Delhi District Court
I.D. : No. 173/16 vs . on 24 September, 2021
IN THE COURT OF SH. JITENDRA KUMAR MISHRA:
PRESIDING OFFICER INDUSTRIAL TRIBUNAL-I, ROUSE
AVENUE DISTRICT COURTS , NEW DELHI.
Ref: F24/(47)/DLC/CD/121433
Dated: 10.07.2012
I.D. : No. 173/16
Workman
Sh. Suresh Chand
S/o Sh. Ram Chander
Conductor, Badge No.23668, Token No. 52031
R/o House no. 112-C near Bodh Mandir
Delhi-110033
Vs.
Management
Delhi Transport Corporation, DTC Head Quarter,
I.P. Estate, I.P. Depot, New Delhi-110002
Through its Chairman
Date of institution : 01.09.2012
Date of reserving award : 22.09.2021
Date of award : 24.09.2021
AWARD
(More than 9 years old case)
Ref : F.24 (47)/DLC/CD/121433 dated 10.07.2012
AWARD
1.The Office of Deputy Labour Commissioner, Govt. of the National Capital Territory of Delhi has referred this dispute arising between the parties named above for adjudication to this Tribunal vide notification No. F.24 (47)/DLC/CD/121433 dated 10.07.2012 with following terms of the reference:-
I. D. No. 173/16 Suresh Chand Vs. DTC Page No. 1 of 19 "Whether the punishment of stoppage of next due two increments with cumulative effect imposed on Sh. Suresh Chand, S/o Sh. Ram Chander, vide order no. BBMD- 1/AI(T)/CS62/09/1296 dated 19.5.2009 is illegal and/ or justified and if so, to what relief he is entitled and what directions are necessary in this respect ?"
2. Statement of claim has been filed by the workman wherein it is alleged that the workman had been appointed as a conductor with Delhi Transport Corporation, on monthly pay scale since 19.04.1986 and was allotted badge no. 23668, token no. 52001 and on the date of filing of claim he was posted in BBM Depot-I, DTC, Kingsway Camp, Delhi.
It is submitted that on 21.08.2008 the workman was on duty at Bus No. DL-1PB-0924 on Route Delhi to Meerut as a conductor. When the bus reached at village Mortah, all of a sudden the Tractor-Trolly hit with the bus driven by Sh. Manjeet at the time of trip from Meerut to Delhi. Soon after the incident, workman conveyed the information to the Control Room, BBM Depot-I regarding the alleged incident. It is further alleged that due to serious condition of the driver, he was brought by him along with some passengers to Narender Hospital, Mohan Nagar, Ghaziabad, UP. It is further alleged that as per the directions of the Depot Manager, the workman had given written statement regarding accident to the duty I. D. No. 173/16 Suresh Chand Vs. DTC Page No. 2 of 19 officer Sh. Jai Bhagwan.
It is further alleged that without any sufficient cause and reason the workman was charge-sheeted bearing No. BBM Depot-I/INT/T/CS/08/514 dated 16.09.2008 without sufficient cause and reason by levelling the false and frivolous allegations. The charge-sheet was issued to the workman. After receiving the charge-sheet the workman has submitted his reply to the charge-sheet on 29.09.2008 vide Diary no. 1205.
It is further alleged that an inquiry was conducted in this regard. Initially witnesses have given false statement, however, later on prosecution witnesses have not spoken any single word against the workman. It is further alleged that the enquiry officer did not summon the driver of the bus namely Mr. Manjeet. The inquiry Officer failed to consider the material placed on record. Depot Manager confirmed the penalty vide letter dated 19.05.2009 bearing No. BBMD-1/AI(T)/CS 62/09/1296 proposed in show cause notice dated 27.03.2009.
It is further alleged that without any sufficient cause and reason, the Depot Manager, knowingly and intentionally caused the financial loss by giving the major penalty to the workman.
