Delhi Transport Corporation vs Surender Kumar
2006 Latest Caselaw 363 Del

JUDGMENT

Gita Mittal, J.

1. By the present petition filed under Article 226 of the Constitution of India, the petitioner has assailed an Award dated 7th November, 2003 whereby the industrial adjudicator held that as the respondent's/workman's absence from duty was treated as leave without pay, therefore the same did not amount to misconduct and consequently held the action of the petitioner in imposing punishment of stoppage of one increment with cumulative effect upon the respondent/workman was illegal and unjustified by way of the industrial award dated 7th November, 2003.

2. Notice of this petition was issued on 7th March, 2005. None put in appearance despite service. On 25th July, 2005, the matter was adjourned in the interest of justice and again on 21st October, 2005 when records of the industrial adjudicator were also called for. The same have been received. There is still no appearance on behalf of the respondent. Accordingly, this writ petition has been taken up for hearing as earlier directed.

3. Perusal of the award shows that the industrial tribunal has placed reliance on the evidence to the effect that the unauthorised absence of the workman had been shown to be leave without pay in its records. Therefore, the industrial tribunal had arrived at a conclusion that availing leave without pay is not a misconduct and consequently held that the management had failed to prove any action on the part of the respondent which would have justified imposition of punishment. It was held that the petitioner had therefore failed to prove any misconduct against the workman.

4. In this behalf, this issue stands authoritatively settled by the Apex Court in its pronouncement reported at DTC v. Sardar Singh wherein it has been held as follows:-

7. In all these cases almost the whole period of absence was without sanctioned leave. 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.C. 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.

8. Clause 15 of the Regulations so far as relevant reads as follows:

(2) Discipline The following penalties may, for misconduct or for a good and sufficient reason be imposed upon an employee of the Delhi Road Transport Authority:

(i)-(v)

(vi) Removal from the service of the Delhi Road Transport Authority.

(vii) Dismissal from the service of the Delhi Road Transport Authority.

9. When an employee absents himself from duty, even without sanctioned leave for a very long period, it prima facie shows lack of interest in work. Para 19(h) of the Standing Orders as quoted above, related to habitual negligence of duties and lack of interest in the authority's work. When an employee absents himself from duty without sanctioned leave, the authority can, on the basis of the record, come to a conclusion about the employee being habitually negligent in duties and an exhibited lack of interest in the employer's work. Ample material was produced before the Tribunal in each case to show as to how the employees concerned were remaining absent for long periods which affects the work of the employer and the employee concerned was required at least to bring some material on record to show as to how his absence was on the basis of sanctioned leave and as to how there was no negligence. Habitual absence is a factor which establishes lack of interest in work. There cannot be any sweeping generalisation. But at the same time some telltale features can be noticed and pressed into service to arrive at conclusions in the departmental proceedings.

10. Great emphasis was laid by learned counsel for the respondent employee on the absence being treated as leave without pay. As was observed by this Court in State of M.P. v. Harihar Gopal by a three-Judge Bench of this Court, even when an order is passed for treating absence as leave without pay after passing an order of termination, that is, for the purpose of maintaining correct record of service. The charge in that case was, as in the present case, absence without obtaining leave in advance. The conduct of the employees in this case is nothing but irresponsible in the extreme and can hardly be justified. The charge in this case was misconduct by absence. In view of the governing Standing Orders unauthorised leave can be treated as misconduct.

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.

5. In these circumstances, the finding of the industrial adjudicator to the effect that the action of the petitioner in having treated the unauthorised absence as leave without pay does not amount to misconduct is not sustainable in law and has to be set aside and quashed. However, the industrial adjudicator still has to examine evidence which is led before it to arrive at a conclusion as to whether the absence was deliberate and negligent.

The length of the absence; reasons therefore; the fact as to whether applications, if any, were made by the workman; orders passed by the petitioner thereon, if any; effect of failure to pass orders thereon etc., have to be considered by the industrial adjudicator before arriving at a finding that the absence was deliberate, negligent, with an intention of unwarranted absentism or that the same may have resulted in loss to the DTC. It would be upon a consideration of several factors that the industrial adjudicator would be required to arrive at a conclusion with regard to the absence by the workman. This would have to be in the light of the principles laid down by the Apex Court in DTC v. Sardar Singh and the applicable standing orders. As a consequence thereof, the adjudicator would be required to consider the legality and propriety of the action taken by the DTC and the punishment imposed on the workman.

6. Even otherwise under the provisions of Industrial Disputes Act, 1947 and the principles laid down by judicial pronouncements confer vide powers on the industrial adjudicators to examine the legality and validity of the action of the management against the employers within well settled parameters.

7. In this view of the matter, the Award dated 7th November, 2003 is not sustainable and is hereby set aside and quashed. The matter is remanded for fresh consideration to the Industrial Tribunal for fresh consideration in the light of the principles laid down by the Apex Court in DTC v. Sardar Singh (supra). Since the workman has remained absent in this court, the industrial tribunal shall issue notice to the parties before taking further proceedings in the matter. It will be open to the industrial adjudicator to give full opportunity to both parties in support of their respective contentions before proceeding to adjudicate in the matter in accordance with law.

This writ petition is allowed in above terms.

The record of the labour court shall be returned forthwith to the labour court.