Full Judgment Text
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4187/2012
th
% Judgment delivered on:16 September, 2014
BIR SINGH ..... Petitioner
Represented by: Mr. Ravindra S. Garia,
Adv.
versus
DELHI TRANSPORT CORPORATION ..... Respondent
Represented by: Mr. J.B. Malik, Adv.
CORAM:
HON’BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Vide the present petition, petitioner seeks to set aside the order dated
05.01.2012 passed by Industrial Tribunal in O.P. No. 224/94.
2. Brief facts of the case are that the petitioner was a permanent
employee of the respondent-DTC. Due to illness he remained absent from
duty from 17.4.93 to 27.4.93. Thereafter, he was declared absconder as
claimed by the respondent on 28.4.93. The petitioner submitted his medical
certificate and leave application which had been admitted by the respondent
that the same was received after 28.4.93, however the leaves were
sanctioned without pay, accordingly.
3. The respondent removed the petitioner from service by order dated
16.08.94. The respondent-DTC approached the learned Tribunal for official
W.P.(C) No.4187/2012 Page 1 of 7
permission for removal from service, the same was refused vide order dated
23.7.2003.
4. Being aggrieved, the respondent-DTC challenged this order in W.P(C)
8871/2004 before this Court and the same was disposed of vide order dated
3.5.2010 and directed the Tribunal as under:-
“3. The matter is not no longer res integra. The Supreme
Court in DTC Vs. Sardar Singh AIR 2004 SC 4161 has held
that when an employee absents himself from duty without
sanctioned leave, it primarily shows lack of interest in work and
DTC can, on the basis of the record, come to the conclusion
about the employee being habitually negligent in duty and
exhibiting lack of interest in the employer’s work. Though in
the facts under consideration in the said judgment, the absence
was for a very long period and the observations were made in
that context only, the Supreme Court held that the requirement
in the standing order of the DTC is of obtaining leave in
advance and that merely because in the record of service, the
absence is recorded as leave without pay it does not prevent
DTC from establishing that the absence amounts to misconduct
and habitual absence without permission/sanction of leave and
habitual negligence of duty and lack of interest in work.
4. the counsel for the respondent workman has urged that in the
present case DTC, neither before the Inquiry Officer nor before
the Industrial Court produced its record showing the fate of the
application submitted by the respondent workman for leave and
cannot be allowed a third chance by this Court. However, the
Supreme Court has held that since under the standing order of
the DTC, absence for ten days or more without leave renders
the employee liable to be treated as an absconder resulting in
the termination of his service, once it is established that the
employee was absent for ten days and if the employee was
unable to show any sanction therefore, the onus is on the
employee to prove that such absence without sanction of leave
was for such circumstances and for such reasons which rebut
the presumption under the standing orders of the same being
W.P.(C) No.4187/2012 Page 2 of 7
habitual and indicative of lack of interest in the employer’s
work.
5. In the present case, even in the absence of the record
produced by DTC of the fate of the application for leave found
to have been submitted by the respondent workman, the fact
remains that the absence of the respondent workman was
without sanction.”Mere submission of an application for leave
is not sanction of leave as held in the judgment aforesaid of the
Supreme Court. The Tribunal was to then decide whether the
respondent workman has been able to make out a case of such
nature which prevented him from obtaining prior sanction of
DTC and even if he was so prevented, whether the facts of the
case were such which did not justify the penalty of dismissal
from service. Faced with the aforesaid, the counsel for the
respondent workman states that the respondent workman be
also given liberty to produce evidence on remand.
6. The writ petition is, therefore, allowed. The order dated
rd
23 July, 2003 of the Tribunal is set aside and the matter is
remanded to the Tribunal for decision afresh of the application
under Section 33(2) (b) in accordance with the judgment
aforesaid of the Supreme Court and the observations
hereinabove. It is clarified that both the parties shall be entitled
to lead fresh evidence before the Tribunal. Since the matter
has remained pending for long, the Tribunal is directed to
dispose of the same expeditiously. The parties to appear before
th
the Tribunal/Successor Tribunal on 26 May, 2010. Litigation
expenses have already been paid, no order as to costs.”