It is prayed in the Statement of Claim that the punishment order dated 19.05.2009 be set-aside and the management be directed to pay all the service benefits sustained by the workman through the penalty.
I. D. No. 173/16 Suresh Chand Vs. DTC Page No. 3 of 19
3. In the written statement filed on behalf of management, it is alleged that no copy of the alleged espousal letter from the concerned DTC Workers Kalyan Sangh/Union relating to the present case is filed in this court or is supplied to the management and it is not mentioned that since when he was a Member of the said union. It is further alleged that workman had concealed the true facts of the accident to save the driver. It is further alleged that workman has disobeyed the order of his superiors and did not appear before the then Depot Manager along with his statement in writing regarding the accident occurred by his duty driver, rather he left unsigned statement in the control room and in the Schedule Section.
It is further alleged that the workman intentionally and knowingly suppressed the true and correct material facts to save the driver. It is further alleged that during investigation of accident, conducted by the management, it was found that while the workman stated that due to light rain, the accident occurred as the driver could not see the tractor trolly. It was observed that the atmosphere was clear and there was sufficient light on the spot where Halogen light was installed near Shiv Mandir, Manan Dham.
In nutshell, it is submitted that charges levelled against the workman were established as mentioned in the enquiry findings. It is further contended that the appeal of the workman was dismissed by the Appellate authority, the Regional Manager (North) on 20.08.2009 and his appeal I. D. No. 173/16 Suresh Chand Vs. DTC Page No. 4 of 19 before the CMD was dismissed on 18.03.2010.
4. Rejoinder has been filed for workman, wherein all allegations made in the written statement have been denied and the contentions made in the statement of claim have been reiterated and affirmed.
5. On the basis of pleadings of the parties, following issues were framed by my Ld. Predecessor vide order dated 08.10.2014:-
"1. Whether the present claim of the workman has been properly espoused by the Union? OPW.
2. Whether the management has conducted enquiry against the workman in violation of principles of natural justice? OPW.
3. If answer to issue no. 2 is affirmative, whether the workman committed the misconduct imputed to him by the management? OPM
4. As per terms of reference".
6. To prove this issue, workman Sh. Suresh Chand examined himself as WW1 in workman evidence. In his affidavit by way of evidence, Ex.WW1/A, he has affirmed the contents of his statement of claim. He has also relied upon documents Ex.WW1/1 to WW1/16 and the details thereof are as :-
I. D. No. 173/16 Suresh Chand Vs. DTC Page No. 5 of 19
a) Ex. WW1/1 is the espousal letter in favour of workman;
b) Ex. WW1/2 to EX. WW1/4 are the medical
treatment documents of the workman;
e) Ex. WW1/5 is the reply filed by workman;
f) Ex. WW1/6 is the chargesheet dated 16.09.2008;
g) Ex. WW1/7 is the reply to the chargesheet dated
29.09.2008;
h) Ex. WW1/8 and Ex WW/9 are the enquiry
proceedings dated 5.12.2008 and 22.12.2008;
i) Ex. WW1/10 is the findings of the Enquiry officer;
j) Ex. WW1/11 is the show cause notice dated 27.03.2009;
k) Ex. WW1/12 is the letter for the confirmation of the penalty;
m) Ex. WW1/13 is the reply to the show cause notice dated 02.4.2009;
n) Ex. WW1/14 is the letter regarding rejection of an appeal;
o) Ex. WW1/15 is the letter by which the appeal was dismissed.;
p) Ex. WW1/16 is the letter dated 18.3.2010.
Thereafter, workman examined WW-2 Sh. Jai Narayan who proved the filled up form on 04.1.1985 of workman for appointment as conductor in DTC which is Ex. WW2/1. Therafter, ld. AR for workman closed the workman evidence.
I. D. No. 173/16 Suresh Chand Vs. DTC Page No. 6 of 19 However, later on, in pursuance to order dated 24.07.2019, the workman examined WW-3 in the additional workman evidence on the point of espousal.
