Delhi District Court
Sh. Raj Singh vs Delhi Transport Corporation on 10 March, 2010
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IN THE COURT OF SH. DAYA PRAKASH
PRESIDING OFFICER LABOUR COURT NO. XVI
KARKARDOOMA COURTS : DELHI
ID NO. 333/06
Sh. Raj Singh
S/o Sh. Amir Singh
R/o Village and Post Kaloi
Distt. Jhajhar
Haryana ...... Workman
VERSUS
Delhi Transport Corporation
I.P Estate
New Delhi. ...... Management
Date of Institution : 19.04.04
Judgment reserved : 29.01.10
Date of decision : 10.03.10
AWARD
1.The National Capital Territory of Delhi, through its Secretary (Labour) vide reference no. F-24(4422)/2003/Lab./346- 50 referred the dispute for adjudication between the Management Delhi Transport Corporation and its workman Sh. Raj Singh in the following terms of reference:
"Whether action of management in 1/17 -2- deeming Sh. Raj Singh S/o Sh. Amar Singh to have resigned is illegal and/or unjustifiably if so, to what relief is he entitled and what directions are necessary in this respect?"
2. As per claim, workman was appointed as a Driver since 1983 by the General Manager who is the appointing authority under the Regulation 6 of D.R.T.A Regulations. He was lastly posted at Hari Nagar, Depot-I, New Delhi. It is further stated that he was a permanent employee of the corporation. It is further stated that the workman has served the corporation with dedication without affording any chance of complaint. It is further stated that he could not attend his duties w.e.f 7.03.98 to 6.06.98 since the wife of the workman was seriously ill and there was no other person except him to look after his ailing wife. In this regard workman had duly submitted application for leave along with medical certificate to the Depot. It is further submitted that without any cause or reason on the part of the workman, the services of the workman were terminated by the Depot Manager, Hari Nagar Depot-I vide order dated 7.06.98 in the garb of deemed resignation vide letter which was issued on dated 10.06.98 under clause 14 (10) (c) of D.R.T.A Regulation, 1962 with the allegation that he has absented his duties from 7.03.98 to 6.06.98 with extra ordinary leave without pay. The management was admitted that the leaves of the workman w.e.f 7.03.98 to 6.06.98 were regularised the same were mentioned in termination order. It is further stated that the leave of the workman w.e.f 7.03.98 to 6.06.98 were regularised by DTC by the order dated 10.06.98 vide letter as a termination letter. When the management had regularised the leave of the 2/17 -3- workman from 7.03.98 to 6.06.98 and payment was also deducted for this period from the salary of the workman, there is no misconduct committed by the workman. It is further stated that the termination of the workman is a clear victimisation upon the workman which is illegal, arbitrary, unwarranted which was issued by the management. The management had not given any reason of termination of workman from the service dated 7.06.98. It is further stated that the management had not conducted any enquiry nor issued any show cause notice nor issued any charge sheet nor any opportunity of being heard was given, the workman had deemed to resign his service dated 7.06.98 is illegal, arbitrary and unwarranted as per laid down the procedure of Industrial Dispute Act, 1947. It is further stated that the management statutory service Regulation regarding "Deemed Resignation" has been amended vide order dated 6.02.91. According to this amendment dated 6.02.91, the management should have conducted the departmental enquiry and issued the show cause notice and issued the charge sheet in all the cases of DTC. Without giving any chance of being heard, the management cannot be deemed to be resigned of his employee. It is further stated that the management had not issued any one month notice salary to the workman before the termination of workman. It is further stated that management has clearly violated principle of natural justice. It is further stated that the workman aggrieved with termination order dated 7.06.98, he sent several appeals dated 30.03.99, 1.04.99 and 1.05.03 to DTC vide registered post as well as UPC for reinstatement in his service with full back wages and consequential benefits but these appeals were not considered by the same authority and 3/17 -4- the management had not sent any sufficient reply. Thereafter workman had sent several appeals to higher authorities of the management, there also the management had not given any satisfactory reply. The management had sent the notice of demand to the Chairman of DTC on 19.05.03 but the management did not consider the notice of reinstatement in his service with full back wages and continuity in service. It is further stated that the management has not conducted any oral departmental enquiry and no opportunity had been provided to the workman and no chance has been provided for being heard by the management to the workman. It is further stated that the order of termination of workman dated 7.06.98 is illegal, arbitrary and uncalled. It is further stated that the workman is unemployed since the date of his illegal termination and he is entitled to reinstatement in service with full back wages.
