Full Judgment Text
$~R-155
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5425/2001
th
Decided on 29 October, 2013
DTC ..... Petitioner
Through : Mr. Uday N. Tiwary, Adv.
versus
NARAYAN SINGH ..... Respondent
Through : None
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K.PATHAK, J.(ORAL)
1. Respondent was working with the petitioner as a Conductor. He
st
remained absent from duty for 211 days during the period 1 January,
th
1991 to 30 November, 1991. Petitioner held an enquiry against the
respondent on the charge that he was irregular in attending his duty and
was not taking interest in the work, thus, had committed misconduct
within the meaning of para 4(i) and 19(h) & (m) of the Standing Orders
governing the conduct of the petitioners’ employees. Respondent did not
participate in the enquiry and was proceeded against ex-parte. Enquiry
WP(C) 5425/2001 Page 1 of 10
Officer considered the evidence adduced by the petitioner and concluded
that respondent was guilty of misconduct.
2. Disciplinary Authority considered the enquiry report and issued a
th
show cause notice dated 27 April, 1992 to the respondent. Respondent
did not submit any reply. Disciplinary Authority considered the enquiry
proceedings and passed the order of removal of respondent from service
th
on 19 May, 1992. On the same day, one month’s wages were remitted
to the respondent through money order.
3. Petitioner filed an application under Section 33(2)(b) of the
Industrial Disputes Act, 1947 (“the Act”, for short) before the Industrial
Tribunal seeking its approval in view of pendency of wage disputes
between the petitioner and its workers. Respondent filed written
statement. He alleged that he did not commit any misconduct. He also
took a plea that Depot Manager was not competent to take disciplinary
action. Enquiry was not conducted as per the Rules and Regulations and
principles of natural justice were violated. Respondent alleged that he
was on leave during the period of his absence. There was no material
before the Enquiry Officer and Disciplinary Authority to hold that
WP(C) 5425/2001 Page 2 of 10
respondent was guilty of misconduct. Reply to the charge-sheet was not
considered by the enquiry officer. Respondent was never informed that
his leave applications were not received in the office nor that his absence
from duty was unauthorised. In the service–book of respondent,
petitioner had mentioned that he had remained on leave without pay
during the period in question, thus, his absence could not have been
treated as unauthorised. Respondent denied that one month’s pay was
remitted to him.
th
4. On 15 September, 1993 following issue was framed:-
“Whether applicant held a legal and valid
enquiry against the respondent according to
principles of natural justice?”
5. Parties were permitted to lead evidence which they did. Upon
scrutiny of evidence adduced by the parties, Industrial Adjudicator vide
th
order dated 9 March, 1998 held that enquiry was not held in a proper
manner and was vitiated. Thereafter, Industrial Adjudicator proceeded to
enquire about the misconduct himself and following additional issues
th
were framed on 9 March, 1998:-
“1. Whether the respondent committed the
WP(C) 5425/2001 Page 3 of 10
misconduct for which he charge-sheeted?
2. Relief.”
6. Petitioner adduced evidence. It examined Smt. Manju Bala as
AW2 and Sh. Kamlesh Gupta as AW3. Respondent did not lead any
evidence. AW2 Smt. Manju Bala deposed that she had prepared the
report of unauthorised absence of respondent from duty for 211 days and
proved her report as Ex. AW2/1. In her cross-examination she deposed
that respondent was treated on leave without pay. AW3 Sh. Kamlesh
th
Gupta proved the charge-sheet dated 13 December, 1991. He also
deposed that pursuant to the report of Enquiry Officer show cause notice
Ex. AW3/2 was issued. Past record of the respondent was also proved by
this witness as Ex. AW3/1. He deposed that respondent did not file any
reply to the show cause notice. Copy of the money order receipt whereby
wages were remitted to him, was proved as Ex. AW3/5, certificate
containing details of wages of respondent was proved as Ex. AW3/6.
Industrial Adjudicator scrutinized the evidence adduced by the petitioner
and concluded that petitioners’ absence from duty was not unauthorised
since he was treated on leave without pay during the said period. As per
WP(C) 5425/2001 Page 4 of 10
the Industrial Adjudicator, once the absence was treated as leave without
pay or any other kind of leave, his absence would not amount to
“misconduct”. However, it was held that full one month’s wages were
remitted to respondent. However, in view of the finding on issue No. 1
approval under Section 33(2)(b) of the Act has been declined vide Award
th
dated 7 February, 2000.
