Delhi District Court
Sh. Rakesh Wadhwa vs The on 9 December, 2021
IN THE COURT OF SHRI RAJ KUMAR
PRESIDING OFFICER : LABOUR COURT- III
ROUSE AVENUE COURTS COMPLEX : NEW DELHI
LIR No. 5680/16
CNR NO. DLCT13-001205-2011
Sh. Rakesh Wadhwa
S/o Sh. Dinanath Wadhwa
Represented by Municipal Employees Union,
Agarwal Bhawan, G.T. Road, Tis Hazari,
Delhi-110054
... Workman
Versus
The Management of
Municipal Corporation of Delhi
Town Hall, Chandni Chowk,
Delhi-110006.
... Management
Date of Institution : 23.12.2011
Date of Arguments: 23.09.2021
Date of Judgment : 09.12.2021
AWAR D
1. Vide this order, I shall dispose off the following
preliminary issue framed by my Ld. Predecessor vide orders
dated 08.05.2012 :
1. "Whether the domestic enquiry
conducted was just and fair"?
2. It becomes pertinent to mention here that vide orders dated
22.05.2018 passed by the Hon'ble High Court of Delhi in WP
(Civil) No. 682/18 has directed this court to decide the
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 1/31
preliminary issue first after giving an opportunity to both the
parties to conclude their arguments and as such, the present
matter is being taken up for disposal qua issue number 1 framed
on 08.05.2012.
3. The Government of National Capital Territory of Delhi
through the Office of the Deputy Labour Commissioner (North
District), vide order no. F.24 (169)/ND/53/2011/Lab./2312-2316
dated 19.12.2011 had referred to this Court, for adjudication the
following terms of reference:-
"Whether dismissal of Sh. Rakesh Wadhwa S/o
Shri Dinanath Wadhwa from the service by the
management vide order dated 18.12.2006 is
illegal and/or unjustified; and if yes, to what
relief is he entitled and what direction are
necessary in this respect?"
4. Now, coming to the factual narration, the workman in the
statement of claim has stated that he joined the
MCD/management in its Town Planning Department w.e.f.
09.07.1996 as LDC on regular and permanent basis. It has been
further stated that in the year 2001, the workman was working as
LDC/Bill Clerk at Town Hall, Chandani Chowk in the office of
the Chief, Town Planner and his duties were of cash
disbursement and receipt of salary bills of the concerned
department.
5. The workman, in the statement of claim, has further stated
that he discharged his duties to the entire satisfaction of his
superiors and he was having an unblemished and uninterrupted
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 2/31
record of service to his credit. It has been further stated that
however, he was issued a Memo dated 05.02.2004 containing
two fold allegations. It has been further stated that the first
allegation was that of non-depositing of the used G-8 Receipt
Books with the concerned official before taking a new one and
the second allegation was that of the temporary embezzlement of
the Municipal money amounting to Rs.1,02,504/-.
6. It has been further stated that the workman filed reply to
the above said Memo dated 05.02.2004 mentioning therein that
he had no intention to misappropriate the money of the MCD but
because of certain inevitable circumstances, he could not deposit
the Municipal money in time. It has been further stated that the
workman met with an acute accident, resulting damage to his
brain and also loss of vision to one of his eyes. It has been further
stated that wife of the workman also met with an accident in the
year 1998 due to sudden blast of the LPG cylinder and the father
of the workman was also hospitalized in Hindu Rao Hospital in
the same year. It has been further stated that the workman was
mentally disturbed and unstable and as such, he was on
intermittent leave during the aforesaid period. It has been further
stated by the workman that on the basis of the abovesaid
circumstances explained in the reply to the Memo dated
05.02.2004, the Chief, Town Planner asked the workman to
deposit the money in the Municipal treasury upon which the
workman immediately deposited the Municipal money on
16.02.2004.
7. It has been further stated that however, a charge sheet
dated 04.03.2005 was issued to the workman levelling the
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 3/31
following allegations :
"Sh. Rakesh Wadhwa while functioning as
LDC in Town Planning Department w.e.f.
26.06.2001 to 21.09.2001 failed to maintain
absolute integrity and committed lapses on
the following counts :-
(i) He did not regularly deposit the used G-8
receipts with the concerned officials before
taking a new one.
(ii) He temporally embezzled Mpl. money to
the tune of Rs.102504/- for 1½ - 2½ years
and did not deposit the same immediately in
Mpl. Treasury after their collection through
G-8 receipts.
He thereby, contravened Rule 3 (1) and (ii)
of CCS (Conduct) Rules 1964 as made
applicable to the employees of MCD".
8. It has been further stated that thereafter, an enquiry was
conducted against the workman but the said enquiry was merely
an eye wash and an empty formality. It has been further stated
that the workman was not provided the help of any defence
assistant despite the specific request of the workman and even the
documents and list of the witnesses were not provided to him. As
per the workman, the enquiry officer submitted his report in the
end of the year 2005.
9. It has been further stated that the workman was issued the
second show cause notice dated 15.09.2006 which was duly
replied vide reply dated 27.09.2006. The workman has alleged
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 4/31
that without considering his reply, the management issued a
dismissal order dated 18.12.2006, vide which his services were
terminated by the management.
