Full Judgment Text
IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Judgment reserved on : 11 July, 2017
th
Date of decision: 18 September, 2017
W.P.(C) 5731/2017
DEEN DAYAL ..... Petitioner
Through: Mr. Anuj Aggarwal, Advocate
versus
DELHI TRANSPORT CORPORATION ..... Respondents
Through: Mr.Sarfaraz Khan, Advocate
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
1. The petitioner, Deen Dayal S/o Sh. Lal Singh vide the present
petition has assailed the impugned award dated 4.11.2016 of the
Presiding Officer, Labour Court XVII, Karkardooma Courts
Complex, New Delhi in LIR No.6820/2016 (Old No.24/08) whereby
the reference made by the Government of NCT of Delhi vide order
dated 06.02.2008 F.24(1306)/06/Lab./1374-78 to the effect;
“Whether the punishment of removal from service
imposed by the management on Sh. Deen Dayal
S/o Sh. Lal Singh, conductor, Badge No.10530
vide order dated 01.04.92 is illegal and/or
unjustified; and if yes, to what relief is he
entitled?”
W.P.(C) 5731/2017 Page 1 of 36
was answered to the effect that the of the workman, i.e., the petitioner
herein, Sh. Deen Dayal, who had claimed that he had been illegally
removed from the services of the respondent management illegally on
1.4.1992 was dismissed, and it had been held by the Labour Court
that the claimant i.e., the workman, i.e., the present petitioner herein,
was not entitled to any relief.
2. The petitioner, apart from seeking the setting aside of the
impugned award dated 4.11.2016 of the Labour Court also sought
that the removal of the petitioner from the services of the respondent
be declared illegal and unjustified and that he be held entitled to the
relief of reinstatement of service along with full back wages and all
consequential benefits thereto, it having been held vide the impugned
award that the claimant, i.e., the workman/the petitioner herein, had
been unauthorizedly absent from the duty for 174 days w.e.f.
1.1.1991 to 31.8.1991 and that thus this long absence showed
complete lack of devotion to duty and consequently termination of
services of the claimant, i.e., the petitioner herein, by the respondent
was not disproportionate to his proved misconduct.
3. The learned counsel for the respondent was present on advance
W.P.(C) 5731/2017 Page 2 of 36
notice of the petition and on the petition having been listed for the
date 11.7.2017 when initial submissions were made on behalf of
either side and the learned counsel for the petitioner Mr.Anuj
Aggarwal and the learned counsel for the respondent Mr.Sarfarz
Khan sought to place reliance on judicial precedents copies of which
have been submitted on record by either side and the petitioner has
thus been taken up for final disposal.
4. As observed vide the impugned award dated 4.11.2016, the
claimant, i.e., the petitioner herein had claimed that he was working
with the management as a „Conductor‟ with Badge No.10530 and
token No.21520 and had worked honestly and diligently with the
management but had been removed from services illegally on
1.4.1992 and had not been afforded any opportunity of being heard
and no charge sheet had been sent to him and he was not informed
about any enquiry officer nor was he given any intimation about the
proceedings held by the Enquiry Officer and that the only allegation
against him was that he was absent from duty for a period of 174
days from January, 1991 to August, 1991 but he had sent his leave
application due to bona fide and genuine grounds which had not been
W.P.(C) 5731/2017 Page 3 of 36
considered by the management. As observed in the impugned award
dated 4.11.2016 vide order dated 6.4.2016 of the Labour Court it had
been held that no notice had been given by the management to the
claimant to participate in the inquiry proceedings which were thus
violative of the principles of natural justice.
5. As brought forth through the impugned award itself, the
written statement submitted by the management was to the effect that
the reporter had submitted a report dated 12.4.1991 of unauthorized
absence of the claimant, the petitioner herein, for 174 days from
1.1.1991 to 31.8.1991 on which report the charge sheet dated 13.9.91
had been issued to which the workman had not replied and thus a
domestic enquiry was entrusted to the Enquiry Officer vide order
dated 22.11.1991 and the Enquiry Officer conducted the enquiry as
per rules and regulations of the respondent corporation in accordance
with the principles of natural justice and also afforded a full
opportunity to the claimant to defend his case. It has further been
observed vide the impugned award to the effect that the first date for
inquiry was 13.12.1991 on which date the claimant did not appear
and the enquiry proceedings were deferred to 26.12.1991 on which
W.P.(C) 5731/2017 Page 4 of 36
date also the claimant was absent and the proceedings were
adjourned to 3.1.1992 on which date also the claimant had not
appeared and the Enquiry Officer recorded the statement of the
reporter in the presence of the Labour Inspector and vide enquiry
report dated 23.1.1992, the Disciplinary Authority of the respondent
stated to have agreed with the inquiry report and issued a show cause
notice dated 2.2.1992 to which he submitted no reply and after
considering the enquiry report and documents and the past service
record of the petitioner, the management issued the order dated
1.4.1992 vide which he was removed from service.