7. That is how, petitioner is before this Court by way of present writ
petition under Article 226 of the Constitution of India.
8. In Delhi Transport Corporation vs. Sardar Singh, AIR 2004
Supreme Court 4161, Supreme Court has held as under:-
“7. In all these cases almost the whole period of
absence was without sanctioned leave. Mere
making of an application after or even before
absence from work does not in any way assist
the concerned employee. The requirement is
obtaining leave in advance. In all these cases
the absence was without obtaining leave in
advance. The relevant paras of the Standing
Order read as follows:
"4. Absence without permission:-
(i) An employee shall not absent himself from
his duties without having first obtained the
permission from the Authority or the competent
officer except in the case of sudden illness. In
the case of sudden illness he shall send
WP(C) 5425/2001 Page 5 of 10
intimation to the office immediately. If the
illness lasts or is expected to last for more than
3 days at a time, applications for leave should
be duly accompanied by a medical certificate,
from a registered medical practitioner or the
Medical Officer of the D.T.S. In no case shall
an employee leave station without prior
permission.
(ii) Habitual absence without permission or
sanction of leave and any continuous absence
without such leave for more than 10 days shall
render the employee liable to be treated as an
absconder resulting in the termination of his
service with the Organisation.
19. General Provisions:- Without prejudice to
the provisions of the foregoing Standing
Orders, the following acts of commission and
omission shall be treated as mis-conduct:
(a)..........................
(h) Habitual negligence of duties and lack of
interest in the Authority's work."
8. Clause 15 of the Regulations so far as
relevant reads as follows:
"2. Discipline:- The following penalties may,
for misconduct or for a good and sufficient
reason be imposed upon an employee of
the Delhi Road Transport Atuhority:-
(i)...................
(vi) Removal from the service of
the Delhi Road Transport Authority.
(vii) Dismissal from the service of
the Delhi Road Transport Authority.
........................."
9. When an employee absents himself from
duty, even without sanctioned leave for very
WP(C) 5425/2001 Page 6 of 10
long period, it prima facie shows lack of
interest in work. Para 19(h) of the Standing
Order as quoted above relates to habitual
negligence of duties and lack of interest in the
Authority's work. When an employee absents
himself from duty without sanctioned leave the
Authority can, on the basis of the record, come
to a conclusion about the employee being
habitually negligent in duties and an exhibited
lack of interest in the employer's work. Ample
material was produced before the Tribunal in
each case to show as to how the concerned
employees were remaining absent for long
periods which affect the work of the employer
and the concerned employee was required at
least to bring some material on record to show
as to how his absence was on the basis of
sanctioned leave and as to how there was no
negligence. Habitual absence is a factor which
establishes lack of interest in work. There
cannot be any sweeping generalization. But at
the same time some telltale features can be
noticed and pressed into service to arrive at
conclusions in the departmental proceedings.
10. Great emphasis was laid by learned counsel
for the respondent- employee on the absence
being treated as leave without pay. As was
observed by this Court in State of Madhya
Pradesh v. Harihar Gopal 1969 (3) SLR 274 by
a three-judge Bench of this Court, even when
an order is passed for treating absence as leave
without pay after passing an order of
termination that is for the purpose of
maintaining correct record of service. The
charge in that case was, as in the present case,
WP(C) 5425/2001 Page 7 of 10
absence without obtaining leave in advance.
The conduct of the employees in this case is
nothing but irresponsible in extreme and can
hardly be justified. The charge in this case was
misconduct by absence. In view of the
Governing Standing Orders unauthorized leave
can be treated as misconduct.
11. Conclusions regarding negligence and lack
of interest can be arrived at by looking into the
period of absence, more particularly, when
same is unauthorized. Burden is on the
employee who claims that there was no
negligence and/or lack of interest to establish it
by placing relevant materials. Clause (ii) of
Para 4 of the Standing Order shows the
seriousness attached to habitual absence. In
clause (i) thereof, there is requirement of prior
permission. Only exception made is in case of
sudden illness. There also conditions are
stipulated, non-observance of which renders the
absence unauthorized.
