Delhi District Court
Industrial Dispute Between : vs M/S. Rail India Technical & Economic ... on 27 March, 2014
IN THE COURT OF SH. SANJEEV KUMAR, PRESIDING
OFFICER, LABOUR COURT
KARKARDOOMA COURTS, DELHI.
ID No. 170/10(OLD ID No.747/97)
INDUSTRIAL DISPUTE BETWEEN :
Sh. Sudarshan Kumar S/o Sh. J.C. Sharma
C/o Delhi Labour Union, Aggarwal Bhawan, G.T. Road,
Tis Hazari
Delhi54
........Workman
VERSUS
M/s. Rail India Technical & Economic Service Ltd.
Through: Dy. General Manager (Servey)
97, Bajaj House, 2nd Floors, Nehru Place,
New Delhi19
......Management
Date of Institution : 23.08.1997
Date of award
: 27.03.2014
AWARD
1. The Secretary (Labour), Govt. of NCT, Delhi vide order
No. F.24 (1570)/97Lab./2134953, Dated 11.07.97 referred the
present industrial dispute between the parties for adjudication to the
ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 1 out of 29
Labour Court on the following terms of reference :
"Whether services of Sh.Sudarshan Kumar have been
terminated illegally and/or unjustifiably by the management and
if so, to what relief is he entitled and what directions are
necessary in this respect?"
2. Brief facts as stated in the claim petition are that
workman joined the management as Junior Assistant/Typist on
10.01.1984. On 31.12.91 he suffered a severe pain in his back bone
and remained under treatment of Dr. K.S. Rawat at M.C.D.
Dispensary, Karala, Delhi from 01.01.92 to 30.06.92. After being
recovered he went to his office and came to know that his service has
been terminated and his name has been struck off from the pay roll of
the company. He was not allowed to join on duty. After his approach
to the higher authority, he was served with a charge sheet dt.19.05.92
in which the following charge was framed against him:
" Shri Sudershan Kumar, Jr. Asstt./typist (Emp. No. 2820) has absented from
duties unauthorizedly since 31.12.91. he was advised to resume duties by this
office's letter of even no. dt.2.04.92 and telegram dt.10.4.92 and again on
21.04.92 but he did not join duties so far, disregarding the above instructions.
Shri Sudershan Kumar has thus contravened rules 5 (7) of RITES, conduct,
discipline and appeal rule1980."
3. Further he stated that letter cited in the charge sheet were
never received by him and the services of the workman were
terminated vide communication dt.31.05.93 thereafter a disciplinary
enquiry was conducted by the appointing authority and on 31.12.91
vide communication dt. 09.11.1993. The removal of workman vide
ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 2 out of 29
31.05.93 or 09.11.93 is illegal. He challenged his termination on the
following grounds:
(i) that he has not committed any misconduct whatsoever and it is
not open to the employer to fish out any conduct as misconduct unless and until it
is specifically enumerated in the list of misconducts.
(ii) That management has not framed any certified standing orders.
(iii) That the workman was removed from service by striking off his
name from the muster roll w.e.f.01.01.92 and then he was again removed from
service vide communication dt.31.05.93 and was finally removed from service
vide communication dt.09.11.93.
(iv) That he was denied the representation by a defense assistant of
his own choice.
(v) That for being conducting any domestic enquiry and affording
any opportunity of being heard to him. The enquiry which was conducted
thereafter was also an eyewash and fake.
(vi) the workman was not paid any salary or subsistence allowance
w.e.f. 01.01.92 till the date of his final removal from service on 09.11.93
He further stated he served a demand notice dt.
22.04.1994 upon dy. manager but no reply was received. He filed
complaint before conciliation officer but same failed. He prayed for
reinstatement with back wages.
