*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(c) 5763/1998
% Date of decision: 17th May, 2010
DELHI TRANSPORT CORPORATION ..... Petitioner
Through: Mr. Alok Shankar, Advocate.
Versus
THE PRESIDING OFFICER, LABOUR
COURT V & ANR. ..... Respondents
Through: Mr. Sanjay Kumar for Mr. Anil Mittal,
Advocate.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner DTC by this petition impugns the award dated 23rd February, 1998 of the Labour Court holding the action of the petitioner DTC of terminating the services of the respondent no.2 workman to be illegal and invalid and directing the petitioner DTC to reinstate the respondent no.2 workman with full back wages.
2. The respondent no.2 workman was working as a Conductor in the petitioner DTC. He remained absent w.e.f. 15th December, 1986 and sent an application dated 13th December, 1986 for leave up to 24th December, 1986. He however did not join the service and sent another application for leave from 25th December, 1986 to 31st December, 1986 on account of illness. This time the leave application was accompanied with a medical certificate. He thereafter sent another application for extension of leave up to 15th January, 1987 on account of continuous ill health. W.P.(c) 5763/1998 Page 1 of 8 He again sent an application dated 23rd January, 1987 along with medical certificate for sanction of leave up to 6th February, 1987 up to 15th February, 1987. Yet another application for leave from 6th February, 1987 up to 15th February, 1987 along with medical certificate was sent. The same was followed with applications for extension of leave up to 2nd March, 1987 and thereafter up to 7th May, 1987. The petitioner DTC in the meantime issued memo dated 22 nd February, 1987 asking the workman to report within 72 hours failing which departmental action would be taken against him; it was further stated in the said memo that if the workman was sick and unable to perform his duties, he should report to medical officer for medical checkup and to submit a certificate of the medical officer. The workman neither joined the duties within 72 hours nor reported for medical checkup. Yet another letter dated 3rd March, 1987 was sent by the petitioner DTC intimating the workman that since leave beyond three months could not be regularized, he was required to show cause as to why he should not be declared as deemed to have resigned from service under Clause 14 (10)(c) of DRTA (Conditions of Appointment and Service) Regulations, 1952. Yet another show cause notice dated 1st May, 1987 was issued to the workman and ultimately vide memo dated 8th May, 1987 the workman was declared as deemed to have resigned from his service w.e.f. 6th May, 1987.
3. The dispute raised by the respondent no.2 workman was referred to the Labour Court; while the contention of the respondent no.2 workman was that the termination of his service amounted to retrenchment, the petitioner DTC contended that its action was in accordance with Clause 14 (10) (c) of its Regulations which were binding on the workman and the workman was deemed to W.P.(c) 5763/1998 Page 2 of 8 have resigned from service and it was not a case of retrenchment or termination of employment.
4. The Labour Court relying on L. Robert D'souza Vs. Executive Engineer, Southern Railway (1982) 1 SCC 645 held that such automatic discharge from service even if under agreement would nonetheless be retrenchment within the meaning of expression in Section 2 (oo). The Labour Court further relying on D.K. Yadav Vs. J.M.A. Industries Ltd. (1993) 3 SCC 259 held that principles of natural justice must be read into the Standing Orders and the action of the employer must be fair, just and reasonable; that such fairness requires a domestic inquiry to be conducted. The Labour Court further held that since admittedly domestic inquiry had not been conducted in the present case, the dismissal of the respondent no.2 workman from employment, even if on the basis of deemed resignation, was retrenchment without complying with the provisions of Section 25F of the I.D. Act. Accordingly, the petitioner DTC was directed to reinstate the respondent no.2 workman with full back wages.
5. Aggrieved therefrom the present petition has been preferred. Vide interim order dated 13th January, 1999 the operation of the award was stayed. On 2nd August, 2000 the application of the respondent no.2 workman under Section 17B of the ID Act was allowed and Rule was issued in the petition. The matter came up for hearing on 28th April, 2010 on the application of the respondent no.2 workman for early hearing. This Court being prima facie of the opinion that Clause 14 (10)(c) of the DRTA (Conditions of Appointment and Service) Regulations, 1952 had been struck down, directed the petition to be heard on 30th April, 2010. The counsel for the parties have been heard.
