Showing posts with label Reinstatement. Show all posts
Showing posts with label Reinstatement. Show all posts

Friday, October 4, 2019

Lalit Kumar Vs. New Delhi Institution of Management & Anr. | Case No. 796/1024/2019/03/6275-6277 | Dated:03.10.2019




In the Court of State Commissioner for Persons with Disabilities
National Capital Territory of Delhi
25- D, Mata Sundari Road, Near Guru Nanak Eye Centre, New Delhi
Phone-011-23216002-04, Telefax: 011-23216005,
[Vested with powers of Civil Court under the
Rights of Persons with Disabilities Act, 2016]
Case No. 796/1024/2019/03/6275-6277                         Dated:03.10.2019
In the matter of:
Sh. Lalit Kumar S/o Sh. Latur Singh
D-85, West Vinod Nagar,
Delhi-110092                                                                   ...........Complainant
Versus

The Chairman,
New Delhi Institution of Management,
B-50 & B-60, Tughlakabad Institutional Area,
Near Batra Hospital, New Delhi-110062                ….......…Respondent No. 1

The Deputy Labour Commissioner,
Labour Department
Pushpa Bhawan, Pushp Vihar
New Delhi-110062.                                               ….......…Respondent No. 2


Date of hearing:       30.09.2019
Present:                    Sh. Lalit Kumar alongwith Sh. Raj Kumar and Sh. Latur Singh, complainant

ORDER
             
              The above named complainant, a person with more than 40% locomotor disability in his left upper limb and right lower limb vide his complaint dated 11.03.2019 submitted that he was working in New Delhi Institute of Management, F-13, Okhla Industrial Area, Phase-1, New Delhi-110020 as an Office Attendant since 18.08.2009.  He was removed from service on 20.07.2018 without any notice, payment of salary, Gratuity, P.F. & arrears, etc.  The action of the NDIM was arbitrary, mala fide and intended to victimize a person with disability.  He has also filed a complaint before the Labour Court, Pushp Vihar, New Delhi. 

2.            The complaint was taken up with the respondents vide notice 18.03.2019 under the Rights of Persons with Disabilities Act, 2016, hereinafter referred to as the Act.  The complainant later on informed that the institution at the given address had been closed and shifted to its new location at B-50 and B-60, Tughlakabad Institutional Area, Near Batra Hospital.  A copy of the notice was forwarded to the new address vide letter dated 08.05.2019. 

3.            Sh. V.K. Rao, Labour Officer (S) on behalf of respondent No. 2 submitted vide reply dated 11.07.2019 that the complainant had filed his grievance through a Labour Union in the office of the Joint Labour Commissioner (Distt. South).  Concerned Labour Inspector took up the matter and an action taken report was forwarded to the complainant with advice to file the claim for termination before Conciliation Officer.  As no settlement could be arrived at during the course of conciliation proceedings, the matter was referred to the Hon’ble Labour Court, Room No. 307, Court Complex, Rouse Avenue, New Delhi for adjudication vide a reference order no. F-24(276)/Lab./SD/2019/15893-15895 dated 02.07.2019.  

4.            As there was no response from respondent no. 1, a hearing was scheduled on 02.09.2019.  During the hearing, Sh. Madan Kumar, Administrative Officer appeared on behalf of Chairman, NDIM and submitted that because of some bereavement in his family, advocate could not come and he himself did not have any idea about the reason why the written submissions had not been filed on behalf of respondent No. 1.  He sought 20 days time to file written submissions.

5.            Sh. K.M. Singh, Deputy Labour Commissioner submitted that the reply dated 11.07.2019 has already been submitted and now he has no role to play as the matter has been referred to Hon’ble Labour Court for adjudication, which was accepted. 

6.            The complainant submitted that he is out of job since August, 2018 and has a family comprising his wife and a daughter to feed.  He is completely dependent on the disability pension Rs. 2500/- per month from the Department of Social Welfare and the support from his parents. 

