workman way of disciplinary action, obviously, cannot be imposed upon the workman without complying with the principles of natural justice. Here principles of natural justice cannot be said to have been complied with while terminating the services of workman on account of workman remaining on leave without prior permission w.e.f. 16.09.1982 till 01.01.1983 inasmuch as prior to terminating the services of workman on this account workman was not even served with a show cause notice either calling upon the workman to show cause why workman was absenting from duty or calling upon the workman to join his duties with management. In the absence of such Page 33 to 45 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/07.04.2015 Ajai Shankar Saxena Vs. School of Correspondence Courses and Continuing Education ID No. 461/04 notice there was no material before the management to conclude that workman was absent during the period from 16.09.1982 till 01.01.1983 without valid reason. MW1 Mr. Rajesh Kumar in his crossexamination deposed as under : "....Q. It is put to you that workman was ill since August 1982 till December, 1982. What have you to say?

Ans. I do not know."

In such circumstances it cannot be said that all the requisite requirements for application of Rule 49(v) relied upon by management were satisfied in this case. Further, it is not even the case of management that case of workman herein is covered under other exceptions to section 2(oo) of the Industrial Disputes Act, 1947.

Notably management also undisputedly did not comply with the provisions of section 25F of the Industrial Disputes Act, 1947. Here the case law reported as University of Delhi Vs. Suresh Chand (supra.) relied upon by ld. counsel for management has no application inasmuch as in this case admittedly no notice of any nature whatsoever was issued to workman by management prior to termination of services of workman on 01.01.1983 on account of workman remaining absent from duty without prior permission w.e.f. 16.09.1982 till 01.01.1983.

At this stage, it is pertinent to note that as per management, workman was issued memorandum to improve his work and conduct from time to time and, further, workman's service record shows that workman was irregular and irresponsible while discharging his duties and leave account of workman between 1980 till June 1982 is self explanatory. In this regard management is relying upon voluminous documentary evidence. FIRSTLY, in my considered opinion, previous service record of workman is not at all relevant to the Page 34 to 45 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/07.04.2015 Ajai Shankar Saxena Vs. School of Correspondence Courses and Continuing Education ID No. 461/04 material / substantial question involved herein. The material / substantial question involved herein is that whether action of management in terminating the services of workman on account of workman remaining absent without prior permission during the period from 16.09.1982 till 01.01.1983 is legal / justified or not. Conduct of workman prior to 16.09.1982 is totally foreign to the scope of present adjudication. Even otherwise, the said conduct of workman can be said to have not been duly proved on judicial file inasmuch as neither the relevant documents in this regard which, are being relied upon by management in its evidence, were put to workman in his crossexamination by way of confronting the workman with these documents nor management has proved these documents by examining relevant witness inasmuch as MW1 Mr. Rajesh Kumar in his crossexamination deposed that, "..... I joined the management on 31.10.1991. It is correct to suggest that I have no personal knowledge as such about the facts of this case....". All the incidents in this case happened much prior to 31.10.1991. To prove the incidents regarding which management has produced documentary evidence management was supposed to examine relevant witness and merely producing the same on judicial record through depositions of MW1 Mr. Rajesh Kumar in the facts and circumstances of this case did not amount to proper / due proof of the same. Moreso, as already noted, workman not confronted with relevant documents in his cross examination.

In the course of arguments ld. counsel for management referred upon to following depositions made by workman in his crossexamination: "...It is correct that my services were terminated by the Managing Committee. Vol the letter of termination was signed by the Chairman. It is correct that I took 108 days leaves from 16.09.1982 to 05.01.1983. It is correct that the managing Page 35 to 45 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/07.04.2015 Ajai Shankar Saxena Vs. School of Correspondence Courses and Continuing Education ID No. 461/04 committee did not sanction 108 days leaves which I took from 16.09.1982 to 05.01.1983...."

Above depositions of workman do not help the management in any manner inasmuch as management terminated the services of workman without complying with the principles of natural justice.

HERE case of workman is that workman had moved leave applications Ex.WW1/8 (dated 19.09.1982 since 16.09.1982 to 10.10.1982) alongwith medical certificate and Ex.WW1/9 (dated 2/11/1982). Workman in his evidence affidavit Ex.WW1/A deposed as under : "4. That I fell ill in August, 1982 I sent medical leave applications to the management for the period August, 1982 till 04011983. I sent five medical leave applications to the management dated 17.08.1982, 31.08.1982, 20.09.1982, 11.10.1982 and 02.11.1982. All the medical applications of the workman were acknowledged by the management.

