Delhi District Court
Sh. Dheer Singh vs M/S. Delhi Transport Corporation ... on 6 September, 2016
IN THE COURT OF SHRI UMED SINGH GREWAL
POLCXVII ROOM NO. 22 :KKD COURTS: DELHI
LIR 2839/16 (Old ID No. 08/10).
Unique ID No.02402C0017642010.
Sh. Dheer Singh
S/o Sh. Dharam Singh
R/o A/10, Shanti Nagar,
30 Fota Road, Shiv Vihar,
Delhi94.
..............Workman
Versus
M/s. Delhi Transport Corporation (D.T.C.),
I.P. Estate, New Delhi.
............. Management
DATE OF INSTITUTION : 11.01.2010.
DATE ON WHICH AWARD RESERVED : 02.09.2016.
DATE ON WHICH AWARD PASSED : 06.09.2016.
A W A R D :
1. Vide Order No. F.24(133)/09/Lab./CD/253 dated
26.11.09, issued by Government of NCT of Delhi, a reference was
sent to this Court with the following terms:
"Whether services of Sh. Dheer Singh S/o Sh.
Dharam Singh have been terminated illegally
and / or unjustifiably by the management; if so,
to what relief is he entitled?"
2. Claimant's case is that he was working as driver with
LIR No.2839/16 1/20
the management with badge No. 10695 and token No. 31639 and
was lastly posted in Noida Depot. On 10.01.2006, his duty was on
route no. 33 from Bhajanpura to Noida and the conductor was Sh.
Sat Pal Singh. The conductor gave a false report against him the
the bus had met with an accident near subway at Gokalpuri, Delhi,
but there was no injury to any passenger and no damage to the bus.
PCR van was called on the spot. The conductor further reported
that the PCR officials took driving license and badge of the
claimant and handed over to the conductor which he deposited in
depot with ATI Sh. Tulsi Ram. On that report, he was suspended
vide letter dated 12.01.2006 and a showcause notice was issued on
13.01.2006. He gave representation against the showcause notice
and hence, the same was withdrawn and he resumed duty. The
departmental enquiry was initiated which was not conducted as per
the principles of natural justice. Enquiry Officer's findings are
biased. He was found guilty by the Enquiry Officer and his service
was terminated on 30.06.2006 against which he sent a demand
notice which was replied by the management on 12.07.2007.
Against termination, he had sent demand notice dated 22.11.2008
but the same went unreplied. The dispute raised before the
Conciliation Officer remained unresolved due to rigid attitude of
the management.
LIR No.2839/16 2/20
3. Written statement is to the effect that claimant's duty
was on route no. 33 on 10.01.2006 from Bhajanpura to Noida
Sector37. The bus collided with subway at 6.30 on that day.
When the conductor Sh. Sat Pal Singh went to the driver, he found
him drunk. The passengers called PCR & PCR officials took
driving license and badge from the claimant and handed over the
same to conductor Sh. Sat Pal Singh. The claimant was not in
position to drive the bus and hence, it was driven to Noida Depot
by a driver of Bawana Depot. The claimant was not traceable in
depot. Driver memo, driving license and badge number were
deposited in depot by the conductor.
It is further mentioned in written statement that
enquiry as per the principles of natural justice was conducted
against the claimant. Statement of reporter Sh. Tulsi Ram was
recorded by the Enquiry Officer in the presence of the claimant on
10.04.2006. He was crossexamined by the claimant. Before
recording statement of Sh. Tulsi Ram, the Enquiry Officer had
asked from the claimant whether he wanted to be represented by
coworker / labour welfare inspector, but he refused. Contents of
chargesheet were read over and explained to him. The claimant
did not appear before the Enquiry Officer on 02.05.2006,
16.05.2006 & 23.05.2006. On 23.05.2006, he was proceeded ex
parte in the presence of labour welfare inspector Sh. Uday Ram.
Statement of conductor Sh. Sat Pal Singh was recorded. The
LIR No.2839/16 3/20
Enquiry Officer found claimant guilty of the charge in his report
dated 29.05.2006. The disciplinary authority also agreed with the
report and issued him a showcause notice. Ultimately, the
claimant was terminated from service on 30.06.2006.
4. Following issues were framed on 21.07.2010:
1. Whether the enquiry conducted by the management is
fair, proper and valid?
2. As per terms of reference.
5. In order to get declared enquiry proceedings invalid,
the claimant tendered his affidavit in evidence as Ex.WW1/A
mentioning all the facts stated in statement of claim. He relied
upon following documents:
(i) Ex.WW1/A is report of ATI Sh Tulsi Ram.