4. Per contra, written statement filed by the management
ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 3 out of 29
and preliminary objection was taken that this court has no jurisdiction
to entertain and try this claim petition. The respondent is a
Government of India undertaking wholly owned by Ministry of Railways. The appropriate government will be the Central Government. Further objection was taken that workman was a casual employee and was only granted temporary status as Junior Assistant. The services of the workman was not yet confirmed and were terminable on 15 days notice but the management in all fairness had a sympathetic consideration and gave number of opportunities to workman to plead and prove he is not guilty. His service was terminated after conducting enquiry according to all principles of natural justice. Further it is stated that the workman stopped attending office w.e.f. 31.12.91 without any intimation or any sickness. He was asked to join on duty vide letter dt.02.04.92 and again informed vide telegram dt.10.04.92 with copy of registered post. Again he was asked to resume duties vide letter dt.21.04.92 but he failed to join duty. Hence, his services were terminated as per the condition of appointment. The petitioner was then issued charge sheet dt.19.05.97 but gave him opportunity to present his case. The charge sheet was sent to his available address but same was received back with the ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 4 out of 29 report that despite visit again & again workman was not found at the house. The charge sheet was against sent vide letter dt.01.07.92 but again received back with the report that not residing at the said address and without informing he has gone to some other address and since the petitioner was not coming to the office disciplinary order was passed dt.31.05.93. The removal of workman from service was as per the provisions of RITES's (conduct Discipline and Appeal) Rules, 1980. After this provisional orders, the petitioner submitted his explanation vide letter dt.02.07.93 and the disciplinary authority was not satisfied with his explanation, a domestic inquiry was conducted against the petitioner which was under the provision. He was informed about the enquiry vide letter dt. 21.06.93 and was asked to submit his list of witness or list of documents in order to prove his case. After completing of enquiry in October, 1993, the removal order was passed directing him from serviced on charges brief against him right reasonable due and disciplinary authority framed the said punishment by imposing major penalty or removal from service shall not be a disqualification for his future employment."
5. The workman filed the rejoinder to the written statement in which reiterated all the facts of the statement of claim as true and ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 5 out of 29 correct and denied the contents of written statement of management.
6. From the pleading of both parties, vide order dated 29.01.2001, the following issues have been framed :
1. Whether this court has no jurisdiction to try the present claim?
2. As per of reference.
7. However vide order dt.01.10.2001 additional issued "
whether management conducted fair and proper enquiry" was also framed." and same was treated as preliminary issue.
8. In order to prove the issue, the workmen examined himself as WW1, through an affidavit dt.o1.10.2001 Ex.WW1/A and also relied upon the documents Ex.WW1/1 to WW1/17.
9. On the other hand management examined only one witness i.e. M.L.Goutam its Manager welfare who led his evidence by way of affidavit dt.09.03.2005 EXMW1/A and relied upon documents EXMW1/1 to MW1/23. He was cross examined at length by ARW.
10. My Ld. Predecessor vide order dt.14.01.2011 has decided ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 6 out of 29 the additional issue and held enquiry conducted by management is vitiated as workman was not provided subsistence allowance during enquiry and gave opportunity to proved misconduct in court. Thereafter the workmen was again cross examine.
11. On the other hand management again examined M.L.Goutam who led his evidence by way of affidavit dt.14.05.2011 EXMW1/A and relied upon documents EXMW1/X,Y, Z1 to Z6. He was again crossexamined.
12. Both the parties filed written argument only. I have considered the same and gone through the record. My issue wise findings are as under.
Issue no.1 "whether this court has territorial jurisdiction to try the present claim?
13. The onus to prove this issue is on the management. Ld. AR for management submitted that management is a government undertaking established by Central Government under the ministry of Railway, thus appropriate government as defined under section 2 (a) of the I.D.Act 1947 is Central Government, therefore, this court has no jurisdiction to decide this claim.
ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 7 out of 29
14. It is not disputed by the workman that management is an undertaking established by Central Government working under the ages of Minisry of Railway. As per section 2(a) of the I.D. Act Central Government is the appropriate authority for industry established by Central Government and hence State Government has no juruisdiction to send dispute if it pertain to industry established by Central Government.