12. The Tribunal proceeded in all these cases on
the basis as if the leave was sanctioned because
of the noted leave without pay. Treating as
leave without pay is not same as sanctioned or
approved leave.
13. That being the factual position, the Tribunal
was not justified in refusing to accord approval
to the order of dismissal/removal as passed by
the employer. The learned Single Judge was
justified in holding that the employer was
justified in passing order of
termination/removal. The Division Bench
unfortunately did not keep these aspects in view
and reversed the view of learned Single Judge. ”
WP(C) 5425/2001 Page 8 of 10
9. Supreme Court in the context of Regulation 25 and paras 4(i) 2(ii)
as well as 19(h) has taken a view that if an employee absents himself
form duty without sanctioned leave for very long period it prima facie
shows lack of interest in work. Habitual absence is a factor which
establishes lack of interest. It is for the employee to show as to how his
absence was on the basis of sanctioned leave and as to how there was no
negligence. In view of the governing Standing Orders unauthorised leave
can be treated misconduct. Treating as leave without pay is not same as
sanctioned or approved leave.
10. Accordingly, I am of the view that Industrial Adjudicator has
committed a patent error of law in holding that the petitioner had failed to
establish unauthorised absence of respondent for 211 days, in view of the
admission of AW2 that period of absence of respondent was treated as
period of leave without pay. Industrial Adjudicator has also committed a
patent error of law by holding that unauthorised absence from duty does
not amount to misconduct. In this case, respondent had remained absent
for 211 days. As per the respondent, he was on leave. Admittedly, he
WP(C) 5425/2001 Page 9 of 10
did not lead any evidence before the Industrial Adjudicator to show that
he was on sanctioned leave. It is the case of the petitioner that
respondent remained absent without sanctioned leave. Merely because,
respondent was treated on leave without pay, would not automatically
mean that he remained on sanctioned leave.
11. For the forgoing reasons, impugned order is set aside/quashed and
permission under Section 33(2)(b) of the Act is granted to petitioner.
12. Writ petition is allowed.
A.K. PATHAK, J.
OCTOBER 29, 2013
rb
WP(C) 5425/2001 Page 10 of 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5425/2001
th
Decided on 29 October, 2013
DTC ..... Petitioner
Through : Mr. Uday N. Tiwary, Adv.
versus
NARAYAN SINGH ..... Respondent
Through : None
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K.PATHAK, J.(ORAL)
1. Respondent was working with the petitioner as a Conductor. He
st
remained absent from duty for 211 days during the period 1 January,
th
1991 to 30 November, 1991. Petitioner held an enquiry against the
respondent on the charge that he was irregular in attending his duty and
was not taking interest in the work, thus, had committed misconduct
within the meaning of para 4(i) and 19(h) & (m) of the Standing Orders
governing the conduct of the petitioners’ employees. Respondent did not
participate in the enquiry and was proceeded against ex-parte. Enquiry
WP(C) 5425/2001 Page 1 of 10
Officer considered the evidence adduced by the petitioner and concluded
that respondent was guilty of misconduct.
2. Disciplinary Authority considered the enquiry report and issued a
th
show cause notice dated 27 April, 1992 to the respondent. Respondent
did not submit any reply. Disciplinary Authority considered the enquiry
proceedings and passed the order of removal of respondent from service
th
on 19 May, 1992. On the same day, one month’s wages were remitted
to the respondent through money order.
3. Petitioner filed an application under Section 33(2)(b) of the
Industrial Disputes Act, 1947 (“the Act”, for short) before the Industrial
Tribunal seeking its approval in view of pendency of wage disputes
between the petitioner and its workers. Respondent filed written
statement. He alleged that he did not commit any misconduct. He also
took a plea that Depot Manager was not competent to take disciplinary
action. Enquiry was not conducted as per the Rules and Regulations and
principles of natural justice were violated. Respondent alleged that he
was on leave during the period of his absence. There was no material
before the Enquiry Officer and Disciplinary Authority to hold that
WP(C) 5425/2001 Page 2 of 10
respondent was guilty of misconduct. Reply to the charge-sheet was not
considered by the enquiry officer. Respondent was never informed that
his leave applications were not received in the office nor that his absence
from duty was unauthorised. In the service–book of respondent,
petitioner had mentioned that he had remained on leave without pay
during the period in question, thus, his absence could not have been
treated as unauthorised. Respondent denied that one month’s pay was
remitted to him.
th
4. On 15 September, 1993 following issue was framed:-
“Whether applicant held a legal and valid
enquiry against the respondent according to
principles of natural justice?”
