Shri Krishan Singh S/O Shri Maha ... vs Delhi Transport Corporation ...
2007 Latest Caselaw 948 Del

JUDGMENT

Kailash Gambhir, J.

1. The background of facts leading to this petition in short are that the petitioner was employed as a driver with Delhi Transport Corporation (hereinafter referred as respondent no.1). He was served with a charge sheet on 5/9/1988 for remaining absent for 84 days from 1/1/1988 to 30/6/1988, out of which for 31 days his leave applications were rejected but he still continued to be absent from duty and for 53 days no leave application was submitted. The said charge sheet was based upon the report of the Office Superintendent; Mr. K.L. Sharma.

2. The counsel for respondent no.1 contended that the departmental proceedings were initiated against the petitioner on the ground of misconduct due to unauthorized long absence from duty, which shows negligence of duties and lack of interest in the employers/respondent no. 1s work. According to the award of the Industrial Tribunal, the past conduct of the petitioner was also not good as he himself admitted in his cross-examination that earlier he had been suspended for causing accident on 26/11/1982 and was awarded punishment of stoppage of two increments. He has also admitted that on 27/8/1986, he was given the punishment of warning for causing accident and misbehaving with the officers.

3. Counsel for the petitioner also contended that copy of the past record was not given to the petitioner/workman which fact has been duly admitted by the management witness in his cross examination, and, therefore, inquiry report became bad and invalid in the eyes of law. Counsel for the petitioner invited my attention to the observations of the Tribunal in Para 11 of the award wherein the tribunal has observed that the contention of workman that he was not served with the documents or the list of witnesses, is belied from the chargesheet itself as the same had been supplied to him along with the chargesheet. Although this fact is not borne out from the chargesheet as the copy of the chargesheet placed on record does not show any such annexure of past record with the chargesheet. At the first blush, I found this argument of counsel for the petitioner of some weightage, but, ultimately I found it to be of no substance. In the chargesheet, it is stated that the past record of the petitioner will be taken into consideration at the time of passing final orders in the case. The past record of the petitioner must be well within his knowledge and if the petitioner wanted a copy of the past record, then it was obligatory on his part to at least move some application demanding copy of such past record. No such request was made by the petitioner nor the petitioner pleaded such a case that he ever demanded a copy of the past record. The petitioner himself has been very casual and careless in his approach so much so, he never even offered to produce any evidence in support of his defense. He also refused assistance or any help of his colleagues /co-workers and, therefore, the enquiry was proceeded on the material placed before the enquiry officer. It is a trite law that in a domestic inquiry all the strict and sophisticated rules of evidence are not applicable. Reference in this regard is made to the judgment of the Hon'ble Supreme Court in Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane . In Para 9 of this judgment the Hon'ble Supreme Court after placing reliance on its another previous judgment in the case of State of Haryana and Anr. v. Rattan Singh held as under:

This Court in the case of State of Haryana and Anr. v. Rattan Singh which is also a case arising out of non-issuance of ticket by a conductor held thus:

In a domestic inquiry all the strict and sophisticated rules of the Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible, though departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Evidence Act. The essence of judicial approach is objectivity, exclusion of extraneous materials or considerations, and observance of rules of natural justice. Fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment, vitiate the conclusion reached, such a finding, even of a domestic tribunal, cannot be held to be good. The simple point in all these cases is, was there some evidence or was there no evidence not in the sense of the technical rules governing court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny by court, while absence of any evidence in support of the finding is an error of law apparent on the record and the court can interfere with the finding.

In the present case, evidence of the inspector is some evidence which has relevance to the charge and the courts below had misdirected themselves in insisting on the evidence of the ticketless passengers. Also merely because the statements were not recorded, the order for termination cannot be invalid in fact, the inspector tried to get their statements but the passengers declined. Further, it was not for the court but the tribunal to assess the evidence of the conductor.