(ii) Ex.WW1/B dated 12.01.2006 is suspension letter.
(iii) Ex.WW1/C dated 13.02.2006 is chargesheet.
(iv) Ex.WW1/D dated 10.10.2006 is revocation of suspension
order.
(v) Ex.WW1/E is enquiry proceedings dated 10.04.2006.
(vi) Ex.WW1/F is showcause notice dated 02.06.2006.
(vii) Ex.WW1/G dated 15.06.2006 is application by him to
Depot Manager for reopening enquiry proceedings.
(viii) Ex.WW1/H dated 30.06.2006 is the letter vide which he
was removed from service.
LIR No.2839/16 4/20
(ix) Ex.WW1/I dated 12.02.2007 is legal demand notice.
(x) Ex.WW1/J dated 21.11.2008 is demand notice.
(xi) Ex.WW1/K are the postal receipts vide which demand
notice was sent to the management.
WW2 Sh. Tulsi Ram deposed that on 10.01.2006, he
was duty offer from 9.00 p.m. to 5.30 a.m. next day. On that day,
no incident happened regarding Bus No. 3176 on the route No. 33.
He next deposed that memo was deposed by the claimant. He did
not find the claimant in drunken condition at that time.
WW3 Sh. Raghubeer Singh, ATI produced Deputy
Officer Register for the year 2006. At page No. 77 of the register
dated 23.05.2006 there is noting that the claimant had informed the
control room telephonically at 2.40 pm that he would not attend the
enquiry proceedings on that day on account of foot injury sustained
in an accident. Photocopy of that page is Ex.WW3/1.
6. The management examined its Deputy Manager Sh.
R.K. Jain as MW1. He deposed that in the case in hand, he was
acting as disciplinary authority. Chargesheet Ex.MW1/1 was
served upon claimant for drunken driving on 10.01.2006 and
enquiry was conducted by Sh. S.K. Sethi who has retired from
service and hence, his presence cannot be procured without an
amount of delay and extra expenses. After perusal of enquiry
proceedings, he deposed that enquiry was conducted as per the
LIR No.2839/16 5/20
principles of natural justice in which claimant was given full
opportunity to defend the case. The first date of enquiry
proceedings was 10.04.2006 and on that day, the Enquiry Officer
had asked the claimant whether he wanted assistance of any co
worker / labour welfare inspector, but he refused and thereafter, the
contents of chargesheet were read over to him and statement of
ATI Sh. Tulsi Ram was recorded who was crossexamined by the
claimant. The enquiry was adjourned to 02.05.2006, 16.05.2006 &
23.05.2006, but the claimant did not appear before the Enquiry
Officer and he was proceeded exparte in the presence of labour
welfare inspector Sh. Udai Ram Sharma. On that day, statement of
conductor Sh. Satpal Singh was recorded and enquiry proceedings
were concluded. He relied upon following documents:
(i) Ex.MW1/1 is chargesheet.
(ii) Ex.MW1/2 is reply of the claimant to the chargesheet.
(iii) Ex.MW1/3 are the enquiry proceedings.
(iv) Ex.MW1/4 is enquiry report.
(v) Ex.MW1/6, Ex.MW1/7 & Ex.MW1/8 are letter to the
claimant issued by the management to intimate about the
next date of enquiry proceedings as 02.05.2006, 16.05.2006
& 23.05.2006.
Issue No. 1.
7. This issue has already been decided by this Court in
LIR No.2839/16 6/20
favour of the management and against the claimant vide order
dated 28.05.16.
Issue No. 2.
8. Ld. ARW argued that enquiry report is perverse
because only two witnesses were examined by the management
before the Enquiry Officer, out of which reporter had deposed that
when the claimant came to the depot, he was not drunk. He
repeated the same evidence before this Court. He next contended
that management did not take claimant to the hospital in order to
know whether he was drunk or not. He was never challaned by the
police though as per the case of the management, the PCR officials
had taken him with them. He relied upon DTC Vs. Ramphal,
WPC No. 727/2001 decided by Hon'ble High Court of Delhi on
21.12.2005. In the cited case, the claimant was taken by officers of
the management to the hospital and doctor had found him smelling
alcohol. He was challaned by the police under Section 92, 93 & 95
of Delhi Police Act. He had pleaded guilty before the Magistrate
and fine of Rs.50/ was imposed upon him. Despite it, the Hon'ble
High Court held that these were not proofs of drunken driving of
the claimant because the percentage of alcohol was not mentioned
in the report. The Hon'ble High Court did not take fine of Rs.50/
as proof of drunken driving because the fine was imposed in a
LIR No.2839/16 7/20
summary trial case.
