M.C.D. vs Daya Nand And Anr.
2003 Latest Caselaw 1363 Del

JUDGMENT

Mukul Mudgal, J.

1. This writ petition challenges the Award dated 20th May, 1999 passed by the Labour Court-IV, Delhi in I.D. No. 236/1989. By the impugned Award the compulsory retirement of the petitioner was set aside and the petitioner management was directed to reinstate the respondent No.1 with full back wages and continuity of service.

2. The petitioner was visited with the punishment of compulsory retirement and had been working from 1966 with MCD as Chowkidar and was regularized in 1972. By order dated 8th November, 1979 he was served with a Memorandum of charge-sheet dated 7th October, 1980 alleging that in two instances ceiling fans were stolen resulting in a pecuniary loss to the petitioner. Violation of Rule 3 of the CCS (Conduct) Rules, 1964 was also alleged. Upon the conducting of an enquiry pursuant to a show cause notice dated 16th April, 1982 and upon perusing the reply of the respondent No.1, the penalty of compulsory retirement challenged before the Labour Court was imposed on 4th January, 1983. A review petition was submitted by the respondent No.1/workman and the Standing Committee of the petitioner Corporation set aside the punishment of compulsory retirement but the Commissioner of the petitioner Corporation did not implement the decision of the Standing Committee of the MCD.

3. On the issue of fairness of the enquiry, the Labour Court found that the several opportunities were given to the management but the opportunities were not availed of and the evidence of the management was accordingly closed. The respondent No.1 came into the witness box and averred as follows:-

(a) that he was not permitted by the Enquiry Officer to lead his evidence and

(b) that the enquiry was held in violation of principles of natural justice and fair-play;

In view of the fact that the fairness of the enquiry was not proved by the petitioner Corporation, the claim of the respondent No.1/workman was allowed and the impugned Award dated 20th May, 1999 passed by the Labour Court was passed.

4. Even after the impugned award dated 20th May, 1999 was passed, the respondent No.1 was compelled to file a complaint dated 28th August, 2000 under Section 2(ra) read with Item No.13 of Schedule V of the Industrial Disputes Act, 1947(in short the `ID Act') for the non-implementation of the award dated 20th May, 1999. It is only when the said complaint was filed, that the petitioner Corporation filed the present writ petition in August, 2000 against the award dated 20th May, 1999. Thus it is evident that the petitioner has not only been indifferent to the proceedings before the Labour Court but also thereafter as evident from the fact that the respondent No.1 was compelled to take recourse to the proceedings under Section 2(ra) of the ID Act.

5. In so far as the question of appropriate Government raised by the petitioner is concerned, in view of the judgment of this Court in Municipal Corporation of Delhi Vs Mahavir reported as 2002 VII AD (DELHI) 593 wherein the Division Bench has held that the issue of appropriate government being the Central or the State Government does not survive in the Union Territory such as Delhi.

6. Even though the petitioner MCD did not prove the validity of the enquiry due to its indifferent attitude, in order to satisfy myself the MCD was directed to produce the enquiry papers. A perusal of the Enquiry Report produced at the direction of this Court shows the far from being admonished the petitioner deserved to be commended as in trying to prevent the theft on 9th September, 1979 he was attacked with a knife and sustained serious injuries. Here was a case where the respondent No.1/workman had suffered knife blows on his person in an attempt to prevent theft and was thus a dilligent and brave employee and the enquiry officer in an amazing display of hair-splitting has sought to disbelieve this on the ground of an alleged contradiction about the portion of the body the injuries were suffered at. The enquiry officer's perversity is further evident from the fact that the Chowkidar's statement that he attacked the intruder with a lathi is disbelieved only because the petitioner Corporation had not issued any lathi to him. It does not require a fertile imagination to conclude that a chowkidar, by the very nature of his job would be required to have a lathi, whether or not issued by the MCD. This discloses a totally perverse attitude of the petitioner-Corporation, displaying brazen disregard for decency and fair-play. Whatever be the effect of the report of the Standing Committee, its recommendation was made by the elected representatives. Whether or not such a recommendation of the Standing Committee was determinative of the delinquency of the respondent No.1/workman, it certainly demonstrated recognition of his courageous act and at least ought to have been considered as one of the relevant factors by MCD.

7. Accordingly there is no merit in the writ petition which is dismissed with costs quantified at Rs.15,000/- payable to the respondent No.1 within six weeks from today in view of the obdurate and unfair stand adopted throughout by the petitioner MCD. Since there is an interim order dated 16th January, 2001 which subsisted for about 3 years, the petitioner is directed to reinstate the respondent no.1 on or before 31st December, 2003 with all consequential benefits which may have become available to respondent No.1 during the period when proceedings were pending in the labour court or this Court and it is further directed to pay all emoluments arising from the award dated 20th May, 1999 on or before 31st December, 2003. In case emoluments as determined by the award dated 20th May, 1999 are not paid on or before 31st December, 2003 they shall carry interest @ 10% per annum.