10. It has been further stated that thereafter, the workman
preferred an appeal to the Commissioner, MCD on 04.01.2007
which was rejected vide orders dated 09.05.2007. The workman
has alleged that the dismissal order dated 18.12.2006 is totally
illegal, bad, unjust and malafide, because the charge sheet was
issued to the workman after four years of the alleged incident at a
much belated stage. It has been alleged that the charge sheet was
extremely prejudicial and detrimental to the interest of the
workman. The workman has relied upon the judgment titled as
E.S. Athithyaraman Vs. The Commissioner, Hindu Religious
and Charitable Endowments (Administration) Department,
Madras, reported as 1971, SLR, 41; the judgment titled as D.P.
Bambah Vs. Union of India & Ors, cited as 1998 IV AD
(DELHI) 240; the judgment titled as Hem Raj Singh vs. Delhi
Development Authority & Anr, reported as 1999 IV AD
(DELHI) 649; the judgment titled as Abdullah A. Latifshah Vs.
Bombay Port Trust & Ors, reported as 1992 (1) LLJ 226
Bombay and the judgment titled as H.L. Saini Vs. Delhi
Development Authority, reported as 1999 I CLR 315.
11. Relying upon the ratio of the aforesaid judgments passed
by the Hon'ble High Courts, the workman, has stated that there
was unexplained delay in initiating the departmental enquiry
which led to the presumption that the enquiry was abandoned or
not going to be held. It has been further alleged that the enquiry
is violation of the principles of natural justice, the charges
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 5/31
levelled against the workman do not constitute any misconduct,
the punishment of removal from the services is extremely harsh
and disproportionate to the charges levelled against him, the
charges levelled against the workman were not proved and the
findings of the enquiry officer are perverse and illegal.
12. It has been further stated that the workman is unemployed
since the date of his dismissal from services. It has been further
stated that the demand notice was also served upon the
management vide communication dated 15.11.2010 but despite
the service of the demand notice, nothing has been done by the
management and hence, the present claim.
13. On the basis of the abovesaid allegations as contained in
the statement of the claim, the workman has prayed that an award
be passed in his favour holding that the dismissal of the workman
vide orders dated 18.12.2006 is illegal and unjustified. It has
been further prayed that the workman be held entitled to the
reinstatement in services with full back wages, continuity of
services with consequential benefits. The workman has also
prayed for the costs of the litigation.
14. Written statement has been filed by the management/MCD
taking various preliminary objections such as that the present
dispute is not an industrial dispute because the same has not been
espoused by the union, no demand notice has been served upon
the management and the reference has been made mechanically
without any application of the mind. It has been further stated
that the present claim is barred by the provisions of Section 2
(oo) of the ID Act and the termination of the claimant has been
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 6/31
made by way of punishment inflicted upon by the disciplinary
authority after holding a just and fare enquiry against the
claimant and hence, the present industrial dispute is not
maintainable. It has been further stated that a valid domestic
enquiry had been conducted and the workman had been served
with the statement of charge, the statement of allegations vide
letter No. 1/162/2004/CPC/VIG/DA-III/05-112 dated
04.03.2005. It has been further stated that the claimant
participated in the enquiry proceedings held in RDA case number
1/162/2004 and the claimant was afforded reasonable
opportunities to defend his case. It has been further stated that
the enquiry officer submitted his enquiry report dated 09.12.2005
holding therein that the charges levelled against the workman
stood proved.
15. It has been further stated that on the basis of the enquiry
report, the disciplinary authority after affording him an
opportunity of personal hearing proposed the inflictment of
penalty of dismissal from the service which is disqualification for
future employment. It has been further stated that show cause
notice dated 15.09.2006 was served upon the workman directing
him to show cause as to why the said penalty should not be
confirmed. As per the contents of the written statement, the
claimant filed reply dated 27.09.2006 and thereafter, the
dismissal order dated 18.12.2006 was passed. It has been further
stated that the claimant preferred an appeal before the appellate
authority on 10.04.2007 but the same was dismissed vide orders
dated 09.05.2007. It has been further stated that the claimant was
found guilty of very serious charges of embezzlement of
government revenue in the just and fare domestic enquiry and
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 7/31
hence, the penalty imposed upon the workman is neither
disproportionate nor illegal. The management has relied upon the
judgment titled as V. Ramma vs. APSRTC Employees,
reported as AIR 2005 SC 1417; the judgment titled as Canara
Bank vs. V.K. Avasthi, reported as AIR 2005 SC 2090 and the
judgment titled as M.P. Electricity Board vs. Jagdish Chander
Sharma, reported as AIR 2005 SC 1924.
16. On merits also, the management has reiterated its
abovesaid stand as contained in the preliminary objections. The
management has denied the allegations of the claimant and has
taken the stand that reasonable opportunities were given by the
enquiry officer to examine the witnesses but he failed to produce
any witness despite grant of the opportunities. It has been further
stated that the management is a big Govt Organization and huge
bulk of the cases is pending for domestic inquiries and hence,
cases are taken up priority-wise. It has been denied that there is
any delay in the service of charge sheet upon the claimant. It has
been denied that the reply of claimant was not considered. Rest
of the contents of the claim have been denied by the management
and it has been prayed that the claim of the claimant be dismissed
being false, frivolous and vexatious. It has been further prayed
that in case, the court comes to the conclusion that the enquiry
was not just and fair, then, the management be allowed to prove
the misconduct of the claimant on merits before this court.
17. Rejoinder has been filed by the workman reiterating and
reaffirming the stand as taken by the workman in the statement of
claim and denying the contents of the written statement filed by
the management.
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 8/31
18. Vide orders dated 08.05.2012, the Ld. Predecessor of this
court framed the following issues in the present matter :
1. Whether the domestic enquiry conducted by the
Management was just and fair?