On the other hand, ld. ARM argued that enquiry issue
has already been decided against the claimant in which it has been
held that enquiry report was not perverse. So, ARW cannot argue
on the same issue again. He further submitted that ARW should
argue whether the punishment is justified or not.
9. During arguments on enquiry issue, the claimant had
disputed the enquiry report on several grounds. All those grounds
have already gone against him and so, he is not permitted to raise
the same objections. Those grounds were rejected in following
paragraphs of enquiry order :
8. The first argument of Ld. ARW on perversity
of enquiry report is that ATI Sh. Tulsi Ram had
deposed before the Enquiry Officer that it was
claimant who had deposited driver memo with him.
In crossexamination by claimant, he had deposed
that it was claimant who had brought the bus in
question to the depot. Ld. ARW argued that the
Enquiry Officer ignored the statement of ATI Sh.
Tulsi Ram by holding claimant guilty. On the other
hand, Ld. ARM argued that ATI Sh. Tulsi Ram was
not an eye witness to the incident that he had merely
sent report against the claimant on the basis of
complaint of conductor Sh. Sat Pal Singh. Sh. Sat
Pal Singh was examined by the Enquiry Officer on
23.05.2006 and he had given vivid details of
drunken driving of the claimant on 10.01.2006.
It is correct that ATI Sh. Tulsi Ram had
LIR No.2839/16 8/20
deposed before the Enquiry Officer on 10.04.2006
that it was claimant who had deposited driver memo
and license with him. He deposed in cross
examination that it was claimant who had driven the
bus in question to Noida Depot. He next deposed
that the claimant was not smelling alcohol when he
handed over memo to him. The management has
relied upon report of ATI Sh. Tulsi Ram as
Ex.MW1/5. He had prepared that report on
10.01.2006 whereas he had appeared before the
Enquiry Officer for deposition on 10.04.2006 i.e.
after a gap of three months. In report Ex.MW1/5, he
has crystal clearly mentioned that the driver memo,
driving licence and badge of the claimant were
deposited with him not by the claimant but by
conductor Sh. Sat Pal Singh. It is further mentioned
in the report that the claimant was found missing in
the depot after arrival of the bus in question. By
pitting of ATI Tulsi Ram's report Ex.MW1/5 against
his statement before the Enquiry Officer on
10.04.2006, it transpires that ATI Tulsi Ram was
clearly hostile. He had not toed the lines taken in
his report Ex.MW1/5. Ulterior motive of giving
benefit to the claimant by turning hostile cannot be
ruled out. Moreover, ATI Sh. Tulsi Ram is not eye
witness to the incident of 10.01.2006. He had
prepared report Ex.MW1/5 only on the complaint of
conductor Sh. Sat Pal Singh who had thoroughly
supported the case of the management before
Enquiry Officer. Due to that reason, it cannot be
said that enquiry report is perverse due to turning
hostile by ATI Tulsi Ram.
9. Next argument of Ld. ARW on perversity of
enquiry report is that the management did not get
LIR No.2839/16 9/20
the claimant medically examine to prove that he was
drunk on 10.01.2006 while driving the bus from
Bhajanpura to Noida, Sector37. Ld. ARW argued
that there was no requirement of his medical
examination because it has been deposed by
conductor Sh. Sat Pal Singh that claimant was not
in a position to drive the bus and hence, the ill fitted
bus was driven to Noida Depot by a driver of
Bawana Depot. The claimant was not in senses and
that is why ATI Sh. Tulsi Ram had mentioned in
report Ex.MW1/5 that the driver memo and other
documents were deposited with him by conductor
Sat Pal Singh.
It is correct that the claimant was not
medically examined to know the contents of alcohol
in his blood. Had that been the case, the medical
report would have been conclusive proof of his
drunken driving. But such fact can be proved by
circumstantial evidence also. The first circumstance
as deposed by conductor Sat Pal Singh before the
Enquiry Officer is that when the bus collided with
subway, he went to the drive and found him drunk as
he was smelling alcohol. It has been admitted by
claimant also in crossexamination that some
passengers had called the PCR on 10.01.2006. He
further admitted that the bus had hit footpath in
subway on that day. Admission of these facts by
claimant, proves that everything was not normal
with him on 10.01.2006. He did not explain the
reason why the bus had collided with path in the
subway. ATI report Ex.MW1/5 proves to the hilt
that claimant was not in senses and that is why the
bus was driven to Noida Depot by a driver of
Bawana Depot and only due to that reason, it was
conductor Sat Pal Singh who had deposited driver's
LIR No.2839/16 10/20
memo, driving license and driver's badge with Sh.