3. WS filed wherein it is stated that the workman was in the habit of remaining absent from the duty. It is also stated that this was his daily routine and not even cared to inform DTC for being absent. It is further stated that the workman remained absent without informing the DTC and remaining absent from his duty w.e.f 7.03.98 unauthorisedly and without informing. It is further submitted that the management is very well aware from this fact that the workman ever submitted the leave application and the leave of the workman were regularised. It is stated that the workman was directed to appear before the medical board of this corporation in case he was sick suffering from any illness but neither he reported for duty nor submitted any response and nor cared to file any reply and even not appeared before the medical 4/17 -5- board of DTC. It is submitted that as deemed to have resigned from the service of workman from this corporation w.e.f 7.06.98 is false, arbitrarily and retirement and against the principle of natural justice.
In reply on merits, it is stated that Sh. Raj Singh was a careless employee and the past record of this employee is poor and leave record relating to his service tenure was inadequate. It is denied that the service record of the workman are clear and no complaint against him, during his service period and it is also denied that Raj Singh driver never submitted any leave application and not even cared to intimate the DTC and neither submitted any reply to his unlawful and illegal absence and hence, DTC was compelled to deduct the salary of the driver which was duly justified. It is also denied that in accordance with the terms and conditions as contained as Clause 14 (10) (b) of D.R.T.A. The unauthorised leave beyond three months could not be regularised and thus there was no other alternative left except to declare the applicant declare "Deemed to have resign"
from service under clause 14 (10) (c). It is also submitted that the deemed to have resigned was rightly made and as per the rules and law of D.R.T.A Act, 1952. It is denied that the order of management as deemed to have resigned is false and fabricated and against the principle of natural justice and is liable to be set aside. It is submitted that the steps were taken in accordance with the terms and conditions as contained in Clause 14 (10) (C) of D.R.T.A Act, 1952 and further stated that there was no need for conducting enquiry proceedings. It is further denied that prior taking any action for removal or deem to have resign by the 5/17 -6- management the management should have issued the one month notice salary to the workman. It is also denied that the workman has submitted only one appeal before the competent authority and the same was rejected as being time barred and for which the workman was duly informed. It is further denied that the workman never received any letter sent by the management for appearing before the medical report or any other.
4. Subsequently, Rejoinder to the W.S. of the management was filed wherein the workman has denied the allegations made in the WS and reiterated the averments contained in the claim.
5. After completion of pleadings, following issues were framed on 23.02.05 :
1. Whether action of management in deeming Sh.
Raj Singh S/o Sh. Amar Singh to have resigned is illegal and/or unjustifiably if so, to what relief is he entitled and what directions are necessary in this respect?"
6. Workman filed his affidavit to prove his stand. During the course of proceedings, an application was filed on behalf of workman for making amendment in statement of claim. Arguments were heard on the application and the application was allowed.