WW-3 has tendered his evidence by way of affidavit, Ex.WW3/A and relied upon document Ex. WW1/1. He was also cross-examined by ld. AR for management.
7. During management evidence, the management examined MW1 Ms. Archana Punn and she tendered her affidavit Ex. MW1/A in her examination in chief. She further relied upon the documents Ex. MW1/1 to ex. MW1/7.
a) Ex. MW1/1 is the report of ATI Sh. Harish Chander.
b) Ex. MW1/2 is the report of ATI Sh. Jai Bhagwan.
c) Ex. MW1/3 is the letter of workman.
d) Ex. MW1/4 is the chargesheet;
e) Ex. MW1/5 is the reply by the workman to the
charge-sheet.
She was cross-examined by the ld. AR for
workman.
8. I have gone through the entire record of the case including pleadings of the parties, evidence led and documents proved during evidence. I have also gone through the written arguments filed on behalf of workman and management.
In the written submissions, it has been submitted by ld.
I. D. No. 173/16 Suresh Chand Vs. DTC Page No. 7 of 19 AR for workman that workman was charge sheeted with malafide intention, however, the workman had given the written application dated 22.03.2009. It is further submitted that allegations upon the workman in charge-sheet dated 16.09.2008 is totally illegal, false and alleged with the malafide intention by the Depot Manager on the basis of false report submitted by the reporter who had not visited the site of accident and given/submitted the false report under the instructions of the Depot Manager. It is further submitted that accident reports as prepared by Sh. Harish Chander, ATI submitted to Depot Manager, is totally false and frivolous and during the enquiry proceedings it has been clearly proved that on 21.08.2008 it was raining and having great fog, the tractor trolley could not be seen and hit the tractor trolley standing in the middle of the road and the driver of the bus has been injured and got fracture in his leg and the driver was admitted in Mohan hospital by the workman. It is further submitted that Sh. Jai Bhagwan, ATI also appeared before the Inquiry Officer and recorded his statement but nothing has been stated against the workman. It is also submitted that Inquiry officer failed to call and examine the driver of the bus in the enquiry proceedings, who also received the injury in that accident who was the main witness of the accident and said accident was happened with the driver. Workman has also produced witnesses to support his case and they have deposed in favour of the workman and has duly proved the original record of the workman i.e. application I. D. No. 173/16 Suresh Chand Vs. DTC Page No. 8 of 19 form of appointment and espousal letter along with minutes. It is further submitted that Inquiry officer failed to conduct the inquiry as per rules and regulations and to follow the principles of natural justice. It is further submitted that Depot Manager and inquiry officer both are connected and related to the same department and both in collusion with each other have levelled the false allegations to punish and cause loss to the workman. It is further submitted that penalty dated 19.05.2009 and the proceedings of the Inquiry Officer are totally false, illegal and issued by both the officers with malafide intention to harass the workman and against all canons of law. It is further submitted that claim filed by the workman is genuine and filed on the genuine cause of action. Hence, it is prayed to decide the inquiry issue in favour of the workman against the management and pass award in favour of the workman and against the management.
Management during written arguments submitted that record maintained by the management, report of the ATI and the statement of driver and the conductor speaks the truth. The fact is that the workman, intentionally and knowingly suppressed the true and correct material facts to save the driver. During investigation of the accident, conducted by the management, it was found that while the workman stated that due to light rain, the accident occurred as the driver could not see the tractor-trolly, however, it was observed that the atmosphere was clear and there was sufficient light on the spot where Halogen light was installed I. D. No. 173/16 Suresh Chand Vs. DTC Page No. 9 of 19 near Shiv Mandir, Manan Dham. The management examined its witness who has duly conducted the inquiry and reply filed by the workman was duly considered by the disciplinary officer and not found satisfactory and as per inquiry proceedings imposed the penalty to the workman. It is further submitted that workman has admitted in his cross- examination certain material facts such as he did not opt to take assistance of co-worker/welfare Inspector of the Labour Welfare Officer. It was further admitted by the workman that management had given full opportunity to the workman to bring defence witnesses.
