Delhi High Court
Prem Singh S/O Shri Kedar Singh vs Delhi Transport Corporation ... on 11 October, 2006
Author: S N Dhingra
Bench: S N Dhingra
JUDGMENT
Shiv Narayan Dhingra, J.
1. By this writ petition the petitioner has challenged the validity of order dated 28.2.2005 passed by the Industrial Tribunal-II allowing an application made by the respondent under Section 33(2)(b) of the Industrial Disputes Act.
2. Briefly, the facts are that petitioner was working as a driver with the respondent, he absented from duty without sanctioned leave from January, 1991 to April, 1991 for 71 days. On the basis of the report received about his absence the depot manager initiated disciplinary proceedings against him. The enquiry went against the petitioner and the petitioner was dismissed from service for the misconduct. Thereafter, an application under Section 33(2)(b) of Industrial Disputes Act was made before the Industrial Tribunal. The Industrial Tribunal vide order dated 26.2.2001 rejected the approval application of the respondent. Respondent filed a writ petition against the order before this Court. This Court remanded back the matter keeping in view of the judgment of Supreme Court in DTC v. Sardar Singh SJT 2004 (6) SC 342 asking the Tribunal to decide the matter afresh in light of the law laid down by Supreme Court. After the case was remanded back Tribunal framed following issues:
Whether the period mentioned in the chargesheet of absence/leave without pay have been duly sanctioned by the applicant? OPR
3. After recording evidence of both the parties the Tribunal came to conclusion that the petitioner remained absent for 71 days during January, 91 to April, 91 without sanction of the leave. Tribunal relying upon the judgment of DTC v. Sardar Singh (supra) held that the dismissal of the petitioner was valid and legal and allowed the application under Section 33(2)(b) of the Act.
4. The petitioner has challenged the award on the ground that the Tribunal went wrong in not considering the fact that out of 71 days of absence 58 days were due to emergent medical reasons and 13 days due to unavoidable personal work. The petitioner had sent leave applications giving bonafide and genuine reasons. The leave of the petitioner was regularised by granting leave without pay, therefore, there was no reason to initiate disciplinary action against him. The other ground of challenging the order is that the Tribunal vide order dated 24.4.2000 had decided the preliminary issue whether the domestic enquiry had been held properly, against the respondent and since this order was not challenged this order had become final and the order of the Tribunal was against the law.
5. In DTC v. Sardar Singh (supra), the Supreme Court had considered the issue if treating unauthorised absence as 'leave without pay' absolves an employee of misconduct. The Tribunal and the High Court had taken the view that once the absence has been treated as 'leave without pay', no disciplinary action can be taken. The Supreme Court held that there was nothing wrong in initiation of departmental enquiry where an employee is absent without sanctioned leave. The long absence of employee is indicative of negligence and lack of interest in duty. Treating absence as leave without pay to keep the service record updated for the purpose of administrative reasons, does not wash away the misconduct of the employee. Since the impugned order of Tribunal follows Supreme Court in Sardar Singh case, no fault can be found with the order. This Court in DTC v. Bal Kishan and Anr. 123 (2005) DLT 596 and in Jal Singh v. Commissioner of Police and Ors. 2001(7)AD Delhi 712 held that the regularization of the absence as 'leave without pay' would not absolve the delinquent of the misconduct and the order of dismissal does not suffer from any illegality. The regularisation of absence as 'leave without pay' is normally done for the purpose of maintaining a correct record of the duration of service and adjustment of leave due. This does not discharge an employee from misconduct. In the present case the petitioner remained absent within a period of 04 months for 71 days without sanctioned leave and his absence was treated as 'leave without pay' but that did not absolve him of the misconduct.
6. It is settled law that even if the enquiry is found vitiated, the Tribunal has to give opportunity to prove misconduct and record evidence of both sides. Tribunal in the present case recorded evidence and came to the conclusion that misconduct stood proved. This Court in writ jurisdiction cannot act as a court of appeal and re-appreciate the evidence and come to a different conclusion.
7. I do not find any force in the writ petition. The writ petition is hereby dismissed.
