1 IN THE COURT OF SH. [ENTITY]: PRESIDING OFFICER, LABOUR COURT NO. XVII, KARKARDOOMA COURTS, DELHI . ID NO. 844/06 BETWEEN The Workman Sh. [ENTITY] S/o. Sh. [ENTITY] Driver DTC Badge No. 19065,Gaon Kulakpur, Palla, Delhi- 110036. AND The Management M/s Delhi Transport Corporation Through its Chairman I. P. Estate, New Delhi. Date of institution of the case : 09.07.2004 Date of reserving the Order : 07.04.2008 Date of announcement of Order : 22.04.2008 AWARD 1.
The [ENTITY] through its Secretary (Labour) vide reference no. F.24(119)/2004/Lab./5154-58 dt. 31-05-04 referred the dispute for adjudication between the Management of M/s. Delhi Transport Corporation and its workman Sh. [ENTITY] in the following terms of reference:-
"Whether the punishment of stoppage of next due on increment without cumulative effect imposed upon Sh. [ENTITY] S/o. Sh. [ENTITY] by the management vide its order dated 19/12/01 is illegal and/or unjustified if so, to what relief is he entitled and what directions are necessary in this respect?"
Contd
2. The workman has filed statement of claim stating therein that he has been employed with the management as Driver and was posted in DTC Depot Kalkaji, New Delhi. On 2/01/1997, the workman was assigned duty to ply Green Line DTC Bus No. 3827 from Ambedkar Nagar to ISBT. At about 10.45 PM, when the said bus was coming from Ambedkar Nagar to ISBT, one person boarded in the said bus at Nizamuddin. The said person did not purchase ticket for journey and did not disclose his identity to the conductor. On persuasion by the conductor to purchase ticket, he refused to purchase the same and quarrelled with conductor and threatened to teach him a lesson. On account of refusal to purchase ticket, the conductor told the workman to stop the bus so that the said passenger can get down but he did not get down and threatened of dire consequences, then the other passengers who were traveling in the same bus interfered in the matter and suggested the said passenger to buy ticket and disclose his identity to the conductor but the said passenger did not disclose his identity and then two passengers who were traveling in the said bus at that time made complaint in the complaint book. When the matter was not under control then the conductor of the bus requested the driver /workman to take the bus to Police Station [ENTITY] and the driver of the bus stopped the bus near the Police Station, [ENTITY] to lodge complaint in the Police Station, [ENTITY], Delhi. The said passenger became cooled and amicably settled the matter. On 3/1/97 the management placed the applicant under suspension with effect from 3/1/97 at the instance of Sh. [ENTITY], the then Senior Manager Traffic, DTC, and the management did not conduct domestic Contd
inquiry till July 2002 . The management did not pay adequate subsistence allowance to workman during the period of suspension as per the provision established under law. On 04/1/97, the workman was called to meet Sh. [ENTITY], Senior Manager, in his office and then the workman came to know that the person who quarrelled with the workman and the conductor in the bus in the night of 2/1/97 is Mr. [ENTITY], Senior Manager of DTC . The said Senior Manager Sh. [ENTITY] threatened the workman in his office of getting the workman dismissed from service. The management issued charge sheet to workman on 24/1/97 on the false and fabricated grounds. The workman submitted his reply along with statement of witnesses to the incident of 02/1/97 and who had made complaint in the complaint register but the reply was not considered and the management decided to conduct domestic inquiry . The management did not conduct inquiry of the charges leveled against the workman up to July, 2002. The management revoked the suspension of workman on 30/03/98 without any information to the workman. The workman came to know about this on 17/04/98, but the management did not do so. Workman repeatedly requested the management for completing the inquiry and or waiving the charge sheet dated 21/1/97 so that the workman can discharge his duties peacefully and without any tension. However, the management instead of conducting inquiry started showing the workman absent and no show cause notice was issued to the workman. It is stated that the Sh. [ENTITY], Senior Manager Traffic of DTC is a person of criminal back ground and involved in several criminal cases and is habitual to implicate the workmen in false Contd
cases and extract money for waiving off the same. Due to his criminal record, the workman informed the management that he has reasonable apprehension that he may be implicated in false cases at the instance of the said senior manager Sh. [ENTITY] but the the management did not care about the requests of the workman. The management issued charge sheet to the workman on 12/06/98 on the false, frivolous, motivated and unspecific allegation of absent without leave. The workman submitted his reply to the said charge sheet and specifically mentioned that he has no information about the said revocation of suspension and that he has been falsely implicated at the instance of senior manager Sh. [ENTITY] but the management did not consider the submission made by the workman. The workman filed complaint before conciliation officer for directing the management to conduct the inquiry as early as possible before revoking the suspension and on the basis of complaint of the workman, the labour inspector visited the management on which the personal manager of the management directed the Depot Manager, Kalkaji to provide duty to workman and he further assured that the absence of workman from 30/03/98 to 27/08/98 will be considered as suspension period and no further case will be made and the charge sheet dated 12/06/98 will be withdrawn then the workman joined the duties from 28/08/98.The management conducted the domestic inquiry against the charges levelled in charge sheet dated 12/06/98 in violation of procedure and settled principles of law. The workman had raised objection about appointment of inquiry officer as she is the wife of the disciplinary authority but the same was not considered. The Contd