9. Now, I am going to give my findings issue wise herein.
10. Firstly, I am going to decide issue no.2 prior to other issues as this issue pertains to the inquiry conducted against the workman.
ISSUE NO. 2Whether the management has conducted enquiry against the workman in violation of the principles of natural justice? OPW.
The onus to prove this issue was upon the workman. In paras no. 7, 8 and 9 of Ex. WW1/A WW-1 I. D. No. 173/16 Suresh Chand Vs. DTC Page No. 10 of 19 deposed that without any sufficient reason or cause, Inquiry Officer found workman guilty and submitted the case file to the Depot Manager for taking further action. It is further deposed that workman requested the Inquiry Officer to produce Sh. Manjeet Singh as defence witness but the Inquiry Officer declined to issue summons to defence witness.
It is further deposed by WW-1 in Ex. WW1/A that Inquiry Officer failed to provide the opportunity of the co- worker at the time of conducting the departmental enquiry in presence of welfare officer in the presence of management without any sufficient cause or reason. It is further deposed in para no. 10 of Ex. WW1/A that WW-1 had filed reply dated 2.04.2009 but the same was not considered without going through the facts and the penalty was imposed.
During cross-examination WW-1 deposed that he attended the inquiry proceedings. He can read and write Hindi. It is admitted by WW-1 that he was asked by the management if he wanted assistance of co-worker/Labour Welfare Inspector of Labour Welfare Officer. He further deposed that document Ex. WW1/M1 bears his signatures at point A. He further deposed that he asked questions to management witnesses Sh. Harish Chander and Sh. Jai Bhagwan. Ex. WW1/M1 is perused wherein opportunity has been given to the workman during inquiry proceedings and workman has put various questions to the witnesses. He has further admitted that he did not examine any witness in his I. D. No. 173/16 Suresh Chand Vs. DTC Page No. 11 of 19 defence before Enquiry Officer. He has admitted that he was given opportunity to bring defence witness. He has further deposed that Inquiry proceedings Ex. WW1/M2 bears his signatures at point B. He has further admitted that in his affidavit he stated that he asked enquiry officer to examine Manjit singh in his defence. WW-1 further deposed that he wrote letter to enquiry officer to examine Manjit Singh in his defence. He wrote letter to the enquiry officer for providing him copy of list of witnesses and copy of list of documents relied by the management. He has not placed on record copy of said letter given to the Inquiry Officer. He further deposed that he did not write any complaint against enquiry officer for not providing him full opportunity of defence. He further deposed that he was given copy of proceedings on each and every date.
Inquiry Officer Ms. Archana Punn appeared as MW-1 who tendered her evidence by way of affidavit Ex. MW1/A. In her affidavit she deposed that enquiry proceedings were conducted by her in the present matter as she is designated as Enquiry Officer. She further stated that before conducting the enquiry proceedings, the relevant documents were scruitized by her throughly such as reports of Sh Harish Chander, ATI and Sh. Jai Bhagwan ATI, the letter of the workman, the chargesheet and the reply of the workman to the said charge-sheet. She also deposed that enquiry proceedings were recorded by her on 05.12.2008 and on 22.12.2008 in which the workman was asked to have I. D. No. 173/16 Suresh Chand Vs. DTC Page No. 12 of 19 assistance of co-worker or Labour Welfare Officer to which he denied and he signed to this effect. She further deposed that workman was given opportunity to cross-examine the management witnesses, which he availed.