15. Section 2 (a) of ID Act is reproduced as under :
(a) " appropriate Government" means (i) in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government, or by a railway company or concerning any such controlled industry as may be specified in this behalf by the Central Government or in relation to an industrial dispute concerning. This Act has been extended to Goa, Daman and Diu by Reg. 12 of 1962, to Pondicherry (w. e. f. 1 10 1963 ) by Reg. 7 of 1963 and Laccadive, Minicoy and Amindivi Islands by Reg. 8 of 1965, s. 3 and Sch. 2. Subs. by Act 36 of 1956, s. 2, for the former sub section (w. e. f. 29 8 1956 ). 3. Proviso omitted by Act 51 of 1970, s. 2 and Sch. (w. e. f. 1 9 1971 ). 4. Certain words and figures inserted by Act 10 of 1963, s. 47 and Sch. II, Pt. II have been omitted by Act 36 of 1964, s. 2 (w. e. f. 19 12 1964 ). 5. The words" by the Federal Railway Authority" omitted by the A. O. 1948. 6. Ins. by Act 65 of 1951, s. 32. 7. The words" operating a Federal Railway" omitted by the A. O. 1950. 8. Ins. by Act 47 of 1961, s. 51 and Sch. II, Pt. III (w. e. f. 1 1 1962 ). 9. Subs. by Act 36 of 1964, s. 2, for" the Deposit ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 8 out of 29 Insurance Corporation established" (w. e. f. 19 12 1964 ). 10. Subs. by Act 45 of 1971, s. 2 (w. e. f. 15 12 1971 ).
[ a Dock Labour Board established under section 5A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1940 ), or the Industrial Finance Corporation of India established under section 3 of the Industrial Finance Corporation Act, 1948 (15 of 1948 ), or the Employees' State Insurance Corporation established under section 3 of the Employees' State Insurance Act, 1948 (34 of 1948 ), or the Board of Trustees constituted under section 3A of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948 (46 of 1948 ), or the Central Board of Trustees and the State Boards of Trustees constituted under section 5A and section 5B, respectively, of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 (19 of 1952 ), or the" Indian Airlines" and" Air India" Corporations established under section 3 of the Air Corporations Act, 1953 (27 of 1953 ), or the Life Insurance Corporation of India established under section 3 of the Life Insurance Corporation Act, 1956 (31 of 1956 ), or the Oil and Natural Gas Commission established under section 3 of the Oil and Natural Gas Commission Act, 1959 (43 of 1959 ), or the Deposit Insurance and Credit Guarantee Corporation established under section 3 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (47 of 1961 ), or the Central Warehousing Corporation established under section 3 of the Warehousing Corporations Act, 1962 (58 of 1962 ), or the Unit Trust of India established under section 3 of the Unit Trust of India Act, 1963 (52 of 1963 ), or the Food Corporation of India established under section 3, or a Board of Management established for two or more contiguous States under section 16, of the Food Corporations Act, ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 9 out of 29 1964 (37 of 1964 ), or the International Airports Authority of India constituted under section 3 of the International Airports Authority of India Act, 1971 (48 of 1971 ), or a Regional Rural Bank established under section 3 of the Regional Rural Banks Act, 1976 (21 of 1976 ), or the Export Credit and Guarantee Corporation Limited or the Industrial Reconstruction Bank of India 2[ [ the National Housing Bank established under section 3 of the National Housing Bnak Act, 1987 (53 of 1987 ) or] 3[ a banking or an insurance company, a mine, an oil field] 4[ , a Cantonment Board,] or a major port, the Central Government, and
(ii) in relation to any other industrial dispute, the State Government;
16. Hence, for the purpose of Central Government Industry the appropriate government is Central Government but question of Delhi is different Delhi is not a State but it is a union territory and in union territory the power of the Central Government is exercised by the administrator i.e. Leftinent Governer as per article 239 A of the Constitution. Hence, the labour Commissioner will be a competent authority to refer the dispute.
17. The Hon'ble High Court in Apparel Export Promotion Counsel vs The P.O. Indul. Tribunal no.1 and others MANU/DE/0664/2002 dismissed the writ petition challanging the decision of Labour Tribunal that since management is an organization established by the Central Government hence appropriate Govt. to ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 10 out of 29 refer dispute is central government. The High Court where while relying upon the judgement of MCD vs. Mahavir and Ors. The relevant para no. 6 of the judgement is reproduced as under :
"6.In Municipal Corporation of Delhi Vs. Mahavir and another (supra) judgment of the learned Single Judge of this Court in NBCC Ltd. Vs. M.K. Jain & Ors. 1981 LAB.
