Delhi District Court
Delhi Transport Corporation vs Raghubir Singh on 18 February, 2010
1
IN THE COURT OF SH BABU LAL: POIT-II,
KARKARDOOMA COURTS, DELHI
O.P No 399/1992
Delhi Transport Corporation Applicant
Indraprastha Estate, New Delhi
Versus
Raghubir Singh Respondent
S/o Sh. Richpal Singh,
Village and P.O. Surhera,
New Delhi.
ORDER
1. Management has filed approval application U/s 33(2)(b) I.D. Act seeking approval of this Tribunal for removal of the workman from service of the Management. Case of the Management is that a charge sheet was given to the workman on the allegations that he availed 212 days leave without pay during period 1.1.91 to 31.12.91 out of which 132 days leave were availed by him unauthorizedly. It is alleged that an oral inquiry and detailed investigation was conducted in the case and that respondent had admitted the charges and declined to take assistance of a co-worker. It is alleged that inquiry was conducted as per rules and regulations and in conformity 2 with principles of natural justice. It is also alleged that on conclusion of the inquiry, all the charges stood proved against him and show cause notice was issued to the workman as to why he should not be removed from service. Workman allegedly did not submit reply to show cause notice. Management is alleged to have issued removal order dated 31.8.92 and had also remitted one month's wages through money orders dated 31.8.92 as required U/s 33(2)(b) of the I.D. Act.
2. On the other hand, case of the workman in his WS is that a false and fabricated charge sheet was given to him inasmuch as taking leave was beyond control of the respondent for bonafide and genuine reasons for which he had submitted applications duly supported by medical certificates. It has been denied that any detailed investigation or oral inquiry was ever held or that he had admitted the charges. It is alleged that charge sheet was issued to the respondent by the Depot Manager and inquiry was conducted by Dy. Depot Manager and being directly subordinate to Depot manager, he was not competent to conduct inquiry. It is alleged that proceedings of inquiry are incorrect. It is alleged that no inquiry was held according to rules or in conformity with principles of natural justice. It is alleged that inquiry conducted against him was not fair and proper. It is 3 alleged that on the basis of sham and illegal inquiry, Management is pre-determined to victimize him by removing him from service and this action of the Management is prima facie illegal and discriminatory. It has been denied that one month wages were remitted to him.
3. In the rejoinder, applicant has reiterated and reaffirmed all the facts as alleged in the application and denied all the facts as set out in the WS.
4. On setting aside of inquiry issue, following issues were framed :-
(1) Whether fair and just inquiry was held ?'' (2) If issue No 1 is decided in favour of the workman, whether he committed misconduct imputed to him ? (3) Whether the Management has complied with provisions of section 33 (2)(b) of I.d. Act.
5. Issue No 1 regarding validity of the inquiry was decided vide order dated 4.1.10 and inquiry was held vitiated. Management exercised its option to lead evidence on the remaining issues.
6. Management has filed affidavit of Sh. T.K. Verma who has been examined, cross examined as AW-2 on the point of misconduct whereas workman has filed his affidavit on the point of misconduct.
7. I have heard AR for the parties and have carefully 4 gone through record of case. My findings on inquiry issue are as under :-
Findings on issue No 2 Issue No 2 if workman has committed misconduct. AW-2 Sh. T.K. Verma in his affidavit has deposed that workman remained absent from duty w.e.f. 1.1.91 to 31.12.91 for 212 days. It is deposed that chargesheet Ex AW1/1 and corrigendum Ex W1/Y were issued to the workman. It is deposed that inquiry was conducted and workman was held guilty and on the basis of report of Inquiry Officer, show cause notice of removal Ex RW1/2 was issued to the workman. Workman is deposed to have given reply to the show cause notice which was duly considered. Management is deposed to have eventually issued removal letter to the workman.
One month salary of Rs. 2430 is deposed to have also been remitted to the workman through money orders No 2244 and 2245 dated 31.8.92. Copies of removal order/ letter, MO receipt, salary details have been proved as Ex AW2/2-
4. In his cross examination, he has stated that details of leave applications of workman received by Management have been given in Ex AW1/2. It is deposed that no communication was done in respect of rejection of leaves. However, he has added that this fact had been mentioned in pay slip of the workman that leaves of the workman 5 were not sanctioned and salary had been deducted on that accout. He has also admitted that pay slip was not produced before Inquiry Officer as same was not demanded by the workman. He has also admitted that leaves not sanctioned were treated as leave without pay and same were deducted from wages. On the question as to whom he remitted one month wages, he has also admitted that one month's wages were not remitted by him.
