D.T.C. vs Satish Kumar (Deced) Thr. Lr'S
2007 Latest Caselaw 2388 Del

JUDGMENT

Hima Kohli, J.

1. Counsel for the petitioner has obtained instructions from his client and submits that the possibility of granting pensionery benefits to the legal heirs of the deceased respondent/workman from the date of his death i.e. w.e.f. 2.4.2000 onwards, while foregoing the back wages payable to him, is not acceptable to the petitioner for the reason that the deceased respondent/workman was removed from service on 20.8.1992 and that he did not opt for pension. In fact, it is stated that on 13.5.1993, he received the share of the employer as well as that of the employee payable towards pension. It is further stated that the deceased respondent/workman also did not chose to avail of the scheme reopened by the petitioner in the year 1998 for grant of pension.

2. The present writ petition has been filed by the petitioner against the order dated 5th October, 2002 passed by the Industrial Tribunal in O.P. No. 376/1992, whereunder the application filed by the petitioner/DTC under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short `the Act') was rejected.

3. Brief facts of the case are that the respondent No. 1 was appointed as an Assistant Fitter with the petitioner/management on 21.8.1982. It is a case of the petitioner that the deceased respondent/workman absented himself from duty unauthorizedly for the period from 14.1.1991 to 13.5.1991 and again from 11.6.1991 to 31.12.1991 without submission of leave application/prior sanction of leave from the competent authority. On 1.4.1992, one Shri Mukesh Kumar Sharma, Junior Clerk (PBC W.Shop), submitted a report dated 1.4.1992 informing that the respondent was absent from duty for 58 days without submission of leave application or prior sanction of leave. As a result, disciplinary proceedings were initiated by the petitioner/management against the respondent and on 3.4.1992, a charge sheet was served upon him. Thereafter, inquiry proceedings were held in respect of the charge sheet and the Inquiry Officer gave a report against the respondent/workman which was accepted by the disciplinary authority and it was decided to remove him from the services of the Corporation, vide order dated 20th August, 1992. Simultaneously, the petitioner/management filed an application under Section 33(2)(b) of the Act seeking approval of its action to remove the respondent/workman from service. The application was considered by the Industrial Tribunal and a preliminary issue was framed to the following effect:

Whether the applicant held a legal and valid enquiry against the respondent according to principles of natural justice?

4. Vide order dated 4.12.1996, the preliminary issue was decided against the petitioner/management and an opportunity was granted to it to adduce evidence to establish the misconduct of the respondent/workman. Evidence was adduced by the petitioner/management by producing the Depot Manager as AW-I, who placed on record a copy of the past record of the respondent/workman, notice to show cause issued to him, the charge sheet, punishment/removal order, salary slip and postal receipts. While taking note of the fact that the reporter, Mr. Mukesh Kumar Sharma was not examined and also that the respondent/workman had expired during the pendency of the proceedings, the Industrial Tribunal arrived at a conclusion that there was nothing placed on the record by the petitioner/management to show how the leave without pay was converted into absence leading to the issuance of the charge sheet. Thus, it was held that the petitioner/management had failed to establish the misconduct of the respondent/workman and as a result, the approval application of the petitioner/management was rejected.

5. Counsel for the petitioner states that during the pendency of the present writ petition, the Supreme Court had rendered a judgment in the case of DTC v. Sardar Singh reported as 2004 (SCC) (L and S) 946, wherein it is held as below:

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, relates 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 Madhya Pradesh v. Harihar Gopal (1969) (3) SLR 274 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 terminating 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 extreme and can hardly be justified. The charge in this case was misconduct by absence. In view of the Governing Standing Orders unauthorized 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 Orders 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.

(emphasis added)

6. In view of the aforesaid observations of the Supreme Court, it is deemed appropriate to remand the matter back to the Industrial Tribunal for reconsideration in the context of the facts as also the material placed on the record, including the evidence adduced by the parties, in the light of the judgment passed by the Supreme Court as referred to hereinabove.

7. List this matter before the Industrial Tribunal on 18th January, 2008. Counsels for the parties shall be permitted to address arguments on the basis of the material already placed on the record in O.P. No. 376/1992. The writ petition is accordingly disposed, of along with the pending application.

8. The Registry is directed to forward a copy of this order directly to the Industrial Tribunal for perusal and compliance.