Dharam Pal vs Delhi Transport Corporation
2007 Latest Caselaw 1090 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. This appeal is directed against the order passed by the learned single Judge on 3rd July, 2006 whereby the writ petition filed by the appellant/workman was dismissed.

2. The appellant/workman herein was appointed as a driver in 1994. While working as such he absented from his duties without any intimation for the period during 12th June, 1996 to 25th August, 1996. Since he was absent without any intimation and without due application, the respondent sent a letter dated 10th July, 1996 to his residential address calling upon him to join his duties and also intimating him that if is ill, in that case he was required to submit a medical certificate and report before the Medical Board. No reply was received from the appellant/workman to the aforesaid letter. whereupon another reminder was sent on 8th August, 1996. Despite the aforesaid intimation, the appellant/workman did not respond immediately and he rejoined his duties only on 26th August, 1996 but that also without submitting any medical certificate.

3. Consequently, a charge sheet dated 17th September, 1996 was issued to the appellant/workman on the ground that he was unauthorizedly absent without sanction of leave from 12th June, 1996 to 25th August, 1996 showing negligence towards his duties amounting to misconduct under Article 19(h) and 19(m) of the standing orders. A disciplinary enquiry was conducted thereafter. On completion of the same it was found that the charges levelled against him were proved. After issuance of a notice to show cause by the disciplinary authority, the punishment of removal from service of the appellant/workman was ordered vide order dated 28th July, 1997.

4. The appellant sought for a reference on the aforesaid dispute regarding his termination. The Appropriate Government passed an order dated 13th September, 2000 whereby the dispute raise by the appellant/workman was referred for adjudication in the following terms: "Whether the punishment inflicted upon Shri Dharam Pal by the management vide orders dated 28.7.97 is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect."

5. A bare perusal of the aforesaid terms of reference makes it crystal clear that the legality and the validity of the disciplinary proceedings was not raised as an issue by the appellant. Nor such an issue regarding the validity of the disciplinary proceeding was referred for adjudication. The reference was, therefore, restricted only to the quantum of punishment awarded to the appellant which was assailed and required to be adjudicated in terms of the reference. Even before the Industrial Tribunal, who was adjudicating the reference, a definite stand was taken by the appellant/workman that so far as the enquiry and the findings of the inquiry officer are concerned, the appellant was not challenging the same. The said stand was supported by the fact that the authorised representative of the workman made a statement to that effect on 30th April, 2001. Therefore, it is established that the enquiry against the appellant/workman was conducted in a valid and appropriate manner. So far the quantum and proportionality of the punishment was concerned, the appellant/workman also took up a stand before the tribunal that he did not wish to lead any evidence on the said issue. Therefore, in view of the aforesaid stand taken by the appellant/workman the issue that was referred for adjudication was required to be decided on the basis of the pleadings of the parties. Before the tribunal, the workman raised two specific issues:

i) The ground on which the quantum of punishment was challenged was that the management/respondent failed to comply with the provisions of Section 33(2) of the Industrial Disputes Act, 1947; and

ii). That the DTC has treated the period of unauthorised absence of the workman as 'leave without pay' which amounted to regularisation of the leave and, therefore, the same could not have been a charge of misconduct.

6. Both the aforesaid issues raised by the appellant/workman were negated by the Industrial Tribunal. Consequently, the writ petition was filed by the appellant/workman before the learned single Judge which was heard and disposed of by the impugned judgment and order. On going through the impugned judgment and order we find that several other issues were raised on behalf of the appellant/workman before the learned single Judge which, although, were not raised before the learned Industrial Tribunal yet all the said issues were considered by the learned single Judge. But none of them could persuade the learned single Judge to interfere with the award passed by the industrial tribunal. Resultantly, the writ petition was dismissed. Still aggrieved, the appellant filed the present appeal on which we have heard the learned Counsel appearing for the parties and have also perused the records.

7. Learned Counsel appearing for the appellant has mainly canvassed the two propositions. The first ground on which the impugned judgment and order was challenged is with regard to the non-compliance of the directions of the departmental circulars in conducting the disciplinary proceedings. The said ground in our considered opinion does not arise for consideration at all in view of the nature and terms of the reference which was restricted. The aforesaid issue regarding non-compliance of the departmental circular in conducting the disciplinary proceeding cannot be a ground of objection as the authorised representative of the appellant/workman made a categorical statement on 30th April, 2001 to the effect that so far as the enquiry and findings of the inquiry officer are concerned, the appellant was not challenging the same. Therefore, there cannot be now a contention raised that the departmental enquiry was not conducted in accordance with the circular or a ground to the effect that the said enquiry was conducted in violation of the principles of natural justice.

8. However, since the learned single judge has considered similar submission, therefore, we have taken note of the said submission. The aforesaid circular which is referred to and relied upon by the appellant/workman herein was also not a ground taken before the Industrial Tribunal. The learned single Judge considered the aforesaid circular issued by the respondent. The said circular was also a subject matter of consideration before this Court in a writ petition being CWP No. 1420/2002 titled as DTC v. Shyam Singh and Anr. The said writ petition was disposed of by judgment and order dated 29th September, 2004 and the Court held as under:

Reliance placed by the learned Tribunal on the circular dated 12th February, 1973 is also misplaced. The circular requires the Enquiry Officer to ask a delinquent, on each date of the proceedings, whether he needs the assistance of any other workman. This circular merely incorporate a rule of prudence and not a mandatory direction, non-compliance of which would invalidate an inquiry. In a case such as the present, the respondent-workman, a literate conductor refused to take the assistance of a co-worker in the very first hearing. This being the position, the Enquiry Officer cannot be expected to ask him in every hearing whether he requires the assistance of any other worker....

9. The aforesaid observation in our considered opinion are squarely applicable to the facts of the present case also as was held by the learned single Judge. Besides, in the case of State of Haryana v. Rattan Singh wherein also a similar contention was raised that the domestic enquiry conducted against the workman therein was also not challenged in terms of the departmental instructions. The said instructions pertain to the issue of requirement of the statement to be recorded in a particular manner. In the said case, the Supreme Court has held that such instructions are instructions of prudence and not rules that bind or vitiate the enquiry. Therefore, we are not inclined to accept the aforesaid contention raised by the counsel appearing for the appellant, on merit as well as also on the ground that the said issue could not have been canvassed before us as the same was abandoned by the workman in the Industrial Tribunal itself.

10. So far the second contention is concerned, the same relates to the ground that the respondents themselves have regularised the unauthorised absence from duty by passing the order that the aforesaid period of absence should be treated as leave without pay. It was submitted that, therefore, having regularised the said period, there could not be a punishment on the ground of unauthorised absence amounting to misconduct. The aforesaid ground is also without any merit as the aforesaid submission is contrary to and contradictory to the ratio of the decision of the Supreme in DTC v. Sardar Singh in which the Apex Court held as under:

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 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 extreme and can hardly be justified. The charge in this case was misconduct of absence. In view of the Governing Standing Orders unauthorised leave can be treated as misconduct.... The Tribunal proceeded in all these cases on the basis as if the leave was sanctioned because of he noted leave without pay. Treating as leave without pay is not same as sanctioned or approved leave.

That being the factual position, the Tribunal was not justified in refusing to accord approval to the order of dismissal/removal as passed by the employer.

11. In view of the aforesaid ratio decidendi laid by the Supreme Court, it cannot be said that action of the respondent in treating the unauthorised absence as leave without pay amounts to its regularisation and not amounting to misconduct. The findings recorded by the learned single Judge are found to be rational and reasonable. We find no ground to interfere with the said findings. We find no merit in the appeal and the same is dismissed.