During cross-examination, MW-1 admitted that a workman application was already on record when she started domestic enquiry against him. She further deposed that she did not see the service file of workman during course of domestic enquiry conducted by her. She did not tally signatures available on the application and from other record. Voluntarily she stated that there is no signatures on the application available on record. She admitted that workman has submitted reply to the charge-sheet. She denied the suggestion that workman signed the full signature on the application. Voluntarily she deposed that his full name was written and and not signed and on enquiry sheets he has signed in English language. She did not know whether the workman has signed in English of his full name as well as in Hindi. Upon specific question put by ld. AR for workman MW- 1 admitted that Jai Bhagwan has tried to arrange a meeting with Depot Manager to the workers only once but in second meeting worker has not come. She further deposed that as per the report dated 22.08.2008 the workman has not met with the Depot Manager second time. She admitted that on 22.08.2008 the workman met with Depot Manager and submitted his statement. Voluntarily stated he has not met again second time to Depot Manager. She denied the I. D. No. 173/16 Suresh Chand Vs. DTC Page No. 13 of 19 suggestion that she has no document to show that the workman has not met with the Depot manager second time. Voluntarily she deposed that it is clearly mentioned in report dated 22.08.2008, that he did not see service book of workman, so, he cannot say whether the signature of workman on application as well as on service book are same. She further deposed during the course of domestic enquiry she did not see any requirement to see signature of workman in service book. She further denied the suggestion that she gave decision on enquiry without seeing signature of workman on service book. She denied the suggestion that there is no such allegation against workman that he left the office without meeting with Depot Manager on second occasion. Voluntarily she deposed that same is mentioned in charge-sheet. She denied the suggestion that allegations mentioned in the charge-sheet has not been proved. She denied the suggestion that she conducted enquiry and violated the principles of natural justice. She denied the suggestion that she has not conducted inquiry fairly and properly.
Now this Tribunal observes that during cross- examination, no suggestion was given to MW-1 that workman has requested to produce Sh. Manjeet Singh as a defence witness but the Inquiry Officer declined to issue the summon to defence witness. No suggestion was given to MW-1 that during inquiry proceedings, she did not give full opportunity to provide list of witnesses, list of documents etc to the I. D. No. 173/16 Suresh Chand Vs. DTC Page No. 14 of 19 workman. No suggestion was given to MW-1 that opportunity was not provided of co-worker to conduct departmental inquiry in the presence of welfare officer on the instructions of Depot Manager/management officials. Thus entire case as submitted by the workman in his statement of claim, is not challenged to the Inquiry Officer during her cross- examination. Rather, during cross-examination, WW-1 admitted that proper opportunity was given for seeking assistance co-worker/Labour welfare Inspector to defend his case or to take assistance of Labour Welfare Inspector to bring defence witnesses, to examine witnesses in his defence before Inquiry Officer etc. Hence, it is observed that inquiry was conducted in a fair and proper manner. Nothing in cross-examination has been put to MW-1 showing that MW-1 has not done the inquiry in proper manner. Thus, inquiry cannot be said to be in violation of principles of natural justice. Moreover, it is suffice to say that inquiry report and proceedings conducted by inquiry officer are produced before this Tribunal. Reliance can be placed on Delhi Transport Corporation Vs. Om Kanwar (DB) 2016 (226) DLT 695, also Lawpack(Del)58931 in para 21.
11. Moreover, workman has duly participated in inquiry proceedings as per original inquiry proceedings produced before this Tribunal. He also cross-examined the witnesses on 05.12.2008 and 22.12.2008. Therefore, proper opportunity was given to workman to defend his case.
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12. In view of such observations, this Tribunal is of the considered view that an opportunity was given to workman to defend himself during inquiry proceedings. Rather, day to day proceedings during inquiry was given to the workman as admitted by workman himself during his cross-examination.
Therefore, in my considered view, workman is not able to discharge his onus to prove this issue. Accordingly, this issue is answered against the workman and observations are made that management had conducted the inquiry against the workman following the principles of natural justice.
13. ISSUE NO. 1Whether the present claim, has been properly espoused by Union? OPW The onus to prove issue no. 1 is on the workman. He examined WW-3 to proved this issue. WW-3 deposed that workman was member of the DTC Workers Kalyan Singh, Registered. He further deposed that on the request of workman his case was taken up by the union and on 05.11.2010 a meeting of the committee of the members was called to take into consideration the case of the workman.
