Delhi District Court
Labour Court No.Xx Fast Track Kkd. ... vs Unknown on 23 May, 2007
IN THE COURT OF SH. SUDESH KUMAR PRESIDING OFFICER
LABOUR COURT No.XX FAST TRACK KKD. COURTS DELHI
ID 509/2006 (Old No.388/1998)
BETWEEN
THE MANAGEMENT OF
M/s. DELHI DEVELOPMENT AUTHORITY
through its Secretary
Vikas Sadan, INA Market
New Delhi ...MANAGEMENT
AND
WORKMAN JAGPAL SHARMA
c/o Municipal Employees' Union
Aggarwal Bhawan, GT Road, Tis Hazari
Delhi 110 054 ...WORKMAN
A W A R D
Workman Jagpal Sharma has raised an Industrial dispute
against the management of M/s Delhi Development Authority for
termination of his services by the management and on being satisfied with
regard to existence of an Industrial Dispute between the workman & the
management the appropriate Government vide order No.F.24 (1056)/98-
Lab/11204-08 dated 3.4.1998 referred the Industrial Dispute to the Court
with the following terms of reference:
Whether the services of Sh.Jagpal Sharma 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?
The workman filed his statement of claim stating therein that
he joined into the service of the management Delhi Development
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Authority in the year 1985 as a Beldar. He was taken on work charge basis
with effect from the year 1987. He was a regular & permanent employee of
the DDA. He was drawing his salary in proper Pay scale with usual
allowances admissible under the rules. The workman had unblemished &
uninterrupted record of his service to his credit. The services of the
aforesaid workman were terminated by the management with effect from
15.5.1990 without assigning any valid reason. The termination of the
workman is ab initio illegal, bad, unjust & malafide as the workman had
been dismissed from the service in the guise of simple termination. The
order of termination contains various serious allegations of misconduct but
no memo or charge sheet was served upon him and no domestic enquiry
was conducted into the matter and he was not afforded any opportunity of
being heard. The workman is innocent and he has not committed any
misconduct during the course of his employment. The workman has
acquired the status of permanent employee from the date of initial joining
into the employment after completing 240 days of continuous employment.
The job against which the workman was working was of regular &
permanent nature. Even if the said termination is to be treated as a case of
retrenchment, even then it is illegal because no seniority list was displayed,
no notice was served, no notice pay was either offered or paid, no service
compensation was either offered or paid at the time of termination of his
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services. The workman has been meted out with hostile discrimination as
juniors to him have been retained in service and he has been thrown out of
the job. The termination is violative of section 30 of Delhi Shops &
Establishment Act 1954, and the rules made thereunder and is also violative
of section 25-F, G & H of the Industrial Dispute Act 1947 read with rules
76 & 77 of the Industrial Disputes (Central) Rules 1957. The termination is
violative of section 25-N of the Industrial Dispute Act 1947, as the
management has not obtained any permission from the appropriate
Government for effecting the retrenchment of the aforesaid workman. The
management should have followed the Directions given in an award dated
10.1.1994 passed by Sh.DC Anand, the then learned Presiding Officer -
Labour Court-I, Delhi, in ID No.681/1991 and should have reinstated all
the workmen accordingly but that has not been done in the present case.
The workman is unemployed since the date of his termination i.e.,
15.5.1990. The workman served a demand notice through registered AD
post vide communication dated 28.1.1997 upon the management but no
reply was received. The dispute was raised by the filing statement of claim
before the Conciliation Officer but the conciliation proceedings failed due
to non co-operative and adamant attitude of the management. Accordingly
it has been prayed that an award may be passed in favour of the workman
holding thereby that the termination of the services of the workman Jagpal
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Sharma by the management is illegal and unjustified and he is entitled to
reinstatement in service with continuity of service and full back wages in
proper Pay scale & allowances with all consequential benefits thereof -
either monetary or non monetary. The workman has also prayed for cost of
litigation.
The management contested the claim of the workman and
filed written statement stating therein that the statement of claim is not
maintainable as there exists no Industrial Dispute between the parties. The
petition has been filed without cause of action. The petitioner has not come
to the Court with clean hands. The management is not an Industry as
defined under section 2(j) of the Industrial Dispute Act. It has been denied
that the workman was regular & permanent employee of the management.
It has been stated that he was transferred from Housing Division 14, ED-1
to the office of Eastern Division-11, on 6.5.1988 when it came to the notice
of the management that workman Jagpal Sharma joined the office on the
basis of bogus transfer order. The management took immediate necessary
action against the workman. The workman stopped to come on duty. It has
been submitted that the workman joined the duty on the basis of fraudulent
transfer order vide EO No.114 dated 6.5.1998 issued by the Authority i.e.,
AD to CE (EZ). It has been submitted that no such order has ever been
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issued by the management and the workman was never appointed by the
management. It has been denied that the workman has been dismissed from
the service of the DDA in the guise of simple termination. It has also been
denied that the workman is innocent and he has not committed any
misconduct. The management has denied that the workman has acquired
the status of permanent employee after completing 240 days of continuous
service. It has also been denied that the workman was meted out with
hostile discrimination. It has been submitted that the services of the
workman have not been terminated by the management as he was not the
employee of DDA and the workman got the job by unfair means and by
manipulating a bogus transfer order, service book, personal file & other
records while no such appointment or transfer order was passed by the
management. The appointment of the workman was bogus. He has
committed a criminal misconduct and a criminal offence, accordingly an
FIR had been lodged against him and the matter is pending with CBI. The
management has denied all other averments made by the workman in his
statement of claim and has prayed that the proceedings may be dropped.
