Delhi High Court
East Delhi Municipal Corporation ... vs Sanjay Upadhyay on 18 February, 2020
$~63
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 18.02.2020
+ W.P.(C) 1877/2020, CM APPL. 6600/2020 & CM APPL. 6601/2020
EAST DELHI MUNICIPAL CORPORATION THROUGH: ITS
COMMISSIONER ..... Petitioner
Through: Mr. Kumar Rajesh Singh, Standing
Counsel with Ms. Punam Singh,
Advocate.
versus
SANJAY UPADHYAY ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. This petition impugns the order dated 27.09.2019 passed by the
learned Labour Court in LCA No. 48/2016 (Old LCA No. 51 of 2013),
directing the petitioner to pay the workman-respondent monies for a certain
period in terms of para 11 thereof. Its rationale for doing so is as under:
"To what amount, if any, the claimant is entitled to
recover from the management ? OPW"
Onus to prove this issue was upon the workman. The
claimant has claimed payment 2uid (sic) Sept. 2-12 to 28th Oct.
2015 and has submitted the estimate of Rs. 11,55,340.46
(Rupees Eleven Lakh Fifty Five Thousand Three Hundred Forty
and paise Forty Six). However, the claimant as witness WW- 1
has admitted in his cross-examination:
'It is correct that I have not worked with the Management
w.e.f. September 2012 to October 2015. (vol. The Management
did not allow me to work.). I made several complaints to the
Deputy Commissioner Shahdra North Zone, Delhi, in this
regard. I was permitted to resume my work on 29.10.2015 and
since, I am getting salary on tune."
The management witness Sh. Akhilesh Kumar (Asstt.
Engineer (E&M)-II, EDMC Deihi-i 10096) has deposed that the
workman is a regular employee and his services are governed
by the CCS Rules. It is further deposed that the workman was
suspended vide order dated 17.06.2009 vide office order No.
1297/Ac with RDA Major Penalty and reinstated later on. The
workman was charge-sheeted vide No.281 dated 26/08/1996
and this time also he remained absent from the duty without
prior intimation to the management and no joining report was
given by the workman to the management.
It is the case of the management that the workman was
not paid salary since the month of Sept. 2012 because he
neither filled the joining report nor submitted his fitness
certificate. The workman was asked to file a proper application
for his period of absence but the workman did not do so. It will
be pertinent to note that the workman was reinstated and
allowed to join his duties w.e.f. 29.10.2015 on his furnishing of
Affidavit regarding his non-involvement in any criminal
activities I FIR etc. and also regarding his non-employment in
any Govt. / Semi Govt. department.
The manage-EDMC (sic) has placed a letter dated
27.11.2015 with No. EE(Auto)I Shd./EDMC/2015/1 106 vide
which it has been mentioned that Sh. Saanjay Upadhyay had
already been transferred and received to the office of Central
Workshop Jhandewalan an LPC has already been sent to AO
central workshop therefore no record I documents of Sh. Sanjay
Upadhyay were available with the EDMC office. By adducing
this letter the management-herein has shown that no further
efforts were made / on its part to call for the record. Be that as
it may. The onus to prove its assertion had laid on the
management which it failed to discharge.
The workman on the other hand has been able to show
that he had written various communications to the management
from time to time regarding his leave and subsequent joining.
Detailed explanation was given by the workman therein in the
foll owing letters:
1. Ex. WW-1/A (OSR)- Letter with the receiving dated
08.10.2012. It also shows the receiving vis-a-vis the other the
officials;
2. Ex. WW-1/B (OSR) - Letter with the receiving dated
07.11.2012;
3. Ex. WW-1IC (OSR) - Letter regarding no action on the
previous letters dated 08.10.2012; 07.11.2012
4. Ex. WW-1/D (OSR) - RTI application;
5. Ex. WW-1/E (OSR) - Letter with the receiving no.232;
6. Ex. WW-1IF (OSR) - Legal Notice.
During the cross-examination the witness MW-1 (Sh.
Akhilesh Kumar - Asst. Engineer (E&M)-II EDMC has
admitted:
".... It is correct that the log sheet is maintained for the
workman in EDMC and I verify it every day. it is correct that
the log sheet dated 26-9-2012 bears the signature of workman.
Vol. That the signatures of the workman are unauthorized and
without permission / intimation to the department. It is correct
that I was posted as Junior Engineer at EDMC in 2012 and the
workman are required to submit their application for leave o
JE. Vol. I did not receive any leave application / intimation
from the workman It is correct that if the workman goes on
leave the AE processes the case for further action against the
workman and all the proceedings are done in writing...'
In the present case the management-EDMC has not
produced any record in writing of any action taken against the
workman and kept the workman away from duty (by not letting
him re-join) for three years Sept. 2012 till Oct. 2015. Thus the
issue No.1 is decided in favour of the workman and against the
management-herein."
2. What emanates from the preceding discussion is that the petitioner
itself had kept the workman-respondent away from his work, by not letting
him rejoin for three years i.e. from September 2012 to October 2015. The
petitioner's choosing to do so is unexplained. It would, therefore, be liable
for payments to the workman as per law as directed in the impugned order.
It is not the case of the petitioner that the workman did not present himself
for work. The latter's various letters to the petitioner testify to his repeated
efforts to report to work and to his entitlement to his just remuneration.
3. This petition raises no reason for interference with the impugned
order. It is without merit and is accordingly dismissed, alongwith pending
applications.
NAJMI WAZIRI, J
FEBRUARY 18, 2020
AB
