Delhi District Court
Sh. Gugan Ram vs M/S. Delhi Transport Corporation on 16 February, 2017
IN THE COURT OF SHRI UMED SINGH GREWAL
PO:LCXVII, ROOM NO. 22 : KKD COURTS :DELHI
LC No.1080/16 (Old DID No.22/12.
Unique ID No.02402C0159742012.
Sh. Gugan Ram
S/o Sh. Chander Bhan,
R/o Vill. & P.O. Rohera, Distt. Kaithal, Haryana.
............. Workman
Versus
M/s. Delhi Transport Corporation,
I.P. Estate, New Delhi110002.
Through its ChairmancumManaging Director.
..............Management
DATE OF INSTITUTION : 01.06.2012.
DATE ON WHICH AWARD RESERVED : 15.02.2017.
DATE ON WHICH AWARD PASSED : 16.02.2017.
A W A R D :
1.This is a direct industrial dispute filed by claimant under the Industrial Disputes Act, 1947 (hereinafter referred as "the Act") for reinstatement with continuity of service and full back wages.
2. Claimants' case is that he had been working with the management as Driver since 10.12.08. He was permanent employee of the management and was allotted a badge No.22468 and pay token No.64429. His last drawn basic salary was Rs.8460/ plus other LC No. 1080/16. 1/13 allowances per month. He had to take leave due to his serious illness for which he submitted leave applications alongwith medical certificates. The leave was regularized. He was not allowed duty for some time by the management for want of renewal of his driving licence and subsequently he was allowed to resume duty. The management terminated his service w.e.f. 06.01.2011 without any reasonable cause under clause 9(a)(i) of the DRTA (Conditions of Appointment & Services) Regulations, 1952. Against illegal termination, he submitted his representation to the Chairman vide letter dated 06.07.11, but the same was declined without any speaking order dated 10.10.11. He raised an industrial dispute before the Conciliation Officer, Pusa Complex, New Delhi, but the management intentionally and deliberately neither appeared on any dates nor filed any reply to the claim of workman. He is jobless since termination of service.
3. Written statement is to the effect that the claimant was appointed on temporary basis after acceptation of offer letter vide appointment letter No. PLDIII/DSSSD/Dr. Other State/APPE/0147 dated 13.01.2009 with the direction to submit an undertaking in the form of affidavit clearly stating therein that his service shall be terminated in case he fails to obtain a PSV Badge within three months from the date of offer of appointment on a period of two year LC No. 1080/16. 2/13 probation. He was having driving licence from Mathura valid upto 06.07.10, but he failed to submit his PSV Badge issued from Delhi State. He has also availed excess unauthorized leaves during his probation period w.e.f. 18.01.2009 to 30.11.10 i.e. 178 days out of which 144 days were without submitting medical certificate.
4. Following issues were framed on 17.08.12:
1. Whether the services of the workman were illegally terminated by the management? OPW.
2. Relief.
5. In order to substantiate the case, the claimant tendered his affidavit in evidence as Ex. WW1/A mentioning all the facts stated in the statement of claim. He relied upon following documents : I. Ex.WW1/1 is copy of appointment letter of workman. II. Ex.WW1/2 is letter dt. 24.12.08.
III. Ex.WW1/3 are medical certificates of workman. IV. Ex.WW1/4 & Ex. WW1/5 are driving licences of workman. V. Ex.WW1/6 is termination letter dt. 06.01.11 of the workman. VI. Ex.WW1/7 is representation dated 06.07.11. VII. Ex.WW1/8 is letter dt. 10.10.11.
VIII. Ex. WW1/9 is failure report issued by Conciliation Officer.
LC No. 1080/16. 3/136. The management examined its Depot Manager Sh. Vijay Kumar as MW1 and he repeated the contents of written statement. He relied upon following documents:
1. Ex.MW1/1 is photocopy of affidavit of workman dated 23.12.2008.
2. Ex.WW1/2 is letter dated 24.12.08.
Issue No. 1.