Tulsi Ram, ATI. Had he been in sensed, he would
have driven the bus to the depot and would have
deposited his documents with ATI. These
circumstances prove that claimant was heavily
drunk while driving on 10.01.2006 and due to his
drunken driving, he could not drive the bus properly
and rammed into subway.
10. The last argument of Ld. ARW on perversity
of enquiry report is that had the claimant being
guilty, the police would have definitely registered
FIR against him. Ld. ARM argued that FIR was not
got registered because no passenger had sustained
injury and no damage was caused to the bus.
It is the admitted case of both parties that the
bus was not damaged in the accident. No passenger
had met with an injury. Due to that reason, the
management did not report the matter to the police.
It is within the sweet discretion of the management
whether it wants to proceed against the erring
driver by lodging FIR or by holding departmental
enquiry or by adopting both courses. The
management cannot be said to be at fault due to non
reporting of the matter to the police. It adopted the
other course and conducted a proper domestic
enquiry against the claimant. So, nonregistration
of FIR is not fatal to the case of the management.
10. Ld. ARW argued that the claimant had joined the
management as driver in 1980. He was terminated from service
from 30.06.2006. In this way, he had served the management for
LIR No.2839/16 11/20
long 26 years. The management did not take into account length
of service while terminating his service. The claimant has two
sons and two daughters. Both daughters have been married of.
Both sons have also been married of. The elder son alongwith his
wife is residing separately and is working as a Conductor on
contract basis with the management. The second son alongwith his
wife is residing with the claimant. The son and his wife both are
suffering from AIDS. Claimant's wife is suffering from slip disk.
The management did not take into account these facts while
deciding whether the service of the claimant be terminated or not.
So, the removal of the claimant from his service is unjustifiable.
11. On the other hand, ld. ARM argued that claimant is a
habitual offender. As per previous record, there are 31 adverse
entries against him. On one occasion i.e. on 28.06.1990, he was
heavily drunk in the night at 2.30 a.m and had abused somebody
for which he was suspended.
12. There is only one mitigating circumstance against the
claimant i.e. his previous service record. Previous service record
shows that the claimant had started committing misconduct since
18.08.1983. He went on committing misconduct till the present
misconduct. There are 31 adverse entries against him. But
mitigating circumstances are his length of service, his son and wife
LIR No.2839/16 12/20
are HIV positive and claimant's wife is suffering from slip disc.
Medical documents have been filed by ARM. Moreover, it was
held by the Hon'ble High Court in DTC Vs. Ramphal (supra) that
even assuming that respondent had actually been found guilty of
having been intoxicated and was convicted for that reason, in view of the principles laid down by the Apex Court, it cannot be contended that he had been involved or convicted in any offence involving moral turpitude by such act of intoxication alone, which would have rendered him liable for major penalty. In the case in hand, the management did not place on record any rule or circular which may prove that the management had taken drunken driving during duty as major misconduct inviting major penalty. Taking into account all these facts, it is held that termination of claimant from service is not illegal but it is unjustifiable.
Relief.
13. Even if, service of a workman has been terminated illegally, that would not automatically lead to reinstatement with 100% back wages. In Nehru Yuva Kendra Sangathan Vs. Union of India & Ors. 2000 IV AD (Delhi) 709, Hon'ble Delhi High Court dealt with the question of reinstatement and back wages and observed in paragraphs 27 and 28 as under : "27. We find from the decision of the Supreme Court rendered in the 1970s and LIR No.2839/16 13/20 1980s that reinstatement with back wages was the norm in cases where the termination of the services of the workman was held inoperative. The decisions rendered in the 1990s, including the decision of the Constitution Bench in the Punjab Land Development and Reclamation Corporation Ltd., Chandigarh seem to suggest that compensation in lieu of reinstatement and back wages is now the norm. In any case, since we are bound to follow the decision of the Constitution Bench, we, therefore, conclude that reinstatement is not the inevitable consequence of quashing an order of termination; compensation can be awarded in lieu of reinstatement and back wages.
28. Considering the facts of this case, we are persuaded to award compensation in lieu of reinstatement and back wages to the workman"
14. In Municipal Council, Sujanpur Vs. Surinder Kumar 2006 LLR 662, Hon'ble Supreme Court observed that the relief of reinstatement is not automatic but is in the discretion of the court. In paragraph 16, it was observed as under : "Apart from the aforementioned error of law, in our considered opinion, the Labour Court and consequently the High Court completely misdirected themselves insofar as they failed to take into consideration that LIR No.2839/16 14/20 relief to be granted in terms of section 11A of the said Act being discretionary in nature, a Labour Court was required to consider the facts of each case therefor. Only because relief by way of reinstatement with full back wages would be lawful, it would not mean that the same would be granted automatically".