W.P.(c) 5763/1998 Page 3 of 8
6. The counsel for the petitioner DTC controverts that Clause 14 (10)(c) of the DRTA (Conditions of Appointment and Service) Regulations, 1952 has been struck down. Attention is invited to -
a. Jai Shanker Vs. State of Rajasthan AIR 1966 SC 492 laying down that even if a Service Regulation provides that an employee who absents without permission should be considered to have sacrificed his appointment, the employer should give such employee an opportunity showing cause why he should not be removed. b. Ram Phal Vs. Union of India 151 (2008) DLT 452 where an order of dismissal from service under Clause 14(10)(b) of DRTA (Conditions of Appointment and Service) Regulations, 1952 without holding any inquiry was set aside.
7. The contention of the counsel for the petitioner DTC is that in the present case sufficient opportunity was given to the respondent no.2 workman and thus the action of the petitioner DTC of deeming the respondent no.2 workman to have resigned, complied with the principles of natural justice and no fault can be found therewith.
8. The Clause 14(10)(c) where-under the petitioner DTC has deemed the respondent no.2 workman to have resigned is as under:-
"14. Holidays and Leave :-
(10). ..........................................
(b) The duration of extraordinary leave shall not ordinarily exceed three months on any one occasion. In exceptional cases; it may be extended to eighteen months subject to such conditions as the Authority may by general or special orders prescribe and only when the employee concerned is under- going treatment for ....................W.P.(c) 5763/1998 Page 4 of 8
(c) Where an employee fails to resume duty on the expiry of the maximum period of extraordinary leave granted to him or where such an employee, who is granted a lesser amount of extraordinary leave than the maximum amount admissible, remains absent from duty for any period which together with the extraordinary leave granted exceeds the limit upto which he could have been granted such leave under Clause (b), he shall be deemed to have resigned his appointment and shall, accordingly cease to be in the employment of the Authority."
9. A five judge bench of Supreme Court in Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress 1991 Supp (1) SCC 600 held Clause 9 (b) of the Regulations of DTC to be void for the reason of not giving an opportunity of being heard to the workman before terminating his services. Clause 14 (10)(c) also does not provide for any opportunity for hearing to be given to the workman before declaring him to have resigned from employment and would be bad for this reason only. Similarly, in Uptron India Ltd. Vs. Shammi Bhan 1998 Labour Industrial Cases 1545 also, it was held that where the standing orders prescribe termination of service of a permanent employee without holding any inquiry, such provision of the standing orders is illegal on the ground of being violative of the principles of natural justice. This Court also in Delhi Transport Corporation Vs. Om Kumar 95 (2002) DLT 425 and Ram Phal (supra) has held dismissal under Clause 14 (10)(c) without holding any inquiry and giving opportunity to the workman as invalid. The said judgments were affirmed by the Division Benches of this Court in DTC Vs. Daya Nand 99 (2002) DLT 188 and in DTC Vs. Subhash Chander Mehta MANU/DE/4025/2006. I have also recently in Delhi Transport Corporation Vs. Arun Kumar W.P.(C) No.3345/2000 decided on 18th March, 2010 held to the same effect.