7. Ld. ARM argued that the claimant was appointed as Driver on temporary basis with direction to submit an undertaking in the form of affidavit clearly stating therein that his service shall be terminated in case he fails to obtain a PSV Badge within three months from the date of offer of appointment on a period of two year probation. He submitted his affidavit Ex. MW1/1 to this effect. He was having driving licence from Mathura valid upto 06.07.10, but he failed to submit his PSV Badge issued from Delhi State. He has also availed excess unauthorized leaves during his probation period w.e.f. 18.01.2009 to 30.11.10 i.e. 178 days out of which 144 days were without medical certificate. There was clause No. 8 in appointment letter Ex. WW1/2, according to which he was required to submit an undertaking in the form of Affidavit clearly stating therein that his service shall be terminated in case he fails to obtain a PSV within 3 months from the date of the offer of appointment. As per clause No. 9, his appointment was purely temporary. He was on probation LC No. 1080/16. 4/13 period of 2 years from the date of his temporary appointment, consequent upon his submission of permanent PSV badge. During the period of his probation, his services were liable to be terminated at any time without assigning any reason thereof. He was to be considered as having completed the period of probation satisfactorily only when a notification to that effect was issued by the Competent Authority. His probation period was extended from time to time and as such he did not complete his probation period. Keeping in view his unauthorized absence record, conduct and non production of PSV Badge, his service was terminated w.e.f. 06.01.2011 vide termination letter letter Ex. WW1/6 under clause 9(a)(i) of the DRTA (Conditions of Appointment and Services) Regulations, 1952.
On the other hand, ld. ARW argued that the claimant had joined the management on 10.12.08. He was on probation period for 2 years which was completed by him. After completion of probation period, claimant being regular employee, the management should have issued him showcause notice or held enquiry before his termination. He admitted that no written letter regarding completion of probation period was given to workman by the management.
8. In the appointment letter Ex.WW1/2, clause Nos. 8 & 9 are to the following effect : "8. He shall have to submit an undertaking in form of Affidavit clearly stating therein that his service LC No. 1080/16. 5/13 shall be terminated in case he fails to obtain a PSV within 3 months from the date of the offer of appointment."
"9. His appointment is purely temporary. He shall be on probation period of 2 years from the date of his temporary appointment, consequent upon his submission of permanent PSV badge. During the period of his probation, his services shall be liable to be terminated at any time without assigning any reason thereof. He shall be considered as having completed the period of probation satisfactorily only when a notification to that effect was issued by the Competent Authority."
The claimant had tendered his affidavit dated 23.12.2008 Ex. MW1/1 to the management with following relevant conditions : "5. That I am aware that my service shall be terminated if I am unable to obtain a PSV badge within 3 months from the date of the offer of appointment given to me."
Clause 9(a)(1) of DRTA (Conditions of Appointment and Services) Regulations, 1952 is as under: "(a) Excepts as otherwise specified in the appointment orders, the services of an employee of the Authority may be terminated without any notice or pay in lieu of notice:
(i) During the period of probation and without assigning any reasons thereof."
His service was terminated vide termination letter dated 06.11.2011 Ex. WW1/6 with following contents : LC No. 1080/16. 6/13 "The services of Sh. Gugan Ram S/o Sh. Chander Bhan, Driver, B. No. 22468, PT NO. 64429 is hereby terminated w.e.f. 06.01.11 (AN) under clause 9(a)(i) of the DRTA (Conditions of Appointment and Services) Regulations, 1952."
9. Perusal of termination letter Ex. WW1/6 shows that the service of the claimant was terminated under clause Nos. 8 & 9 of the appointment letter and clause No. 9(a)(i) of DRTA (Conditions of Appointment and Services) Regulations, 1952, which show that the management had right to terminate his service at any time without assigning any reason thereof. He would have been considered having completed the period of probation satisfactorily only when a notification to that effect was issued by the Competent Authority. Management's is well covered by Mahender Singh Vs. Indian Airlines Ltd., LPA 63/14 decided by Hon'ble High Court of Delhi on 05.09.16 in which the appellant was initially appointed as driver on temporary basis on 29.07.1986. His temporary appointment was extended from time to time for a period of 1 to 3 months. He was given regular appointment on the post of Driver on 29.06.1987 vide appointment letter in which there was a clause No. 4 to the effect that he would be on probation for a period of one year and if during the said period, his service was not found satisfactorily, the same may be terminated. His service was terminated on 10.08.1988 as per LC No. 1080/16. 7/13 clause No. 4 of the appointment letter because his service was not satisfactory.
