Mahender Singh vs D.T.C. And Anr.
2007 Latest Caselaw 1613 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. This appeal is directed against the judgment dated 04.08.2006 passed by the learned Single Judge dismissing the writ petition of the appellant herein which was filed against the order of Industrial Tribunal dated 4.11.2000 granting approval to the Delhi Transport Corporation to the decision taken for removal of the appellant from service.

2. Briefly the facts are that a charge-sheet was issued to the appellant who was employed as a Driver with the respondent. In the said charge-sheet it was alleged that appellant remained absent from duty during the period from 01.01.1992 to 15.08.1992. It was also alleged in the charge-sheet that the appellant was irregular in performing his duty and was not interested in the task assigned to him by the Corporation. Against the aforesaid charge-sheet a reply was filed by the appellant wherein he had alleged that he was unwell during the months of September and October, 1991. After his recovery he was sent to the D.T.C Medical Board. On issuance of medical fitness certificate by the said Board on 29.10.1991, he reported for duty. He also submitted that his wife is a heart patient and also frequently suffers from the attacks. An enquiry was conducted on the basis of the aforesaid allegations made in the chage-sheet and reply thereto filed by the appellant and on completion of the enquiry a decision was taken by the Delhi Transport Corporation to terminate the service of the appellant. Once the said decision was taken for removal of the appellant from service an application under Section 33(2)(b) of the Industrial Disputes Act was filed seeking approval of the Tribunal of its decision. The aforesaid application was considered by the Tribunal and preliminary issue was framed on 12.01.1995 to the following effect:

Whether the application held legal and valid enquiry against the respondent according to the principles of the natural justice.

3. The respondent was given opportunity to lead evidence. However, the said issue was decided against the respondent for want of evidence. Consequently in terms of the procedure an opportunity was given to the respondent to establish its case on merits before the Tribunal and following additional issue was framed on 23.10.1996:

Whether the respondent committed the misconduct for which he was charge-sheeted.

4. At this stage, the respondent examined Shri Charan Singh, Pay Bill Clerk as AW1. He deposed before the Tribunal about the preparation of statement of attendance of appellant from January 1992 to 15.08.1992. He had also deposed that during the period from 01.01.1992 to 15.08.1992 the appellant remained absent from duty for 8 days and leave application for other 80 days were rejected as the same was received late. He further deposed that the report was prepared on the basis of relevant record. The record and the report were exhibited as Ex AW/1 and Ex. AW1/2. He denied that the leave for 80 days was sanctioned. He also denied the fact that the appellant had submitted the leave applications within time. The appellant also examined himself as RW1. After completion of the evidence adduced by the parties the learned Industrial Tribunal heard the matter and held that the allegation made against the appellant stands proved. It was also held that the appellant remained absent from duty unauthorizedly as is alleged in the charge-sheet. It was further held that act of appellant in remaining absent from duty unauthorizedly for 88 days during the total period of service of 71/2 months itself clearly established that he was habitual in committing such misconduct. Accordingly, the approval was granted to terminate the services of the petitioner. Aggrieved with the same, the writ petition (C) No.5512/2001 was filed by the appellant which was considered by the learned Single Judge. The said writ petition was dismissed vide order dated 4.8.2006. Aggrieved with the said order the appeal is filed on which we have heard the learned Counsel for the parties.

5. In the charge-sheet the specific allegation made against the appellant is that he remained unauthorizedly absent from duty for the period form 01.01.1992 to 15.08.1992 which is a period of about 88 days. Initially, the appellant was absent from duty for 8 days for which no application for leave was filed and thereafter for the rest of 80 days it is alleged that although leave applications were received but the same were received late as such the same were rejected. The said fact is proved by the evidence of Shri Charan Singh (AW1), Pay Bill Clerk who appeared before the Tribunal for his cross-examination and was cross-examined at length. His deposition clearly established that the appellant remained absent from duty unauthorizedly for 88 days. The justification that is sought by counsel for the appellant before us is that although the appellant was absent from duty, it was on medical ground for which he had submitted his leave applications also. However, we are unable to agree with the contention raised by the counsel appearing for the appellant for the simple reason that the medical certificate which is referred to in the reply of the appellant is for the period prior to 29.10.1991 which is not even the relevant date in respect of which charge-sheet was issued. The next submission of counsel appearing for the appellant is that there is no evidence placed by the respondent on record to indicate that leave application was rejected. In our considered opinion such evidence is available as the witness Shri Charan Singh (AW1)appearing for the respondent has categorically stated that the aforesaid leave application was received late. This Court while sitting as an Appellate Court cannot reappreciate the evidence adduced. However, since a submission was made to that effect, we have looked into the evidence and on appreciation of the same, we find that the contention raised has no merit at all.

6. In view of the above, there is no merit in this appeal and the same is dismissed.