Sreepal vs Delhi Transport Corporation ...
2007 Latest Caselaw 2300 Del

JUDGMENT

J.M. Malik, J.

1. Sreepal, petitioner / workman, was working as driver with the management of Delhi Transport Corporation since 1994. He remained absent unauthorisedly without intimation for a period of 163 days during the period from 1st January, 2003 to 31st October, 2003. The departmental enquiry was conducted and he was removed from service vide letter dated 31.03.2004. The workman/petitioner filed a statement of claim directly in the Court under Section 10(4A) of the Industrial Disputes Act. The respondent contested the present proceedings.

2. The Labour Court came to the conclusion that the enquiry conducted by the department was fair and proper and the petitioner was not entitled to the relief of reinstatement.

3. Under these circumstances, the petitioner filed the present writ petition under Articles 226 and 227 of the Constitution of India with the prayer that the award passed by the Labour Court dated 16th May, 2007 be quashed and the petitioner be reinstated.

4. I have heard the counsel for the petitioner at admission stage. Before me, the learned Counsel for the petitioner made the following short submissions. The object of punishment should be to mend the employee and not to strangulate him, specially when the leave was lying in the credit of the petitioner at the time when he absented himself. The prayer made by the petitioner that he should be granted leave in lieu of his absentee days fell on the deaf ears. The learned Counsel for the petitioner vehemently argued that the petitioner should be given the benefit of leave days and be reinstated as a driver in the DTC.

5. All these submissions, do not help the petitioner to get off the hook. The learned Counsel for the petitioner did not pick up a conflict with the following findings given by the Labour Court. The Labour Court held that the petitioner/workman was a habitual absentee. He was punished by his department for unauthorised absence for as many as nine times. The intermittent absence of an employee causes disruption in the work of the management and also leads to indiscipline and chaos. Again, it must be borne in mind that the DTC is running a transport business and as such, unauthorised absence of its employees causes great inconvenience to the public also. Habitual absence is a factor which establishes lack of interest in work. It is well said, "The absent are children, helpless to defend themselves" I am reminded of following words of Shakespeare, 'Absence from those we love is self from self - a deadly banishment'.

6. The Labour Court in the impugned order has quoted the celebrated authority of the Apex Court reported in DTC v. Sardar Singh , wherein it was held,

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 M.P. v. Harihar Gopal 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 the extreme and can hardly be justified. The charge in this case was misconduct by absence. In view of the governing Standing Orders unauthorised leave can be treated as misconduct.

7. Besides the various cases cited by the learned Labour Court, there are number of cases decided by this Court and the apex court which go to bolster the case of the respondent.

8. In LIC v. R. Dhandapani there was absence of employee for 233 days. While upholding the order of dismissal, the Supreme Court was pleased to observe:

9. In recent times, there is an increasing evidence of this, perhaps well-meant but wholly unsustainable, tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the Courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability. (See: Kerala Solvent Extractions Ltd. v. A. Unnikrishnan and Anr. ).

9. In North Eastern Karnataka R.T. Corporation v. Ashappa and Anr. 2006-II-LLJ 865 the conductor remained absent from duty for a long time, that is, for 129 days, despite notices. It was held that the misconduct could not be treated lightly and the direction for reinstatement of conductor could not be given. The apex court observed:

8. Remaining absent for a long time, in our opinion, cannot be said to be a minor misconduct. The Appellant runs a fleet of buses. It is a statutory organization. It has to provide public utility services. For running the buses, the service of the conductor is imperative. No employer running a fleet of buses can allow an employee to remain absent for a long time. The Respondent had been given opportunities to resume his duties. Despite such notices, he remained absent. He was found not only to have remained absent for a period of more than three years, his leave records were seen and it was found that he remained unauthorisedly absent on several occasions. In this view of the matter, it cannot be said that the misconduct committed by the Respondent herein has to be treated lightly.

10. In DTC v. Balraj Singh 2006(8) AD (Delhi) 503 the facts were these. The respondent/workman unathorisedly absented himself for more than 100 days. The respondent was working as driver with the DTC. The Court came to the conclusion that the absence on the part of the workman indicated lack of interest. It was further held that the absence of respondent from duty without sanction may jeopardize the business of the Corporation. It was further observed that the misconduct was sufficiently established. It again justified the termination.

11. In an authority reported in Vijay Pal v. ITDC 2006(91) DRJ 434 the employee remained absent for 129 days without leave. It was held that the employer is not bound to bear with absenteeism. It was further held that if an employer decides to dispense with the service of an employee who has remained absent for more than 129 days without intimation, the employer cannot be accused of having imposed punishment which is shockingly disproportionate to misconduct.

12. In Mahender Singh v. DTC 2006(91)DRJ 48 the employee remained absent for 88 days. The punishment imposed by the respondent/DTC for dismissal of the employee was upheld.

13. In Kedar Singh v. DTC 2006(92) DRJ 191 the workman remained absent within a period of four months for 71 days without sanctioned leave. His dismissal from service on account of absence from duty without sanctioned leave was justified.

14. I have perused the file on other aspects as well. It is not out of place to mention here that during enquiry proceedings the petitioner himself admitted that he was absent and his absence was necessitated on account of his sickness as well as the sickness of his wife. The Labour Court found that the admission though subsequently contested stood proved on the record.

15. Although the workman objected that he was not served with the list of witnesses as well as the list of documents, yet he could not specify as to which documents were not supplied to him. He did not make any complaint before the enquiry officer that he was not supplied with the list of witnesses as well as the list of documents as alleged by him. He admitted that the enquiry proceedings Ex.WW1/M1 bears his signatures. Consequently, the Labour Court gave short shrift to the submissions made by him in this regard and dismissed the above-said pleas.

16. In the light of the above discussion, I see no merit in the writ petition. The same is, therefore, dismissed at the admission stage.