6. Issues were framed during the course of the proceedings on the
reference dated 6.2.2008 recorded in LIR No.6820/2016 to the effect:
“1 . Whether the management has
conducted a fair and proper enquiry
in accordance with the principles of
natural justice?
2. Relief .”
7. During the course of the proceedings before the Labour Court
vide order dated 6.4.2016, the issue to the effect whether the
management had conducted a fair and proper enquiry in accordance
with the principles of natural justice was answered against the
W.P.(C) 5731/2017 Page 5 of 36
respondent –management it having been observed to the effect that
the notice Ex.MW-1/11 dated 27.12.1991 sent to the claimant by the
management to participate in the domestic enquiry scheduled on
3.1.1992 was sent through an envelope Ex.MW-1/13 to the address
of the workman with the name of his village as „Kheda‟ though the
address of the claimant was of the village „Khaira‟ and no notice
having been sent to the respondent at the address at „Khaira‟ it was
held to the effect that no notice had been given by the management to
the claimant, i.e., the petitioner herein, to participate in the inquiry
proceedings which was thus held to be violative of the principles of
natural justice and the enquiry proceedings were set aside and the
said issue was thus answered against the management as also
observed vide the present impugned award.
8. As regards issue No.2 which relates to the terms of reference
which terms of reference are in relation to the aspect as to whether
the punishment and removal from service imposed by the
management, i.e, the respondent herein on the petitioner, the
conductor with badge No. 10530 vide order dated 1.4.1992 was
illegal and/or unjustified and if yes, to what relief was he entitled to,
W.P.(C) 5731/2017 Page 6 of 36
it was observed by the learned Labour Court that the claimant did not
even choose to argue the case and that the claimant, as submitted by
the management, had been unauthorizedly absent from the date
1.1.1991 to 31.8.1991 continuously for a long period of 174 days and
that his past record also showed that he had taken ‘leave without
pay’ as follows:
Sr. No. No. of Days Year
(i) 04 1977
(ii) 08 1978
(iii) 15 1979
(iv) 06 1980
(vi) 13 1981
(viii) 04 1982
(ix) Nil 1983
(x) 73 (under suspension) 1984
(xi) 01 1985
(xii) 32 (under suspension for 30 days) 1986
(xiii) 05 1987
(xiv) 32 upto 25.03.88
(xv) 227 1990
(xvi) 171 1991
(xvii) 91 upto March, 92.
which established that the claimant had no interest in the job and that
his past record was gloomy. The contention raised before the learned
Labour Court by the management was also to the effect that the
claimant, i.e., the workman, i.e., the petitioner herein, had been
awarded punishment several times and the claimant had no intention
W.P.(C) 5731/2017 Page 7 of 36
in performing his duty and had developed a bad habit of remaining
absent from duty and had no interest in the job as he always remained
absent.
9. Reliance was also placed in the impugned award by the Labour
Court on the verdict of this Court in Bharat Bhushan V. Delhi
Transport Corporation in W.P.(C) No.1771/2008 decided on
25.10.2010 wherein it was held to the effect:
“16. In the case of DTC Vs. Sardar Singh, 2004
SCC (L&S) 946, the Apex Court at page 950 in
para 9 has observed as under:
“9. When an employee absents
himself from duty, even without
sanctioned leave for a very long
period, it prima facie shows lack of
interest in work. Para 19(h) of the
Standing Orders 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
W.P.(C) 5731/2017 Page 8 of 36
employees concerned were
remaining absent for long periods
which affects the work of the
employer and the employee
concerned 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
generatlisation. But at the same time
some telltale features can be noticed
and pressed into service to arrive at
conclusions in the departmental
proceedings.”
and on the verdict of the Supreme Court in Indian Iron Steel
Co. v. Their Workmen: AIR 1958 SC 130 wherein it was held to the
effect
“Mere fact that the workman applied for leave is
no ground for excusing him when the leave was
refused.