2. As per terms of reference.
19. Issue No. 1 was directed to be treated as a preliminary
issued by the Ld. Predecessor of this court on 08.05.2012 itself.
The Hon'ble High Court of Delhi vide orders dated 22.05.2018
passed in W.P (Civil) No. 682/18 has directed that the
preliminary issued no. 1 be decided first after hearing the
arguments.
20. Now, coming to the evidence, the workman/claimant Sh.
Rakesh Wadhwa has examined himself as WW-1 and in his
evidence by way of affidavit Ex.WW1/A on record, he has
reiterated and reaffirmed the stand as taken by him in his
statement of claim. He has filed on record the copy of the
demand notice dated 15.11.2010 as Ex.WW1/1, copy of postal
receipt as Ex.WW1/2, copy of the memo dated 05.02.2004 as
Ex.WW1/3, copy of the reply to the memo as Ex.WW1/4, copies
of the treasury challans consisting of 10 sheets as Mark A, copy
of the letter dated 04.03.2005 by virtue of which the workman
was directed to appear in the office of the Addl. Commissioner,
Engineering (disciplinary authority) along with the statement of
charge and the statement of allegations (consisting of 3 pages) as
Ex.WW1/5, copy of the letter dated 15.09.2006 i.e. the memo
issued to the workman by ALO (vigilance) as Ex.WW1/6, copy
of the reply dated 27.08.2006 filed by the workman to the show
cause notice (2 pages) as Ex.WW1/7, copy of the office order
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 9/31
dated 18.12.2006 issued Dy. Law Officer (vig.) i.e. the proposed
penalty of dismissal from service as Ex.WW1/8, copy of the
appeal under Regulation 16 of DMC Service (Control & Appeal)
Regulations, 1959 against the order dated 16.11.2006 (2 pages)
as Ex.WW1/9, copy of the office order dated 09.05.2007 by
virtue of which the workman was dismissed from the service (2
pages) as Ex.WW1/10, copy of the statement of claim filed
before Conciliation Officer (8 pages) as Ex.WW1/11, copy of the
reply filed by the management with affidavit in the office of
Labour Commissioner (4 pages) as Ex.WW1/12 and the copy of
rejoinder filed by the workman in the office of Labour
Commissioner as Ex.WW1/13.
21. In the cross-examination, WW-1 states that he joined the
management as a LDC on 09.07.1996. He further states that as
per recruitment rules, his job was diary dispatching and typing.
He further states that in the year 1997, he was assigned the work
of Bill Clerk. He further states that the cash collected by him in
the day-to-day activities was likely to be deposited either on the
same day or on the next day as per practice prevalent in those
days.
22. WW-1 was further cross-examined on 18.01.2016 and in
his further cross-examination, he states that he was not aware that
the amount which was with him had to be deposited with the
treasury on the same day or on the next day. He further states that
he met with an accident in the year 2001 or 2002. He further
states that he had given written information to the department
about his accident. He further states that after notice from the
department, he had deposited the said amount of Rs.1,02,504/-
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 10/31
with the treasury. He further states that the said amount was for
the period from 26th June 2001 to 21st September 2001. He
further states that he had given the reply to the show cause notice
issued by the department. He further states that he had appeared
in the enquiry proceedings but not regularly. He further states
that he was not suspended by the management when enquiry was
going on. He further states that he had also received the second
show cause notice dated 15.09.2006. He further states that he had
replied the said notice. He further states that he had submitted the
written reply to the above said notices before the enquiry
committee. He further states that thereafter, he received the
termination/dismissal letter on 18.12.2006 and he had filed an
appeal before the Commissioner, MCD and he had also submitted
all his submissions before the Commissioner, MCD, but the same
was rejected. He further states that he had also sent a letter to the
Mayor and the Chief Minister in between the period of his
dismissal of appeal on 04.01.2007 till the date of serving the
demand notice upon the management. He further states that he
was given chance to appear in the enquiry. By way of volunteer,
he states that he was not given an opportunity to cross-examine
the witnesses.
23. The management has also examined Sh. P. Dinesh, its
Senior Town Planner of the North Delhi Municipal Corporation
as MW-1 and in his evidence by way of affidavit Ex.MW1/A, he
has reiterated and reaffirmed the stand as taken by the
management in the written statement. He has filed on record the
photocopy of the charge sheet as Ex.MW1/1, the photocopy of
the enquiry report containing the statement of charges framed
against the workman as Ex.MW1/2, the photocopy of the list of
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 11/31
witnesses filed by the management as Ex.MW1/3, the photocopy
of the list of documents filed by the management as Ex.MW1/4,
the photocopy of enquiry report as Ex.MW1/5, the photocopy of
complete enquiry proceedings as Ex.MW1/6, the photocopy of
show cause notice as Ex.MW1/7, the photocopy of letter dated
18.12.2006 as Ex.MW1/8 and the photocopy of office order
dated 09.05.2007 as Ex.MW1/9.