I.C.62 was also taken note of where in paras 6 and 8 of the judgment learned single Judge observed as under:
"The Award was sought to be voided, inter alia, on the ground that by virtue of the constitution and composition of the Corporation, Central Government was the only authority competent to make a reference of the dispute to the industrial court and that the reference by the Lieutenant Governor of Delhi was, therefore, in excess of powers.
"Even otherwise no exception could be taken to the order of reference, even if it be assumed that Central Government was the appropriate Government, inasmuch as the distinction between the Central and the State Governments in relation to the Union Territory in our constitutional framework is rendered illusory. Union Territory is administered by the President of India under Art.239 of the Constitution of India, acting to such extent as he thinks fit, through ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 11 out of 29 the Administrator, to be appointed by him. In the case of a Union Territory, there is an amalgamation of the constitutional classification of legislative and executive powers between the Centre and the States. According to Section 3(8) of the General Clauses Act, "Central Government" in relation to the administration of a Union Territory means the Administrator acting within the scope of authority given to him under Article 239 of the Constitution of India and in terms of Section 3(60) of the General Clauses Act, "State Government", as respects anything done or to be done in a Union Territory, means the Central Government. In the case of a Union Territory, therefore, the Central and State Governments merge and it is immaterial whether an order of reference is made by one or the other. This contention must, therefore, fail..........."
7. In view of the aforesaid observation it was found that there can be no exception to an order of reference even ifit is assumed that central government is an appropriated government."
18. Further in Sports Authority of India vs. Sports Authority of India, Kamgar Union and Ors. MANU/ ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 12 out of 29 DE/1245/2004 has dismissed the writ petition by SAI which is an authority established by the Government of India has held in para 9 the said para is reproduced as under :
"9. Lastly, it was contended that Sports Authority of India is a body under the control of Central Government and as such Govt. of Delhi had no jurisdiction to make a reference. The appropriate Government which could exercise the jurisdiction under Section 10(1)(c) of the Act, was the Central Government. It has already been discussed that the petitioner authority is an industry and is under the control of the Union. Full Bench of this Court in the case of Indian Tourism Development Corporation, New Delhi Vs. Delhi Administration and Ors., 1982 (61) FJR 139 clearly enunciated the principle that Lt. Governor or Administration of Union Territory of Delhi would discharge functions and powers of the State Government under the Industrial Disputes Act, 1947 and powers of the kind to make reference stood delegated to the State Government under Section 39 of the Notification. Even earlier to this, this view was followed by a Division Bench of this Court in the case of M/s. Lila Separator Pvt. Ltd. Vs. The Secretary ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 13 out of 29 (Labour), Delhi Administration, and Ors., 1981 (43) FLR 170. Reference can also be made to the judgment of this Court in the case of Apparel Export Promotion Council Vs. Presiding Officer, Industrial Tribunal No.1 and Ors., 2002 (3) LLJ 511......."
19. Hence,in view of aforesaid judicial pronouncement, I hold that the labour commissioner has jurisdiction to refer this case to this court. Accordingly, issue no. 4 is decided.
ISSUE No.2
20. The management in the written statement has taken the defence that the workman remained absent from duty w.e.f. 31.01.91 without any intimation of any sickness otherwise to his office of sanctioned leave. In order to proved the same management relied upon testimony of MW1 M.L. Gautam. MW1 in his evidence led by way of affidavit Ex.MW1/A has deposed that the workman joined the employment from 10.01. 1989 as casual employee on post of junior assistant and he was granted temporary status w.e.f. from 10.07.1989 and while giving temporarily status he was told that the above appointment is no guarantee for appointment on regular basis. The workman stopped attending duty in office w.e.f.31.01.1991 and he was informed at the given address available with the management to ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 14 out of 29 resume duty vide letter dt. 02.04.92 and 21.04.92 and above letter were served upon workman but even after receiving the information, the workman neither informed the management about his sickness nor he reported for his duty. Then, he was issued penalty, charge sheet dt. 19.05.92 to give opportunity to present his stand before the management since workman was not attending his duty and was absent since 31.12.1991 the disciplinary authorities passed provisional order dt.31.05.1991 removing the workman from service under rule 30 of the RITES(conduct, discipline and appeal)rules1980. After passing the provisional order workman filed his explanation dt. 02.07.1993. As the disciplinary authority was not satisfied with the explanation of the workman a domestic enquiry was initiated and disciplinary authority passed order on enquiry report removing him from service. Workman filed appeal but applellate authority after considering the same upheld the order of disciplinary authority.