(18) In view of the settled law as on the
fact and circumstances in the matter, I am
of the considered view that the Tribunal
was justified by not interfering with the
punishment imposed by the respondent
and this court does not find any valid
W.P.(C) 5731/2017 Page 9 of 36
ground mentioned in the writ petition to
interfere with the same. The writ petition
is dismissed. No orders as to cost ”
10. Vide the impugned award, thus, the Labour Court held, as
already observed herein to the effect that the punishment handed
down to him was not disproportionate to the proved misconduct of
his unauthorized absence from duty w.e.f. 1.1.1991 to 31.8.1991 for a
period of 174 days.
11. Through the present petition, the petitioner has submitted that
the impugned award is illegal, unjustified, arbitrary, discriminatory,
perverse, unreasonable, unconstitutional and violative of Articles 14,
16, 21 and 311 of the Constitution and that the Labour Court had
failed to appreciate that the respondent No.1 miserably failed to
prove the alleged charge of unauthorized absence and that the burden
of proving his absence from duty willfully was on the respondent
management, which burden it had not discharged.
12. The petitioner further submitted that he could not join his
duties during the period of 174 days on account of his critical illness
as he was suffering from typhoid and was thus unable to attend to his
duties and reliance was placed by the petitioner on the verdict of the
W.P.(C) 5731/2017 Page 10 of 36
Supreme Court in Krushnakant B. Parmar v. Union of India &
Another in Civil Appeal No.2106/2012 decided on 15.2.2012 inter
alia to submit that the punishment of removal from services as
imposed upon the petitioner by the respondent was shockingly
disproportionate to his alleged misconduct and that the petitioner has
been unemployed since the date of his removal from service by the
Delhi Transport Corporation and despite his best efforts has not been
able to procure any employment and is entitled to reinstatement of
service with continuity of service and full back wages and all
consequential benefits thereafter.
13. In O.P. No.142/92 on an application under Section 33(2)(1) of
the Industrial Disputes Act, 1947 filed by the Delhi Transport
Corporation, i.e., the petitioner in the said petition (arrayed as the
respondent to the present petition) whereby the management had
sought approval of the Presiding Officer of Industrial Tribunal-II,
Karkardooma Courts Complex, Delhi for its decision taken for
removal of the respondent from service on the ground of his having
remained absent from duty for a period of 174 days for the period
1.1.1991 to 31.8.1991 unauthorizedly, which is the period under
W.P.(C) 5731/2017 Page 11 of 36
consideration in the present writ also and vide the said order, the
Presiding Officer, Industrial Tribunal-II, held that
“14. Thus, the facts of the case suggest that the
absence of the respondent from duty during the
period mentioned in the chargesheet was not
unauthorized. If it was unauthorized the
management treated it as leave without pay and,
therefore, it loses the nature of unauthorisedness.
Since the management treated the period of
absence from duty as period of leave without pay,
therefore, it permitted the employee to remain
absent from duty. Hence, the respondent did not
commit any misconduct as alleged against him.
Issue is decided against the petitioner.”
thus holding that the respondent, i.e., the present petitioner had not
committed any misconduct as alleged by the management and that
since the management had treated the period of absence from out of
his period of leave without pay it had therefore permitted the
employee to remain absent from duty.
14. The learned Presiding Officer, Industrial Tribunal-II,
Karkardooma Courts Complex, however, held that the
management had remitted one full month’s wage to the workman
on the date of his removal from service.
15. The said order dated 28.11.2000 of the Presiding Officer,
Industrial Tribunal –II, Karkardooma Courts Complex, in OP
W.P.(C) 5731/2017 Page 12 of 36
No.142/92 was assailed by the management vide Writ Petition (C)
No. 3004/2001 in this Court and vide order dated 10.1.2005, the
said order dated 28.11.2000 was set aside and the matter was
remanded back to the Industrial Tribunal-II for deciding it in the
light of the judgment in DTC v. Sardar Singh , AIR 2004 SC 4161
wherein it has been laid down that leave without pay cannot be
treated as a sanctioned or approved leave and as it was also not
in dispute in the proceedings in Writ Petition (C) No.3004/2001
that the management had not led any evidence in support of its
plea and thus the management, i.e., the petitioner therein, had
been allowed to lead evidence not later than 12 weeks from the
first date of hearing before the Presiding Officer, Industrial
Tribunal-II, Karkardooma Courts Complex, Delhi.