5. That I was under medical treatment. The circumstances were beyond my control.

6. That I reported for duty on 05.01.1983 with fitness certificate dated 05.01.1983 but I was not allowed duty and I was refused duty by any competent authority, without any show cause notice or charge sheet and inquiry by the management." It deserves to be noted at this stage itself that the depositions made by workman in abovesaid paras. 4, 5 and 6 of his evidence affidavit Ex. WW1/A have gone totally unrebutted / unchallenged inasmuch as in his cross examination workman has not even been suggested to the contrary. Document Ex.MW1/55 itself suggest that workman on 05.01.1983 had gone / come to the office which corroborates the averment of workman that on 05.01.1983 workman reported for duty. As per management itself vide document Ex.MW1/52 leaves of the workman were sanctioned upto 15.09.1982.

MW1 Mr. Rajesh Kumar as regards leave applications Ex.WW1/8 and Page 36 to 45 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/07.04.2015 Ajai Shankar Saxena Vs. School of Correspondence Courses and Continuing Education ID No. 461/04 Ex. WW1/9 deposed as under : ".....It is correct to suggest that originals of documents Ex.WW1/8 and Ex.WW1/9 were received by the management vide noting made thereon at points - A on each document................................................................... Q. Do you know the fate (whether they were allowed or rejected) of the two medical leave applications exhibited as Ex. WW1/8 and Ex. WW1/9?

Witness seeks permission to go through the judicial file to answer the question. Permitted.

Ans. I need to refer to leave record of the workman to be able to answer the question. Kindly adjourn the matter as the leave record is not on judicial record......................................................................................... (Note: I have brought the leave record of the workman available with the management as well as the service book of the workman). Court Q. Witness to clarify why he is qualifying the abovesaid note with words ''available with the management'' ?

Ans. There are 34 files of the workman from which I compiled the leave record of the workman. Previously leave record were not maintained in the service books of the employees. So I used the words ''available with the management''. Earlier leave applications used to be kept in a file. However, all the records can be seen in the notings of the personal file of the workman.

(Witness is directed to produce on the next date of hearing personal file of the workman in original.) Witness to reply the question lastly put to him on 10.10.2014. Ans. I have checked the record with the management and I found that no such leave application were moved. On enquiry, I came to know that leave applications are not received by affixing stamp. They are just submitted to the Incharge/any other senior officer of the employee. Q. It is put to you that leave applications Ex. WW1/8 and Ex. WW1/9 were duly received by the school/management and the management did act on these two applications Vide Ex. MW1/52 by mentioning about extraordinary leave without pay during the period from 16.08.1982 to 31.12.1982 at point A. What have you to say?

Ans. In the first para, it is mentioned by Dealing Assistant that on checking of attendance register of account section, it has been observed that Sh. Ajay Shankar, Assistant did not attend the office on the following days and also has not submitted any leave application for the undermentioned period from Portion B to Portion B. Leave sanctioned up to 15.09.1982. At this stage, it is revealed that ld. counsel for the workman has not been supplied with complete documents Ex. MW1/52 as Page 37 to 45 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/07.04.2015 Ajai Shankar Saxena Vs. School of Correspondence Courses and Continuing Education ID No. 461/04 the last line was not there in the document supplied to ld. counsel for the workman. Let copy be supplied to ld. counsel. Ld. counsel seeks adjournment for remaining crossexamination of MW 1 Mr. Rajesh Kumar. Further witness to clarify as to which portion 'A' refers as mentioned in last line of Ex. MW1/52.......................................................... XXXXX to Continue.

Portion 'A' refers to portion X to X1 of Ex. MW1/52.

Q. It is put to you that you have not filed on record any circular/service rule as to which authority or who can receive the leave application from employee like the workman. What have you to say? Ans. There is no such rule/circular. However, as per practice application is to be given to be given to the Incharge under which workman works.

It is wrong to suggest that I have deposed falsely about the just deposed practice in relation to as to whom application for leave is to be given. It is wrong to suggest that leave application used to be given to Clerk or any person up to the designation of Assistant. Q. What is the procedure of the management to intimate the employee who had applied for leave, in case the leave is rejected? Ans. If any employee applies for leave and his leave is rejected, he is directed to report for duty by an office communication but in the present case workman absented without leave application. Q. Did you send any intimation that leave application of workman has been rejected?

Question does not arise in as much as in reply to last question witness did not depose that workman had moved leave application which was rejected.

Q. It is put to you that workman had given two leave applications dated 19.09.1982 and 02.11.1982. What have you to say? Ans. These applications were not received in the office of management........"