7. Amended statement of claim filed wherein it is amended that the workman could not attend his duties w.e.f 7.03.88 to 6/17 -7- 6.06.88 and in this regard the workman had duly submitted leave application on 7.03.88, 21.03.88, 19.04.88 and 23.05.88 along with medical certificate issued by the treating Doctor to the Depot. It is further submitted that without any cause or reason on the part of the workman, the services of the workman were terminated by the Depot Manager, Hari Nagar Depot-I vide order dated 7.06.88 in the garb of deemed resignation vide letter which was issued on dated 10.06.88 under clause 14 (10) (c) of D.R.T.A Regulation, 1962 with the allegation that he has absented his duties from 7.03.88 to 6.06.88 with extra ordinary leave without pay. The management was submitted that the leaves of the workman w.e.f 7.03.88 to 6.06.88 were regularised the same were mentioned in termination order. It is further stated that the leave of the workman w.e.f 7.03.98 to 6.06.98 were regularised by DTC by the order dated 10.06.88 vide letter as a termination letter. When the management had regularised the leave of the workman from 7.03.88 to 6.06.88 and payment was also deducted for this period from the salary of the workman, there is no misconduct committed by the workman. It is further stated that the termination of the workman is a clear victimisation upon the workman which is illegal, arbitrary, unwarranted which was issued by the management. The management had not given any reason of termination of workman from the service dated 7.06.88. It is further stated that the management had not conducted any enquiry nor issued any show cause notice nor issued any charge sheet nor any opportunity of being heard was given, the workman had deemed to resign his service dated 7.06.88 is illegal, arbitrary and unwarranted as per laid down the procedure of Industrial Dispute 7/17 -8- Act, 1947. It is further stated that the management statutory service Regulation regarding "Deemed Resignation" has been amended vide order dated 6.02.91. According to this amendment dated 6.02.91, the management should have conducted the departmental enquiry and issued the show cause notice and issued the charge sheet in all the cases of DTC without giving any chance of being heard, the management cannot be deemed to be resigned of his employee. It is further stated that the management had not issued one month notice salary to the workman before the termination of workman. It is further stated that management has clearly violated the principle of natural justice. It is further stated that the workman aggrieved with termination order dated 10.06.88, he sent several appeals dated 30.03.99, 1.04.99 and 1.05.03 to DTC vide registered post as well as UPC for reinstatement in his service with full back wages and consequential benefits but these appeals were not considered by the same authority and the management had not sent any sufficient reply. Thereafter workman had sent several appeals to higher authorities of the management, there also the management had not given any satisfactory reply. The management had sent the notice of demand to the Chairman of DTC on 19.05.03 but the management did not consider the notice of reinstatement in his service with full back wages and continuity in service. It is further stated that the management has not conducted any oral departmental enquiry and no opportunity had been provided to the workman and no chance has been provided for being heard by the management to the workman. It is further stated that the order of termination of workman dated 10.06.88 is illegal, arbitrary and uncalled. It is 8/17 -9- further stated that the workman is unemployed since the date of his illegal termination and he is entitled to reinstatement in service with full back wages.
8. On the basis of pleading of amended claim and reply following issued were again framed :
(i) Whether the workman remained absent unauthorisedly and unlawfully w.e.f 7.03.88 and did not report for duty?
(ii) Whether action of management in deeming Sh.
Raj Singh S/o Sh. Amar Singh to have resigned is illegal and/or unjustifiably if so, to what relief is he entitled and what directions are necessary in this respect?"
9. Parties led their evidence.
On behalf of workman, Workman Sh. Raj Singh examined himself.
On behalf of management, Sh. U. S Tripathi deposed as MW 1.
10. WW 1 in evidence by way of affidavit supported the averments made in the claim and got exhibited documents Ex. WW 1/1 to 7.
In cross examination of WW 1, he admitted that he was absent from duty w.e.f 7.03.88. He was absent from the duty since he was not well and thereafter his wife also fell sick. He further submitted that he had submitted application for leave. He further submitted that he did not remember the name of the 9/17 -10- officer who had signed or received his applications. He had submitted the medical certificate of his sickness and the sickness of his wife. He further submitted that he had not shown himself in the OPD of the medical department of the management DTC. He further stated that he did not remember the name of the Dr. who had issued the medical certificate. He further stated that he did not receive any notice from the management to join the services. He had received only one letter of termination. He had submitted an application for joining the duty after receiving the letter of termination but he did not remember the date. He denied that he had not submitted any letter for rejoining his duties. He further stated that he did not send any legal notice to take legal action when he was not allowed to join duties.