16. It is also brought forth through the petition and documents on
record that thereafter vide order dated 10.1.2005, the said OP
No.142/92 was allowed by the Presiding Officer, Industrial Tribunal-
II whereby approval was accorded for the removal of the workman,
i.e., the present petitioner herein, from the services of the DTC for
his unauthorized absence for 174 days for the period from 1.1.1991
W.P.(C) 5731/2017 Page 13 of 36
to 31.8.1991 and it was also held that there had been requisite
compliance by the DTC by payment of one full month‟s salary to the
workman.
17. This order in OP No.142/92 dated 10.1.2005 has not been
assailed by the petitioner workman in any form.
18. The petitioner has submitted that thereafter the Appropriate
Government had made the reference dated 6.2.2008 in relation to
which the award dated 4.11.2016 in LIR No.6820/2016 i.e. the
present impugned award was made.
19. Through the submissions that have been made on behalf of the
petitioner, it was reiterated that the punishment of removal from
service was shockingly disproportionate and that the learned Labour
Court had taken into consideration the past record of the petitioner
which was not permissible. Further more, it was submitted on behalf
of the petitioner that his absence from duty, it was only as he was
critically unwell.
20. Reliance was placed, thus, by the petitioner on the verdict of
the Supreme Court in Smt.Krushnakant B. Parmar Vs. Union of
India , decided on 15.2.2012 in Civil Appeal No.2106/2012 to
W.P.(C) 5731/2017 Page 14 of 36
contend that during the disciplinary proceedings, the enquiry officer
ought to have taken into consideration the relevant fact of the ailment
of the petitioner and the same having been overlooked, the petitioner
was entitled to be reinstated with all backwages. Specific reliance
was placed on behalf the petitioner on the observations in paragraph
21 of the said verdict, which are to the effect:
“ 21. The question relating to jurisdiction of the
Court in judicial review in a Departmental
proceeding fell for consideration before this Court
in M.B. Bijlani vs. Union of India and
others reported in (2006) 5 SCC 88 wherein this
Court held:
"It is true that the jurisdiction of the court in
judicial review is limited. Disciplinary
proceedings, however, being quasi- criminal in
nature, there should be some evidence to prove the
charge. Although the charges in a departmental
proceeding are not required to be proved like a
criminal trial i.e. beyond all reasonable doubt, we
cannot lose sight of the fact that the enquiry officer
performs a quasi-judicial function, who upon
analysing the documents must arrive at a
conclusion that there had been a preponderance of
probability to prove the charges on the basis of
materials on record. While doing so, he cannot
take into consideration any irrelevant fact. He
cannot refuse to consider the relevant facts. He
cannot shift the burden of proof. He cannot reject
the relevant testimony of the witnesses only on the
basis of surmises and conjectures. He cannot
W.P.(C) 5731/2017 Page 15 of 36
enquire into the allegations with which the
delinquent officer had not been charged with."
21. Reliance was placed on behalf of the petitioner on the verdict
of this Court in Delhi Transport Corporation v. Shri Krishan Pal
and Shri Krishan Pal v. Delhi Transport Corporation in W.P.(C)
Nos. 15838/2004 and 264/2010 decided on 1.7.2010 wherein it was
observed to the effect that mere absenteeism is a misconduct under
the Standing Orders of the Delhi Transport Corporation and under the
Standing Orders, if an employee is prohibited from absenting from
duty without first obtaining permission except in case of sudden
illness and that in case of sudden illness an employee is required to
send intimation to the office immediately and if the illness lasts or is
expected to last for more than three days at a time, applications of
leave are to be accompanied by the medical certificate and that
habitual absence without permission or sanction of leave and any
continuous absence without such leave for more than 10 days renders
an employee liable to be treated as an absconder resulting in the
termination of his services, and that it is only habitual negligence of
duties and lack of interest in DTC‟s work which is made a
W.P.(C) 5731/2017 Page 16 of 36
„misconduct‟ which “may” entail punishment of removal from
service.