5. Thereafter vide order dated 05.01.2012 the Tribunal passed order as
under:-
“ 21. This Tribunal is of the considered view that the conduct of
the workman is nothing but irresponsible in extreme and cannot
be justified. He had committed misconduct by absence.
Admittedly, he had remained absent from 17.4.93 to 9.6.93. He
has not brought on record any document before this Tribunal
about his suffering from serious ailment, despite opportunity
given. Similarly, he has not brought on record medical papers
W.P.(C) No.4187/2012 Page 3 of 7
of ailment of his wife. Thus, it is held that the facts of the case
are/were such, which justify/justified the penalty of dismissal of
workman from service”.
6. On perusal of impugned order passed by the learned Tribunal reveals
that after considering the evidence led by the parties, vide order 6.4.2002,
preliminary issues were decided against the respondent-management,
thereafter vide order dated 23.7.2003 dismissed the approval sought by the
respondent. The said order was challenged before this Court by which the
case was remanded back to the Tribunal.
7. The case of respondent DTC before the Tribunal was that the
application for leave was received after 29.04.93, after the date he was
declared absconder and mere submission of an application for leave is not
sanction of leaves. The issue before the Tribunal was that whether the
petitioner-workman has made out the case of such nature which prevented
him from obtaining prior sanction from DTC and if he was so prevented
whether the facts of the case were such which did not justify the penalty of
dismissal from service.
8. Accordingly, the management examined Shri Sanjay Saxena as
AW-1. In his affidavit, he reiterated the contents of the approval petition.
However, in the cross-examination deposed that he had no personal
knowledge regarding inquiry proceedings and deposing on the basis of
record. Further admitted that copy of the past service record was not
supplied to the petitioner-workman. Also admitted that as per rules of DTC,
whenever a workman absents continuously for more than 10 days without
intimation, then a memorandum is to be sent to the workman to report for
duty, or in the case of illness to be present before the medical board.
W.P.(C) No.4187/2012 Page 4 of 7
However, he denied that no memorandum was sent to the workman to report
for duty as per prevalent OP NO.224/94. Further, admitted that an
application along with medical record was received after his continuous
absent without intimation for 10 days for the period from 17.4.93 to 28.4.93.
The said witness also admitted that Office Order No. 91 dated 16.8.62
passed by the management which was executed as per Ex.AW1/R3. It is
also admitted that notice declaring him absconder was not sent to the
workman.
9. The petitioner-workman examined Sh. Bir Singh, as RW-1. In his
affidavit he deposed that before declaring the workman as absconder no
letter was served upon him as per the rule of management as AW1/R3.
Further deposed that the report on which charge sheet was based was only
for the period of 10 days and further charge sheet regarding absent from duty
from 29.4.93 to 9.6.93 is baseless. However, in cross-examination, he
admitted that he did not report for duty from 17.4.93 to 9.6.93.
10. By officer order dated 16.8.62 Ex.AW1/R4 it has been declared that
on receipt of case of unauthorised absence from duty, a notice shall be
issued by AGM (A) through registered post immediately to the employee
concerned at his residential address available in the office record by asking
him to show cause, if any, by a particular date, and place as to why his
services should not be terminated. In case of non-receipt of reply from
employee within the prescribed period, orders declaring him as an absconder
and termination from services shall be issued by Assistant General Manager
(Administration). However, in case reply to show cause notice is received,
the aforesaid authority shall pass suitable orders keeping in view the conduct
of the employee and his undertaking. It is admitted fact that the respondent-
W.P.(C) No.4187/2012 Page 5 of 7
DTC failed to produce any order of absconding of the petitioner. It was
orally submitted before the Tribunal that he declared absconder on 29.4.93.