In his crossexamination he admitted workman joined the management with effect from 10.01.1989 as Junior Jssistant but vol. stated he joined the same on daily wages. He also admitted workman continuously worked 10.01.1989 to 31.12.89 and he was granted temporarily status in pay scale of 240400 on 10.07.1989. He stated ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 15 out of 29 service of workman was terminated w.ef 31.12.1991 provisionally vide letter EXMW1/25 and finally vide letter dt.09.11.93 EXMW1/16. He admitted the suggestion that family member of workman informed to R.K.Marwah Secretary to GM over phone that workman is unwell and cannot report for duty and sought leave. He admitted workman informed him that he shifted his residence verbally. He admitted that workman submitted photocopy of medical certificate in july 1993. He denied that punishment of termination is disproportionate to his alleged charge.
21. The workman in his evidence led by way of affidavit EXWW1/A has deposed that on 31.12.91 he suffered severe pain in his back bone and remained under treatment of Dr.K.S. Rawat at MCD, dispensary, Karala, Delhi and remained under treatment from 01.01.92 to 30.06.92. After being recovered he went for duty and came to know his name has been struck off from pay roll of the company. When he reported for duty after 30.06. 1992 he was disallowed duty and told his service was terminated.
22. In his crossexamination he admit that WW1/M1 was given by him to management and WW1/M2 was received by him. He also admit WW1/M to WW1/M8 bear his signature. He stated he ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 16 out of 29 reside at H.N. 125 Bhakhtawar pur till 3rd jan1992 and has shifted to 55 Nimri colony. He admit that he has not given any intimation to management to change his address in writing. He admit that he has not given intimation of his absence from 31.12.91 to 30.06.1992 in writing. He vol. deposed he informed telephonically on 01.01.1992 to Mr. R.S Marwah but admit that he has not stated said fact in claim. He than stated that he has not informed but his cousin Sanjay Sharma informed on 31.12.1992. He admit document MW1/26 and MW1/Z2 and Z4 bear his correct address. He admit he filed original medical certificate EXMW1/X2 filed in enquiry proceedings. He stated that he visited the management on 01.071992 but admit he did not stated the said fact in claim. He admit that in cross examination in enquiry he stated he shifted in city on 10.01.1992 for better treatment as mentioned in WW1/15 at page165. He denied the suggestion that management issued letter dt.02.04.1992, 2104.1992 and telegram dt. 10.04.1992. He admit management sent above said letter at Bhakhtawar address but he shifted to Nimri Colony in January 1992. He admit that no application for sanctioning of leave in writing was given for absence from 31.12.1991 to 30.06.1992.
23. Thus, on perusal of the testimony of workman and ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 17 out of 29 MW1it is evident that following undisputed fact emerge that he was appointed on 10.01.1989 on daily wages and was given temporary employee status w.e.f from 10.07.1989 and workman remained absent from duty from 31.12.1991 to 30.06.1992.
24. Since workman remained absent from duty therefore, the onus is shifted upon him to prove that he duly informed the management about his sickness and applied for leave for that period and leave have been sanctioned otherwise his absence would be unauthorized and would amount to misconduct. Further onus is on him to proved that after 30.06.1992 i.e. on 01.07.1992 he approach for duty but management did not allowed him for duty as he is claiming the said fact.
25. In his affidavit Ex.WW1/A the workman has deposed that he remained absent due to pain in back bone. He admitted in his crossexamination that he has not given any written information of his illness to the management, though, he voluntarily stated in the cross examination that he informed to Mr.Marwha, P.S. To General Manager about his illness but said fact has not been deposed by workman in his cross examination or in chief lead by way of affidavit Ex.WW1/A. Hence, it cannot be, relied upon that the workman has ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 18 out of 29 informed any official of the management about his illness telephonically. Further there is contradiction in his crossexamination itself as first he had stated that he himself informed about his illness then he stated he had not informed about his illness to Mr. Marwha but his cousin Sanjay Sharma, has informed. Further he had stated that his cousin only informed that the workman could not come on his duty and admitted that no period till when the workman will join duty has been informed to Mr. Marwha. Hence, in these circumstances, even if the information was given by Sanjay same is incomplete information and does not make his long absenceof six month valid. Hence, it is proved that the workman remained absent from duty w.e.f.31.01.91 to 30.06.92 unauthorizedly and same is a misconduct itself.