5. Parties were permitted to lead evidence which they did. Upon
scrutiny of evidence adduced by the parties, Industrial Adjudicator vide
th
order dated 9 March, 1998 held that enquiry was not held in a proper
manner and was vitiated. Thereafter, Industrial Adjudicator proceeded to
enquire about the misconduct himself and following additional issues
th
were framed on 9 March, 1998:-
“1. Whether the respondent committed the
WP(C) 5425/2001 Page 3 of 10
misconduct for which he charge-sheeted?
2. Relief.”
6. Petitioner adduced evidence. It examined Smt. Manju Bala as
AW2 and Sh. Kamlesh Gupta as AW3. Respondent did not lead any
evidence. AW2 Smt. Manju Bala deposed that she had prepared the
report of unauthorised absence of respondent from duty for 211 days and
proved her report as Ex. AW2/1. In her cross-examination she deposed
that respondent was treated on leave without pay. AW3 Sh. Kamlesh
th
Gupta proved the charge-sheet dated 13 December, 1991. He also
deposed that pursuant to the report of Enquiry Officer show cause notice
Ex. AW3/2 was issued. Past record of the respondent was also proved by
this witness as Ex. AW3/1. He deposed that respondent did not file any
reply to the show cause notice. Copy of the money order receipt whereby
wages were remitted to him, was proved as Ex. AW3/5, certificate
containing details of wages of respondent was proved as Ex. AW3/6.
Industrial Adjudicator scrutinized the evidence adduced by the petitioner
and concluded that petitioners’ absence from duty was not unauthorised
since he was treated on leave without pay during the said period. As per
WP(C) 5425/2001 Page 4 of 10
the Industrial Adjudicator, once the absence was treated as leave without
pay or any other kind of leave, his absence would not amount to
“misconduct”. However, it was held that full one month’s wages were
remitted to respondent. However, in view of the finding on issue No. 1
approval under Section 33(2)(b) of the Act has been declined vide Award
th
dated 7 February, 2000.
7. That is how, petitioner is before this Court by way of present writ
petition under Article 226 of the Constitution of India.
8. In Delhi Transport Corporation vs. Sardar Singh, AIR 2004
Supreme Court 4161, Supreme Court has held as under:-
“7. In all these cases almost the whole period of
absence was without sanctioned leave. Mere
making of an application after or even before
absence from work does not in any way assist
the concerned employee. The requirement is
obtaining leave in advance. In all these cases
the absence was without obtaining leave in
advance. The relevant paras of the Standing
Order read as follows:
"4. Absence without permission:-
(i) An employee shall not absent himself from
his duties without having first obtained the
permission from the Authority or the competent
officer except in the case of sudden illness. In
the case of sudden illness he shall send
WP(C) 5425/2001 Page 5 of 10
intimation to the office immediately. If the
illness lasts or is expected to last for more than
3 days at a time, applications for leave should
be duly accompanied by a medical certificate,
from a registered medical practitioner or the
Medical Officer of the D.T.S. In no case shall
an employee leave station without prior
permission.
(ii) Habitual absence without permission or
sanction of leave and any continuous absence
without such leave for more than 10 days shall
render the employee liable to be treated as an
absconder resulting in the termination of his
service with the Organisation.
19. General Provisions:- Without prejudice to
the provisions of the foregoing Standing
Orders, the following acts of commission and
omission shall be treated as mis-conduct:
(a)..........................
(h) Habitual negligence of duties and lack of
interest in the Authority's work."
8. Clause 15 of the Regulations so far as
relevant reads as follows:
"2. Discipline:- The following penalties may,
for misconduct or for a good and sufficient
reason be imposed upon an employee of
the Delhi Road Transport Atuhority:-
(i)...................
(vi) Removal from the service of
the Delhi Road Transport Authority.
(vii) Dismissal from the service of
the Delhi Road Transport Authority.
........................."