It is further deposed that on 05.12.2020 a resolution was passed in the meeting and signed by the I. D. No. 173/16 Suresh Chand Vs. DTC Page No. 16 of 19 members of the committee. He further deposed that he had issued the espousal letter to the workman on the basis of resolution and signed the espousal letter dated 05.12.2020 under the capacity as a President. WW-3 also mentioned in Ex. WW3/A, document Ex. WW3/1 and document Ex. WW3/2, however, when he appeared for examination, he relied upon document Ex. WW1/1.
Ex. WW1/1 is perused. This document bears the signatures of President/General Secretary at point A. He has further relied upon document which is mark A which is photocopy of a resolution. However, original of this document has not been brought on record. Therefore, this document is not proved in accordance with the law. During cross- examination, WW-3 deposed that he has not filed any document to show that he was the ex-president of the Union DTC Workers Kalyan Singh. He has further deposed that he has not filed on record to prove his authority to depose on behalf of the Union in the instant matter. He has admitted name of workman as mentioned in the letter of espousal is Sh. Suresh Kumar. He has further admitted that name of the workman as mentioned in the letter of espousal can be a typographical mistake and identity of the workman is confirmed through his designation and badge number, as mentioned in the same. He has further deposed that he has come to depose in the present case at the instance of the workman.
After considering the statement of WW-3, this I. D. No. 173/16 Suresh Chand Vs. DTC Page No. 17 of 19 Tribunal is of the view that onus to prove the resolution and the authority to depose on behalf of Union, was upon the person who has come before the Court to prove the capacity as such.
Original of Mark A has not been brought by WW-
3. What stopped him to bring original of this document has not been explained. Therefore, in absence of proving resolution, the fact that a meeting took place place on 05.12.2010 has not been proved.
It has not been proved by WW-3 that he was President of the Union on 5.12.2010. No document of the Union had been proved on record wherein name of Executives have been clearly mentioned. Even it is also not proved that any meeting of Union took place on 05.12.2010. Moreover, apart therefrom registration of the Union could not been proved inasmuch as no certificate of registration of Union has been filed. Therefore, existence of any such union is also not proved on record.
Therefore, in view of the discussion here-in- above, this Tribunal is of the view that workman is not able to prove this issue and accordingly this issue is answered against the workman. Hence, workman has not been able to prove that present claim has been properly espoused by the Union.
ISSUE NO. 3If answer to issue no. 2 is affirmative, whether the workman committed the misconduct imputed to him by the I. D. No. 173/16 Suresh Chand Vs. DTC Page No. 18 of 19 management? OPM As issue no. 2 is not answered in affirmative, and is answered against the workman. Hence, keeping in view the observations made in issue no. 1 and 2, issue no. 3 is also answered against the workman and in favour of management.
14. Terms of reference:
Whether the punishment of stoppage of next due two increments with cumulative effect imposed upon Sh. Suresh Chand, S/o Sh. Ram Chander, vide order no. BBMD- 1/AI(T)/CS62/09/ 1296 dated 19.05.2009 is illegal and/ or justified and if so, to what relief is he entitled and what directions are necessary in this respect.In view of my above findings, on issues No.1, 2
and 3, as discussed here-in-above, the workman is held to be not entitled to any relief in the instant reference. The award is passed accordingly and the reference is answered in these terms.
15. Copy of the award be sent to the appropriate Government for publication. File be consigned to the Record Room.
Announced in open Tribunal
On this 24th day of September, 2021
Digitally signed by
JITENDRA JITENDRA KUMAR
KUMAR MISHRA
Date: 2021.09.24
MISHRA 16:13:25 +0930
(Jitendra Kumar Mishra)
POIT-1/Rouse Avenue Courts, New Delhi
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