Delhi Transport Corporation vs Delhi Administration, Delhi
2001 Latest Caselaw 1735 Del

JUDGMENT

Vikramajit Sen, J.

1. The reasons which have weighed for the dismissal of the batch of petitions by judgment dated 19.10.2001 in C.W.P. 4231/1997 will also apply to the present case. However, two decisions of the Hon'ble Supreme Court may be considered here, since reliance thereon has ben placed by Ms. Sharma, Learned Counsel for the DTC. In Buckingham and Carmatic Co. Ltd. v. Venkatiah and Anr. , , he issue centered around the application of Section 73 of the Employees' State Insurance Act, 1948 and the relevant passage of the judgment reads thus:-

"Mr. Sastri for the appellant contends that the case of Venkatiah falls squarely within the provisions of Standing Order 8(ii) and the High Court was in error in holding that the decision of the appellant in refusing to condone the absence of Venkatiah was either unfair or improper, or that it contravened the provisions of Section 73 of the Act. Let us first examine Standing Order No. 8(ii) before proceeding any further. The said Standing Order reads thus:

"Absent without Leave: Any employees who absents himself for eight consecutive working days without leave shall be deemed to have left the Company's service without notice thereby terminating this contract of service. If he gives an explanation to the satisfaction of the management, the absence shall be converted into leave without pay or dearness allowance.

Any employee leaving the Company's service in this manner shall have no claim for re-employment in the Mills.

But if the absence is proved to the satisfaction of the Management to be one due to sickness, then such absence shall be converted into medical leave for such period as the employee is eligible with the permissible allowance."

This Standing Order is a part of the certified Standing Orders which had been revised by an arbitration award between the parties in 1957. The relevant clause clearly means that if an employee falls within the mischief of its first part, it follows that the defaulting employee has terminated his contract of service. The first provision in Clause (ii) proceeds on the basis that absence for eight consecutive days without leave will lead to the inference that the absentee workman intended to terminate his contract of service. The certified Standing Orders represent the relevant terms and conditions of service in a statutory form and they are binding on the parties at least as much, if not more, as private contracts embodying similar terms and conditions of service. It is true that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and, normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. But where parties agree upon the terms and conditions of service and they are included in certified Standing Orders, the doctrines of common law or considerations of equity would not be relevant. It is then a matter of construing the relevant term itself. Therefore, the first part of Standing order 80(ii) inevitably leads to the conclusion that if an employee is absent for eight consecutive days without leave, he is deemed to have terminated his contract of service and thus relinquished or abandoned his employment."

2. It is thus apparent that no challenge had been made in the above case to the Management's action on the grounds that the Standing Orders offended the principles of natural justice. Hence this precedent is of no avail to the DTC.

3. In National Engineering Industries Ltd. Jaipur v. Hanuman, , this ground had also not been raised. The main issue was whether Section 33A of the I.D. Act would apply where the workman's services terminates automatically under the Standing Orders, and it was opined in the negative. But another question had been answered in this case as also in Buckingham and Carmatic Co. Ltd.'s case (supra), which militates against the DTC. The Court observed as follows:-

"It is however urged that some difference is made by the existence of another provision in the Standing Orders. In Appendix 'D' of the Standing Orders one of the Major Misdemeanours is "absence without permission exceeding ten consecutive days." That in our opinion is an alternative provision and the appellant in this case was free to resort to any one of the provisions, unless it is shown that resort to one particular provision was due to mala fide."

4. It has been contended by Learned Counsel appearing for the Workman that Regulation 14(10)(c) of D.R.T.A. (Conditions of Appointment and Service) Regulations 1952,had been invoked and applied in a mala fide manner. Where a workman absents from duty without obtaining leave, his action would in the normal course invite disciplinary action and may even lead to termination of services. However, in this event, an enquiry would be essential, and in its absence, the order of the Management putting an end to the workman's appointment, could be legally ineffectual. Where a workman has not even applied for leave, it would not be open to the Management to sanction him extraordinary leave for whatever reason, including under Regulation 14(1)(b) of D.R.T.A. (Conditions of Appointment and Service) Regulations 1952. What the DTC has sagaciously sought to do is to by-pass the holding of an enquiry by granting extraordinary leave to the workman, and thereafter conveniently holding him to have deemed to have resigned under the succeeding Regulation of 14(10)(c). The action of the DTC is clearly mala fide.

5. These observations are supplemental to the Judgment in CWP 4231/1997. For all these reasons the Petition is without merit and is dismissed.