D.T.C. vs Prem Nath & Ors. Through Lrs
2013 Latest Caselaw 132 Del

20.

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       Date of Decision: 09.01.2013

%                   W.P.(C) 5785/2001 & CM No.9917/2001

      D.T.C.                                               ..... Petitioner
                             Through:    Ms. Arati Mahajan and Mr. Anand
                                         Kumar, Advocates

                    versus

      PREM NATH & ORS. THROUGH LR'S          ..... Respondent
                   Through: Mr. Tarun Sharma, Advocate


      CORAM:
      HON'BLE MR. JUSTICE VIPIN SANGHI

VIPIN SANGHI, J. (ORAL)

1. The petitioner assails the award dated 13.07.2000 passed by Sh. O.P. Gupta, Presiding Officer, Labour Court IX, Tis Hazari Courts, Dellhi in ID No.184/89, 96/95. The said claim arose out of a reference made by the Government vide Notification No.F.24(904)/89-Lab./8359-64 dated 10.03.1989, terms whereof read as follows:

"Whether the termination of services of Sh. Prem Nath is illegal and/or unjustified, and if so, to what relief is he entitled and what directions are necessary in this respect?"

2. The original respondent/workman Prem Nath filed his statement of claim, wherein he claimed that he was appointed as Driver on daily wages w.e.f. 08.08.1984. He was brought on monthly rate of pay vide office order dated 01.05.1985. After expiry of more than one year, the management extended his probation vide letter dated 13.08.1986.

3. The case of the respondent/workman was that his services were terminated vide communication dated 02.02.1987 and claimed that the same was punitive. The respondent claimed that a charge sheet was issued to him on 01.09.1986, alleging that on 29.07.1986 while performing duty on Bus No.8490 he parked the same wrongly at Jheel and misbehaved with the supervisor on duty and thereby committed an act of insubordination and disobedience. The respondent claimed that he had submitted his reply to the said charge sheet. However, this enquiry was not taken any further and the termination letter was issued by placing reliance on clause 9(a)(i) of the Delhi Road Transport Authority (Conditions of Appointment and Services) Regulations, 1952. The respondent claimed that no enquiry was held and the charge sheet which was made the foundation for passing the impugned order dated 02.02.1987. Consequently, it was claimed that the order of termination was in violation of section 25F, G, H of the Industrial Disputes Act.

4. The petitioner filed its written statement. Apart from raising preliminary objection to the maintainability of the said claim petition, the petitioner also pleaded that the workman was appointed on probation for one year w.e.f. 08.02.1985 which was extendable upto two years. Vide memo dated 13.08.1986, the same was extended for six months upto

07.02.1987, along with an advice to improve his attendance. A copy of the said memo extending probation of the respondent dated 11.06.1986 has been placed on record along with the petitioners rejoinder.

5. The petitioner further pleaded that the respondent availed of 42 days leave without pay during the extended period of probation. Prior to extension, the respondent had availed of 37 days leave without pay. It would, therefore, be seen that out of a period of about six months, for which the probation was extended on 13.08.1986, the respondent was on leave without pay for nearly 1 ½ months. The petitioner also pleaded that a case of accident under section 279/337 IPC dated 22.04.1985 was pending in which the accident committee of the petitioner had found the respondent at fault. In the aforesaid circumstances, the petitioner decided to terminate the services of the respondent, who was admittedly on probation, by resort to clause 9(a)(i).

6. The industrial adjudicator has allowed the respondents claim and, if I may so, the reasoning adopted by him is not only contradictory but borders on perversity. Admittedly, the charge sheet issued by the petitioner to the respondent was not taken to its logical conclusion. However, the conduct of the respondent in being on frequent leave was itself sufficient to give a reason to the petitioner to discontinue the respondents probation.