22. It has been observed vide paragraphs 11 to 13 in the said
verdict to the effect:
“ 11. Thus notwithstanding the absenteeism of the
workman in the present case, DTC was required to
furnish an opportunity to him to explain and which
had admitted ly been done. However such
opportunity is not to be an empty exercise of to be
a formality. An opportunity of hearing would be
meaningless and its purpose would be frustrated if
the authority giving the hearing does not consider
the representation of the notice or does not give
any reason for agreeing or disagreeing with the
notice. DTC has not carried out the said
determination in the present case. The principle
requiring reasons to be given in support of an
order is a basic principle of natural justice and it
must be observed in its proper spirit and mere
pretence of compliance with it would not satisfy
the requirement of law. (See Maruti Udyog Ltd. v
Oncome Tax Appellate Tribunal MANU
/DE/1460/2000 AND Asstt. Commissioner v.
Shukla & Brothers MANU/SC/0258/2010)
12. Though the workman was absent in the
present case and admitted the unauthorized
absence but had furnished explanation for the
same. However, DTC did not go into the question
of whether the said explanation of the workman
was correct or not and if it was correct whether it
still entailed the harsh punishment of removal from
service. Neither the Standing Orders of DTC nor
the judgment in Sardar Singh hold that in all cases
of absenteeism, whatsoever may be the
W.P.(C) 5731/2017 Page 17 of 36
explanation, the order of termination or any other
punishment shall follow. If the reasons for
absenteeism are found to be genuine and sufficient
and similarly if the reasons for failure to apply for
leave in advance or contemporaneously are found
to be genuine and satisfactory, certainly the
punishment or harsh punishment of removal from
service cannot be meted out.
13. Neither the Inquiry Officer nor the
Disciplinary Authority of DTC has in the present
case gone into the question of the validity of the
reason furnished by the workman i.e. of his illness.
It is not the case of DTC that the medical
certificate and fitness certificate furnished by the
workman were false or that the workman was hale
and hearty and was feigning illness. Rather the
said inquiry was not conducted at all. The Inquiry
Officer as well as DTC had proceeded on the
premise that mere absence is a misconduct but
which is not so. It is only such absence which
amounts to negligence, which is a misconduct
under the Standing Orders of DTC. ”
and thus the Delhi Transport Corporation in the said case was
directed to reinstate the workman and to pay him back wages @ 75%
from the termination till the date of his reinstatement, apart from the
interest being incurred in the event of default.
23. Reliance was also placed on behalf of the petitioner on the
verdict of the Supreme Court in Neeta Kaplish v. Presiding Officer,
Labour Court and Another in Civil Appeal No. 6079/1998 decided
on 4.12.1998 to contend that it was the duty of the Labour Court to
W.P.(C) 5731/2017 Page 18 of 36
itself decide the merits of charges against the workman on the
evidence produced and not to base its verdict only on the result of the
domestic enquiry as the reference involved a determination of the
larger issue of discharge or dismissal and not merely whether a
correct procedure has been followed by the management before
passing the order of the dismissal.
24. It is further submitted, thus, on behalf of the petitioner that it
was open to the Labour Court to go through the merits of the charge
if it came to the conclusion that the domestic enquiry has not been
properly held and was violative of the principles of natural justice
and an opportunity of personal hearing ought to have been given to
the workman.
25. Reliance was also placed on behalf of the petitioner on the
verdict of the High Court of Gujarat in Gujarat State Road
Transport Corporation v. Bhailalbhali R. Patel decided on
16.04.2002 to contend that the consideration of the past record of the
workman by the Labour Court was unjustified and if the Labour
Court was satisfied that the order of dismissal was not justified,
reliance on the past record of service was inappropriate.
W.P.(C) 5731/2017 Page 19 of 36
26. Reliance was also placed on behalf of the petitioner on the
verdict of the Supreme Court in Shri Bhagwan Lal Arya v.
Commissioner of Police Delhi and Ors ., Civil Appeal No.1625/2004
decided on 16.3.2004 to contend that the punishment of termination
of service on the ground of absence for two months and eight days
where leave without pay was sanctioned was held to be totally
disproportionate to prove the misconduct of the workman as the
absence of that workman on medical grounds without an application
for leave as well as sanction of leave could not be termed as
misconduct or rendering him unfit for service and as he was not
habitual in taking leave and he was on leave under compulsion
because of his grave condition of health.