Workman filed rejoinder to the written statement of the
management and controverted all the averments made in the written
statement, by the management and re-iterated his stand.
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From the pleadings of the parties the following issues were framed
1.Whether the management is an Industry as defined under ID Act?
2. In terms of reference Workman in order to prove his case filed his evidence by way of affidavit Ex.WW-1/A & examined himself as WW-1 and relied upon the documents Ex.WW-1/1 to Ex.WW-1/9 & thereafter workman evidence was closed. On the other hand, the management, in order to prove its stand, filed affidavit of Sh.V.Chhungani -Executive Engineer-Division-10, Ex.MW-1/A and examined him as MW-1 and relied upon the documents Ex.MW-1/1 to Ex.MW-1/3 & Ex.MW-1/3A, Ex.MW-1/3B & Ex.MW- 1/3C; filed affidavit of Sh.RN Dadlani - Retired Executive Engineer-DDA Ex.MW-2/A and examined him as MW-2 and relied upon the documents Ex.MW-2/1a & Ex.MW-2/1b, & also filed affidavit of Sh.Om Dutt- Executive Engineer-ED-II, Ex.MW-3/A and examined him as MW-3 and relied upon the document Ex.MW-3/1 and thereafter management evidence was closed.
Final arguments heard, file perused. Issue-wise discussion is as under ISSUE No. 1
During the course of arguments issue No.1 was not pressed by -7- the management. Accordingly it is held that the management is an Industry within the meaning of section 2(j) of the Industrial Dispute Act, 1947. I S S U E No. 2
It has been argued on behalf of the workman that the workman had been in the services of the management with effect from the year 1985 and he served the management upto 15.5.1990 when his services were terminated by the management without assigning any reason. Since no notice, no pay in lieu of notice or any other service compensation was paid to the workman at the time of termination of his services, the termination of the workman is illegal and unjustified. It has been further submitted that no charge sheet with regard to the allegation against the workman was given to the workman and no domestic enquiry was conducted into the allegations against the workman. On this ground also the termination of the services of the workman by the management is illegal and unjustified. On the other hand, it has been argued on behalf of the management that the workman secured the employment with the management on the basis of forged documents and he was not bonafide employee of the management, accordingly the workman is not entitled to any relief. Argument considered, file perused.
The workman in his affidavit Ex.WW-1/A has supported the -8- contents of his statement of claim. The workman has relied upon the copy of the transfer order Ex.WW-1/5 and the copies of the other transfer orders Ex.WW-1/6 & Ex.WW-1/7 and copy of transfer order Ex.WW-1/9. The workman has not produced the originals of the same and has not summoned any person from the department to the prove the said documents. As such, the workman has failed to prove the above said documents in accordance with law and the same can not be relied upon. Further MW-2 - RN Dadlani has specifically stated that the reliving order vide EO No.465 dated 3.9.1987 exhibited as WW-1/5 is fake and signatures on the same were not his. Similarly he has further deposed that the signatures on the appointment/offer letter dated 11.4. are fake. The said document is Ex.MW-2/1a i.e., offer of appointment issued to the workman Jagpal Sharma and MW-2 RN Dadlani has specifically denied his signatures on the said letter and he has also stated that the service book along with various entries made in the service book are with false signatures of the deponent at various places. The said service book is Ex.MW-2/1b. MW-1 in his affidavit Ex.MW-1/A has specifically deposed that Jagpal Sharma was not appointed in DDA by the authority on Muster roll. The workman joined the DDA on the basis of a bogus transfer order which was manipulated by him and shown to have been issued by AD to CE (EZ). Further MW-3 has proved the document Ex.MW-3/1 bearing EO -9- No.465 dated 13.11.1987 and the same has been issued to Neelam Sharma and not to the workman. Accordingly in view of the above discussion, I am of the considered opinion that the workman has failed to prove that his appointment with the management was genuine and bonafide No doubt MW-1 - V Chhungani during his cross-examination has admitted that the workman worked with the DDA since the year 1985 to 15.5.1990 as a Beldar and his name was deleted from the Rolls on 15.5.1990 and has admitted that no notice, no notice pay or service compensation was either offered or paid to the workman and no charge sheet was given to the workman and no departmental enquiry was conducted, even then the termination of the workman by the management can not be said to be illegal and/or unjustified as the workman has failed to prove that he is the bonafide and genuine employee of the management and has not secured the employment on the basis of forged documents.
Further onus to prove that the workman is bonafide & genuine employee of the management was upon the workman and in view of the above discussion, I am of the considered opinion that the workman has failed to discharge his onus.
Since the workman has failed to show that he is the bonafide employee of the management and he joined the service of the management on the basis of genuine documents, there is no necessity of notice, notice -10- pay or service compensation and/or any domestic enquiry. The termination of the workman by the management can not be said to be illegal and/or unjustified as the appointment on the basis of the documents which were not genuine does not vest any right in the workman to continue in the service as a matter of right. Accordingly I am of the considered opinion that the termination of the service of the workman by the management is not illegal and/or unjustified. Accordingly the workman is not entitled to any relief. The claim of the workman is rejected. Award is passed accordingly and the reference is answered accordingly. Copies of the award be sent to the appropriate Government for publication. File be consigned to the record room after necessary compliance.
Announced in the open court
on this 23rd day of May 2007 (SUDESH KUMAR)
Presiding Officer - Labour Court No.XX
(Fast Track) Karkardooma Courts Delhi