24. In the cross-examination, MW-1 has stated that the
documents filed by the workman on record are seen by him from
the court record. MW-1 admits it to be correct that Ex.WW1/1
bears the correct address at point A and Ex.WW1/3 is the copy of
memo issued by the management. He further states that
Ex.WW1/4 is the copy of representation / reply by the concerned
workman to exhibit Ex.WW1/3. He further states that
Ex.WW1/M1 is the correct copy of receipt book containing 10
pages. He further states that Ex.WW1/5 is the correct copy of
letter issued by vigilance department dated 15.09.2006. He
further states that Ex.WW1/7 is the correct copy of reply filed by
workman to exhibit WW1/6. He further states that Ex.WW1/8 is
the correct copy of the office order dated 18.12.2006. He further
states that Ex.WW1/9 is the correct copy of the reply filed by the
workman to exhibit WW1/8. He further states that Ex.WW1/10 is
the correct copy of the office order dated 09.05.2007. He further
states that Ex.WW1/11, Ex.WW1/12 and Ex.WW1/13 are the
correct copies of the statement of claim, written statement and
rejoinder filed by the workman and the management before the
Conciliation Officer.
25. MW-1 further states that he was working as Drawing and
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 12/31
Disbursing Officer of the concerned workman from December
2000 till the date he was removed from the services. He admits it
to be correct that he along with Mr. A.D. Biswas were also issued
charge sheet for minor punishment on the same charges, on
which the concerned workman was issued charge sheet for major
punishment. He further states that he had not brought the charge
sheet which was issued to him. He again states that the charges
against him and Mr. Biswas were different, however, the incident
was the same. He further states that he is unable to produce the
charge sheet which was issued to him in the incident. He further
states that he was higher in the status and higher in the salary to
the concerned workman.
26. MW-1 admits it to be correct that the ultimate
responsibility rested with him to the effect that the G-8 receipts
were issued and the money received against those receipts be
deposited in the treasury of the management in time. He admits it
to be correct that the misconducts are enumerated by the
management. MW-1 admits it to be correct that temporary
embezzlement is not enumerated as a misconduct in the conduct
rules of the management.
27. He further states that the management had not given
anything in writing to the effect that the workman was bound to
deposit the money received against G-8 receipts on its
completion. He further states that he has nothing to show from
the record that the management had ever given or served any
instructions to the workman to deposit the money received
against G-8 receipts on completion of G-8 book. MW-1 admits it
be correct that an amount of Rs.1,02,504/- was deposited by the
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 13/31
workman with the management after memo issued to the
workman.
28. In the further cross-examination conducted on 31.05.2017,
MW-1 states that he is not sure as to whether temporary
embezzlement amounts to misconduct, because he does not have
conduct rules with him. He admits it to be correct that penalty of
stoppage of one increment without future effect was imposed on
him by the management in the same incident. He further admits it
to be correct that Sh. A.D. Biswas, the other drawing and
disbursing officer was also charge sheeted for minor punishment
and he was also imposed the punishment of stoppage of one
increment without future effect.
29. He further states that they were working as drawing and
disbursing officer, whereas, their post was Deputy Town Planner.
He further states that in hierarchy the concerned workman Sh.
Rakesh Wadhwa was at the bottom as LDC, over him was Sh.
Satya Prakash, UDC and then, Sh. O.P. Dua, Suptd., and then he
and Sh. Biswas were drawing and disbursing officers/Deputy
Town Planners. He further states that Sh. Satya Prakash, UDC
was imposed with the punishment of 10% deduction from
pension.
30. He further states that no other charge sheet was ever issued
to the concerned workman other than the present charge sheet.
He further states that he cannot say as to whether no memo was
ever issued to the workman prior to the present incident. He
further states that he does not know if the work and conduct of
the workman was satisfactory. He further states that he does not
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 14/31
have any material or evidence to show that the workman is
gainfully employed elsewhere after his termination/dismissal in
2005. He admits it to be correct that the incident pertains to the
year 2001-2002, however, the charge sheet was issued in the year
2005. He further states that he has nothing on record to show as
to why the charge sheet was issued at a belated stage.
31. MW-1 further states that vide letter dated 04.03.2005
Ex.MW1/1 on record, the disciplinary authority had supplied the
documents to the workman. He further states that there is no
acknowledgment of the workman to show that he had been
supplied with 15 documents as mentioned in Ex.MW1/4. He
further states that he does not know if the said documents were
actually supplied to the workman or not. MW-1 admits it to be
correct that the documents mentioned in Ex.MW1/4 were relied
upon by the enquiry officer. He further states that he was neither
the enquiry officer nor the presenting officer in this case. He
further states that he was not even the witness in the present
enquiry. He further states that he was not even the disciplinary
authority. He further states that he had no role whatsoever in the
enquiry conducted against the workman in this case or
punishment imposed on him. He further states that he does not
know if the enquiry was conducted in violation of the principles
of natural justice and fair play. He further states that he does not
know if no proper opportunity was given to the workman to
defend himself.
32. He further states that he does not know if the workman
was called as a witness in the proceedings of minor punishment
against him. He further states that it is mentioned in the official
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 15/31
record that the concerned workman Sh. Rakesh Wadhwa met
with an accident in the year 2001. He further states that it is
possible that he (workman) was on long medical leave in the year
2001-2002. MW-1 admits it to be correct that it is mentioned in
the office record that in the year 2001-2002 the workman lost
major part of his eye sight. He further states that it is also on the
record that the wife of the workman got burn injuries in 2001-
2002 due to blast of LPG gas cylinder. He further states that he
does not know that during that time only his father had a
paralytic stroke and was confined to bed. He admits that the
workman in his representations Ex.WW1/4, Ex.WW1/7 and
Ex.WW1/9 against the memo in this regard narrated all these
facts.
33. MW-1 further states that he has nothing to show from the
court record that the request, facts, the representations of the
workman were considered by the management and the
management passed a speaking order one way or the other.