In the totality of facts and circumstances of this case much importance need not be attached as to whether workman moved any leave applications such as Ex.WW1/8 or Ex.WW1/9 inasmuch as admittedly managing committee did not sanction 108 days leaves which workman took from 16.09.1982 to 05.01.1893. The question which requires determination, as already noted, is whether action of management in terminating the services of workman on Page 38 to 45 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/07.04.2015 Ajai Shankar Saxena Vs. School of Correspondence Courses and Continuing Education ID No. 461/04 account of workman remaining absent without prior permission during the period from 16.09.1982 till 01.01.1983 is legal / justified or not. When admittedly there is no prior permission, as required, effect / consequence is same in both the situations (i.e. whether workman moved the application or not). IMPORTANTLY it is noted that on the basis of Ex.MW1/52, it cannot be said that workman was allowed to avail extraordinary leave (without pay) from 16.08.82 to 31.12.82: 138 days inasmuch as by the following portion of Ex. MW1/52 only a proposal was suggested and it is not that workman was allowed to avail extra ordinary leave for the period from 16.08.82 to 31.12.1982: ".......If agreed to, the above period of absence may be treated as leave period in respect of Sh. Ajay Shanker and he may be granted the leave in the following manner: Earned Leave 10.07.82 to 13.7.82 : 4 days 22.7.82 : 1 day.

7.8.82 : 1 day.

10.8.82 to 11.8.82 : 2 days.

14.8.82 (AN) to 15.8.82 : 2 days.

10 days.

            Extraordinary leave (without pay)            :
                                      16.6.82, 28.6.82         :           2 days.
                                      16.8.82 to 31.12.82      :         138 days.
                                                                                    
                                               (15.9.82)                 140 days ......"

Memorandum Ex.MW1/53 dated 01.01.1983 vide which services of workman were terminated w.e.f. 16.09.1982 also suggest that workman was not allowed / sanctioned extraordinary leave from 16.09.1982 to 31.12.1982.

Objection taken by workman to the exhibition of Ex.MW1/52 is without any substance inasmuch as workman is also relying upon same document which has been exhibited by workman as Ex.WW1/13. Also it is noted that original signed copy of document exhibited as Ex.MW1/52 is also available on judicial file and the same is mark as Mark 'AB' for identification purposes. The Page 39 to 45 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/07.04.2015 Ajai Shankar Saxena Vs. School of Correspondence Courses and Continuing Education ID No. 461/04 case laws reported as Mahesh Chand Vs. DTC (supra.) and DTC Vs. Sardar Singh (supra.) relied upon by ld. counsel for management have no application in the facts and circumstances of this case inasmuch as in this case no domestic enquiry was conducted by management. Management even did not serve any show cause notice to the workman for his absence during the period from 16.09.1982 till 01.01.1983 on account of which services of workman were terminated. Ld. counsel for management had submitted that even if management did not conduct the domestic enquiry or issue show cause notice, now this court can determine the validity of act of management in terminating the services of workman by itself (i.e. this Labour Court) placing in the same position as that of disciplinary authority / managing committee. In this regard ld. counsel for management relied upon case law reported as The Punjab National Bank Ltd. Vs. Its workmen (supra.). Division bench of Hon'ble Delhi High Court in Deepak Mohan Sethi Vs. BSES Rajdhani Power Ltd. (LPA No. 308/13 and Others) 210 (2014) DLT 470 (DB) observed as under : "26. It is well settled that judicial precedent cannot be followed as a statute and has to be applied with reference to the facts of the case involved in it. The ratio of any decision has to be understood in the background of the facts of that case. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It has to be remembered that a decision is only an authority for what it actually decides. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. The ratio of one case cannot be mechanically applied to another case without regard to the factual situation and circumstances of the two cases. In Bharat Petroleum Corporation Ltd. Vs. N.R. Vairamani, (2004) 8 SCC 579, the Supreme Court had held that a decision cannot be relied on without considering the factual situation. The Page 40 to 45 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/07.04.2015 Ajai Shankar Saxena Vs. School of Correspondence Courses and Continuing Education ID No. 461/04 Supreme Court observed as under : "9.Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed:

"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."

This extract is taken from Bharat Petroleum Corpn. Ltd. v. N. R. Viramani, (2004) 8 SCC 579 at page 585

10. In Home Office v. Dorset Yacht Co. [1970 (2) All ER 294:

1970 AC 1004: (1970) 2 WLR 1140 (HL)] Lord Reid said, "Lord Atkin's speech.....is not to be treated as if it was a statute definition it will require qualification in new circumstances." Megarry, J. in Shepherd Homes Ltd. v. Sandham (No.2) (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said: (All ER p. 761c) "There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the Page 41 to 45 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/07.04.2015 Ajai Shankar Saxena Vs. School of Correspondence Courses and Continuing Education ID No. 461/04 setting of the facts of a particular case."

This extract is taken from Bharat Petroleum Corpn. Ltd. v. N. R. Vairamani, (2004) 8 SCC 579 at page 585

11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

This extract is taken from Bharat Petroleum Corpn. Ltd. v. N. R. Vairamani, (2004) 8 SCC 579 at page 585

12. The following words of Lord Denning in the matter of applying precedents have become locus classicus:

"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."

* * * "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."