It is also admitted that the respondent received leave application on 29.4.93
and accordingly the leave application was sanctioned without pay.
11. Learned Tribunal has relied upon the case of Delhi Transport
Corporation vs. Sardar Singh 2004 (VIII) AD (SC) 371 wherein it has
been held as under:-
“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”.
12. The case of the respondent is that he remained absent from duty from
17.4.93 to 9.6.93. Petitioner explained the reasons for the absence and
submitted his medical document from 17.4.94 to 24.5.93 and thereafter his
wife was sick from 26.5.93 to 9.6.93 and documents to that effect also
submitted by the petitioner to the respondent. Accordingly, his leave was
sanctioned for the whole aforesaid period of 17.4.93 to 9.6.93, however,
without pay.
13. The issue before this court for consideration is that if the petitioner
failed to take prior permission on the ground of illness from the DTC
whether he could be terminated from the service. The case of the petitioner
is that he remained ill for the period he was absent from duty and
accordingly he sent leave application with medical documents from his
th
native village which admittedly was received on 29.4.93, i.e., 11 day of his
absence and the same has been sanctioned by the respondent, however,
W.P.(C) No.4187/2012 Page 6 of 7
without pay. If the leave of the petitioner has been sanctioned by the
respondent then there was no justification to remove him from the service.
Therefore, the Sardar Singh (Supra) is not applicable in the present case.
14. It is admitted fact that the past service record of the petitioner was
neither supplied to him nor produced before the Tribunal. Thus, the
Tribunal has erred in recording the finding that the termination order was
legal and justified on the basis of past record which was relied by the
respondent DTC.
15. Consequently the petitioner is reinstated in service with continuity in
service with 50 per cent back wages.
16. Accordingly, the petition is allowed on above terms with no order as
to costs.
SURESH KAIT, J
SEPTEMBER 16, 2014
Nk/jg
W.P.(C) No.4187/2012 Page 7 of 7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4187/2012
th
% Judgment delivered on:16 September, 2014
BIR SINGH ..... Petitioner
Represented by: Mr. Ravindra S. Garia,
Adv.
versus
DELHI TRANSPORT CORPORATION ..... Respondent
Represented by: Mr. J.B. Malik, Adv.
CORAM:
HON’BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Vide the present petition, petitioner seeks to set aside the order dated
05.01.2012 passed by Industrial Tribunal in O.P. No. 224/94.
2. Brief facts of the case are that the petitioner was a permanent
employee of the respondent-DTC. Due to illness he remained absent from
duty from 17.4.93 to 27.4.93. Thereafter, he was declared absconder as
claimed by the respondent on 28.4.93. The petitioner submitted his medical
certificate and leave application which had been admitted by the respondent
that the same was received after 28.4.93, however the leaves were
sanctioned without pay, accordingly.
3. The respondent removed the petitioner from service by order dated
16.08.94. The respondent-DTC approached the learned Tribunal for official
W.P.(C) No.4187/2012 Page 1 of 7
permission for removal from service, the same was refused vide order dated
23.7.2003.
4. Being aggrieved, the respondent-DTC challenged this order in W.P(C)
8871/2004 before this Court and the same was disposed of vide order dated
3.5.2010 and directed the Tribunal as under:-
“3. The matter is not no longer res integra. The Supreme
Court in DTC Vs. Sardar Singh AIR 2004 SC 4161 has held
that when an employee absents himself from duty without
sanctioned leave, it primarily shows lack of interest in work and
DTC can, on the basis of the record, come to the conclusion
about the employee being habitually negligent in duty and
exhibiting lack of interest in the employer’s work. Though in
the facts under consideration in the said judgment, the absence
was for a very long period and the observations were made in
that context only, the Supreme Court held that the requirement
in the standing order of the DTC is of obtaining leave in
advance and that merely because in the record of service, the
absence is recorded as leave without pay it does not prevent
DTC from establishing that the absence amounts to misconduct
and habitual absence without permission/sanction of leave and
habitual negligence of duty and lack of interest in work.