4. It would thus seem that it is not the sufficiency of evidence but some evidence on record may be enough to arrive at a just decision. In the absence of any evidence led by the petitioner the material before the enquiry officer was sufficient to prove the misconduct on the part of the petitioner. Even otherwise past record of his misconduct were always within the knowledge of the delinquent workman. In his cross-examination before the Tribunal, the petitioner has duly admitted this fact that earlier he was suspended by the management for causing accidents. The petitioner has not made out any case of any kind of prejudice being caused to him, in the absence of non supply of copy of past record. A person who himself had refused to avail the opportunities granted to him in the disciplinary proceedings of defending himself against the charges of misconduct, cannot be permitted to complain later that he had been denied a reasonable opportunity of defending himself and the disciplinary proceedings conducted against him had resulted in violation of principles of natural justice.

5. The terms and conditions of appointment and service are governed by the applicable service regulations i.e. the Delhi Road Transport Authority (Conditions of Appointment & Service) Regulations, 1952 (hereinafter referred as the Regulations). According to respondent no.1, the unauthorized absence from employers work was indicative of negligence and lack of interest in employers work, which amounts to misconduct. Reference was made to Para 19, Clauses (f), (h) and (m) of the standing orders issued under Para 15 (1) of the Regulations.

Para 19 (f), (h) and (m) reads as follows:

19. General Provisions - Without prejudice to the provisions of the foregoing Standing Orders, the following acts of commission and omission shall be treated as misconduct:

a)...

(f)Habitual breach of any rules, law, instructions or orders etc. applicable to the employees of the authority.

(h) Habitual negligence of duties and lack of interest, in the Authority's work.

(m)Any other activity not specifically covered above, but which is prima facie detrimental, to the interests of the organisation.

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) ...

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

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

...

6. After finding the petitioner guilty, on the basis of the enquiry report of Enquiry Officer, the disciplinary authority imposed punishment of dismissal/removal from services, by an order dated 16/6/1989, after considering the reply given by the petitioner to the show cause notice served by the respondent no.1.

7. Since, the industrial dispute was already pending, approval by way of an application was sought for, in the terms of Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred as the Act). The Industrial Tribunal vide order dated 27/2/1999 granted the approval.

8. An industrial dispute was raised, which culminated into a reference to the Industrial Tribunal from the appropriate government. The terms of reference are as follows:

Whether the penalty of removal from service imposed upon the petitioner, Sh. Kishan Singh by the management vide their letter dated 16/6/1989 is illegal or unjustified and if so to what relief are they entitled and what directions are necessary in this respect.

9. On 22/9/2000, the reference was made to the Industrial Tribunal and on 10/1/2003, the Industrial Tribunal (hereinafter referred as respondent no. 2) passed the award, and, the reference was answered against the petitioner and in favor of the respondent no.1. Aggrieved with the same, the petitioner invoked the extraordinary writ jurisdiction guaranteed under Article 226 of the Indian Constitution and filed the present petition.

10. The counsel for the petitioner has contended that the principles of natural justice were not observed as the petitioner was neither given an opportunity to cross-examine the witnesses nor was given the assistance of the co-worker. But on examination of the documents placed on record, it is clear that the petitioner himself refused to avail the opportunity to cross-examine the witnesses and also refused to take the assistance of a co-worker. So, the above contention of the petitioner is baseless, as he himself did not avail the opportunity given to him.

11. It is further contended by the counsel for the petitioner that as per the records kept by respondent no.1, his leave/absence are not unauthorised but are leave without pay, so same should be treated as authorised by the respondent no.1 and the same cannot amount to misconduct.