27. Reference was also placed on behalf of the petitioner on
observation in paragraph 13 of the said verdict to the effect:
“ 13. In B.C.Chaturvedi V. Uniion of India[ AIR
1996 SC 484 , ( three Judges Bench) ] the
question posed for consideration was as to
whether the High Court/Tribunal can direct the
authorities to reconsider punishment with cogent
reasons in support thereof or reconsider
themselves to shorten the litigation. In this case, at
para 18, this Court has observed as under:-
W.P.(C) 5731/2017 Page 20 of 36
"A review of the above legal position would
establish that the disciplinary authority, and
on appeal the appellate authority, being
fact - finding authorities have exclusive
power to consider the evidence with a view
to maintain discipline. They are invested
with the discretion to impose appropriate
punishment keeping in view the magnitude
or gravity of the misconduct. The High
Court/Tribunal, while exercising the power
of judicial review, cannot normally
substitute its own conclusion on penalty and
impose some other penalty. If the
punishment imposed by the disciplinary
authority or the appellate authority shocks
the conscience of the High Court/Tribunal,
it would appropriately mould the relief,
either directing the disciplinary/appellate
authority to reconsider the penalty imposed,
or to shorten the litigation, it may itself, in
exceptional and rare cases, impose
appropriate punishment with cogent reasons
in support thereof."
28. On behalf of the respondent, learned counsel for the
respondent, whilst placing reliance on the verdict of the Supreme
Court in International Airport Authority of India v. International
Air Cargo workers’ Union 2009 AIR (SC) 3063, inter alia
contended to submit that it would not be appropriate for this Court to
interfere with the award of the Industrial Tribunal/Labour Court as
this Court cannot sit in appeal to re-appreciate the evidence and that
the findings of the Tribunal ought not to be interfered with in writ
W.P.(C) 5731/2017 Page 21 of 36
jurisdiction merely on the premise that the material on which the
tribunal had acted was insufficient or not credible and it was thus
submitted on behalf of the petitioner that there is no infirmity
whatsoever in the impugned award.
29. Reliance was also placed on behalf of the petitioner on the
verdict of the Division Bench of this Court in Delhi Transport
Corporation v. Rajender Kumar , 2016 (234) DLT 9, a decision
dated 30.9.2016 on the facts stated to be in pari materia with the
facts of the instant case where the workman had availed of 118 days‟
leave without pay which had been sanctioned on the basis of the
verdict of the Supreme Court in Delhi Transport Corporation v.
Sardar Singh, (2004) 7 SCC 574 and the verdict of this Court in
Delhi Transport Corporation v. Nain Singh in W.P.(C) Nos.
3798/2011 decided on 20.10.2015 and the verdict of the three-judge
Bench of the Supreme Court in the State of Madhya Pradesh v. Hari
Harihar Gopal , (1996) 3 SLR 274 to contend an order passed for
treating absence as leave without pay after passing an order of
termination is only for the purposes of maintaining the correct record
of service and the same does not detract from the right of the
W.P.(C) 5731/2017 Page 22 of 36
employer in passing the order of termination/removal, if the same is
warranted especially in terms of the Standing Orders of the
organization which in the case of Delhi Transport Corporation v.
Sardar Singh was of the respondent corporation itself. Likewise,
reliance was placed on behalf of the petitioner on the specific
observations on the verdict of the Supreme Court in Delhi Transport
Corporation v. Sardar Singh (supra) with specific reference to
paragraphs 8 to 14 to the effect:
“ 8: 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
W.P.(C) 5731/2017 Page 23 of 36
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."
9: 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
Authority :-
(i)...................
(vi) Removal from the service of the Delhi
Road Transport Authority.
(vii) Dismissal from the service of the
Delhi Road Transport Authority.
........................."
W.P.(C) 5731/2017 Page 24 of 36
10: 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.
11: 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
W.P.(C) 5731/2017 Page 25 of 36
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.
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 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
W.P.(C) 5731/2017 Page 26 of 36
termination/removal. The Division Bench
unfortunately did not keep these aspects in
view and reversed the view of learned
Single Judge.”
wherein the Supreme Court had remanded the matters back to the
Tribunal to consider the matter afresh after granting due opportunity
to the parties.