inquiry officer did not conduct the inquiry in free and fair manner and did not provide sufficient opportunity to workman to defend his case. The inquiry officer recorded the statement of the management witnesses in the room and made the workman seated outside the room and thereafter immediately inquiry officer forced the workman to cross examine the management witnesses without supplying copy of their statements and without giving the workman time to understand the stand of the management . The inquiry officer failed to appreciate that the management did not inform the workman about the action of revoking suspension of the workman with effect from 30/03/98 until the workman came to know about this on 17/04/98. The inquiry officer did not conduct inquiry judiciously and did not follow the principles of natural justice. The inquiry officer has given frivolous findings against the workman with motive to please Senior Manager and complainant of this case. On the basis of the perverse finding of the inquiry officer, the disciplinary authority has awarded punishment vide letter dated 19/12/01 to the workman as under :
"Stoppage of next due one increments without cumulative effect"
It is stated that the punishment awarded by disciplinary authority is illegal and unsustainable in the eyes of law . The workman filed claim before the conciliation officer but due to negative attitude of the management, the dispute could not be settled. It is prayed that order be passed thereby setting aside the punishment of stoppage of next due one increment without cumulative effect awarded by disciplinary authority depot vide order dated 19/12/01 and to direct the management to pay payment of arrears of increment with the retrospective effect.
Contd
3. The management has filed reply/WS to the statement of claim and has contested the same. In the written statement, the management has stated that the Senior Manager (TR) himself travelled in the bus of claimant in plain clothes on 2/1/97 and the bus was not stopped on the stands properly inspite of the fact that only 5 to 7 passengers were sitting in the Green Line Bus in which this incident took place . When the senior Manager (TR) asked the claimant about the same then he indulged in unnecessary argument and asked the driver of the bus to stop the same and the bus was stopped at Golf Club and then only Senior Manager (TR) disclosed his identity and asked for waybill from the claimant and the claimant refused to give the same and again approached the driver of bus for consultation . It is stated that refusing to give waybill to senior official of the management is a serious offence and amounts to disobedience as per rules of the management. The claimant failed to report twice in a week during his suspension period which is mandatory as per rules and regulations of the management. The claimant without permission and prior information had gone out of station for unknown period as per the report of postal authorities on the letter sent at the address of the claimant. It is denied that the person boarded bus from Nizamuddin bus stand to [ENTITY] was in drunken condition and he refused to buy ticket . It is stated that the claimant was put under suspension with effect from 03/01/97. The inquiry into the matter was conducted as per rules and regulations of the management and the subsistence allowance was paid to the claimant during the suspension Contd
period. It is denied that on 04/1/97 the senior manager called the claimant in his office and threatened the claimant as alleged. It is denied that the management issued charge sheet dated 24/1/97 to the claimant on false and fabricated grounds. It is stated that reply filed by the claimant was examined and the same was not found satisfactorily. It is stated that the inquiry proceedings have already been initiated against the claimant and the claimant was released from suspension with effect from 30/03/98 and the letter was sent to the residential address of the claimant by the management for joining duties but the letter was received back with remarks by postal authorities "Addressee out of station for unknown period, return to the sender." As per the suspension order the claimant was required to report for duty on Monday and Friday of the every week and the claimant failed to report and charge sheet dated 12/06/98 was issued to the claimant as per rules and material available on record. It is denied that due to personal involvement of Sh. [ENTITY], the management started showing the claimant absent from duty. It is stated that the claimant himself attended the inquiry and ample opportunity was given to the claimant to defend himself. The inquiry officer conducted the inquiry on the basis of the record and evidence as per the rules and regulations of the management. The inquiry was just and proper and tenable.