12. The learned Counsel for the petitioner, for this argument has relied on the judgment of the Division Bench of this Court in Sardar Singh v. DTC in LPA No. 361 of 2002, decided on 25/9/2002, wherein it was held that once leave is granted without pay, the same becomes authorised one and in relation thereto, no charge/misconduct would lie. The Tribunal in the impugned award has discussed the Division Bench judgment but did not find the same applicable to the facts of instant case like a Euclid theorem. It is correct that on the date of passing of award the Division Bench judgment in Sardar Singh case (supra) held the field, till the same was reversed by the Hon'ble Supreme Court. As already said, ultimately, the Honble Supreme Court took a contrary view and reversed the said decision. The view expressed by the Honble Supreme Court as reported in Delhi Transport Corporation v. Sardar Singh is summarised below:

9. When an employee absents himself from duty, even without sanctioned leave for very long period, it prima facie shows lack of interest in work. Para 19(h) of the Standing Order 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 concerned employees were remaining absent for long periods which affect the work of the employer and the concerned employee 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 generalization. But at the same time some tell-tale features can be noticed and pressed into service to arrive at conclusions in the departmental proceedings.

13. 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 by absence. In view of the Governing Standing Orders unauthorized leave can be treated as misconduct. Conclusions regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly, when same is unauthorized. 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 unauthorized.

14. The Tribunal proceeded in all these cases on the basis as if the leave was sanctioned because of the 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. The learned Single Judge was justified in holding that the employer was justified in passing order of termination / removal. The Division Bench unfortunately did not keep these aspects in view and reversed the view of learned Single Judge as under:

We, therefore, allow these appeals and affirm the view taken by learned Single Judge while reversing that of the Division Bench.

15. The charge in Sardar Singhs case (supra) was, as in the present case, absence without obtaining leave in advance, therefore, it is clear from the above cited judgment that the entry made as to the leave without pay as shown in the official records was made only for the purpose of maintaining a correct record of the duration of service and same cannot be equated with authorised leave. So, the expression leave without pay is only a misnomer in context of the instant case and is used only for record purposes. The overruled Division Benchs decision, relied on behalf of the petitioner by the learned Counsel for the petitioner, now cannot help him. The learned Counsel for the petitioner has claimed that the respondent no.1 is bound by its office circular dated 14/12/1988, according to which, once a period of absence is regularised as leave without pay, there remains no irregularity on the part of an employee and no misconduct can be said to have been committed. The said circular was based on some judgment of the court. But in the instant case, the expression as explained above as shown in the official records was made only for the purpose of maintaining a correct record of the duration of service and same cannot be said to regularise the absence. Even otherwise, the petitioner never submitted any leave application for his remaining on leave for 53 days. At least this period was a case of total unauthorised absentism on the part of the petitioner. So here again the contention of the petitioner falls face down.

16. The counsel for the petitioner also placed reliance on a decision of Supreme Court reported in Glaxo Laboratories (I.) Ltd v. Presiding Officer, Labour Court, Meerut , to support his argument that once the acts complained of did not constitute misconduct under the office circular dated 14.12.1988, then no penalty could be imposed upon the petitioner for such acts. Reference was invited to following para:

Some misconduct neither defined nor enumerated and which may be believed by the employer to be misconduct ex-post facto would not expose the workmen to a penalty. It cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant Standing Order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant Standing Order but yet a misconduct for the purpose of imposing a penalty.

17. But, the above mentioned judgment is inapplicable, as the act of commission/omission of the petitioner in the instant case falls under Para 19 (h) of the standing order governing the conduct of the DTC employees. There is no dispute that when an employee absents himself from duty, even without sanctioned leave for a long period, it prima facie shows lack of interest in work of the employer. Therefore, from the above discussion it is clear that, when an employee absents himself from duty without sanctioned leave the authority can, on the basis of the record, reach to a conclusion about the employee being habitually negligent in duties and exhibited lack of interest in the employer's work. In view of Para 19 (h) of the Standing Orders unauthorized leave can be treated as misconduct. Further, treating leave without pay is not same as sanctioned or approved leave. That being the factual position, therefore, the Industrial Tribunal/respondent no.2 was justified in holding that the enquiry was proper, furthermore, the Industrial Tribunal correctly held that the employer was justified in passing order of termination/removal.

18. There is no merit in the writ petition and the same is dismissed.

19. Parties are left to bear their own costs.

20. Rule discharged.