10. Alternative plea of ld. ARW is that though it is not mentioned expressly in termination letter that his service was terminated on misconduct, but the action of the management was definitely founded on the allegations of unauthorized absence levelled against the claimant as the management is heavily relying upon his unauthorized absence of 178 days from 18.01.09 to 30.11.10, in written statement. He further argued that the inducing factor for the management to terminate the service was definitely allegations of absence. The management should have conducted enquiry but it passed termination order without such enquiry.
11. Now, it is well settled law that if termination is on the foundation of misconduct i.e. if the termination was the result of inducement caused by the misconduct of the claimant, then domestic enquiry is must. But, if termination is simply the motive of misconduct, then domestic enquiry is not required. In, State of Punjab Vs. Sukh Raj Bahadur, AIR 1968 SC 1089, a charge memo for a regular enquiry was served, reply given and at that stage itself, the proceedings were dropped and simple termination letter was issued. It was held that the order of simple termination was not LC No. 1080/16. 8/13 founded on any findings as to misconduct. In that case, the Hon'ble Supreme Court had referred A.G. Benjamin Vs. Union of India (1967) I LLJ 718 (SC) in which a chargememo was issued, explanation was received and Enquiry Officer was also appointed but before the enquiry could be completed, the proceedings were dropped and simple order of termination was passed. The reason for dropping the proceedings was that departmental proceedings would take a much longer time and the management was not sure that it would be able to deal with the delinquent official in the way he deserved. The Apex Court upheld termination. Similarly, it was held by the Apex Court in Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors. (supra) complete citation as under: "21. If findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as `founded' on the allegations and will be bad. But if the inquiry was not held, no finding were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about LC No. 1080/16. 9/13 securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."
It is not the case of any party that management had issued claimant notice / memo / chargesheet for unauthorized absence of 178 days. So, there was no question for claimant to file reply. The management did not appoint any Enquiry Officer, did not issue chargesheet to the claimant and did not conduct any domestic enquiry. The facts of this case are in better footing to the facts of State of Punjab Vs. Sukh Raj Bahadur (supra). In that case, it was it was held by the Apex Court that the termination of service of workmen was not founded on allegations but those allegations were the motive for the management to terminate their service.
This case is squarely covered by DTC Vs. R.K. Tiwari and Anr. 2012 LLR 1973. In that case, the management had not conducted any enquiry though there was report made by checking officials of DTC to the disciplinary authority in reply of checking of bus of the workman in which the raiding team officials had found one passenger in possession of used ticket and the other used ticket was found in the possession of the workman. Domestic enquiry was not conducted and the management terminated his service without assigning any reason. In the case in hand also, no reason has been LC No. 1080/16. 10/13 assigned in termination letter Ex. WW/6 why the service of claimant was terminated.
12. It has been held by Hon'ble Supreme Court and various Hon'ble High Courts in several cases that no inhouse enquiry is required in the case of an employee undergoing probation period. In Pinaki Ghos Vs. International Airport Authority of India And Ors., 2007 LLR 1238, termination of workman was on the ground of unsatisfactory performance during probation period. His termination was upheld by the Hon'ble High Court.
In Parvanendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences and Another, (2002) 1 SCC 520, following was held by the Apex Court : ".......Generally speaking when a probationer's appointed is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job"
LC No. 1080/16. 11/13In B.S. Chopra Vs. The Management of Karnataka Handloom Development Corporation Ltd. and Anr., 2006 LLR 204, it was held by the Hon'ble Delhi High Court that even when no enquiry is held after showcause notice, it does not mean that the probationer stands confirmed.
In Hawa Singh Vs. P.O. Labour Court, 2006 LLR 949, Hon'ble Delhi High Court held that the employer can terminate the services of a probationer during probation period. It is not material why the services of the probationer were not terminated immediately after causing of accident by him.
In Muir Mills Unit of NTC (UP) Limited Vs. Swayam Prakash Srivastava and Another (2007) 1 SCC 491, termination letter was issued to the employee stating that his performance was not found satisfactory. He had failed to complete the probationary period successfully. It was further mentioned that his services was being terminated with immediate effect. Termination was upheld by the Apex Court.
13. So, all grounds taken by claimant have failed. This issue is decided in favour of the management and against the claimant.
Issue No. 2.
14. Consequent to decision on issue No. 1, it is held that LC No. 1080/16. 12/13 claimant is not entitled to any relief. Statement of claim is dismissed.
15. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 15.02.2017. PILOT COURT/ POLCXVII KKD COURTS, DELHI.
LC No. 1080/16. 13/13