11. MW 1 Sh. U. S Tripathi in examination in chief supported the averments mentioned in the WS.
In cross examination of MW 1, he deposed that he had been working in this deport since January, 2007. He further stated that he did not have knowledge about the case. He further stated that no charge sheet was issued and no enquiry was conducted in this case. He admitted that clause 14 (10) (C) of D.R.T.A 1952 was declared as null void by Hon'ble High Court of Delhi and employees who were party in the said case were taken back in service. He denied that there was no misconduct on the part of the workman and he was illegally terminated from service. He denied that Sh. Raj Singh had given leave applications for his entire period of absence from duty. He stated voluntarily that he had applied only leave from 7.03.88 to 18.03.88 vide his application on the ground of sickness of his wife which was 10/17 -11- rejected by the management.
12. Written arguments filed on behalf of workman.
It is stated in written arguments filed on behalf of workman that the workman had been appointed as a Driver by the management and at the time of termination he was posted at Hari Nagar, Depot-I and was permanent employee of the corporation. He further stated that the workman had been performing his duty sincerely, honestly and diligently and never afforded any chance of adverse remarks against him during his service tenure. Furthermore, the wife of workman fell seriously ill and the workman availed the medical leave w.e.f 7.03.88 to 6.06.88 and duly submitted the leave application dated 7.03.88, 21.03.88, 19.04.88 and 23.05.88 along with medical certificates and the corporation duly sanctioned the leave since 7.03.88 to 6.06.88. It is further stated that the management have deemed to have resigned the service of the workman from the corporation under Clause 9 (b) of D.R.T.A conditions and appointment of the service through letter dated 10.06.88 under clause 14 (10) (b) of D.R.T.A (Conditions of Appointment and services) Regulation, 1952, thereby the period 7.03.88 to 6.06.88 has been regularised by this letter. He further stated that the services of the workman since 7.06.88 have been dispensed with by the corporation without holding any enquiry or issue any show cause notice and without giving any chance of being personal heard. The workman sent various applications but despite various applications, representations and personal visits made by the workman to the management but all in vain. Thereafter the workman was assured by the corporation for the reinstatement of 11/17 -12- service as per the Judgment passed by Hon'ble Supreme Court of India in case titled as DTC Vs. DTC Mazdoor Congress and ors. thereby the Hon'ble Supreme Court has struck off the clause 9 (b) of D.R.T.A 1952. The corporation has reinstated those employees who were terminated under clause 9 (b) of D.R.T.A (Conditions of appointment regulations) 1952 but the management unnecessarily harassed the workman by assuring to reinstate the service of corporation and lastly the workman submitted an appeal to the corporation vide appeal dated 30.03.99 requesting therein for the reinstatement of the service of corporation the same has been dismissed on 10.09.99. Thereafter workman sent a demand notice dated 19.05.03 but management did not reply the same.
AR for workman cited following citations :
Director, Fisheries Terminal Deptt Vs. Bhikubhai Meghajibhai Chavda, (2010) 1 SCC (L & S) 1, (2010) 1 SCC 47 Pepsu Road Transport Corporation Vs. Presiding Officer and anr., 2001 (5) SLR 716 (Punjab and Haryana High Court) Sapan Kumar Pandit Vs. U. P State Electricity Board and ors., (2001) 6 SCC 222 DTC Mazdoor Congress & Ors. Vs. Union of India & ors., 1 LLJ 61 Delhi High Court 12/17 -13- Delhi Transport Corporation Vs. DTC Mazdoor Congress, 1990 (5) SLR 311 Supreme Court of India
13. Final arguments heard.
14. I have seen the file, written arguments filed by the workman and further citations filed by workman and my findings with respect to the issues are as under :REGARDING ISSUE NO. 1
Whether the workman remained absent unauthorisedly and unlawfully w.e.f 7.03.88 and did not report for duty?
Keeping in view the documentary evidence as well as written arguments, my impression is that on following grounds :
(i) It is an admitted fact by both workman as well as by the management that the workman remained absent unauthorisedly and unlawfully w.e.f 7.03.88 to 6.06.88.
(ii)It is further an admitted fact that no prior permission was taken from the Depot Manager/management for this leave.