30. On a consideration of the oral submissions made on behalf of
the either side and the rival written submissions of the petitioner and
the catena of verdicts relied upon on behalf of either side, it is
essential to observe as already observed elsewhere herein above that
the findings in OP No.142/92 of the Presiding Officer: Industrial
Tribunal, Karkardooma Courts dated 10.1.2005 whereby approval
was accorded by the Industrial Tribunal Act to the
respondent/management‟s application under Section 33(2)(b) of the
Industrial Disputes Act, 1947 for action of removal of the petitioner
herein, from its services on account of unauthorized absence of the
petitioner herein for 174 days for the period from 1.1.1991 to
31.8.1991 which was the period under consideration even in the
proceedings in LIR No.6820/16 considered vide the impugned award
dated 4.11.2016 have thus attained finality, wherein the Presiding
W.P.(C) 5731/2017 Page 27 of 36
Officer Industrial Tribunal, had categorically observed to the effect
that the petitioner herein who contended that he remained absent on
the genuine and bona fide grounds of illness of his father and kidney
operation of his father and the demise of his elder brother after a
long illness indicated that the petitioner had submitted a leave
application only for five days and did not submit any application for
the remaining days of his absence, i.e., there was no application for
leave for 169 days of absence and even the application given for
leave for five days had been rejected as the same was a delayed one;
as it was held by the Presiding Officer Industrial Tribunal that the
unauthorized absence of the petitioner herein, i.e., the workman for
174 days for the period 1.1.91 to 31.8.91 showed his lack of interest
in the work with the management, in as much as the said order of the
Industrial Tribunal dated 10.1.2005 in OP No.142/92 has not been
assailed by the petitioner.
31. The verdict of the Supreme Court in Delhi Transport
Corporation v. Sardar Singh (supra) makes it amply clear that even
if the absence of the petitioner had been treated as leave without pay,
the same would not detract from the order passed by the management
W.P.(C) 5731/2017 Page 28 of 36
for treating the workman as „on leave without pay‟ after passing an
order of termination for maintaining the correct record of the service.
The standing orders of the DTC which were applicable to the
respondent make it amply clear through Standing Order „4‟ thereafter
that if a person has taken ill, he is expected to send intimation to the
office immediately and to submit a leave application which is to be
duly supported by a medical certificate of a duly registered medical
practitioner, if the illness lasts or is expected to last for more than
three days.
32. Reliance has been placed by the respondent herein thus on the
standing orders of the DTC which are to the effect:
“ 4. Absence without permission:-
(ii) 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 practitioner or the
Medical Officer of the D.T.S. In no case
shall an employee leave station without
prior permission.
W.P.(C) 5731/2017 Page 29 of 36
(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."
33. It is essential to observe that it has categorically been laid by
the Supreme Court in paragraph 11 in DTC vs. Sardar Singh (Supra)
in the said case that in view of the Governing Standing Orders of the
DTC, unauthorized leave can be treated as a misconduct and that
habitual absence is lack of interest in the work.
34. In the instant case, as held vide order dated 10.1.2005 in OP
No.142/92, the petitioner herein had submitted a leave application for
only five days and had not submitted any application for the
remaining absence and even the application seeking leave for five
days had been received late and had thus been rejected and thereafter
he failed to show his submission of leave application for the latter
W.P.(C) 5731/2017 Page 30 of 36
period of absence and that his leaves had thus not been duly
sanctioned. As laid down in the State of Madhya Pradesh v. Hari
Harigopal by the Supreme Court, a mere order for regularization of
the absence does suffice to detract from the authority of a termination
order passed when an employee had been proved to have failed to
report for duty and remained absent without obtaining leave in
advance.
35. The verdict of the Division Bench of this Court in Delhi
Transport Corporation v. Rajender Kumar ; 2016 (234) DLT 9 is on
facts pari materia to the facts of the instant case where the workman
had been on leave for 118 days unauthorizedly and the said leave had
been sanctioned as leave without pay/regularized by the DTC, in
relation to which the workman admitted that he had not sought leave
for a period of 37 days. It was laid down vide paragraph 9 of the said
verdict that when an employee absents himself from duty, even
without sanction of leave for a very long period, it prima facie shows
lack of interest in work. In the present case, the petitioner has been
unauthorizedly absent for 174 days of which he sought leave only
for five days, which too was a much belated application, which was
W.P.(C) 5731/2017 Page 31 of 36
rejected by the employer.
