Vijay Pal Singh vs N.D.M.C.
2007 Latest Caselaw 410 Del

JUDGMENT

Hima Kohli, J.

1. The petitioner has assailed the Award dated 7th April, 2004 passed by the Presiding Officer, Industrial Tribunal in ID No. 143/2001 holding that the petitioner workman was not entitled to any relief of reinstatement and regularization.

2. It would be appropriate to narrate the facts in brief:

The petitioner workman was employed as a muster roll employee with the respondent NDMC with effect from 1st June 1983. He worked on the said post till 19th June, 1993 and his services were terminated on 20th June, 1993 on the ground that he was implicated in a case of stealing sprinkling valves. Charges were framed under Sections 379/411 of the Indian Penal Code and the said case was decided on 6th August, 1994 whereunder the petitioner workman was convicted. However, the petitioner workman was released on probation on 8th August, 1994. The petitioner workman made several representations to the respondent NDMC for taking him back into service, both before and after his release. In response, vide letter dated 30th August, 1996, the Director of Horticulture rejected the prayer of the petitioner workman. Pursuant to this, the petitioner workman made further representation to the Vice-Chairman of the respondent Council and thereafter raised an industrial dispute. In the said proceedings, the Learned Presiding Officer vide award dated 7th April, 2004 decided the reference against the petitioner workman and held that not only was the termination not illegal, but that the petitioner workman was not a fit person to be given a fresh appointment.

3. Learned Counsel for the petitioner workman submits that since the petitioner workman was released on probation, he did not suffer from any disqualification attached to conviction, keeping in view Section 12 of the Probation of Offenders Act 1958. In this regard, reliance was placed on the following judgments:

(i) Iqbal Singh v. Inspector-General of Police and Ors. .

(ii) Gulzar v. State of M.P. 2007 I A.D. (SC) 513.

4. Learned Counsel for the petitioner workman further contends that the termination order itself was void, as it was in violation of Sections 25F and 25G of the Industrial Disputes Act, 1947. It was stated that his services were verbally terminated on 20th June, 1993 without making any enquiry and without even serving him with a charge-sheet. Hence principles of natural justice were also violated by the respondent NDMC. It is claimed that the petitioner workman was given an assurance by the respondent NDMC that he would be reinstated depending on the outcome of the case pending against him. Mala fides are also alleged against the respondent NDMC and it is submitted that while his juniors have been retained and even regularized in service, he has been thrown out.

5. Contrary to the submissions made by the counsel for the petitioner workman, learned Counsel for the respondent NDMC states that the petitioner had been held guilty of the offence under Section 379 of the Indian Penal Code and had been convicted for an offence of theft of the property of respondent NDMC and as such is not entitled to any relief, he being only a daily rated muster roll employee. Further, it is denied that any assurance as alleged or otherwise, was ever given to the petitioner workman that he would be reinstated depending on the outcome of the case. It is also submitted that the petitioner never even reported for work after 16th June, 1993.

6. While strongly supporting the impugned award, learned Counsel for the respondent NDMC submits that merely because the Magistrate did not choose to pass any sentence on the petitioner after having convicted him, does not mean that the stigma of conviction is completely washed out or obliterated or that no disciplinary action could be taken against the petitioner workman.

7. Having heard the counsels for the parties, and having gone through the impugned award and the records of the case, I find that the petition is completely devoid of merits.

8. Firstly, the petition suffers from gross delay and latches. While the impugned award was passed in April 2004, the present petition has been filed only in January 2007, i.e., after a lapse of more than two and a half years and no explanation whatsoever, much less just and sufficient cause, has been given for the said delay in filing the present petition. It is pertinent to mention here that even the proceedings in the Industrial Tribunal were initiated after a delay of almost seven years, i.e., while the termination was made in the year 1993, the dispute was raised only in October, 2001. No reason was given even there for the delay in initiating the proceedings. It therefore appears that the petitioner workman has never been diligent in pursuing the matter; he has shown lack of diligence not only at the stage of filing this writ petition, but even at the stage of raising the industrial dispute before the Tribunal.

9. Even on merits, the petition cannot stand. Admittedly the petitioner workman was a daily wager and did not have any permanent right against the post that he was working on. His contention that while he has been thrown out of service, many of his juniors have been promoted and regularized, is misconceived. Being a daily wager, he does not have any right to be regularized. Furthermore, the petitioner workman was removed from service by the respondent NDMC, pursuant to his having been implicated on charges of theft. Since the termination of the petitioner workman was in nature of a punishment inflicted on him by way of a disciplinary action, the same is not a case of retrenchment. Considering that retrenchment is a precondition for applicability of Section 25F and Section 25G and that in the present case there has been no retrenchment, the petitioner workman cannot claim that the termination is illegal for non-compliance of the aforesaid provisions.

10. Moving on to the next contention of the petitioner workman regarding the fact that since he was released on probation after being convicted, he did not incur any disqualification as per Section 12 of the Probation of Offenders Act, 1958, this question raised in the petition is no longer res integra and has been authoritatively settled by the Supreme Court in the case of Union of India and Ors. v. Bakshi Ram reported as , wherein it was held as under:

In criminal trial the conviction is one thing and sentence is another. The departmental punishment for misconduct is yet a third one. The Court while invoking the provisions of Sections 3 and 4 of the Act does not deal with conviction; it only deals with the sentence which the offender has to undergo. Instead of sentencing the offender, the Court releases him on probation of good conduct. The conviction however, remains untouched and the stigma of conviction is not obliterated. In the departmental proceedings the delinquent could be dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge.

Section 12 of the Act does preclude the department from taking action for misconduct leading to the offence or to his conviction thereon as per law. The Section was not intended to exonerate the person from departmental punishment. The question of reinstatement into service from which he was removed in view of his conviction does not therefore, arise. That seems obvious from the terminology of Section 12.

11. The Industrial Adjudicator rightly observed that the offence for which the petitioner workman was convicted, was that of theft, and that too of the property belonging to the respondent NDMC itself. The said offence was neither trivial, nor of a technical nature. It is not only an act involving moral turpitude, but also leads to the loss of confidence on the part of the respondent NDMC.

12. Last but not the least, it has been observed in the impugned award that once the petitioner workman was caught stealing sprinkling valves on 19th June, 1993, he never reported for duties thereafter. This fact has been recorded on the basis of the averments made by the petitioner workman in his own affidavit.

13. It is established from the records that the petitioner workman sought a fresh appointment with the respondent NDMC but the same was declined. In fact, an appeal was preferred by the petitioner workman in this regard which was also rejected. It has, therefore, been held in the impugned award that the petitioner workman had been granted an opportunity of hearing even after his conviction and release on probation and the respondent NDMC not only found the termination of the petitioner workman to be correct, but was also of the opinion that he was not fit to be given a fresh appointment.

14. In view of the facts and circumstances of the case and the position of law, I find no infirmity or irregularity in the impugned award. The petition being devoid of merits, is hereby dismissed. No order as to costs.