(iii)It is further an admitted fact that the Depot Manager had asked Raj Singh to report for the dispensary of the DTC and it is further an admitted fact that Raj Singh did not reported to be examined by the dispensary of DTC.
(iv)It is further an admitted fact that these leaves were later 13/17 -14- on regularised by the Deport Manager vide this order.
Hence, the issue is decided on followed terms.
(a) Admitted fact that Raj Singh remained absent w.e.f 7.03.88 to 6.06.88.
(b) It is further an admitted fact that he did not take prior permission from the Depot Manager and did not report to the dispensary despite direction.
(c) It is further an admitted fact that these leave period has been regularised by the Depot Manager.
REGARDING ISSUE NO. 2Whether action of management in deeming Sh. Raj Singh S/o Sh. Amar Singh to have resigned is illegal and/or unjustifiably if so, to what relief is he entitled and what directions are necessary in this respect?"
Keeping in view the documentary evidence as well as written arguments, my impression is that this issue be decided in favour of workman and against the management on following grounds :
(i) It is an admitted fact that Raj Singh/Manager remained on leave on 7.03.88 to 6.06.88 without any prior permission/sanction from the competent authority and despite direction by the Depot Manager, he did no reported to be examined by the dispensary of DTC. It is further admitted that these leave period or absence was later on regularised by the DTC.14/17 -15-
(ii)The Depot Manager vide order dated 7.06.88 considered the absence of duty of workman from 7.03.88 to 6.06.88 as deemed resignation. Under Clause 9 (b) of DRTA conditions and appointment of service as well as under Clause 14 (10) (b) of DRTA (Conditions of Appointment and services) Regulation, 1952, vide this order on the one hand is leave period from 7.03.88 to 6.06.88 was regularised under Clause 14 (10) (b). However, under Clause 9 (b) of DRTA, his absence was considered as to be deemed resignation.
(iii)It is further a fact that while the Department has considered the leave period as deemed resignation, the workman was not issued show cause notice nor any departmental enquiry was initiated nor any hearing was given to the workman.
(iv)It is further a fact that management by Statutory Service Regulation regarding deemed resignation has been amended vide order dated 6.02.91. Vide this amendment dated 6.02.91, management was bound to issue show cause notice followed by an impartial department enquiry including charge sheet in all cases. This shows that on the date of order of deemed resignation dated 7.06.88 the provision of deemed resignation was no more valid and it was bound for the DTC to issue show cause notice followed by charge sheet if any and conduct and hold impartial departmental enquiry followed again by show cause notice and appropriate order if any. All these procedure has not been adopted by the management. Hence, on the face of it the action of the 15/17 -16- management is illegal and bad as not followed provision of the DRTA Act.
(v)On behalf of DTC MW 1 Sh. U. S Tripathi has been examined. He stated in his cross examination that he did not have knowledge about the case. Apart from this witness there is no other witness on behalf of management. Once it is admitted that he has no knowledge of the case, all his deposition is futile except the admission which goes against the management and in fact there is no evidence on behalf of management.
(vi)It is further an admitted fact that one month notice as mandatory under section 25-F of ID Act has also not been issued. Hence, the retrenchment of the workman is illegal and unjustified as management has not complied the provision of section 25-F of ID Act.
In view of above, it is held that action of the management in deeming Sh. Raj Singh S/o Sh. Amar Singh to have resigned is illegal and unjustified. Hence, workman is entitled to following relief:
(a) Workman is entitled for reinstatement within one month of publication of this award.
(b) Workman is not entitled for back wages as (i) admittedly his absence was unjustified (ii) date of his termination is 10.06.88 and he filed the present dispute on 19.04.04.
15. Award is passed accordingly. Copies of award be sent to the appropriate Government for publication as per law. File be 16/17 -17- consigned to the record room after necessary compliance by Ahlmad.
Announced in the Open Court (DAYA PRAKASH)
th
on 10 March, 2010 Additional District & Session Judge
Presiding Officer labour Court XVI
Karkardooma Courts : Delhi.
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