LAWS(DLH)-2015-11-245

DELHI TRANSPORT CORPORATION Vs. GULAB SINGH

Decided On November 24, 2015
DELHI TRANSPORT CORPORATION Appellant
V/S
GULAB SINGH Respondents

JUDGEMENT

(1.) The challenge in this writ petition under Articles 226 and 227 of the Constitution is for setting aside the impugned award dated 07.04.2011 passed by POLC VII, Karkardooma Courts, Delhi in ID No.382/98/2010.

(2.) The brief facts as borne out from the record is that the respondent (hereinafter referred to as 'the workman') was appointed as driver with effect from 02.09.1998 with the petitioner (hereinafter referred to as 'the corporation'). He availed excessive leaves during the period 1989 to 1993 for the period ranging 63 days in the year 1990, 81 days in the year 1991 and 129 days in the year 1992. He was cautioned in the year 1990 for remaining absent from his duties for 14 days and for which a punishment was also awarded for reduction in one increment. The workman was issued charge-sheet dated 19.03.1993 for remaining unauthorizedly absent with effect from 22.11.1992 to 03.12.1992 without any prior information and permission of the competent authority thus amounting to misconduct under para 4(ii) and (M) of the Standing Orders governing the conduct of DTC Employees. An enquiry was conducted against the workman. On conclusion of enquiry the Enquiry Officer gave findings against the workman. A show cause notice dated 05.07.1993 was issued to the workman on the basis of enquiry findings and past record of the workman. He was removed from the service of the corporation vide letter dated 23.08.1993. After the matter failed before the Conciliation Officer, the same was referred by the Secretary (Labour) State Govt. vide order dated 10.08.1998 and thereafter, the respondent filed statement of claim before the Labour Court stating therein that he fell sick on account of typhoid with effect from 22.11.1992 as such applications for leave were sent to depot manager from time to time. He remained under treatment in government hospital. The medical certificate and fitness certificate was submitted at the time of joining duties. He was directed to be examined by the medical officer of the corporation and on receipt of the report of the medical officer for his sickness and fitness he was allowed to resume duties. The enquiry conducted against the workman was not in accordance with the principles of natural justice. The corporation did not properly consider the case of the workman and removed him from service without getting the reply of the show-cause memo and the removal is illegal and unsustainable in law. The corporation filed its written statement on 03.06.1999 claiming that the workman was removed from service of the corporation after holding a proper and valid enquiry. Reference was answered in favour of the workman on 22.01.2001 by holding that services of the workman had been terminated illegally by the corporation and he was directed to be reinstated with continuity of service and full back-wages. The management challenged the award dated 22.01.2001 by filing writ petition being W.P.(C) No. 1267/2002. Vide order dated 06.04.2005, the award was set aside and the matter was remanded back for passing fresh order in the light of the judgment passed by the Hon'ble Supreme Court in DTC v. Sardar Singh, 2004 7 SCC 574. Thereafter, the corporation examined two witnesses. The workman also filed his affidavit. Vide order dated 30.03.2011 it was held that the corporation has been able to prove misconduct on the part of the workman for remaining absent from duties unauthorizedly from 22.11.1992 to 03.12.1992 and lack of interest in the working of the corporation. However, while deciding the quantum of punishment, vide award dated 07.04.2011 it was observed that the punishment of the removal from job is harsh and disproportionate to the misconduct proved against the workman as such he was directed to be reinstated to his job with the rider that he shall be entitled to half of the back wages for the period he has not worked with the management and he was entitled to all other consequential benefits. Feeling aggrieved, the present writ petition has been filed by the corporation challenging the award dated 07.04.2011.

(3.) Learned counsel for the petitioner corporation submits that the charge-sheet was submitted to the workman for remaining unauthorizedly absent during the period 22.11.1992 to 03.12.1992. At the time of submitting the charge-sheet itself it was made clear to the workman that his past record will also be considered. Reference was made to the above record for submitting that although the workman was appointed as a driver on 02.09.1988, however, immediately thereafter he availed excessive leaves from the period 1989 to 1993 for the period ranging 63 days in the year 1990 and 81 days in the year 1991 and 129 days leave in the year 1992 for which punishment was imposed upon him by cautioning him and reducing one increment, but he did not improve his conduct and again remained unauthorizedly absent during the year 1992. Even the Labour Court found that the unauthorized absence of the workman to join duties tantamount to misconduct yet it was held that he was entitled to reinstatement in service with 50% back-wages. Thus, the punishment of removal from service was not disproportionate to the misconduct and, therefore, the impugned order suffers from infirmity and deserves to be set aside. Reliance was placed on DTC v. Sardar Singh ; L&T Komatsu Ltd. v. N. Udayakumar, 2008 1 SCC 224 and a judgment delivered by this Court in Delhi Transport Corporation v. Shri Om Dutt, [W.P.(C) No.3602/2010, decided on 14.08.2015].