34. He further states that there is nothing on record to show
that the management has considered the impact of dismissal of
his services. He further states that he has nothing to show on the
record that the management has ever considered that the
workman has a wife, who is dependent upon him and there are
two school going children (boy 11 years and daughter 9 years) in
the year 2005. MW-1 admits it to be correct that the enquiry
officer as well as the presenting officer were the law graduates
having a legal back ground. He further states that he does not
know if the management had not given any defence assistance.
He further states that he does not know if the management had
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 16/31
not given an opportunity to the workman to engage a defence
assistant. He further states that he does not know if the workman
was not given any opportunity to cross-examine the prosecution
witnesses nor allowed to lead evidence in his defence. MW-1
admits it to be correct that in April 2007 the departmental
proceedings came to an end and the punishment of dismissal was
confirmed. He further states that he does not know if the
workman was approaching the Commissioner and the Addl.
Commissioner for his reinstatement and for setting aside the
dismissal order and they were assuring the workman that his case
was under active consideration. He further states that he does not
know if the sole exercise went on till 2009-2010.
35. He further admits that the workman had deposited the
money in question with the management after issuance of memo.
He further admits that there is nothing on record to indicate that
any money is due to be paid by the workman or there is any
financial loss to the management after deposit of Rs.1,02,504/-
by the workman.
36. I have carefully gone through the entire material available
on record and heard the rival submissions of both the Ld. ARs for
the parties. I have meticulously perused the entire material
available on record including the written final arguments filed by
both the parties.
37. My issue-wise findings are as under :
Issue No. 1 :
In the written final arguments, filed on record by the
workman, the workman has alleged that the charge sheet served
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 17/31
upon the workman was itself illegal, bad, unjust and malafide as
it was served on the workman after four years of the alleged
incident. The workman, in the written final arguments, has relied
upon the cross-examination of MW-1 and has argued that MW-1
has admitted that the incident in question pertains to the year
2001-2002 but the charge sheet was issued in the year 2005, at a
much belated stage. It has been further argued that the said
charge sheet is liable to be quashed in the light of the ratio of the
judgments which have been relied upon by the workman.
38. The workman has relied upon the case tiled as E.S.
Athithyaraman Vs. The Commissioner, Hindu Religious and
Charitable Endowments (Administration) Department,
Madras, reported as 1971 SLR 41 wherein, the Hon'ble High
Court of Madras has held :
"Delay in disciplinary proceedings - Delinquent official
sending a reply to show cause notice - Department not taking
any action for more than 3 ½ years, presumption of dropping the
proceedings - No domestic enquiry can be conducted."
39. The workman has further relied upon the case titled as D.P.
Bambah Vs. Union of India & Ors., reported as 1998 IV AD
(DELHI) 240 wherein, the Hon'ble High Court of Delhi has
held :
Delay in initiating action against employees - fatal -
Department cannot be gainsaid in saying that the matter was
referred to the Vigilance Department etc. - Charge sheet liable to
be quashed."
40. The workman has further relied upon the case titled as
Hem Raj Singh vs. Delhi Development Authority & Anr.,
reported as 1999 IV AD (DELHI) 649 wherein, the Hon'ble
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 18/31
High Court of Delhi has held :
"The writ petitioner has filed this petition seeking to quash
the charge sheet dated 01.10.1991 on the basis of delay.
According to the petitioner there has been no justification in
issuing charge sheet. The point raised in the writ petition is
covered by the judgment of the Division Bench of this Court in
CW No. 3145/94 and CW 5887/94 dated 01.05.1995 and
following the judgment of the Supreme Court. This has also been
followed by the Court in D.P. Bambah vs. Union of India & Ors.
reported in 1998 IV AD (DELHI) 240. Petition allowed and the
charge sheet quashed."
41. The workman has further relied upon the case titled as
Abdullah A. Latifshah Vs. Bombay Trust & Ors. reported as
1992 (1) LLJ 226 Bombay wherein, the Hon'ble High Court of
Bombay has held :
"Delay in issuing charge memo - Enquiry held on the
basis of delayed charge sheet of state charge sheet violated
principles of natural justice - Unexplained delay in initiating
department enquiry can lead to the presumption that enquiry was
abandoned or was not going to be held."
42. The workman has further relied upon the case titled as
H.L. Saini Vs. Delhi Development Authority, reported as
1999 I CLR 315 wherein, the Hon'ble High Court of Delhi has
held :
"Charge sheet issued after a long delay - Greatly
prejudicial to the employee - charge sheet quashed - The
employee would be entitled to all consequential benefits."