4. The workman has filed rejoinder to the WS of management. In the rejoinder workman has reiterated the contents of the statement of claim and has controverted the allegations of management as stated in WS.
5. From the pleadings of parties following issues were framed on 29.01.2007.
Contd
1. Whether the enquiry conducted against the workman in pursuance of charge - sheet dated 12.06.1998 was not just, fair, proper and was not in accordance with principles of natural justice, if so its effect? OPW.
2. As per terms of reference.
6. Vide order dated 29.01.2007 it was directed that issue no. 1 relating to validity of enquiry shall be treated as preliminary issue and the case was fixed for leading evidence by workman on the aforesaid preliminary. On 11.5.2007 case was fixed for WE and the workman filed his affidavit in the form of evidence alongwith certain documents and copies of the same were supplied to the management and thereafter examination-in-chief of workman was recorded as WW1 and his cross-examination was deferred at request of management as the management had received copies of affidavit and documents filed by workman/WW1 on that day only. On 04/10/07, case was fixed for cross examination of the workman/WW1 but workman/WW1 did not appear and case was proceeded under [SECTION] of the [ACT] WE was closed (In order dt. 4.10.2007 it was observed that examination in chief of WW1 recorded on 11/05/07 shall be of no consequence as the workman had not appeared for cross examination). The management did not examine any witness and the AR for the management closed management evidence on 20/12/07.
7. Thereafter arguments of management on issue no. 1/preliminary issue were heard and vide order dated 16.02.2008 issue no. 1 was decided and it was held that the workman has failed to prove that he was not given full Contd
opportunity to participate in the enquiry and the principles of natural justice were not followed while conducting enquiry and issue no. 1 was decided in favour of the management and against the workman. After disposal of issue no. 1 the workman did not appear for addressing arguments on quantum of sentence and only AR for management has submitted arguments on quantum of sentence. I have considered the submissions of AR for management on quantum of sentence and perused record.
8. Alongwith his affidavit Ex. WW1/A the workman has filed a copy of the charge-sheet dt. 12.6.1998 as Ex. WW1/12 and as per the said charge-sheet the allegations against the workman were that he remained unauthorizedly absent from duties from 30.3.1998 to 6.6.1998 which shows his negligence towards duties and lack of interest in the duties of the management. The contention of AR for management is that the workman has unauthorizedly remained absent from duties which prima facie shows his lack of interest in the work and the previous conduct of the workman also shows that he had misbehaved with senior officials and he had not followed the lawful directions of the senior officials. The workman alongwith his affidavit Ex. WW1/A has filed a copy of the charge-sheet dt. 24.1.1997 as Ex. WW1/4 whereby charges against him were imputed that on 02.01.1997 he misbehaved with senior officials and did not park bus properly at the bus stand and he did not obey directions of the senior officials and he used unparliamentary language against the senior officials. The contention of AR for management is that the charges imputed against the workman in terms of charge - sheet dt. 12.06.1998 of remaining unauthorizedly absent from Contd
30.3.1998 to 6.6.1998 were proved and the management in accordance with [SECTION] of [ACT] has imposed penalty of stoppage of one increment only without cumulative effect.
