D.T.C. vs Jagdev Singh
2005 Latest Caselaw 1812 Del

JUDGMENT

Gita Mittal, J.

1. These writ petitions involve similar questions of law and are based on the same facts. As such they are being taken up together for consideration and decision.

2. The respondent Shri Jagdev Singh in both the writ petitions was appointed as a retired crew conductor with the Delhi Transport Corporation ('DTC' hereafter) with effect from 1st November, 1983 and was working as a conductor with the Corporation. A chargesheet dated 5th August, 1991 was issued to him by his employer alleging that he was absent from duty on 9, 10 and 28 to 31st July, 1991 without sending any application/or without sanction/approval from appropriate authority and was again absent from duty on 27, 28th June, 1991 and 2nd, 3rd, 4th and 22nd July, 1991 for which applications were submitted very late.

3. It was alleged that these acts constituted misconduct under para 19(f)(h) of the DRTA(Conditions of Appointment and Service) Regulations, 1952 and the respondent was required to submit an explanation. The respondent submitted his reply which was found by the DTC to be without any basis. Based thereon a second show cause notice was issued to the respondent workman requiring him to show cause against a proposed penalty. On 4th March, 1992, the depot manager had tentatively formed an opinion and sent notice to the workman requiring him to show cause why he should not be removed from service. It is stated that no reply was filed thereto by the respondent and ultimately on 20th April, 1992, an order of removal of the respondent/workman from service under para 15(2) (vi) of the DRTA(Conditions of Appointment and Service) Regulations, 1952 was passed.

3. An inquiry was conducted against the respondent/workman from 23rd November, 1991 and 5th February, 1991. The respondent chose not to appear before the inquiry officer despite notices. In these circumstances, evidence on behalf of the DTC was recorded. The inquiry was concluded on 5th February, 1991. The witness further also stated inquiry officer had taken a view that the alleged misconduct stood proved against the respondent and was accepted by him.

4. The petitioner had moved the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act, 1947 for approval of its aforestated action which was registered as OP No. 160/1992. The case of the DTC was controverter by the respondent interalia for the reason that his unauthorised absence had been regularised by the DTC as it was treated as leave without pay and also for the reason that he was compelled to seek leave for bonafide and genuine reason of his sickness and ailment of other family members. According to the respondent he was never informed about the rejection of his leave applications or that he has committed misconduct. The inquiry was challenged on the ground that it was not conducted as per the rule and regulations and there was violation of principles of natural justice.

5. A preliminary issue was framed on 22nd March, 1995 as to whether the DTC had held a legal and valid inquiry against the respondent/workman according to principles of natural justice. The DTC failed to produce evidence in support of its case and consequently the issue of validity of inquiry was decided against the petitioner.

6. On the request of the DTC, additional issues were framed to enable the petitioner to establish the misconduct on the part of the workman before the Industrial Tribunal. Even though the chargesheet was specific in terms of the days on which the respondent/workman had been absent which were mentioned as 27th and 28th August, 1991 and 2nd, 3rd, 4th and 22nd July, 1991, the witness on behalf of the DTC had deposed that the respondent was irregular in attending his duties during the period January, 1991 to December, 1991. The witness further also stated that the unauthorised absence was treated as without pay.

7. The Industrial Tribunal, vide its order dated 4th September, 2000, came to the conclusion that the petitioner having treated the unauthorised absence of the workman as leave without pay, his conduct lost the colour of misconduct and could not have been so treated in order to terminate the services of the respondent/workman. It was further held that such period should not be treated as negligence on the part of a workman and accordingly the application of the DTC under Section 33(2)(b) of the Industrial Disputes Act, 1947 was dismissed by the Tribunal vide its order dated 4th September, 2000. The DTC has impugned this order dated 4th September, 2000 by way of writ petition(civil) no. 3036/2001.

8. It appears that the workman had also raised an industrial dispute challenging the punishment imposed upon him vide the order dated 20th April, 1992 which was referred for adjudication to the Industrial Tribunal vide a notification dated 16th October, 2001. This reference was registered as ID No. 119/2001. The respondent/workman had placed reliance on the order dated 4th September, 2000 passed by the Labour Court dismissing the application of the DTC under Section 33(2)(b) of the Industrial Disputes Act seeking approval of the disciplinary proceedings and action taken against the workman. Based on the principles of law laid down by the Apex Court in Jaipur Zila Sehkari Bhoomi Bank Limited Vikas and Shri Ram Gopal Sharma and Ors. reported at , it was contended by the workman that upon dismissal of the approval application, the order of termination itself was rendered non-est and a nullity. According to the workman he was consequently entitled to reinstatement.