43. It has been further argued by the workman that the charges
levelled against the workman do not constitute any misconduct as
enumerated in the list of misconduct, because the workman has
deposited the money in question with the management after
issuance of memo which has been admitted by MW-1 in his
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 19/31
cross-examination. It has been further argued that the workman
was not afforded the proper opportunity of being heard and the
principles of natural justice were completely violated. It has been
further argued that the punishment of removal from the services
is harsh and disproportionate to the charges levelled against the
workman. It has been further argued that the management failed
to appreciate the explanations submitted by the workman for the
delay in depositing of the municipal amount. It has been further
argued that the workman was on long medical leave in 2001-
2002, because he had met with an accident and even the wife of
the workman got burn injuries in 2001-2002 due to blast of LPG
gas cylinder. It has been further argued that the father of the
workman had also got paralytic stroke and he was confined to
bed but the management failed to appreciate the abovesaid
circumstances/incidents explained by the workman in the reply to
the show cause notice. It has been further argued that the
workman was not provided with the help of any Defence
Assistant despite his specific request. It has been further argued
that Sh. P. Dinesh and Mr. A.D. Biswas were charge sheeted for
minor punishments on the same charges and Sh. Satya Prakash,
LDC, who was held guilty, was awarded only the punishment of
10% deduction in his pension but the workman in question was
awarded capital punishment of dismissal. It has been further
argued that the dismissal order dated 18.12.2006 is even
otherwise, bad in law. Ld. AR on behalf of the workman has also
relied upon the ratio of judgment passed by the Hon'ble High
Court of Delhi in the matter titled as Union of India Vs,
Darshan Lal in W.P. (C) No. 6782/2014 decided on
25.08.2015. The Hon'ble High Court of Delhi, in the said
judgment, has held as under :
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 20/31
"15. In the present case there is no finding or even a hint
of an allegation that the absence of the respondent was willful. It
was further seen that there were compelling circumstances beyond the control of the respondent i.e. illness, hospitalization etc. which prevented the respondent from returning to duty. In such a case, as held by the Supreme Court in Krushnakant B. Parmar, the respondent could not be held guilty of willful absence or failure of devotion of duty or behaviour unbecoming of a Government servant. Therefore, the Disciplinary Authority failed to prove that the absence of the respondent was willful and in the absence of such finding the absence cannot amount to misconduct."
44. Whereas, on the other hand, in the written arguments filed on record by the management, it has been argued that the enquiry officer held an exhaustive, just and fair enquiry, copy of which has been placed on record as Ex.MW1/5. The management has relied upon the copy of the complete enquiry proceedings exhibited as Ex.MW1/6. It has been further argued that the disciplinary authority had granted the workman an opportunity of personal hearing and fair and reasonable opportunity to defend himself was also given. It has been further argued that the reply submitted by the workman to the memo dated 05.02.2004 and the reply dated 27.08.2006 to the show cause notice dated 15.09.2006 were duly considered and thereafter, the management inflicted the penalty of dismissal from services upon the workman. It has been further argued that the claimant preferred an appeal before the appellate authority i.e., the Commissioner of MCD and the appellate authority, after affording an opportunity of personal hearing to the claimant, dismissed the said appeal vide orders dated 09.05.2007.
45. It has been further argued by the management that the workman actively participated in the enquiry proceedings. It has LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 21/31 been further argued that the workman was given the major penalty of dismissal from his services, because there was grave misconduct on his part as he was involved in embezzlement of municipal money to the tune of Rs.1,02,504/- for the period of 1 ½ year to 2 ½ years. It has been further argued that the principles of natural justice were duly followed. The management has relied upon the cross-examination of WW-1 and has also relied upon the authority/judgment passed by the Hon'ble Supreme Court of India in the case titled as V. Ramna Versus APSRTC Employees, reported as AIR 2005 SC 1417, wherein, the Hon'ble Apex Court of the land has categorically observed as under :
"the punishment imposed by disciplinary authority or the appellate authority unless shocking to the consigns of the court/tribunal could not be subjected to judicial review".
46. The management has further relied upon the case titled as Canara Bank versus V.K. Avasthi, reported as AIR 2005 SC 2090, wherein, the Hon'ble Supreme Court has observed :
"on facts, proved charges clearly establishing that respondent bank employee failed to discharge his duties with utmost integrity, honesty, devotion and diligence and its acts were prejudicial to the interest of the bank - hence, held punishment of dismissal was proportionate to misconducts proved and interference therewith was not warranted."
47. The management has further relied upon the case titled as M.P. Electricity Board versus Jagdish Chand Sharma, reported as AIR 2005 SC 1924, wherein, the Hon'ble Supreme Court has held :
"in such a case it is not open to the Labour Court or Industrial Tribunal to take a view that the punishment awarded is shockingly disproportionate to the charge proved - discipline at LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 22/31 the work place is a sign qua non for the efficient working of the organization - obedience to authority in a work place is not slavery."
48. The management has further relied upon the case titled as Karnataka Bank Ltd. Versus A.L. Mohan Rao, reported as 2006-I-LLJ, page 987, wherein, the Hon'ble Supreme Court has held :
"it is not for the courts to interfere in cases for gross misconduct of this nature with the decision of the discipline authority so long as the enquiry has been fair and proper and misconduct proved. In such matters, it is for the disciplinary authority to decide what is the fit punishment".
49. Relying upon the ratio of the aforesaid judgments, the management has further argued that it is not open to the Labour Court or the Industrial Tribunal to take a view that the punishment awarded is disproportionate to the charges proved, in case the court comes to the conclusion that the enquiry has been fair and proper. It has been further argued that an opportunity of being heard was given to the claimant at every stage i.e., at the stage of consideration of enquiry report by the disciplinary authority, after proposal of inflictment of the punishment by the disciplinary authority, at the time of consideration of the appeal by the appellate authority and during the pendency of the enquiry proceedings as well. It has been further argued that the penalty was imposed upon the claimant on 18.12.2006 but the claimant has raised the present industrial dispute only in the year 2011 and as such, the present claim suffers from latches.
