Full Judgment Text
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CASE NO.:
Appeal (civil) 9600 of 2003
PETITIONER:
Delhi Transport Corporation
RESPONDENT:
Sardar Singh
DATE OF JUDGMENT: 12/08/2004
BENCH:
S.N. VARIAVA & ARIJIT PASAYAT
JUDGMENT:
J U D G M E N T
With
C.A.Nos. 9601/2003, 9608/2003, 9607/2003, 9611/2003,
9602/2003, 9605/2003, 9613/2003, 9604/2003, 9606/2003,
9612/2003 and C.A. No. 137/2004.
ARIJIT PASAYAT, J.
As the controversies in these appeals are based on identical
premises, they are taken up together for disposal by this common
judgment.
Background facts leading to these appeals are as follows:
The respondent in each case was working as a conductor in the
appellant - Delhi Transport Corporation (hereinafter referred to as the
’employer’). Departmental proceedings were initiated against each one
of them on the ground of misconduct due to unauthorized long absence
from duty; negligence of duties and lack of interest in the employer’s
work. The terms and conditions of appointment and service were
governed by the applicable service regulations i.e. Delhi Road
Transport Authority (Conditions of Appointment and Service)
Regulations, 1952 (in short the ’Regulations’). According to the
employer the unauthorized absence was indicative of negligence, and
lack of interest in employer’s work amounted to misconduct. Reference
was made to Para 4(ii) and 19(h) of the Standing Orders issued under
Para 15(1) of the Regulations. After finding the concerned employees
guilty and being of the view that removal from service was the proper
punishment, the Disciplinary Authority imposed punishment of
dismissal/removal from service. Since an industrial dispute was
already pending approval was sought for in terms of Section 33(2)(b) of
the Industrial Disputes Act, 1947 (in short ’the Act’). According to
Tribunal, proper enquiry was not held. It, however, granted opportunity
to the employer to lead further evidence to justify its action.
Employer led further evidence. On consideration of materials brought
on record, Tribunal came to hold that availing leave without pay did
not amount to misconduct. It noted that since employer had treated
absence from duty as leave without pay, it indicated sanction of leave
and, therefore, also there was no misconduct. According to the employer
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long absence without sanctioned leave clearly disclosed lack of
interest in service and the concerned employee was guilty of
misconduct. The approval sought for was refused by the Tribunal. The
Tribunal did not accord approval primarily on the ground that in most
cases the leave was treated as leave without pay and that being the
position it cannot be said that the absence was unauthorized.
The employer approached the Delhi High Court and learned Single
judge of the Court held that the disapproval by the Tribunal was not in
order. The concerned employees preferred Letters Patent Appeals before
the Delhi High Court. A Division Bench of the Court by the impugned
judgment disposed of several L.P.As. being of the view that the
Tribunal’s conclusions were in order and the learned Single Judge was
not correct in his conclusions.
In support of the Appeals learned counsel for the appellant-
employer Corporation submitted that the Division Bench of the High
Court has missed to notice the true effect of paras 4(ii) and 19(h) of
the Standing Orders. Erroneously it was concluded that leave without
pay meant grant of leave. It is nothing but keeping the record straight
and for the purpose of maintaining correct record of service. It did
not amount to sanction of leave. The Standing Order clearly stipulates
that the leave was to be obtained in advance. Above being the
position, the Division Bench was not justified in interfering with the
orders of the learned Single Judge.
In response, learned counsel for the concerned employees
submitted that where the record shows that the absence was treated as
leave without pay, it meant that leave was granted and mere long
absence does not per se show lack of interest in work, something more
was necessary for the purpose and the Tribunal therefore was justified
in its view.
We have examined the factual position in each case. In C.A. No.
9600/2003 the absence was 171 days between 1.11.1987 to 31.10.1988. In
C.A. No. 9601/2003 the absence was 92 days between January 1991 to
October 1991. In C.A. No. 9608/2003 there was 105 days absence between
1.1.1991 to 30.11.1991. In C.A. No. 9607/2003 the absence was 294 days
between 13.3.1991 and 1.1.1992. In C.A. No. 9611/2003 the absence was
95 days between January, 1987 to August, 1987. In C.A. No. 9602/2003
the absence was 137 days between 1.1.1993 to 30.11.1993. In C.A.
9605/2003 the absence was 188 days between 1.1.1992 to 15.7.1992.
Additionally a similar absence was there in 1990,1991 and 1998 for 81
days, 129 days and 45 days respectively. In C.A. No. 9613/2003 the
absence was 166 days between January 1991 to December, 1991. In C.A.
No. 137/2004 the absence was 272 days between 1983 upto August, 1985.
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
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
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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."
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.
........................."
When an employee absents himself from duty, even without
sanctioned leave for very 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.
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, 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.
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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.
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.
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.
We, therefore, allow these appeals and affirm the view taken by
learned Single Judge while reversing that of the Division Bench.
The appeals are allowed to the extent as indicated above.
C.A. 9604/2003
In this appeal there was 190 days of unauthorised absence between
1.1.1989 to 31.12.1989. It is noticed that the Tribunal did not give
any opportunity to the management to lead evidence being of the view
that adequate opportunity had been granted earlier. We find that the
factual aspects were not examined and it is a fit case where the
Tribunal ought to have granted a further opportunity to the management
(employer) to place material in support of its case. That having not
been done, we think it would be appropriate to remit the matter back to
the Tribunal to consider the matter afresh after granting due
opportunity to the parties before it.
Civil appeal is disposed of accordingly.
C.A. NO. 9606/2003
In this appeal the absence was 132 days between 1.1.1989 to
31.12.1989. According to the appellant there was an admission regarding
the alleged misconduct. The Tribunal does not appear to have
considered the entire matter in its proper perspective, in particular,
the effect of admission as claimed. We, therefore think it appropriate
to remit the matter back to the Tribunal with a direction to the
Tribunal to permit the parties before it to place materials in support
of their respective stands, we make it clear we have not expressed any
opinion on merits.
Civil Appeal is accordingly disposed of.
C.A. NO. 9612/2003
In this appeal the absence was 170 days in 1991. The Tribunal in
this case held that the enquiry was proper. But following its earlier
view that unauthorized absence was not misconduct, it did not accord
approval. If the Tribunal holds that the enquiry is proper then no
further evidence was necessary to be produced. In view of what has been
observed supra, the view of the Tribunal, that there was no misconduct,
does not appear to be justified. The appeal is allowed, judgment of the
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Division Bench is set aside and that of the learned Single Judge is
restored.