9. The contention of AR for the management is that this is a public utility service and the roster of duties of the employees are prepared in such a manner that there is optimum utilization of the buses of the management, so that greatest convenience is provided to the public within the resources in the hands of the management. The contention of AR for the management is that if any employee remains unauthorizedly absent in that case the work of the management suffers as there is roster of the employees and if they suddenly do not turn up then at the last moment it becomes difficult to arrange the alternative employee who will be running the said buses on which a particular employee is posted and the same causes disruption in the running of schedule of the buses which also causes inconvenience to the public. The plea of the management is that the charges which have been proved against the workman are that he had remained unauthorizedly absent and he thereby caused obstruction in the work of the management and also caused loss to the management. In the circumstances, the punishment which has been given to the workman is not disproportionate to the charges which have been proved against him.
10. In [PRECEDENT], it was held:
Contd
11. In [PRECEDENT], it was stated:-
"Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus:
"A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness."
Misconduct in office has been defined as:
"Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
12. In [ENTITY]'s Advanced Law Lexicon, 3rd edition, at page 3026, the term 'Misconduct' has been defined as under:
"The term misconduct implies a wrongful intention and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct."
11. The contention of AR for the management is that the workman has been given appropriate punishment which is commensurate with the act of Contd
misconduct committed by him and the same is also necessary in order to maintain discipline in the organization/management and for giving maximum benefit to the public who are the consumers of services provided by the management.
12. In [PRECEDENT], Hon'ble Supreme Court held:
29. This Court has come a long way from its earlier view points. The recent trend in the decisions of this Court seek to strike a balance between the earlier approach of the industrial relation wherein only the interest of the workmen was sought to be protected with the avowed object of fast industrial growth of the country. In several decisions of this Court it has been noticed that how discipline at the workplaces/industrial undertaking received a set back. In view of the change in economic policy of the country, it may not now be proper to allow the employees to break the discipline with impunity. Our country is governed by rule of law. All actions, therefore, must be taken in accordance with law. Law declared by this Court in terms of [SECTION] of the [ACT], as noticed in the decisions noticed supra; categorically demonstrates that the Tribunal would not normally interfere with the quantum of punishment imposed by the employers unless an appropriate case is made out therefor. The Tribunal being inferior to that of this court was bound to follow the decisions of this Court which are applicable to the fact of the present case in question. The Tribunal can neither ignore the ratio laid down by this Court nor refuse to follow the same.
Contd
13. In [PRECEDENT], it was held that normally, courts do not substitute the punishment unless they are shockingly disproportionate but such an exercise of the extraordinary jurisdiction by the High Court amounted to abuse of the process of court.
14. In [PRECEDENT] (Supra) it was held that imposition of punishment on an employee is the function of the Employer/Management and as such, the interference by the High Court with the quantum of punishment should not be done in a routine manner.
15. In the present case the charges against the workman were that he had remained unauthorizedly absent from duties from 30.3.1998 to 6.6.1998 which shows negligence towards duties and his lack of interest in the duties. AR for management has relied on [SECTION] dated 08.04.1968 of management which provides penalties for major offences/irregularities under Clause 15 of the [ACT] as per which punishment of stoppage of increment without/with cumulative effect can be imposed for offence of habitual negligence and lack of interest in performance of duties. The workman has not appeared in the witness box in order to prove that the punishment imposed on him is disproportionate to the charges proved against him. Hence, the workman has failed to prove that the punishment of stoppage of next due one increment without cumulative effect imposed upon him vide order dated 19.12.2001 is illegal and/or unjustifiable. Consequently, the Contd
workman is not entitled to any relief. Reference stands answered accordingly. Copies of the award be sent to appropriate Government for publication as per law. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT.
TODAY i.e. ON 22.04.2008.
([ENTITY]) PRESIDING OFFICER LABOUR COURT NO. XVII KARKARDOOMA COURTS, DELHI 22.04.2008 Present:- None.
Award dictated and announced, separately. Copies of the award be sent to appropriate Government for publication as per law. File be consigned to Record Room.
POLC/22.04.2008