50. Certain facts are undisputed in the present matter. It is not in dispute that the workman had joined the employment with the LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 23/31 MCD in Town Planning Department on 09.07.1996 as LDC. It is not in dispute that in the year 2001, the claimant was working as LDC/Pay Clerk at the Town Hall, Chandni Chowk, Delhi in the office of the Chief Town Planner and he was asked to perform the duties of cash disbursement, receipt of the salary bills of the concerned department. It is not in dispute that the workman was issued a memo dated 05.02.2004 upon the allegations of non- depositing of the used G-8 Receipt Books with the concerned official before taking a new one and also for temporary embezzlement of the Municipal money amounting to Rs.1,02,504/-. It is not in dispute that the claimant filed the reply to the abovesaid memo. It is also not in dispute that the Chief, Town Planner asked the claimant to deposit the amount of Rs.1,02,504/- which was deposited by the workman on 16.02.2004. It is not in dispute that the workman was issued a charge sheet dated 04.03.2005 for the following allegations :
"Sh. Rakesh Wadhwa while functioning as LDC in Town Planning Department, w.e.f. 26.06.2001 to 21.09.2001 failed to maintain absolute integrity and committed lapses on the following counts :
(i) He did not regularly deposit the used G-8 receipts with the concerned officials before take a new one.
(ii) He temporarily embezzled Mpl. Money to the tune of Rs.102504/- for 1 ½ - 2 ½ years and did not deposit the same immediately in Mpl. Treasury after their collection through G-8 receipts.
He thereby, contravened Rule 3(1) (i) and (ii) of CCS (Conduct) Rules 1964 as made applicable to the employees of MCD".
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 24/3151. It is not in dispute that the enquiry was commenced against the claimant in respect of the aforesaid charges. It is also not in dispute that the enquiry officer submitted his enquiry report in the year 2005 and thereafter, the second show cause notice dated 15.09.2006 was issued to the claimant, to which he filed the reply dated 27.09.2006. It is not in dispute that thereafter, the dismissal order dated 18.12.2006 was passed by the management against the workman. It is also not in dispute that the workman preferred an appeal dated 04.01.2007 to the Commissioner of MCD but the said appeal was rejected vide orders dated 09.05.2007.
52. Now, the claimant has challenged the dismissal order dated 18.12.2006 mainly on three grounds.
53. The first ground is that no opportunity of being heard was given to the claimant and the enquiry was held in violation of the principles of natural justice. The second ground is that the charge sheet was supplied to the workman only on 04.03.2005, after a gap of four years from the date of the incident which took place in the year 2001, at a much belated stage. The third ground is that the punishment of dismissal inflicted upon the claimant is disproportionate to the misconduct levelled against the claimant. The claimant has also argued that there was no such misconduct as temporary embezzlement as the workman deposited the municipal money to the tune of Rs.1,02,504/- on 16.02.2004 at the asking of the Chief, Town Planner. Last but not the least, it has been argued that rest of the officials such as, Mr. P. Dinesh, Mr. A.D. Biswas and Mr. Satya Prakash, LDC were awarded only minor penalties, whereas, the claimant was given major penalty of dismissal from services.
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 25/3154. Now, coming to the first ground of challenge, it has to be seen that the claimant in his cross-examination has categorically admitted that as per recruitment rules, his job was Diary Dispatch and Typing but in the year 1997, he was assigned the work of Bill Clerk. WW-1 has further stated in his cross-examination that the cash collected by him in the day-to-day activities was likely to be deposited either on the same day or on the next day as per the practice prevalent in those days.
55. However, in his further cross-examination done on 18.01.2016, the claimant has changed his abovesaid version and has improved his testimony by stating that he was not aware that the amount which was with him was to be deposited with the treasury on the same day or on the next day. The claimant has categorically and unequivocally admitted that he deposited the amount of Rs.1,02,504/-with the treasury only after the receipt of the memo dated 05.02.2004. He has again admitted that the said amount was for the period from 26.06.2001 to 21.09.2001. He has again admitted that he had given the reply to the show cause notice issued by the department and that he had appeared in the enquiry proceedings but not regularly. He has again admitted that he had received the second show cause notice dated 15.09.2006 and that he had replied the said notice. He again admits that he had submitted the written reply to the abovesaid notices before the enquiry committee. He again admits that he had received the dismissal letter on 18.12.2006 and that he had filed an appeal before the Commissioner of MCD. He again admits that he had submitted all his submissions before the Commissioner of the MCD but his appeal was rejected. He again admits that he was given the chance to appear in the enquiry. He again states that he LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 26/31 had sent the letter to the Mayor and the Chief Minister in between the period of his dismissal of appeal on 04.01.2007 till the date of serving of the demand notice.
56. The short point which arises for consideration is as to whether, in the light of the abovesaid cross-examination of WW- 1, can it be said that the enquiry was conducted by the management without giving an opportunity of being heard to the workman and that the principles of natural justice were violated.
57. To my mind, after going through the entire material available on record, the answer is in the negative. I have no hesitation to hold that the claimant has categorically admitted in his abovesaid cross-examination that he was given an opportunity of being heard and that he had submitted his reply to the memo dated 05.02.2004 and the reply dated 27.09.2006 to the show cause notice dated 15.09.2006. I am of the opinion that all his contentions were considered by the enquiry officer including the contention of the claimant that he met with an accident or that his wife got burn injuries or that his father got paralytic attack. The management has placed on record the enquiry proceedings in the form of Ex.MW1/5 and Ex.MW1/6 and after going through the abovesaid enquiry proceedings, it can be safely concluded that a reasonable and fair opportunity was given to the claimant to defend himself and to cross-examine the witnesses, who were examined by the management.