9. The DTC failed to contest these proceedings. No written statement was filed. Its defense was struck off and finally it was also proceeded ex-parte. However though the DTC appeared in the proceedings subsequently, no application was filed seeking setting aside of the ex-parte proceedings nor any permission was sought to file the written statement.

10. In these circumstances, the learned Industrial Tribunal, placing reliance on the uncontroverter evidence of the workman and the law laid down in the Jaipur Zila Sehkari Bhoomi Vikas Bank's case(supra) held that the order of removal from service was not operative and that the DTC was bound to reinstate the workman into service. Accordingly the reference was answered in the affirmative in favor of the workman. Vide its award dated 5th September, 2002, the DTC was directed to reinstate the respondent/workman and pay full back wages to him with continuity of service from 20th April, 1992. In case of non-payment within a month of publication of the award, the DTC was held to be liable to pay interest at the rate of 9% per annum.

11. Writ petition(civil) 5477/2003 has been filed by the DTC impugning this award dated 5th September, 2002 passed in favor of the workman.

12. According to the petitioner, the Industrial Tribunal has erred in dismissing the application of the DTC seeking approval of the disciplinary action taken against the petitioner and also in passing the impugned award dated 5th September, 2002 in favor of the workman. It has been urged that the workman was unauthorisedly absent from work and that this conduct amounted to negligence and lack of interest in performing his duties by the workman and consequently the disciplinary action taken by the corporation deserves to be upheld.

13. On the other hand, Mr. Chaturvedi, learned counsel for the workman, placing reliance on the pronouncement of this court dated 21st December, 2001 in Writ Petition(civil) 160/2001 DTC v. Rajender Singh, Ex-driver, has contended that the period of unauthorised absence alleged against the workman was of barely six days which was also intermittent and on account of the reasons explained and noticed hereinabove. It has been contended that the workman was prevented by causes beyond his control and therefore such absence could not be treated as evidence of negligence or lack of interest in performing his duties. It has further been contended that the petitioner-DTC itself had admitted receipt of the applications for the three days absence in July, 2001 and as such the disciplinary action or removal from service was contrary to law and unsustainable.

14. The issue relating to the effect of the DTC treating unauthorised absence of its workman as leave without pay has fallen for consideration before the Apex Court in AIR 2004 SC 4161 entitled Delhi Transport Corporation of Delhi v. Sardar Singh wherein after consideration of the applicable rules and regulations and the law on the subject, the principles of law have been set out thus :-

8. In all theses cases almost the whole period of absence was without sanctioned lave. Mere making of an application after or even before absence from work does not in any way assist the concerned employee. The requirement is obtaining leave in advance. In all these cases the absence was without obtaining leave in advance. The relevant paras of the Standing Order 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 cases 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) Habitual absence without permission or sanction of leave and any continuous absence without such leave for more than 10 days shall render the employee liable to be treated as an absconder resulting in the termination of his service with the Organisation.

19. General Provisions :- Without prejudice to the provisions of the foregoing Standing Orders, the following acts of commission and omission shall be treated as mis-conduct :

(a) ...

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

11. Conclusions regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly, when same is unauthorised. Burden is on the employee who ;claims that there was no negligence and/or lack of interest to establish it by placing relevant materials. Clause (ii) of Para 4 of the Standing Order shows the seriousness attached to habitual absence. In clause (i) thereof, there is requirement of prior permission. Only exception made is in case of sudden illness. There also conditions are stipulated, non-observance of which renders the absence unauthorised.

12. Conclusions regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly, when same is unauthorised. Burden is on the employee who claims that there was no negligence and/or lack of interest to establish it by placing relevant materials. Clause (ii) of Para 4 of the Standing Order shows the seriousness attached to habitual absence. In clause (i) thereof, there is requirement of prior permission. Only exception made is in case of sudden illness. There also conditions are stipulated, non-observance of which renders the absence unauthorised.