36. The catena of verdicts relied upon on behalf of the respondent
Delhi Transport Corporation and the Standing Orders of the
respondent Corporation, in view of the verdict of the Supreme Court
of India in Delhi Transport corporation v. Sardar Singh (supra) and
the verdict of the Division bench of this Court in Delhi Transport
Corporation v. Rajender Kumar (supra) bring forth expressly that
unauthorized absence from work amounts to misconduct for which a
penalty of removal can be imposed and that the said unauthorized
absence if it was because of a sudden illness needed to be informed to
the employer and if the sudden illness lasted for more than three
days, the applications were required to be duly accompanied with the
medical certificate from a registered medical Practitioner of the
Corporation. The available record and the submissions made before
the Labour Court indicate that no such documents were produced by
the petitioner and rather in his testimony on oath on 30.9.2016 as
indicated in LIR No.6820/16, the proceedings in which the impugned
award was made placed at Annexures P-16 filed with the petition, the
petitioner as WW2 states in his cross-examination that during
W.P.(C) 5731/2017 Page 32 of 36
the period of 174 days from 1.1.1991 to 31.8.1991 he was ill and
was suffering from typhoid which deteriorated and hence he was
unable to work and sent leave applications and medical
documents for that period but that he had no knowledge whether
his leave application for five days was allowed or rejected and
that he did not have medical papers regarding his illness and he
had not retained any copy of the application and that he could
not produce any copy of the application sent by him.
Significantly in the proceedings in OP No.142/92, the petitioner
herein, as respondent thereto in the application filed by the Delhi
Transport Corporation seeking approval of his action for removal
under Section 33(2)(b) of the Industrial Disputes Act, 1947 had
submitted that he had remained absent during this period from
1.1.1991 to 31.8.1991 because of the sickness of his father who was
operated upon his kidney and his elder brother also expired during
the said period, whereas in the proceedings in LIR No.6820/16
resulting into the impugned award dated 4.11.2016, the workman had
claimed that he had sent applications for leave for the period from
January, 1991 to August, 1991 on genuine grounds which the
W.P.(C) 5731/2017 Page 33 of 36
management had not considered.
37. On the other hand, in the present petition vide ground „C‟, it
was sought to be contended by the petitioner that he was suffering
from Typhoid and incapable to attend the duties. The record thus
indicates that the petitioner has been taking varying stands for his
absenting unauthorizedly from duty.
38. Even the plea raised on behalf of the petitioner that leave had
been sanctioned to him does not suffice to aid the petitioner in any
manner in view of the verdict in State of Madhya Pradesh v. Hari
Harigopal (supra) which categorically lays down that mere
regularization of absence from duty does not detract from issuance of
order for removal from service where an employee who has been
charged for failure to report for duty had remained absent without
obtaining leave in advance.
39. Reliance placed by the petitioner on the verdicts relied upon is
wholly misplaced as they are in the facts and circumstances of the
said cases, which are wholly distinguishable from the facts of the
instant case in as much as in Krushnakant B. Parmar v. Union of
India & Another , (supra) the workman therein had been able to
W.P.(C) 5731/2017 Page 34 of 36
explain his absence and likewise in DTC v. Shri Krishan Pal , (supra)
for the number of days that the workman had been on leave he had
submitted a medical certificate to bring forth his ailment which is not
so in the case of the present petitioner.
40. The reliance placed by the petitioner on the verdicts of the
Supreme Court in Delhi Transport Corporation v. Sardar Singh
State of Madhya Pradesh v. Hari Harihar Gopal and on the verdict
of this Court in Delhi Transport Corporation v. Nain Singh in
W.P(C) No.3798/2011 decided on 20.10.2015, the facts of which are
in fact pari materia to the instant case is wholly apt as they and the
judgment of the Division Bench of this Court in DTC v. Rajinder
Kumar (Supra) categorically lay down that where the workman has
been unauthorizedly absent from work, merely because he has
subsequently sent applications for leave as merely because the period
of unauthorized leave has been treated as „leave without pay‟, the
same does not detract from the employer‟s right of removal of the
workman from the service of the employer, where the Governing
Standing Orders of the employer Corporation treat unauthorized
leave as misconduct, permitting removal from service.
W.P.(C) 5731/2017 Page 35 of 36
41. It is thus held that there is no infirmity whatsoever in the
impugned award dated 4.11.2016 in LIR No.6820/2016 (Old No.
24/08) of the Presiding Officer, Labour Court XVII, Karkardooma
Courts Complex, New Delhi, nor is there any ground to re-appreciate
the findings arrived at vide the impugned award.
42. The petition is thus dismissed.
ANU MALHOTRA, J
SEPTEMBER 18, 2017/sv
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