8. RW-1 Sh. Raghubir Singh in his affidavit has deposed that he was initially issued chargesheet Ex AW1/1 dated 6.12.91 alleging that he availed leave of 212 days leaves without pay during the period 1.1.91 to 31.10.91. Subsequently, a corrigendum to chargesheet Ex RW1/Y was issued wherein period was rectified and it was corrected that he availed leave of 212 days during period 1.1.91 to 31.12.91. He is deposed to have given explanation Ex RW1/1 and RW1/2. It is deposed that he had availed leaves on genuine and bonafide grounds and had sent leave applications to Management through his co-employees. It is deposed that no receipt of leave application was given as there is no practice to issue any receipt in token of receiving the same. It is deposed that no intimation was given to the workman that his leave applications were rejected and if so on what grounds. It is 6 deposed that Management did not issue any memo or letter asking him to explain reason of his availing leave prior to issuance of chargesheet. It is deposed that chargesheet or corrigendum did not mention that he remained absent unauthorizedly without any intimation or information to the Management and without getting the prior leaves sanctioned. It is deposed that there was no charge of unauthorized absent against the workman as such he has committed no misconduct. It is deposed that Management sent him show cause notice Ex RW1/3 to which he had submitted reply which was not considered. In his cross examination, he has admitted that he did not report for duty from January, 1991 to December, 1991 for 212 days.
9. It has been argued by AR for the management in the written submissions that he remained absent for 212 days from 1.1.91 to 1.12.91from in which 132 days was of unauthorized leave as per details mentioned in AW1/2. It is argued that remaining absent without reasonable and sufficient cause and remaining unauthorizedly absent for 132 is serious misconduct. It is argued that on the basis of evidence on record, these misconducts stand proved against the workman.
10. On the other hand, workman in his written submissions has argued that he had submitted leave 7 application and that he was never informed that his leave applications were rejected. It is argued that he was given memo to explain his . It is argued that availing leave on genuine and bonafide ground is no misconduct and Management had regularized the period by deducting wages from his salary. It is also argued that no charge of unauthorized absence was made against him, therefore, he has not committed any misconduct. It is also argued that misconduct against the workman does not stand proved.
11. In his affidavit, MW--1 has specifically stated that workman remained absent duty for 212 days during 1.1.91 to 31.12.91, therefore, on receipt of report of his remaining absent, a chargesheet was issued on 6.12.91 for remaining absent for 165 days but lateron chargesheet was corrected vide corrigendum dated 23.3.92 to the effect that he remained absent for 212 days. Chargesheet has been proved as Ex AW1/1 and corrigendum has been proved as Ex RW1/Y. On the other hand, the workman in his affidavit has deposed that he had submitted leave applications along with medical certificate RW1/1 and RW1/2 through his co employee of which no receipt was given. He has also stated that leaves were availed on genuine and bonafide grounds. Therefore, he did not committ any misconduct. In his cross examination, he 8 has specifically admitted that he did not report for duty or 212 days from 1.1.91 to 31.12.91. He has denied that he had not given any application for 12 days and for 112 days he had submitted application late which were rejected and 4 days leave was rejected on the ground that leave was not due. In his cross examination, he has shown ignorance if leave of 132 days were treated as unauthorized leave. It is, therefore, clear that to admission of the workman himself, he did not report for duty for 212 days from January, 1991 to December, 1991. Workman has raised objection that he was not given any intimation regarding rejection of leave. But in his cross examination AW-2 Sh. T.K. Verma has stated that salary of the workman for the perid of absence was deducted which was reflected in his pay slip. This shows that workman does not dispute that salary slips were issued to him. When salary slips were issued to him and salary was deducted, he knew that leaves were not sanctioned. It is correct that AW-2 has admitted that leave not sanctioned were treated as leave without pay. The workman has raised the objection that remaining unauthorizedly absent was not a charge against him. But charge sheet is specific that he availed 212 days of leaves without pay during 1.1.91 to 31.12.91 out of 132 days was availed by him unauthorizedly. On the absis of evidence on record, 9 it is clear that he did not report for duty for 212 days during the period January, 1991 to December, 1991 which were treated as leaves without pay. The question is whether leave without pay is not a misconduct under. Para 19 ( h) & (m) of the Standing Order governing the conduct of DTC employee and para No 4 of Executive instructions, remaining on leave for such a longer period, tentamounts to misconduct. The workman in his explanation had submitted that his wife was ill due to which he remained absent. However, medical certificate submitted by him pertains to yea December, 1987. No witness has been examined by the workman that he had produced medical certificate. He could have examined the doctor under whose treatement he or his wife remained but he did not do so. He has not placed on record any evidence documentary or otherwise that he had any reasonable or sufficient for remaining absent, therefore, his absence for 212 days was unauthorized absence and without reasonable or sufficient cause.
12. Only question as regards leave which remains to be adjudicated is whether treating leave without pay will neutralize the misconduct.