4. the counsel for the respondent workman has urged that in the
present case DTC, neither before the Inquiry Officer nor before
the Industrial Court produced its record showing the fate of the
application submitted by the respondent workman for leave and
cannot be allowed a third chance by this Court. However, the
Supreme Court has held that since under the standing order of
the DTC, absence for ten days or more without leave renders
the employee liable to be treated as an absconder resulting in
the termination of his service, once it is established that the
employee was absent for ten days and if the employee was
unable to show any sanction therefore, the onus is on the
employee to prove that such absence without sanction of leave
was for such circumstances and for such reasons which rebut
the presumption under the standing orders of the same being
W.P.(C) No.4187/2012 Page 2 of 7
habitual and indicative of lack of interest in the employer’s
work.
5. In the present case, even in the absence of the record
produced by DTC of the fate of the application for leave found
to have been submitted by the respondent workman, the fact
remains that the absence of the respondent workman was
without sanction.”Mere submission of an application for leave
is not sanction of leave as held in the judgment aforesaid of the
Supreme Court. The Tribunal was to then decide whether the
respondent workman has been able to make out a case of such
nature which prevented him from obtaining prior sanction of
DTC and even if he was so prevented, whether the facts of the
case were such which did not justify the penalty of dismissal
from service. Faced with the aforesaid, the counsel for the
respondent workman states that the respondent workman be
also given liberty to produce evidence on remand.
6. The writ petition is, therefore, allowed. The order dated
rd
23 July, 2003 of the Tribunal is set aside and the matter is
remanded to the Tribunal for decision afresh of the application
under Section 33(2) (b) in accordance with the judgment
aforesaid of the Supreme Court and the observations
hereinabove. It is clarified that both the parties shall be entitled
to lead fresh evidence before the Tribunal. Since the matter
has remained pending for long, the Tribunal is directed to
dispose of the same expeditiously. The parties to appear before
th
the Tribunal/Successor Tribunal on 26 May, 2010. Litigation
expenses have already been paid, no order as to costs.”
5. Thereafter vide order dated 05.01.2012 the Tribunal passed order as
under:-
“ 21. This Tribunal is of the considered view that the conduct of
the workman is nothing but irresponsible in extreme and cannot
be justified. He had committed misconduct by absence.
Admittedly, he had remained absent from 17.4.93 to 9.6.93. He
has not brought on record any document before this Tribunal
about his suffering from serious ailment, despite opportunity
given. Similarly, he has not brought on record medical papers
W.P.(C) No.4187/2012 Page 3 of 7
of ailment of his wife. Thus, it is held that the facts of the case
are/were such, which justify/justified the penalty of dismissal of
workman from service”.
6. On perusal of impugned order passed by the learned Tribunal reveals
that after considering the evidence led by the parties, vide order 6.4.2002,
preliminary issues were decided against the respondent-management,
thereafter vide order dated 23.7.2003 dismissed the approval sought by the
respondent. The said order was challenged before this Court by which the
case was remanded back to the Tribunal.
7. The case of respondent DTC before the Tribunal was that the
application for leave was received after 29.04.93, after the date he was
declared absconder and mere submission of an application for leave is not
sanction of leaves. The issue before the Tribunal was that whether the
petitioner-workman has made out the case of such nature which prevented
him from obtaining prior sanction from DTC and if he was so prevented
whether the facts of the case were such which did not justify the penalty of
dismissal from service.
8. Accordingly, the management examined Shri Sanjay Saxena as
AW-1. In his affidavit, he reiterated the contents of the approval petition.
