Delhi Transport Corporation ... vs Shri Raj Singh Ex-Driver And The ...
2004 Latest Caselaw 947 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioner is aggrieved by two orders dated 6th March, 1999 and 17th February, 2000 passed by Industrial Tribunal No. III in O.P. No. 586/93.

2.The allegation against the Respondent workman was that he remained unauthorisedly absent from duty for a period of 95 days between 1st November, 1992 and 23rd February, 1993. It was alleged that this amounted to misconduct within the meaning of paragraph 4(1) and paragraph 19(h) and (m) of the Standing Orders governing the conduct of DTC employees. These paragraphs read as follows:-

''4. Absence without permission:-

(i) An employee shall not absent himself from his duties without having first obtained the permission from the Authority or the competent officer except in the case of sudden illness. In the case of sudden illness he shall send intimation to the office immediately. If the illness lasts or is expected to last for more than 3 days at a time, applications for leave should be duly accompanied by a medical certificate, from a registered medical practitioner or the medical Officer of the D.T.S. In no case shall an employee leave station without prior permission.

(ii) xxx xxx xxx

19. GENERAL PROVISIONS: Without prejudice to the provisions of the foregoing Standing Orders, the following acts of commission and omission shall be treated as misconduct:

(a) to (g) xxx xxx xxx

(h) Habitual negligence of duties and lack of interest in the Authority's work.

(i) to (l) xxx xxx xxx

(m) Any other activity not specifically covered above, but which is prima facie detrimental, to the interests of the organisation.''

3. According to the Respondent workman he did not receive any charge sheet or any notice of any enquiry. According to the Petitioner an oral enquiry was conducted on 20th July, 1993 in which the Respondent workman was found guilty of the charges levelled against him. Thereafter the disciplinary authority issued a notice to the Respondent workman on 25th November, 1993 to show cause why he should not be removed from service. On a consideration of the reply given by the Respondent workman, the disciplinary authority ordered his removal from service by an order dated 22nd December, 1993. The Respondent workman was paid one month's wages and removed from service.

4. On the same day, the Petitioner filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 for approval of the order of termination.

5. The Respondent workman contested the application under Section 33(2)(b) of the Act. The learned Tribunal framed a preliminary issue to the effect whether a legal and valid enquiry had been held against the Respondent workman. It was noted by the learned Tribunal that there was nothing on the record of the enquiry proceedings to show that the Respondent workman had received a charge sheet or any notice of an enquiry. The Enquiry Officer did not record any reason for proceeding ex parte against the Respondent workman. He simply recorded the evidence of the witnesses for the Petitioner and found the Respondent workman guilty of misconduct.

6. On these facts, the learned Tribunal by an order dated 6th March, 1999 found that the domestic enquiry conducted against the Respondent workman was contrary to the principles of natural justice and was, therefore, vitiated.

7. Learned counsel for the Petitioner did not seriously contest the view expressed by the learned Tribunal about the validity of the enquiry, as indeed he could not. There is nothing on record to suggest that the Respondent workman had received notice of the enquiry proceedings and in the absence of any proof in this regard, it must be held that the enquiry was conducted behind the back of the Respondent workman and, therefore, it was rightly held contrary to the principles of natural justice.

8. The learned Tribunal thereafter gave an opportunity to the Petitioner to prove the Respondent workman's misconduct by independently leading evidence before the Tribunal.

9. The Petitioner produced one Daya Nand, a dealing clerk as its principal witness. On the basis of the Respondent workman's service record, Daya Nand deposed that the Respondent workman had remained absent from duty between 1st November, 1992 and 3rd February, 1993 without any intimation or permission and unauthorisedly. This witness also produced the master attendance register. It was admitted by this witness that the period of absence of the Respondent workman was treated as leave without pay.

10. The Respondent workman did not lead any evidence in support of his case.

11. The learned Tribunal did not doubt the correctness of the record produced by the Petitioner to the effect that the Respondent workman had been unauthorisedly absent from duty. However, what the learned Tribunal held was that since the absence of the Respondent workman was treated as leave without pay even before the charge sheet was issued, his absence did not amount to misconduct.

12. The issue raised in the present writ petition is no longer res integra in as much as the Supreme Court in Delhi Transport Corporation vs. Sardar Singh 2004 (6) SCALE 613 has held that if an employee remains absent from duty without any authority or without any leave being sanctioned to him, he would be committing misconduct. Unauthorized absence being treated as leave without pay does not mean that the employee has not committed any misconduct. The Standing Orders make it clear that if a person is away from duty without any leave, it shows his lack of interest in his work. The only exception for unauthorised absence is sudden illness, which was not the case made out by the Respondent workman. Since there was no justification for the Respondent workman being away for duty without any leave, it must be held that he had committed misconduct in terms of paragraphs 4(1) and 19(h) and (m) of the Standing Orders governing the conduct of employees of the Petitioner.

13. Learned counsel for the Respondent workman submitted that the period of absence was treated as leave without pay even before issuance of the charge sheet to the Respondent workman. To my mind this is of no consequence. The concept of unauthorised absence is clear and it makes no difference whether the unauthorised absence is treated as leave without pay before issuance of the charge sheet or after. It continues to remain unauthorised absence, which is misconduct under the Standing Orders of the Petitioner.

14. Learned counsel for the Respondent workman brought to my notice the averment made in the counter affidavit filed by his client to the effect that he had submitted an application for leave supported by a medical certificate. Neither the date of the application has been mentioned in the counter affidavit nor has the date of the medical certificate been mentioned nor have copies of these documents been annexed with the counter affidavit. The averment made in the counter affidavit is as vague as it can be.

15. Under the circumstances, I am of the view that the second impugned order dated 17th February, 2000 is liable to be set aside. It is ordered accordingly. The consequence of this is that approval for removal of the Respondent workman is now accorded under Section 33(2)(b) of the Act.

16. The writ petition stands disposed of in the above terms. No costs.