15. A close reading of the pronouncement of the Apex Court shows that it has been held that when an employee absents himself from duty, without sanctioned leave for a very long period, such conduct primafacie shows lack of interest in work. The Apex Court has noticed that para 19 (h) of the standing order relates to habitual negligence of duty and lack of interest in the authority's work. If the workman has a long record of absence without sanctioned leave, the DTC may be justified to come to a conclusion about an employee being habitually negligent in duty and displaying a lack of interest in the employee's work. The Apex Court held that the such conclusions regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly, when the same is unauthorised. The burden of proof was squarely on the employee who was submitting that there was no negligence or lack of interest in the work to establish so by placing relevant material evidence. Clause (ii) of para 4 of the standing order sets down to habitual absence. Without sanction or continuous absence of ten days would render the employee liable for being treated as an absconder and termination of his services.

The Apex Court also observed that in the cases before it, ample material was produced before the Tribunal to show as to how the concerned employees were remaining absent for long periods which affected the work of employer and the concerned employee was required to place some material on record to establish that his absence was on the basis of sanctioned leave and as to how there was no negligence in discharge of his duties.

16. The guiding principle however is habitual absence which is the factor which establishes lack of interest in work and duty.

17. So far as the judgment of this court in DTC v. Rajender Singh is concerned, the decision was rendered before the pronouncement of the Apex Court in DTC v. Sardar Singh . It is the principles laid down by the Apex Court which would bind this court.

18. I find that the judgment of the Apex Court in Sardar Singh's case(supra) itself carves out certain exceptions which negate conclusions of negligence even though the absence may not have been strictly with permission of the DTC.

Furthermore para 4 (ii) of the applicable Standing Order itself notices that it is habitual absence without permission or sanction of leave and continuous absence without such leave for more than ten days which renders the employee liable to be treated as an absconder resulting in termination of his service with the organisation.

19. Clause 4 (i) of the standing order mandates that in the case of certain sudden illness as an employee shall send an intimation to the office immediately. In case the sickness is expected to last beyond three days, the application shall be accompanied by a medical certificate. 20. In the instant case, from a perusal of the chargesheet, it has been alleged that the respondent/workman was absent for only two days on the 27th and 28th August, 1991 and for four days on 2nd, 3rd, 4th and 22nd July, 1991. This came to a total of six days absence which was spread over two months. The respondent has sent leave applications which have been received by the petitioner though, it has been alleged, that the same was sent late. However there is nothing on record to show as to what was the delay in making the application.

21. So far as the proceedings under Section 33(2)(b) of the Industrial Disputes Act, 1947 are concerned, no challenge has been made to this order against the DTC, the inquiry proceedings were vitiated. When given an opportunity to prove the misconduct, the DTC only examined the inquiry officer and did not opt to even prove the past record of the workman to make out a case of the workman's being a habitual absentee before the Industrial Tribunal. Reliance was sought to be placed on the same before this court for the first time which is clearly impermissible.

22. Before the Industrial Tribunal concerned with the reference in respect of the dispute raised by the respondent/workman challenging his termination, the DTC did not even file a written statement to the claim made by the workman. There was no material placed before the court to displace the case established by the workman before the tribunal.

23. In these circumstances, the submission of the DTC that the present case is covered under the principles laid down by the DTC v. Sardar Singh and that the absence of the workman has to be treated as habitual absence establishing lack of interest in his work is completely misconceived and unfounded.

24. So far as the findings of the Industrial Tribunal in the order dated 4th September, 2000 and the Award dated 5th September, 2002 to the effect that the action of the DTC in treating the period of unauthorised absence as leave without pay amounts to regularisation of the same, is erroneous in law and is hereby set aside.

25. However in view of the principles laid down by the Apex Court and the stipulations contained in clause 4 of the Standing Order noticed above, in the instant case the workman was absent for a period of six days which are not continuous. The DTC miserably failed in its primary burden to establish that this absence was unauthorised or that the workman was a habitual defaulter or negligent that his alleged unauthorised absence fell within the mischief or amounted to 'misconduct' to invite disciplinary action as in the instant case. In these circumstances, even though the findings of the Industrial Tribunal on the effect of the DTC's action in treating the absence as leave without pay, have been set aside, the ultimate result cannot be indifferent and the writ petitions have to be dismissed. For the foregoing reasons, the present writ petitions are dismissed. The petitioner shall pass appropriate orders in terms of the relief granted by the industrial tribunal in its award dated 5th September, 2002 within a period of six weeks from today. The litigation expenses already stand paid to the respondent/workman and as such no order as to costs is being made.