9. When an employee absents himself from
duty, even without sanctioned leave for very
WP(C) 5425/2001 Page 6 of 10
long period, it prima facie shows lack of
interest in work. Para 19(h) of the Standing
Order as quoted above relates to habitual
negligence of duties and lack of interest in the
Authority's work. When an employee absents
himself from duty without sanctioned leave the
Authority can, on the basis of the record, come
to a conclusion about the employee being
habitually negligent in duties and an exhibited
lack of interest in the employer's work. Ample
material was produced before the Tribunal in
each case to show as to how the concerned
employees were remaining absent for long
periods which affect the work of the employer
and the concerned employee was required at
least to bring some material on record to show
as to how his absence was on the basis of
sanctioned leave and as to how there was no
negligence. Habitual absence is a factor which
establishes lack of interest in work. There
cannot be any sweeping generalization. But at
the same time some telltale features can be
noticed and pressed into service to arrive at
conclusions in the departmental proceedings.
10. Great emphasis was laid by learned counsel
for the respondent- employee on the absence
being treated as leave without pay. As was
observed by this Court in State of Madhya
Pradesh v. Harihar Gopal 1969 (3) SLR 274 by
a three-judge Bench of this Court, even when
an order is passed for treating absence as leave
without pay after passing an order of
termination that is for the purpose of
maintaining correct record of service. The
charge in that case was, as in the present case,
WP(C) 5425/2001 Page 7 of 10
absence without obtaining leave in advance.
The conduct of the employees in this case is
nothing but irresponsible in extreme and can
hardly be justified. The charge in this case was
misconduct by absence. In view of the
Governing Standing Orders unauthorized leave
can be treated as misconduct.
11. Conclusions regarding negligence and lack
of interest can be arrived at by looking into the
period of absence, more particularly, when
same is unauthorized. Burden is on the
employee who claims that there was no
negligence and/or lack of interest to establish it
by placing relevant materials. Clause (ii) of
Para 4 of the Standing Order shows the
seriousness attached to habitual absence. In
clause (i) thereof, there is requirement of prior
permission. Only exception made is in case of
sudden illness. There also conditions are
stipulated, non-observance of which renders the
absence unauthorized.
12. The Tribunal proceeded in all these cases on
the basis as if the leave was sanctioned because
of the noted leave without pay. Treating as
leave without pay is not same as sanctioned or
approved leave.
13. That being the factual position, the Tribunal
was not justified in refusing to accord approval
to the order of dismissal/removal as passed by
the employer. The learned Single Judge was
justified in holding that the employer was
justified in passing order of
termination/removal. The Division Bench
unfortunately did not keep these aspects in view
and reversed the view of learned Single Judge. ”
WP(C) 5425/2001 Page 8 of 10
9. Supreme Court in the context of Regulation 25 and paras 4(i) 2(ii)
as well as 19(h) has taken a view that if an employee absents himself
form duty without sanctioned leave for very long period it prima facie
shows lack of interest in work. Habitual absence is a factor which
establishes lack of interest. It is for the employee to show as to how his
absence was on the basis of sanctioned leave and as to how there was no
negligence. In view of the governing Standing Orders unauthorised leave
can be treated misconduct. Treating as leave without pay is not same as
sanctioned or approved leave.
10. Accordingly, I am of the view that Industrial Adjudicator has
committed a patent error of law in holding that the petitioner had failed to
establish unauthorised absence of respondent for 211 days, in view of the
admission of AW2 that period of absence of respondent was treated as
period of leave without pay. Industrial Adjudicator has also committed a
patent error of law by holding that unauthorised absence from duty does
not amount to misconduct. In this case, respondent had remained absent
for 211 days. As per the respondent, he was on leave. Admittedly, he
WP(C) 5425/2001 Page 9 of 10
did not lead any evidence before the Industrial Adjudicator to show that
he was on sanctioned leave. It is the case of the petitioner that
respondent remained absent without sanctioned leave. Merely because,
respondent was treated on leave without pay, would not automatically
mean that he remained on sanctioned leave.
11. For the forgoing reasons, impugned order is set aside/quashed and
permission under Section 33(2)(b) of the Act is granted to petitioner.
12. Writ petition is allowed.
A.K. PATHAK, J.
OCTOBER 29, 2013
rb
WP(C) 5425/2001 Page 10 of 10