26. The next contention of management that workman was not ill appeared to be tenable. The workman has deposed that he was ill as he suffered sever pain of back bone, he has proved fitness certificate Ex.MW1/X2 to prove that he was ill. On perusal of the said certificate issued by MCD, no where it is mentioned that the workman had pain in backbone and he was advised rest for the period from 01.01.91 to 30.06.92. only in the said certificate it is ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 19 out of 29 mentioned that he was under treatment through OPD No.74 from 01.01.91 to 30.06.92. and thus said certificate does not prove contention of the workman that he was ill and cannot attend the office. No medical treatment paper has been produced on record to proved what treatment he was taking. Neither the OPD card of MCD dispensary has been produced to prove that he was taking treatment from 01.07.1992 to 30.06.1992. only the certificate of Doctor dt. 30.06.1992 has been produced that he was under treatment which is not a primary document of treatment. Further the workman has admitted in his cross examination that first time vide his original medical certificate Ex.MW1/X2. In the enquiry proceedings, though he voluntarily stated that he sent photocopy of his medical certificate to the management on 11.01.93 by UPC . The workman has failed to explain why he has not immediately after filed an application for leave and attached the medical certificate after becoming fit as according to medical certificate he was fit on 01.07.1992. Further it look quite unnatural first he visit on 30.06.93 to obtain certificate EXMW1/X2 from Doctor that he was under treatment and then on 01.07.92 to obtained fitness EXMW1/X1. Hence it these circumstances it cannot be ruled out that same has been procured later ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 20 out of 29 on to support his case in domestic enquiry. Further the workman as per his own admission reside in Nimri Colony since January 1992 prior to it in Bhaktawar pur where as dispensary from which he is taking treatment is in Karala which is very far away it is highly unbelievable that he visit so far though many good hospital and dispensary are available very near to his house. Further when the workman can visit to MCD clinic so far why he cannot visit to his office to inform about his illness.
In Punjab and Sind Bank 2001 LLR 155, Hon,ble Supreem Coure rejected the defense of workman of his absene on medical ground has observed as follows :
"......workman absented himself from duty for 190 days and the management asked him to join duty, but he did not join and his services were terminated by the bank. Dealing with his case, Hon'ble Supreme Court observed in paragraph 5 as under : "5. If the respondent had submitted an explanation regarding his unauthorised absence or placed any material before the Court that he did report for duty but was not allowed to join duty, inquiry may have been necessitated but not otherwise. In this case, the employee respondent had defaulted in not offering any explanation regarding his unauthorised absence from duty nor did he place any material to show that he reported for duty within 30 days of notice as required by clause XVI of IV Bipartite Settlement.
ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 21 out of 29 Thus we think that the contention put forward on behalf of the respondent that he was suffering from serious eye ailment at the relevant time is difficult of acceptance. In the writ petition filed before the High Court the respondent had stated that in the year 1980 he had a serious eye ailment and he had been taking leave from the bank often and on and he had taken leave from 16.8.1993 to 18.8.1993 to attend some urgent work which was duly sanctioned but he was struck by eye ailment and, therefore, he could not join his duty as is clear from the medical certificate issued to him. In reply thereto the stand taken by the appellants is that the record of the respondent does not disclose that he had proceeded on leave on medical advice for an eye ailment at any time. Even in the present leave application submitted by him he had stated that he was proceeding on leave to attend some urgent work at Chandigarh while the medical certificate produced before the court shows that the same had been issued by a doctor at Amritsar. There is dispute as to when he made available this material. The stand of the appellants is that this material was also produced only after the order of termination had been made and in seeking a review of the said order. The respondent claimed that he had sent several communications regarding his illness or to extend his leave or to rejoin duty but there does not appear to be any record with the bank nor the respondent is in a position to produce any proof of his having sent such letters. We do not also find any material on record to show that he had reported for duty within the period indicated in the notice issued in terms of clause XVI of IV Bipartite Settlement.
ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 22 out of 29 In the circumstances, we find the High Court had proceeded on an erroneous basis of noncompliance with the principles of natural justice, whereas the true content of the principles of natural justice should have been borne in mind, particularly when there was an agreement between the parties as to the manner in which the situation should be dealt with and the consequence that would ensue thereof."
27. Hence in these circumstances in my view workman has failed to proved that he could not attend office from 31.12.1991 to 01.01.1992 as he was ill. Further workman had stated that he reported for duty after 30.06.92 but in his claim or in his affidavit EXWW1/A he has not mentioned on which date he has reported for duty. The workman has voluntarily stated in the crossexamination that he visited to the management office on 01.07.92 and met one Mr. M.L. Gautam i.e. MW1 but no suggestion has been given to MW1 that he met with MW1 on 01.07.1992. He admitted that he did not file any application for leave in writing and also filed application for joining duty. He came to the office and met with MW1, same is not amount to reporting for duty. The workman has failed to explain why he did not file application for leave for his absence from 01.01.91 to 30.06.92 on 01.07.1992. No suggestion has been given to MW1 that workman asked for joining and MW1 did not allow him to join. Hence he failed to prove that on 01.07.1992 or thereafter he reported ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 23 out of 29 for duty. Hence, in these circumstances, I held that management has bee able to workman failed to prove that he was not absent from duty due to his illness and reported for duty on01.07.1992 or thereafter.
28. As per management witness MW1 letter dt. 02.04.92 WW1/11 and 21.04.92 WW1/9was send through registered post asking workman to resume duty but workman did not reported for duty. The said letter has been placed on record by workman. It appear copy of these letters has been supplied to workman during domestic enquiry. Undoubtedly postal receipt of said letter has not been placed on record by management but there is no suggestion given to MW1 that no such letter were sent by the management. Hence, there is no ground to disbelieve the testimony of MW1 that management has not sent aforesaid letter. Workman only contention is that he shifted from his residential address H No.125, Bakhtawarpur, Delhi36 to Nimri Colony address but he admitted that new address was furnished to the management hence management cannot be faulted for sending letters at his address furnished in office. Hence, it is proved that workman did not join duty despite asking him to join and he remained unauthorizedly absent from duty after 31.12.1991 onward. As per rule 5(7) of RITES (Conduct, Discipline and Appeal )Rules ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 24 out of 29 EXMW1/X absence without leave a misconduct and rules provide for misconduct major penalty of dismissal from service can be imposed after due domestic enquiry.
29. It is undisputed fact that management conducted the domestic enquiry. Though enquiry has been held vitiated on the ground that subsistence allowance was not paid to workman but enquiry itself is not necessary where workman has been given a sufficient opportunity to explained his absence. In case Ram Lal Vs. M/S. MIRACLES Air Freight Pvt. Ltd. & W.P.(C) 2828/1996 vide order dt. 17, May, 2010 Hon'ble Mr. Rajiv Sahai Endlaw, Justice, Delhi High court has held in para no. 6 that :
6" in the present case however, the award records that the petitioner workman was chargesheet. The counsel for the petitioner workman contends that no inquiry report has been proved before the Labour Court. Even if it be so,it stands admitted that repeated notices were given by the respondent employer to the petitioner workman with respect to the admitted absenteeism of the petitioner workman. Replies which the petitioner workman claimed to have given to the said notices have been held to be not proved. It is thus not as if the petitioner workman has been condemned unheard. The petitioner workman was given ample opportunities and thus the principles of natural justice have been complied with. Once, it is found that the principles of natural justice were complied, the holding of a formal inquiry would be irrelevant. The respondent employer is not a large corporation but a private limited company. It cannot be expected to follow formal procedure. As long as it is established that the petitioner workman has not been condemned unheard, no error capable of interference can be ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 25 out of 29 found in the order of the Labour Court."
30. The management through the evidence of MW1 has proved that workman remained absent from his duty from 31.12.1991 onward and thus committed misconduct. Hence his termination cannot be held to be illegal.