7.            It was brought to the notice to respondent No. 1 that the Act has been enacted to give effect to the United Nations Convention on the Rights of Persons with Disabilities and its basic principles are non-discrimination, full and effective participation and inclusion of persons with disabilities in the society among other things.  Section 21 of the Act also mandates every establishment including the private establishments that include NDIM to notify Equal Opportunity Policy for Persons with Disabilities detailing measures proposed to be taken to ensure and protect employment of persons with disabilities.  Rule 12 of the RPwD Rules, 2017 and the Delhi RPwD Rules, 2018 provide:-

“(1) Every establishment shall publish equal opportunity policy for persons with disabilities within a period of six months from the notification of these rules.

(2) The establishment shall display the equal opportunity policy preferably on their website, failing which, at conspicuous places in their premises.

(3) The equal opportunity policy of a private establishment having twenty or more employees and the Government establishments shall inter alia, contain the following, namely:-
(a) Facilities and amenities to be provided to the persons with disabilities to enable them to effectively discharge their duties in the establishment;
(b) list of posts identified suitable for persons with disabilities in the establishment;
(c) the manner of selection of persons with disabilities for various posts, post-recruitment and pre-promotion training, preference in transfer and posting, special leave, preference in allotment of residential accommodation if any, and other facilities;
(d) provisions for assistive devices, barrier-free accessibility and other provisions for persons with disabilities;
(e) appointment of liaison officer by the establishment to look after the recruitment of persons with disabilities and provisions of facilities and amenities for such employees.

(4) The equal opportunity policy of the private establishment having less than twenty employees shall contain facilities and amenities to be provided to the persons with disabilities to enable them to effectively discharge their duties in the establishment.”


8.            Section 89 of the Act provides for penalty which may extend to Rs. 5 Lakh for contravention of any provision of the Act and Section 93 provides for fine for failure to furnish information which is Rs. 25000/- in respect of each offence and in case of continued failure or refusal, with further fine which may extend to Rs. 1000/- for each day of continued failure or refusal. 

9.            Respondent No. 1 was directed to file his/her written reply by 09.09.2019 and also to make efforts to reinstate the complainant at its main branch at Tuglakabad.  It was also advised that in case it was not possible to do so, then the complainants dues/compensation should be released and an action taken report be submitted by 09.09.2019. 

10.          A copy of the RoP was also forwarded to Sh. Vijay Singhal, Presiding Officer, Labour Court, Rouse Avenue, New Delhi with a request to dispose of the matter before him as early as possible, considering the situation of the complainant. 

11.          Sh. R.K. Jaiswal, Authorized Representative of NDIM on behalf of respondent No. 1 vide reply dated 14.09.2019 has submitted as under;


In the above case, as directed by your communication dated July 31, 2019, our authorised representative was present in your court on Sep 2, 2019.  A written reply documenting the relevant facts is being submitted.