15. In Vinod Kumar & others vs Salwan Public School & others WP(c)5820/2011 dt.17.11.2014 Hon,ble Justice V. Kameshwar Rao has held as under:
11.Having considered the rival submissions of the counsels for the parties, I do not find any infirmity in the order of the Labour Court. It is a settled position of law that even if termination has been held to be illegal, reinstatement with full back wages is not to be granted automatically. The Labour Court is within its right to mould the relief by granting a lumpsum compensation. In fact, I note that the Labour Court has relied upon three judgments propounding the law that the Labour Court can mould a relief by granting lump sum compensation; the Labour Court is entitled to grant relief having regard to facts and circumstances of each case.
12. Further, the Supreme Court in the following judgments held as under:
(a) In the matter reported as Jaipur Development Authority v. Ramsahai, (2006) 11 SCC 684, the court has stated:LIR No.2839/16 15/20
"However, even assuming that there had been a violation of Sections 25G and 25H of the Act, but, the same by itself, in our opinion, would not mean that the Labour Court should have passed an award of reinstatement with entire back wages. This Court time and again has held that the jurisdiction under Section 11A must be exercised judiciously. The workman must be employed by State within the meaning of Article 12 of the Constitution of India, having regard to the doctrine of public employment. It is also required to recruit employees in terms of the provisions of the rules for recruitment framed by it. The respondent had not regularly served the appellant. The job was not of perennial nature. There was nothing to show that he, when his services were terminated any person who was junior to him in the same category, had been retained. His services were dispensed with as early as in 1987. It would not be proper to direct his reinstatement with back wages. We, therefore, are of the opinion that interest of justice would be subserved if instead and in place of reinstatement of his services, a sum of Rs 75,000 is awarded to the respondent by way of compensation as has been done by this Court in a number of its judgments."
(b) In the matter reported as Nagar Mahapalika v. State of U.P., (2006) 5 SCC 127, the court has stated:
"23. Noncompliance with the provisions of LIR No.2839/16 16/20 Section 6N of the U.P. Industrial Disputes Act, although, may lead to the grant of a relief of reinstatement with full back wages and continuity of service in favour of the retrenched workmen, the same would not mean that such a relief is to be granted automatically or as a matter of course. 25 .....The appellant herein has clearly stated that the appointments of the respondents have been made in violation of the provisions of the Adhiniyam. An appointment made in violation of the provisions of the Adhiniyam is void. The same, however, although would not mean that the provisions of the Industrial Disputes Act are not required to be taken into consideration for the purpose of determination of the question as to whether the termination of workmen from services is legal or not but the same should have to be considered to be an important factor in the matter of grant of relief. The Municipal Corporation deals with public money. Appointments of the respondents were made for carrying out the work of assessment. Such assessments are done periodically. Their services, thus, should not have been directed to be continued despite the requirements therefor having come to an end. It, therefore, in our considered view, is not a case where the relief of reinstatement should have been granted."
(c) In the matter reported as Talwara Coop. Credit and Service Society Ltd. v. Sushil Kumar, (2008) 9 SCC 486, the court has LIR No.2839/16 17/20 stated:
"8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration."
(d) In the matter reported as Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327, the court has stated :
"7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. ...
14. An order of retrenchment passed in violation of Section 25F although may be set aside but an award of LIR No.2839/16 18/20 reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
16. The claimant deposed that he was jobless since termination. His testimony to that effect is general and vague. He was working as a driver with the management and had gained an experience of 26 years. Had he tried seriously, he would have got job of same status and salary as number of vehicles is increasing in threatening pace in Delhi & NCR.
17. It it not disputed that claimant's date of birth is 14.11.1956. Retirement age of drivers in DTC is 60 years, but they are to undergo medical examination every year after attaining age of 55 years and if they are found fit, they are allowed to continue till the age of 60 years. In the case in hand, it cannot be said that claimant was medically fit when he had attained the age of 55 years or subsequently. Taking into account all these facts, the termination order is modified to the extent that claimant shall be deemed to have retired at the age of 55 years. The management is directed to give him 50% of back wages from the next day of LIR No.2839/16 19/20 termination i.e. from 01.07.2006 onwards till the date the claimant had attained the age of 55 years i.e. till 30.11.11 with consequential benefits. The management is directed to pay the said amount to him within one month from the date of publication of the award, failing which it shall be liable to pay interest on it @ 9% per annum from today till its realization. Parties to bear their own costs. Reference is answered accordingly. Award is passed accordingly.
18. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 06.09.2016. POLCXVII/KKD, DELHI.
LIR No.2839/16 20/20