W.P.(c) 5763/1998 Page 5 of 8
10. The Clause aforesaid in the Regulations of the DTC is nothing but a provision for abandonment of service by an employee. I find the Division Bench of this Court in Shakuntala's Export House (P) Ltd Vs. Secretary (Labour) MANU/DE/0541/2005 to have held that abandonment amounts to misconduct which requires proper inquiry. The judgment of the Single Judge of this Court upheld by the Division Bench is reported as 117 (2005) DLT 479. To the same effect is another judgment of this Court in MCD Vs. Begh Raj 117 (2005) DLT 438 laying down that if the workman had abandoned employment, that would be a ground for holding an enquiry and passing an appropriate order and that having not been done, the action of MCD could not have been sustained. The Supreme Court also in D.K. Yadav Vs J.M.A. Industries Ltd (supra) has held that even where the standing orders of the employer provided for dismissing the workman from service for unexplained absence, the same has to be read with the principles of natural justice and without conducting domestic inquiry and without giving an opportunity of being heard, termination of service on the said ground cannot be effected. The same view was reiterated in Lakshmi Precision Screws Ltd. Vs. Ram Bahagat AIR 2002 SC 2914 (in this judgment Sakattar Singh mentioned below was distinguished). Recently, in V.C. Banaras Hindu University Vs. Shrikant AIR 2006 SC 2304 it was held that although laying down a provision providing for deemed abandonment from service may be permissible in law, it is not disputed that that an action taken thereunder must be fair and reasonable so as to satisfy the requirements of Article 14 of Constitution of India; if the action is found to be illogical in nature, the same cannot be sustained. In Punjab & Sind Bank Vs. Sakattar Singh MANU/SC/0733/2000 it was held that no inquiry may be conducted where the standing orders of the Bank provided a procedure for treating such absentee employee to have deemed to have voluntarily W.P.(c) 5763/1998 Page 6 of 8 retired after a particular period of unauthorized absence. To the same effect is the recent dicta in The Regional Manager, Central Bank of India Vs. Vijay Krishna Neema AIR 2009 SC 2200. The Regulation 14(10)(c) of the petitioner DTC does not provide a procedure and thus cannot be saved even on the basis of the said judgments. Further the action of the petitioner DTC is found to be illogical and not complying with principles of natural justice.
11. As far as the contention of the counsel for the petitioner DTC of principles of natural justice having been complied with in the present case, though show cause notices were issued by the petitioner DTC prior to the order treating the respondent no.2 workman to have deemed to have resigned but in the order of deemed resignation, there is no discussion whatsoever of the applications for leave/extension of leave as aforesaid submitted by the respondent no.2 workman and/or as to genuineness or effect thereof. The petitioner DTC has not considered whether the same constituted sufficient reason for absence. The issuance of show cause notices during the time when the respondent no.2 workman had been expressing inability to join employment was a mere lip service. A hearing ought to have been given to the respondent no.2 workman after he was in a position to attend the same. Moreover, even if it were to be held that an opportunity had been given to the respondent no.2 workman, the fact remains that the explanation furnished by the respondent no.2 workman in his communications in response thereto and giving reasons for absence and seeking extension of leave have not been considered. The order of deemed resignation is absolutely silent in this regard. The principle of natural justice of giving an opportunity of being heard is not to be an empty or abstract exercise. Giving of an opportunity of hearing has a W.P.(c) 5763/1998 Page 7 of 8 corresponding obligation to deal with the representations and to give reasons for the decision. An opportunity of hearing would be meaningless and its purpose would be frustrated, if the authority giving the hearing does not consider the representations of the noticee or does not give any reasons for agreeing or disagreeing with the noticee. The petitioner DTC has not carried out the said determination. 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. Vs. Income Tax Appellate Tribunal MANU/DE/1460/2000 and Assistant Commissioner Vs. Shukla &Brothers MANU/SC/0258/2010). The petitioner DTC is thus not found to have complied with principles of natural justice and its action found illogical.
12. In the circumstances aforesaid, no error can be found with the award impugned in the present petition. The petitioner DTC, notwithstanding various judgments aforesaid on Clause 14 (10)(c) of its Regulations, is found to have contested the matter and to its own prejudice. The petitioner DTC in the light of the aforesaid legal position ought to have withdrawn the present petition and taken work from the respondent no.2 workman. Having not done so, it has itself to blame and no case for modifying the award qua reinstatement or back wages is made out. However, costs of legal proceedings having already been paid, no order as to costs. The interim order is vacated. The petitioner DTC to comply with the award within six weeks of today.
RAJIV SAHAI ENDLAW (JUDGE) 17th May, 2010 pp W.P.(c) 5763/1998 Page 8 of 8