13. DTC vs Sardar Singh JT 2004(6) SC 342. It has been held :-
''Great emphasis was laid by learned counsel 10 for the respondent-employee on the absence being treated as leave without pay. As was observed by this court in State of Madhya Pradesh Vs. Harihar Gopal (1969) (3) SLR 274 by a three-judge Bench of this court, even when an order is passed for treating absence as leave without pay after passing an order of termination that is for the purpose of maintaining correct record of service. The charge is that case was as in the present case, absence without obtaining leave in advance.
The conduct of the employees in this case is nothing but irresponsible in extreme and can hardly be justified. The charge in this case was misconduct by absence. In view of the Governing Standing Orders unauthorized leave can be treated as misconduct.
Conclusion regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly, when same is unauthorized. Burden is on the employee who claims that there was no negligence and/or lack of interest to establish it by placing relevant materials. Clause (ii) of para 4 of the Standing order shows the seriousness attached to habitual absence. In cause (I) therefore, there is requirement of prior permission. Only exception made is in case of sudden illness. There also conditions are stipulated, non-observance of which renders the absence unauthorized''.
14. In view of above authority, only exception for absence without permission or unauthorized absence is illness. Case of the workman is that due to illness of his wife, he availed the leave. He had availed leave for a longer period of 212 days. He has produced medical certificate of December 1987 in respect of his wife which does not pertain to period of his absence during the year 1991. He has not examined any witness or Doctor who 11 issued the medical certificate that illness was so serious that he could not attend the office almost during a year. In view of above authority, I hold that remaining absent from duties for a such a long period certainly falls within definition of misconduct under para 19(h) & (m) of the Standing Orders governing the conduct of DTC employees and para 4 of the Executive Instructions-Duties of drivers. Therefore, I hold that he has conducted misconduct imputed to him. This issue is accordingly decided in favour of workman and against the Management.
15. Findings on issue No 2 Issue No 2 is whether the Management has complied with provisions of section 33 (2)(b) proviso of I.D. Act. In para No 12 of the application, case of the Management is that Management had issued removal order dated 31.8.92 and had also remitted one month's wages vide money order No 2244 and 2245 dated 31.8.92 as required under section 33 (2)(b) of the I.D. Act. In corresponding para No 12 of the reply, there is bald denial to the effect that it was denied that applicant had been paid one month full wages by the opposite party. There is no specific denial that respondent had not received ''money order''. There is no specific assertion as to what was the amount which was actually received by him as to how it did not represent the one month wages. In other 12 words, there is no specific denial that Management had sent money order and same was received by him. In his testimony, AW-2 Sh. T.K Verma has proved copy of money order Ex AW2/3 sent to the workman. Salary slip of the workman has been proved as Ex AW2/4 to prove that last drawn salary of the workman was Rs. 2430 which was remitted to the workman. When money order receipt have been placed on record showing dispatch of the amount of Rs. 2430 to the workman on address of his village and admitted by him to be correct, onus shifted to the workman to prove that he did not receive the same. In his affidavit, workman has only stated that Management had not remitted one month wages to him. However, he has not specifically denied that he had received any money order. In his cross examination, he has admitted that his last dreawn wages were Rs. 2430. He has admitted that he had received letter of removal of service on the address of village Sureda which is correct. Money orders were also dispatched on the same address. In view of evidence on record, it stands proved on record that Management had remitted a sum of Rs. 2430 to the workman on correct address. No evidence has been led by the workman to prove that he had not received this amount. Therefore, I come to the conclusion that Management has complied with provisions of section 33 ( 13
2)(b) of the I.d. Act. This issue is accordingly decided in favour of Management and against the workman.
16. Relief:- In view of reasons given above, I come to the conclusion that workman has continuously remained absent for 212 days during 1.1.91 to 31.12.91. Management is a public transport system. It is lifeline of Delhi. Right from workers to office goerers use public transport system as means of transportation to go to their duties. If drivers are allowed to behave in such an irresponsible manner, as workman has acted in the present case, it will paralyse the life of Delhiites. Workman has displayed utter disregard to his duties. He does not deserve any sympathy. Therefore, I do not find any reason not to allow the application. Application U/s 33 (2)(b) is accordingly allowed. File be consigned to record room.
Announced in open court on 18.02.2010 (BABU LAL)
Presiding Officer, Industrial Tribunal-II Karkardooma Courts, Delhi.
14 O.P. No 399/1992 18.02.2010 Present None for the parties
Vide separate order, it has been held that workman has committed the misconduct imputed to him. It has also been held that one month last drawn wages were remitted to the workman. Accordingly, approval application U/s 33(2)(b) I.D. Act has been allowed. File be consigned to record room.
( BABU LAL) POIT-II/KKD COURTS DELHI/ 18.02.2010