Delhi Transport Corporation ... vs Mahesh Chander S/O Shri Gauri ...
2004 Latest Caselaw 12 Del

JUDGMENT

Madan b. Lokur, J.

1. The Petitioner is aggrieved by an Award dated 17th January, 2003 passed by the learned Labour Court in ID No. 343/91.

2. The Respondent/workman was employed with the Petitioner. He proceeded on leave on 12th June, 1987 and reported back for duty on 30th November, 1987 along with a medical certificate and a request for sanction of leave. On 1st December, 1987, the Petitioner granted him leave without pay and simultaneously gave him a notice for terminating his service with effect from 11th September, 1987. The Respondent replied to the notice but by an order dated 11th December, 1987 the services of the Respondent were terminated. A departmental appeal filed by the Respondent was dismissed and thereafter the Respondent raised an industrial dispute.

3. Admittedly, no domestic enquiry was held against the Respondent pursuant to the show cause notice issued to him, nor was he given any hearing.

4. In view of the decision of a Division Bench of this Court in DTC vs. Daya Nand & Ors., 2002-III-LLJ 728 (Del), the termination of the services of the Respondent must be held to be bad in the absence of giving him an adequate opportunity of placing his case before the authorities. This is all the more so in a case such as the present where the Respondent was granted leave for the period of his absence, though without pay. As held by the Division Bench, the substance and not the form of the order is important.

5. Learned counsel for the Petitioner has relied upon Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution vs. Educational Appellate Tribunal & Anr., (1997) 7 SCC 332 to contend that since the reply to the show cause notice was considered by the Petitioner and found to be without any merit, there was no reason for the Petitioner to hold a formal domestic enquiry.

6. I am afraid the decision rendered by the Supreme Court in Dharmarathmakara does not assist the Petitioner. In that case, the Supreme Court noted that the facts of the case were undisputed or in any case could not lead to any conclusion other than the one arrived at by the concerned authority. It was noted in paragraph 8 of the Report:

"The contention of learned counsel for the respondent is confined that there was no enquiry in terms of Section 6 of the said Act. There is no submission of any defense on merit. Even before us when we granted learned counsel an opportunity to give any prima facie or plausible explanations on record to defend her actions, nothing could be placed before us. Giving of opportunity or an enquiry of course is a check and balance concept that no one's right be taken away without giving him/her opportunity or without enquiry in a given case or where the statute requires. But this cannot be in a case where allegation and charges are admitted and no possible defense is placed before the authority concerned. What enquiry is to be made when one admits violations? When she admitted she did not join M.Phil. course, she did not report back to her duty which is against her condition of leave and contrary to her affidavit which is the charge, what enquiry was to be made? In a case where the facts are almost admitted, the case reveals itself and is apparent on the face of the record, and in spite of opportunity no worth while explanation is forthcoming as in the present case, it would be not be a fit case to interfere with the termination order."

7. The decision of the Supreme Court has been the subject matter of consideration by some High Courts.

8. The Karnataka High Court in Prasad Babu vs. Corporation Bank, 2003-II-LLJ 775 (Kar) held that in Dharmarathmakara the Supreme Court had "ruled that an enquiry is not necessary when one admits his misconduct."

9. The Andhra Pradesh High Court in Manoharan G. vs. Bank of Maharashtra, Pune & Ors., 2002-III-LLJ 270 (AP), interpreted the Supreme Court decision to mean that "... where the charges are admitted and no possible defense is placed before the authority concerned, no further enquiry is warranted and also there is no violation of principles of natural justice as ample opportunity was afforded to the petitioner to defend her case." Similarly, in Tagore Home Junior College vs. P.P.A. Christian & Ors., 2001 (34) LAB.I.C. 2321 it was concluded that "The Apex Court, on facts, held that full opportunity had been granted to the petitioner therein and her delinquency was proved. In the said case, no submission had been made on merit. A leave was granted by the Apex Court to give any prima facie or plausible explanation to defend the delinquent's action, but nothing was placed."

10. Similarly, in Chandrasekhara Reddy E. vs. Chief G.M. and Disciplinary Authority, 2001-II-LLJ 609 (AP) it was held that "The affording of a reasonable opportunity before a person is visited with civil consequences is a basic tenet of our inherited constitutional order. This is not merely a requirement of the principles of natural justice but has by a series of pronouncements of the Apex Court been held to be a part of the State's constitutional obligation flowing from the equality injunctions of Articles 14 and 16. The obligation to afford fair and reasonable opportunity is an obligation predicated upon the principle that denial, of such reasonable opportunity would tend to arrive at conclusions based on an inadequate or incorrect assumptions of facts. In the cases, however, where the charges are substantially admitted and the misconduct proved on the basis of such admissions, denial of opportunity cannot per se result in invalidity of the final conclusions. This principle is clear from the decision of the Supreme Court in Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v. Educational Appellate Tribunal and another, 1997 (7) SCC 332: 2000-I-LLJ-393."

11. The Rajasthan High Court in Khadi Gramodyog Pratisthan vs. State of Rajasthan & Ors., 2000-II- LLJ 493 (Raj) and in Daksha Sankhla (Dr.) vs. Jai Narayan Vyas University, 2001 (34) LIC 1557 relied upon paragraph 8 of the Supreme Court decision and held in Daksh Sankhla that "... it cannot be held that in each and every case, non-observance of principles of natural justice would vitiate the order. It has to be understood in the context and facts-situation of each case and requirement of statutory Rules applicable therein."

12. Considering the decision of the Supreme Court relied on by learned counsel for the Petitioners, and its interpretation given by various High Courts, it is clear that the principle laid down therein is not applicable to the facts of the case. In the case at hand, the Respondent workman did not admit any misconduct; on the contrary he denied any wrongdoing on his part. He had an explanation for his absence, which was accepted by the Petitioner by regularizing a part of his absence as leave without pay. Therefore, there did appear to be some substance in the case of the Respondent that he was unwell and entitled to leave on medical grounds. This aspect of the case was not at all considered or taken into account by the Petitioner when it summarily passed the order of termination.

13. For the above reasons, I am satisfied that the principles of natural justice have not been adhered to by the Petitioner. There is no reason to set aside the impugned Award.

14. Following the judgment of the Division Bench of this Court, the writ petition is dismissed.