The case law The Punjab National Bank Ltd. Vs. Its workmen (supra.) relied upon by ld. counsel for management has no application in the totality of facts and circumstances of this case. Management admittedly acted in violation of principles of natural justice. Here it is not the case that management acted without proper enquiry or permission during the pendency of dispute under the Industrial Disputes Act, 1947. Also, it deserves to be noted that this Court has already observed that depositions made by workman in his evidence affidavit Page 42 to 45 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/07.04.2015 Ajai Shankar Saxena Vs. School of Correspondence Courses and Continuing Education ID No. 461/04 Ex.WW1/A paras. 4 to 6 have gone totally unrebutted / unchallenged. Thus, version of workman that workman was under treatment and circumstances were beyond his control cannot be discarded altogether.

In view of above detailed discussion, it is observed that management terminated the services of workman illegally / unjustifiably.

NOW merely because management terminated the service of workman illegally / unjustifiably does not mean that workman is automatically entitled to be reinstated in service with full back wages. Workman in his cross examination deposed that, "..... I was born in 1948 and it was 35 years of age at the time of termination of my services....". Workman on 04.04.2015 submitted that his date of birth is 18.11.1948. Today is 07.04.2015. Even if retirement age of the workman is taken to be 60 years as is mentioned in Rule No. 15 of University Nonteaching Employees (Terms and Conditions of Service) Rules, 1971, workman would have retired from his services in year 2008. Hence, no order can be passed for reinstatement in service with the management. Thus, reinstatement is denied.

Workman was terminated from his services w.e.f. 01.01.1983. In the statement of claim workman pleaded that workman filed industrial dispute before the Conciliation Officer but neither in the statement of claim nor in the evidence affidavit workman mentioned the date on which workman raised the industrial dispute before the Conciliation Officer. Also, there is nothing on judicial record to suggest as to on what date workman raised industrial dispute before Conciliation Officer. Fact of the matter is that reference in the case in hand is dated 21.08.1987 despite the fact that services of workman were terminated on 01.01.1983. Also, it is pertinent to note that even after the order of reference workman did not pursue the case before the Labour Court with Page 43 to 45 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/07.04.2015 Ajai Shankar Saxena Vs. School of Correspondence Courses and Continuing Education ID No. 461/04 requisite sincerity and Court had to pass 'No Dispute Award' twice once on 21.04.1993 and again on 01.02.2000. In this manner workman by his own conduct can be said to have lost precious period of above 13 years after the date of the order of reference. Also, in the evidence affidavit workman pleaded that workman is unemployed since the date of termination and inspite of best efforts workman could not secure any job or employment. Except these bald depositions there is nothing on judicial file to show that workman did make serious sincere efforts to get alternative job / employment. There is nothing on judicial record to show that workman even got himself registered with the employment exchange. Further, workman cannot be expected / believed to be absolutely not earning anything since 01.01.1983 right upto the date of his retirement in the year 2008. Workman has not even attempted to explain as to how he has been maintaining his family since 01.01.1983 if workman is unemployed / not earning anything from any source. The possibility of workman being gainfully employed / earning livelihood money cannot be ruled out altogether in the totality of facts and circumstances of this case. Accordingly workman is held to be not entitled to full back wages.

In my considered opinion, in the totality of facts and circumstances of this case, grant of lump sum compensation equivalent to 50% of full back wages / full salary of workman in the scale for the post workman was holding as on 15.09.1982 (the last date on which workman was on sanctioned leave without pay) alongwith annual / other increments in salary as per University Nonteaching Employees (Terms and Conditions of Service) Rules, 1971 since 05.01.1983 (on which date workman had reported for duty but was not allowed to join the duties) till the date of his retirement as per University Nonteaching Employees (Terms and Conditions of Service) Rules, 1971 to the workman for Page 44 to 45 (ANAND SWAROOP AGGARWAL) POLC - XI/KKD/DELHI/07.04.2015 Ajai Shankar Saxena Vs. School of Correspondence Courses and Continuing Education ID No. 461/04 illegal / unjustified termination of his services by the management and for consequences thereof would meet the ends of justice. If this lump sum compensation is not paid to workman within one month of award coming into force management shall be liable to pay interest @ 9% per annum on this amount from the date of the award till its payment. A sum of Rs.25,000/ (Rupees Twenty Five Thousand only) is also awarded to workman as costs of litigation payable by the management.

24. Reference is answered accordingly.

25. A copy of the award be sent to the concerned Office of the Deputy Labour Commissioner for further necessary action.

26. File be consigned to Record Room after completing due formalities.



PRONOUNCED IN THE OPEN COURT ON 07.04.2015

                                                                          
                                                                      (ANAND SWAROOP AGGARWAL) 
                                                                    POLCXI, Karkardooma Courts, Delhi*




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