However, in the cross-examination deposed that he had no personal
knowledge regarding inquiry proceedings and deposing on the basis of
record. Further admitted that copy of the past service record was not
supplied to the petitioner-workman. Also admitted that as per rules of DTC,
whenever a workman absents continuously for more than 10 days without
intimation, then a memorandum is to be sent to the workman to report for
duty, or in the case of illness to be present before the medical board.
W.P.(C) No.4187/2012 Page 4 of 7
However, he denied that no memorandum was sent to the workman to report
for duty as per prevalent OP NO.224/94. Further, admitted that an
application along with medical record was received after his continuous
absent without intimation for 10 days for the period from 17.4.93 to 28.4.93.
The said witness also admitted that Office Order No. 91 dated 16.8.62
passed by the management which was executed as per Ex.AW1/R3. It is
also admitted that notice declaring him absconder was not sent to the
workman.
9. The petitioner-workman examined Sh. Bir Singh, as RW-1. In his
affidavit he deposed that before declaring the workman as absconder no
letter was served upon him as per the rule of management as AW1/R3.
Further deposed that the report on which charge sheet was based was only
for the period of 10 days and further charge sheet regarding absent from duty
from 29.4.93 to 9.6.93 is baseless. However, in cross-examination, he
admitted that he did not report for duty from 17.4.93 to 9.6.93.
10. By officer order dated 16.8.62 Ex.AW1/R4 it has been declared that
on receipt of case of unauthorised absence from duty, a notice shall be
issued by AGM (A) through registered post immediately to the employee
concerned at his residential address available in the office record by asking
him to show cause, if any, by a particular date, and place as to why his
services should not be terminated. In case of non-receipt of reply from
employee within the prescribed period, orders declaring him as an absconder
and termination from services shall be issued by Assistant General Manager
(Administration). However, in case reply to show cause notice is received,
the aforesaid authority shall pass suitable orders keeping in view the conduct
of the employee and his undertaking. It is admitted fact that the respondent-
W.P.(C) No.4187/2012 Page 5 of 7
DTC failed to produce any order of absconding of the petitioner. It was
orally submitted before the Tribunal that he declared absconder on 29.4.93.
It is also admitted that the respondent received leave application on 29.4.93
and accordingly the leave application was sanctioned without pay.
11. Learned Tribunal has relied upon the case of Delhi Transport
Corporation vs. Sardar Singh 2004 (VIII) AD (SC) 371 wherein it has
been held as under:-
“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”.
12. The case of the respondent is that he remained absent from duty from
17.4.93 to 9.6.93. Petitioner explained the reasons for the absence and
submitted his medical document from 17.4.94 to 24.5.93 and thereafter his
wife was sick from 26.5.93 to 9.6.93 and documents to that effect also
submitted by the petitioner to the respondent. Accordingly, his leave was
sanctioned for the whole aforesaid period of 17.4.93 to 9.6.93, however,
without pay.
13. The issue before this court for consideration is that if the petitioner
failed to take prior permission on the ground of illness from the DTC
whether he could be terminated from the service. The case of the petitioner
is that he remained ill for the period he was absent from duty and
accordingly he sent leave application with medical documents from his
th
native village which admittedly was received on 29.4.93, i.e., 11 day of his
absence and the same has been sanctioned by the respondent, however,
W.P.(C) No.4187/2012 Page 6 of 7
without pay. If the leave of the petitioner has been sanctioned by the
respondent then there was no justification to remove him from the service.
Therefore, the Sardar Singh (Supra) is not applicable in the present case.
14. It is admitted fact that the past service record of the petitioner was
neither supplied to him nor produced before the Tribunal. Thus, the
Tribunal has erred in recording the finding that the termination order was
legal and justified on the basis of past record which was relied by the
respondent DTC.
15. Consequently the petitioner is reinstated in service with continuity in
service with 50 per cent back wages.
16. Accordingly, the petition is allowed on above terms with no order as
to costs.
SURESH KAIT, J
SEPTEMBER 16, 2014
Nk/jg
W.P.(C) No.4187/2012 Page 7 of 7