58. It is true that MW-1 in the cross-examination has admitted that he was neither the enquiry officer nor the presenting officer in the present matter and that he was not even a witness in the LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 27/31 enquiry proceedings. It is also true that MW-1 has categorically stated that he was not the disciplinary authority and that he had no role whatsoever in the enquiry conducted against the workman in his case. But I am of the opinion that in view of the abovesaid categorical admissions on the part of the claimant in his cross-examination, no doubt is left, in the mind of the court to the effect that a due and proper enquiry was held against the workman and that there was no violation of the principles of natural justice.
59. The next submission of the workman is that the charge sheet was served upon the workman after a period of four years at a much belated stage and as such, the enquiry against the workman is liable to quashed.
60. I am of the opinion that the abovesaid submission of the claimant does not hold much water. It is true that the embezzlement of the municipal money to the tune of Rs.1,02,504/- is pertaining to the period with effect from 26.06.2001 to 21.09.2001 and that the charge sheet was served on 04.03.2005 but it has to be seen that the management is a very big department employing a number of employees. The management in Para No. 12 of the reply has categorically stated that there is a huge bulk of cases pending for domestic enquiries and the cases are being taken up on the basis of their priority. As such, I am of the opinion that the abovesaid submission is not sustainable and tenable.
61. The next submission of the workman is that the municipal amount to the tune of Rs.1,02,504/- was deposited on 16.02.2004 LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 28/31 and as such, there was no such misconduct named as temporary embezzlement in the list of misconduct.
62. It has to be seen that the claimant has himself admitted that he had deposited the amount of Rs.1,02,504/- pertaining to the period with effect from 26.06.2001 to 21.09.2001 and that he deposited the said amount only on 16.02.2004 at the asking of the Chief, Town Planner. In the cross-examination, the claimant has categorically admitted that as per the practice prevalent in those days, the cash collected by him was to be deposited either on the same day or on the next day. As such, I am of the opinion that merely because the claimant deposited the said amount of Rs.1,02,504/- on 16.02.2004 cannot mitigate the misconduct of the claimant particularly keeping in view the fact that he was aware that the cash collected was to be deposited either on the same day or on the next day. Otherwise also, I am of the opinion that he kept the municipal money with him for a long period of time approximating to 2 ½ years and any prudent man, acting under the same circumstances is supposed to know that he had no right to retain the municipal money for such a long period of time.
63. The next submission of the workman is that the other co- employees namely A.D Biswas, P. Dinesh and Mr. Satya Prakash, LDC were awarded the minor penalties, whereas, the claimant was given a major penalty. I am of the opinion that the abovesaid submission is also of no help to the case of the claimant. Admittedly, the municipal amount to the tune of Rs.1,02,504/- was in the custody of the claimant only and it was he who had detained the municipal amount for a period of 2 ½ years without LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 29/31 any excuse. As such, I am of the opinion that the abovesaid co- employees cannot be equated with the claimant so far as the inflictment of punishment is concerned.
64. Now, coming to the judgments relied upon by the workman, it has to be seen that in Para No. 6 of the judgment titled as E.S. Athithyaraman Vs. The Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, reported as 1971 SLR 41, the Hon'ble High Court of Madras has held has under :
"As far as the second contention is concerned, admittedly there had been a delay of more than three and a half year in between 14-12-1961 when the petitioner sent his explanation to the show cause notice dated 20-08-1965 of the Assistant Commissioner of Ramanathapuram at Madurai offering to conduct an enquiry. There is no explanation whatever in the counter-affidavit for this delay of more than three and a half year. Even after the petitioner appeared for the enquiry on 01-9- 1965, for more than two years, nothing was heard about the matter, when suddenly on 4-11-1967 the commissioner sent a notice to the petitioner calling upon him to show cause against the proposed punishment. Such a long delay in this matter, coupled with certain other circumstances, clearly leads to the conclusion that the respondent must be deemed to have dropped the entire proceeding".
65. In the abovesaid case, there was a long delay of 3 ½ years in between the time when the petitioner sent his explanation to the show cause notice and the period of time when the Assistant Commissioner offered to conduct the enquiry but in the case in hand, after supplying of the charge sheet on 04.03.2005 the enquiry was conducted swiftly and the dismissal order was passed on 18.12.2006. As such, I am of the opinion that the present case differs on the factual gamut as contained in the abovesaid judgment. Similarly, in the case titled as D.P. LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 30/31 Bambah Vs. Union of India & Ors., reported in 1998 IV AD (DELHI) 240, there was a long delay of 12 years in the disciplinary proceedings but this is not so in the present matter. If the ratio of the other judgments relied upon by the workman is carefully gone through, with due observations of the Hon'ble High Court and that of the Hon'ble Supreme Court of India in those judgments, I am of the opinion that the facts of the present case are different from the facts which were involved in those matters.
66. In the light of the above discussion, I have no hesitation to hold that the domestic enquiry conducted by the management was just and fair, wherein reasonable opportunity of being heard was given to the claimant and there was no violation of the principles of natural justice.
67. Issue No.1, therefore, is decided against the workman and in favour of the management.
68. In the light of my above findings upon Issue No. 1, the present claim of the workman is hereby dismissed.
Copy of this award be sent to the Labour Commissioner, Govt. of NCT of Delhi of the District/Area Concerned for publication as per rules.
File be consigned to record room after necessary compliance.
ANNOUNCED IN OPEN COURT RAJ Digitally signed
by RAJ KUMAR
ON 09th DECEMBER, 2021 KUMAR Date: 2021.12.15
13:13:53 +0530
(Raj Kumar)
Presiding Officer,
Labour Court-III, Rouse
Avenue Courts, New Delhi
LIR No. 5680/16 Rakesh Wadhwa vs. MCD . Page 31/31