(i)           Mr. Lalit Kumar was employed with ‘New Delhi Institution of Management’, F-13, Okhla Industrial Area, New Delhi since Aug 2009.  He was hired out of our own will, without any compulsion, with full knowledge of his partial disability and without any discrimination.  If the intent was ever to victimise Mr. Lalit Kumar for his disability why would he be hired in the first place. 
(ii)          During his tenure of service with this office, he was given full salary and increments.  He was given all other facilities at per with other employees in a similar job role. 
(iii)         In July 2018, Mr. Lalit Kumar started taking extended, uninformed leaves from the office.  When asked telephonically for his reason of absence, because work was suffering badly, he kept quoting his mother’s cancer treatment as his reason for continued unapproved absence and kept requesting for additional leaves.  A totally lenient view, was taken in good faith to help him and his employment with this office was kept active despite his continued unauthorised leave. 
(iv)        Suddenly, one day Mr. Lalit Kumar sent a legal notice alleging wrongful dismissal from service.  The matter was heard in the office of the Deputy Labour Commissioner, Pushpa Bhawan, Pushpa Vihar, Delhi.  Since we had done nothing wrong, Mr. Lalit Kumar’s false allegations were not entertained by the office of the Deputy Labour Commissioner. 
(v)          Mr. Lalit Kumar is misusing his partial disability as a base to wrongly harass our office after he himself decided to leave his job for reasons best known to him.  If ever he was mistreated owing to his disability why did he never file a single complaint in his 8+ years of service.
(vi)        Mr. Lalit Kumar has alleged that he was not given salary and PF.  Each month for his entire duration of service, Mr. Lalit Kumar, was given his full salary on time.  His PF has been duly deposited in his PE account each month.  These records can be verified from his bank statements and the PF office.  This is just an attempt by Mr. Lalit Kumar to harass our office and extract extra, unfair, undue compensation.  Mr. Lalit Kumar has not raised any unpaid demand on our office.  We are always open to consider any request for the same as per law. 
(vii)       Mr. Lalit kumar has never raised a formal request for Gratuity with our office.  All such requests received by our office from other employees, have been honoured in accordance with the applicable laws.  It is wrong for Mr. Lalit Kumar to approach the Hon’ble Court for Gratuity, when he never once filed a claim for it with the employer.  Once his written request is received by our office, we will act upon it as per applicable laws. 
(viii)      Mr. Lalit Kumar left our office without giving even a single day’s notice.  All employees of this office are required to serve a minimum one month notice period or return one months’ salary in case they leave without notice.  Mr. Lalit Kumar has done neither.  Even if we had to terminate Mr. Lalit Kumar’s services, the court would have directed to us to give him 1-2 months of salary in lieu thereof.  We seek justice in your court to direct Mr. Lalit Kumar to pay our dues. 
(ix)        Mr. Lalit Kumar needs to be proceeded against for trying to implicate use on entirely incorrect facts by making false submissions before this Hon’ble Court.  We pray to you for proceeding against him for intentionally misleading the Hon’ble court. 
(x)          Mr. Lalit Kumar is harassing us and intentionally presenting a wrong and malicious picture of this office and trying to spoil our image at multiple forums.  We seek the Hon’ble Court’s permission to proceed against Mr. Lalit Kumar in the relevant forums and courts as per applicable laws. 
(xi)        We have not received the notice dated March 18, 2019 and May 8, 2019 (mentioned in your letter dated July 31, 2019), else we would have filed our reply on receipt of the first notice itself. 
(xii)       We pray to this Hon’ble Court to dismiss the complaint of Mr. Lalit Kumar with costs.
Yours sincerely,

RK Jaiswal
Authorised Representative”

12.          During the hearing on 30.09.2019, none appeared on behalf of respondent No. 1. 

13.          The complainant produced a copy of the attendance register maintained by respondent No. 1 at its Okhla Location for the month of July and August, 2018 to show that he attended office regularly at Okhla branch upto 18.07.2018 and did not take any leave.  His name was removed from the Attendance Register for August, 2018.  He further stated that Sh. Jivesh Thakur, Accountant directed him to attend office at its new location at Tuglakabad from 19.07.2018.  As per him, he attended office on 19.07.2018 at Tuglakabad up to 08.00 PM but he was not able to mark his attendance as his name was not entered in the Attendance Register.  On 20.07.2018, he went to the Okhla office and requested to retain him in that office.  He was told that a decision would be taken by the competent authority and he would be informed on telephone.  However, he did not get any telephone for 3 days and when he personally went to Okhla Office, he was informed that he cannot be retained in that office.  He also requested on telephone after a few days if he could join even at Tuglakabad, there was no response.  He was thus forced to get out of job.  The complainant is prepared to work at Tuglakabad also even now. 

14.          In view of the submissions of the parties and after going through the record, I reiterated my recommendation to respondent No. 1 to reinstate the complainant and allow him to join the Institute at Tuglakabad, if it is not possible at Okhla Branch.  The complainant is advised to submit a request application to respondent No. 1 to this effect by 04.10.2019.  Respondent No. 1 should take a decision on it and convey to the complainant in writing by 11.10.2019.  If the complainant is taken back, he is advised to perform his duties with sincerity.  The parties may inform the Labour Court, accordingly. 

15.          The service rendered by the complainant in the institute should be counted for service benefits such as Gratuity, etc. 

16.          The complaint is dispose of with the direction to the parties to inform this court about the decision taken in the matter as required under Section 81 of the Act.

17.          Given under my hand and the seal of the Court this 03rd day of October, 2019.



(T.D. Dhariyal)
State Commissioner for Persons with Disabilities