Delhi Transport Corporation vs The Presiding Officer Labour ...
2000 Latest Caselaw 1245 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioner is aggrieved by an Award dated 12th May, 1998 passed by the learned Labour Court No. VIII.

2. Respondent No.2 (hereinafter referred to as the Workman) initially joined the services of the Petitioner as a daily wage conductor some time in 1982. He was confirmed on this post in April, 1984.

3. From 15th October, 1986 onwards, the Workman absented himself from his duties without any authority or sanction. Accordingly, on 19th January, 1987 a show cause notice was issued to him in which it was stated that he was unauthorizedly absenting himself from work and that his absence for a period of three months from 15th October, 1986 to 14th January, 1987 was regularised as extraordinary leave without pay. It was stated that his absence beyond 14th January, 1987 cannot be regularised and he was asked to show cause why it should not be deemed that he has resigned from his appointment with effect from 15th January, 1987 under the provisions of Regulation 14(10)(c) of the Delhi Road Transport Authority (Conditions of Appointment & Service) Regulations, 1952 (hereinafter referred to as the DRTA Regulations).

4. Even though the show cause notice was served on the Workman, he did not send any reply to the same. Accordingly, by an order dated 28th January, 1987 it was declared that the Workman is deemed to have resigned from his appointment with effect from 15th January, 1987.

5. The Workman raised an industrial dispute and the appropriate Government referred the matter for adjudication on the following term of reference:

"Whether the termination of services of Shri Ram Dutt is illegal or unjustified, if so, to what relief is he entitled and what directions are necessary in this respect?"

6. The learned Labour Court was of the view that the provisions of Regulation 14(10)(c) of the DRTA Regulations are inconsistent with the principles of natural justice and as such, they cannot be given effect to. It was further held that the absence of the Workman up to 14th January, 1987 had been regularised; for his subsequent unauthorised absence, the Petitioner should have initiated disciplinary action, and in the absence of any such disciplinary action having been taken, it was held that the cessation of the employment amounted to retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). Since the retrenchment compensation as required by Section 25F of the Act had not been paid, it was held that the termination of the services of the Workman were illegal.

7. Regulation 14(10)(c) of the DRTA Regulations reads as follows:

"14(10) Extraordinary leave without pay may be granted to an employee in special circumstances:-

(a) xxx xxx xxx

(b) xxx xxx xxx

(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 employees, 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 up to 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."

8. Learned counsel for the parties made their submissions on 7th August, 2000 when judgment was reserved.

9. Learned counsel for the Petitioner relied upon a decision of the Supreme Court in Hindustan Paper Corporation Vs. Purnendu Chakrobarty & Ors., . It was contended that a somewhat similar concept as appearing in Regulation 14(10)(c) of the DRTA Regulations was under consideration before the Supreme Court. While deciding the case, the Supreme Court took into consideration the concession made by learned counsel for the Management that the relevant rule be given effect to subject to the compliance of the principles of natural justice. In other words, it was conceded that the employee was entitled to a show cause notice before any action is taken against him for automatic termination of his services and his explanation should be considered before taking a final decision in the matter.

10. Accepting this concession, the Supreme Court was of the view that the rule it was considering, met the test of Articles 14 and 16 of the Constitution.

11. It was contended by learned counsel for the Petitioner that in view of the fact that a show cause notice had been given to the Workman in the present case, there has been compliance with the principles of natural justice. The Workman was given an opportunity to show cause why he should not be deemed to have resigned from service; since the Workman did not show cause, the Petitioner had no option but to deem that he had resigned from his appointment.

12. Learned counsel for the Workman relied upon the decision of Uptron India Ltd. Vs. Shammi Bhan and Anr., as well as the decision of a learned Single Judge of this Court in D.T.C. Vs. Shishu Pal, 2000 (85) FLR 431 to contend that an employee whose services have been confirmed cannot be terminated without holding an enquiry.

13. I am afraid both these decisions do not come to the aid of the Workman.

14. In Uptron India Ltd., the Supreme Court held in paragraph 25 of the Report as follows:

"In view of the above, we are of the positive opinion that any clause in the Certified Standing Orders providing for automatic termination of service of a permanent employee, not directly related to "Production" in a Factory or Industrial Establishment, would be bad if it does not purport to provide an opportunity of hearing to the employee whose services are treated to have come to an end automatically."

15. It appears, therefore, that in Uptron India Ltd. the Supreme Court accepted the position that a provision for automatic termination of services would not be bad, per se, if an employee is given an opportunity of being heard before his services are treated to have automatically terminated.

16. In Shishu Pal, there is nothing to indicate that a show cause notice was sent to the Workman. Moreover, in that case the Management did not appear before the Labour Court and was proceeded against ex parte. The learned Single Judge has clearly mentioned that he has decided the case on the basis of the material placed on the record and in the absence of any material being produced by the Management before the Labour Court.

17. So far as the present case is concerned, I am of the view that learned counsel for the Petitioner is right in her contention that the Petitioner was entitled to invoke Regulation 14(10)(c) of the DRTA Regulations.

18. The Workman was absent from duty without any sanction. The Petitioner was willing to wait for him to rejoin duty. However, the Petitioner was of the view that it cannot wait beyond a point of time as postulated by the DRTA Regulations. In such a situation, the refusal of the Workman to rejoin duties and his refusal to inform his employer the reason for not rejoining duties cannot be held against the employer. The employer is entitled to assume that beyond a point of time, his employee must have quit. If it is not so assumed, then an employer would have to wait indefinitely and would never be able to conclude that his employee has quit. This is not what is postulated by the DRTA Regulations.

19. Under the circumstances, I am of the view the Petitioner was right in issuing a show cause notice to the Workman. The Workman was put on a clear notice that the maximum period of leave available to him has already been granted and it is not possible to grant him any further leave. The Workman received this notice. If he had a genuine reason for not rejoining duties, he could have certainly explained it to the Petitioner by sending a written communication or by orally explaining it to the Petitioner. The Workman, however, did nothing of the sort. He completely ignored the notice sent to him. This, quite naturally, led the Petitioner to assume that the Workman is not interested in rejoining duties.

20. Consequently, the Petitioner rightly invoked the deemed resignation clause against the Workman.

21. In view of the above, I am of the opinion that the learned Labour Court was in error in coming to the conclusion that the services of the Workman were illegally terminated. There was no question of his services being terminated: he was deemed to have resigned in terms of the provisions of Regulation 14(10)(c) of the DRTA Regulations.

22. Accordingly, the impugned Award dated 12th May, 1998 is set aside and the writ petition is allowed.

23. No costs.