31. As far as another contention of the workman that the punishment is disproportionate to the misconduct of workman is concerned same is not tenable. MW1 has deposed that workman was appointed as daily wager on 10.01.1989 and was given temporarily status on 10.07.1989. Hence he had not worked for a long period and in such a short service he absented from 31.12.1991 onward and did not reported for duty thereafter and only when he was terminated by provisional order dt. 31.05.1993 he filed representation claiming sickness as ground of absence thus first time communicated with department after one year. The RITES like Govt. organization cannot afford such an irresponsible employee as it would adversely affect their work. Hence in such circumstances punishment of termination cannot be said to be too harsh. In Indian Tourism Development Tourism Development Center Vs Presiding Officer Labour Court 2000(2) AD210 it is held by Hon,ble judges in para 18 :
"...what is proved against the workman as per ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 26 out of 29 chargesheet is 62 days unauthorized absence in the year 1983 out of which he submitted application for leave for only 15 days which too was rejected(although rejection was not conveyed to the workman ) it has also come on record that on previous occasion the workman had remained absent unauthorizedly for 68 days for which he was imposed punishment of stoppage of two annual increments and on 26th October 1978 written warning for not attending his duties properly was administered to him. This it is established on record that the workman had been a habitual absentee and did not even care to submit leave application. Whether a particular misconduct is severe or otherwise would depend on the facts of each particular case. No hard or fast rule can be laid down to gouge the severity or triviality of misconduct. A misconduct which any not be considered in certain circumstances to be serious, can be serious in another set of circumstances. It cannot be ignored that the workman was working in a Five star Hotel and the standard of conduct which is expected of such a workman is a high degree. Such unauthorized absence that too without intimation cause unnecessary inconvenience to the management keeping in view the nature of employment of the workman, namely working as Masalchi in a kitchen in a Five star hotel."
32. In another judgement of Delhi High Court Harbhajan Vs. Delhi Transport Corporation wherein it is held that :
The petitioner was given adequate ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 27 out of 29 opportunity to prove his defence against the charge of unauthorized absence for 86 days leveled against him in charge memo dated 01.11.1995. the petitioner does not dispute his absence for 86 days during the period from January to August, 1995 in the present writ petition. The contention of learned counsel appearing on behalf of the petitioner is that the petitioner could not have been terminate from service because hes alleged absence form service was not continuous. This argument advanced on behalf of the petitioner in fact goes against the petitioner and it proves that the petitioner was a habitual absenter, though his unauthorized absence for 86 days during the period from January to August, 1995 may not be continuous. The petitioner has not rebutted in the ground of challenge contained in the writ petition that he did not had 20 red entries in his service record or about the penalty of reduction of pay imposed upon him on two earlier occasions prior to passing of the termination order dated 30.09.1996. this implies an implies an admission by the petitioner about his past conduct. The petitioner was a conductor in Delhi Transport Corporation, which is a public utility department.
Unauthorized absence of the petitioner and that too a habitual absence caused a disruption in the running of buses and inconvenience to the commuters availing the facilities of DTC buses. The misconduct proved against the petitioner and penalty of termination imposed upon him is squarely ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 28 out of 29 covered by a judgment of the Hon'ble Supreme Court in DTC Vs. Sardar Singh 2004(6) Scale 613.
33. Therefore, in these circumstances, termination of workman from service by the management cannot be held to be illegal or unjustifiable. This issue is decided against the workman.
RELIEF
34. In view of the findings on the aforesaid issues, I held that workman has has failed to prove the contentions raised in the claim petitions hence the claim is hereby dismissed. The workman/claimant is not entitled for any relief as claimed. Reference is answered accordingly.
35. Copy of the award be sent to the Secretary (Labour), Government of National Capital Territory of Delhi & Civil Court for publication & execution as per rules. The award be also sent to server (www.delhicourts.nic.in). File be consigned to Record Room. Announced in Open Court on this 27th March, 2014 (SANJEEV KUMAR ) Presiding Officer Labour Court, Karkardooma, Delhi.
ID NO. 170/10 Sudarshan Kumar Vs. Ms. Rail India Technical & Economic Service Ltd. Page no. 29 out of 29