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
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
State Commissioner for Persons with Disabilities