7. The reliance placed by the Labour Court on State of Punjab vs. Bakshish Singh, JT1998(7)SC172/AIR 1999 SC 2626 appears to be misplaced in view of the subsequent judgment of the Supreme Court in DTC vs. Sardar Singh, (2004) 7 SCC 574,wherein the Supreme Court has, on the basis of the applicable regulations held that absence without

obtaining prior leave tantamount to misconduct. When the management takes a decision whether, or not, to continue the probation, or to confirm or relieve the probationer, the management is entitled to look into the overall service record of the employee, which would obviously include all his past conducts and involvements. The factum of an accident having taken place at the hands of the respondent, and his involvement in a case under the IPC for rash and negligent driving, as well as the alleged behavior and demeanor could have validly been considered, apart from his conduct of frequent abstention from work. Merely because the management may not have proceeded with the charge sheet, and terminated the respondents services while under probation instead, it cannot be inferred that such termination during the period of probation is punitive. The management is entitled to assess the efficiency, regularity, sincerity of the probationer and also gauge his propensity to get involved in criminal or disciplinary misconduct while deciding whether, or not, to continue with the services of the probationer. Pertinently, the respondent did not plead or prove a case of any personal malafides or vindictive conduct on the part of any officer of the management. If the approach adopted by the industrial adjudicator in the present case were to be accepted, it would become more difficult to dispense with a probationer in respect of whom the management may have had a larger number of undesirable experiences than a probationer who may have presented a lesser number of such situations.

8. The finding of the Labour Court that the termination of the respondents service cast a stigma on him has no basis. A perusal of the order of termination shows that the same does not make any allegation of

misconduct against him. The said communication dated 02.02.1987 reads as follows:

"Delhi Transport Corporation (A Govt. of India Undertaking) Patparganj Depot, Delhi.

No.PPG/PF/DR/87/652 dated 02.02.1987

The services of Shri Prem Nath S/o Sh. Sukhdeva Ram, Driver B. No.14888 Pay token No.47737 are hereby terminated w.e.f. 3.2.1987 under clause 9(a)(i) of the DRTA (Conditions of Appointment and Service) Regulations 1952. A cheque No.699024 dated 30.1.87 for Rs.2519.00 paise (Rupees Two thousand five hundred nineteen only) being notice salary plus retrenchment compensation is also enclosed.

He is required to deposit all the DTC articles in his possession within 24 hrs of the receipt of the memo or of his being relieved whichever is earlier. Non deposit of DTC articles i.e. Identity card, Badge, Medical card etc., by him will render him liable to pay a penalty of Rs.2/- per day if he keeps any of the DTC articles in his possession after the specified period of 24 hours in accordance with instructions as contained in Office Order No.21 dated 27.1.54.

Depot Manager"

9. It goes without saying that if the management decides not to confirm a probationer and decides instead to discontinue his services during the period of probation, the management would have some cause for dissatisfaction with regard to the service and conduct of the probationer. This does not mean that the management must, in every such case, initiate

an enquiry to establish the reasons for the said dissatisfaction regarding the services of the probationer. The management cannot be asked to provide its justification for terminating the services of a probationer by requiring it to undertake such an exercise. Of course, any action actuated by established malafides would be set aside, but those are exceptional cases where the onus would heavily lie on the probationer to establish the existence of such malafides.

10. It also cannot be said that merely because services of the probationer is terminated during probation, the termination is stigmatic. Pertinently, the Labour Court in para 13 of the impugned award itself observes that the conduct of the respondent was not appreciable. The Labour Court observes that "When he was not interested in pay while on duty and he preferred to avail leave without pay, there is no justification for granting him back wages for the period he was not working". This finding of the Labour Court clearly shows that there was no issue with regard to the fact that the respondent was on unauthorized leave even during the extended period of probation for as many as 42 days in a period of about six months.

11. I do not find any force in the submission of the respondent that because the accident had taken place on 22.04.1985, and thereafter he was granted extension of probation, the said fact could not have been taken into consideration while considering the issue whether the respondents services should be discontinued or he should be confirmed. It cannot be said that merely because he was given further opportunity and time to improve his services, his past inefficiencies and poor conduct got washed out.

12. For the aforesaid reasons, I am of the view that the impugned award cannot be sustained and the same is accordingly quashed and set aside. The parties are left to bear their own respective costs.

VIPIN SANGHI, J.

JANUARY 09, 2013 sr