D.T.C. vs Presiding Officer And Anr.
2007 Latest Caselaw 1918 Del

JUDGMENT

Hima Kohli, J.

Page 2643

1. RULE.

2. With the consent of both the parties, the writ petitions are taken up for disposal.

3. By this common judgment and order, this Court proposes to dispose of WP(C) No.5638/2002 and WP(C) No.5655/2001. While the former writ petition is filed by the workman, Hari Prakash seeking reinstatement in service pursuant to rejection order dated 7.3.2001, passed by the Industrial Tribunal on the approval application filed by the DTC seeking approval of its decision regarding removal of the workman from service, the latter writ petition has been filed by the DTC assailing the aforesaid order dated 7.3.2001. For the sake of convenience, facts of WP(C) No. 5655/2001 are taken note of.

4. A brief backdrop of the case is necessary for proper appreciation of the dispute. The respondent/workman was appointed as a Conductor with the petitioner/management on 2nd September, 1983. It is the case of the petitioner/management that the respondent/workman remained absent from duty without any intimation from 29.9.1990 to 8.10.1990 and again from 7.8.1991 to 31.1.1992 i.e. for a period of 178 days. On 10.2.1992, the petitioner/management served a charge sheet on the respondent/workman for his unauthorized absence by stating that his absence from duty for 178 days without intimation, continuously for the period from 7.8.1991 to 31.1.1992, showed his lack of interest in the work of the petitioner/ management and amounted to misconduct within the meaning of para 19 (h) and (m) of the Standing Orders governing the conduct of DTC employees. The respondent/workman filed a reply dated 24.2.1992 to the aforementioned charge sheet. On 1.4.1992, an oral inquiry was held and based thereon, a report submitted by the Inquiry Officer. Pursuant thereto, the respondent/workman was served with a notice to show cause on 27.4.1992. The disciplinary authority considered the reply of the respondent/workman as also the report of the Inquiry Officer, and vide its order dated 4.6.1992, removed the respondent/workman from service of the petitioner/management. On the very same day, the petitioner/management filed an approval application under Section 33(2)(b) of the Industrial Disputes Act (hereinafter referred Page 2644 to as 'the Act') before the Industrial Tribunal. The said application was considered by the Industrial Tribunal, but was rejected on the ground that the respondent/workman did not commit any misconduct and, therefore, the petitioner/ management was not entitled to approval of its action of removing the respondent/workman from service. Aggrieved by the aforesaid order, the petitioner/management has filed the present writ petition.

5. It was argued by the counsel for the petitioner/management that the present case is covered by a judgment of the Supreme Court in the case of DTC v. Sardar Singh as it was held therein that unauthorized absence from work ought to be treated as misconduct. It was also submitted that the conclusion of the Industrial Tribunal to the effect that the respondent/workman had submitted leave applications and therefore he had not absented himself from duty without intimation was erroneous, as it was not sufficient for the respondent/workman to simply submit his leave application, but it was also incumbent upon him to prove that the said leave had been sanctioned by the competent authority. Thus, he stated that failure on the part of the respondent/workman to show that he had applied for leave and that his leave had been sanctioned, was sufficient to prove the case of the petitioner/management that the respondent/workman was unauthorizedly absent.

6. The aforesaid position was disputed by the counsel for the respondent/workman who stated that the petitioner/management misdirected itself by arguing the case of unauthorized absence without proper sanction of leave for the reason that the charge sheet served upon the respondent/workman levelled a charge against him for his 'absence from duty for 178 days without intimation continuously...'. Thus, he argued that all that the respondent/workman was required to do was to intimate the petitioner/management about his absence from duty and no sanction was required from the competent authority as urged by the counsel for the petitioner/management.

7. The aforesaid argument advanced by the respondent/workman was sought to be rebutted on behalf of the petitioner/management by submitting that the charge sheet is not required to be read as a statute, and that the meaning of the charges framed is to be seen in the context of the intention with which the charge sheet was issued. Thus the term 'intimation' used in the charge sheet had to be read in the context of 'prior intimation', as 'intimation' by itself is meaningless.

8. Counsel for the petitioner/management also pointed out that the charge sheet referred to the period of absence of the respondent/workman as from 7.8.1991 to 31.1.1992, while as per the respondent/workman's own case, he sent an intimation to the petitioner/management only on 7.10.1991, i.e. after remaining absent for a period of two months, thus frustrating the very purpose of intimating the employer which is to enable it to make some alternate arrangements. In support of his Page 2645 contention that jurisdiction of an Industrial Adjudicator, while dealing with an approval application filed under Section 33(2)(b) is very limited as the Industrial Tribunal while dealing with the said application is expected only to examine a prima facie case for disposal of such an application, the said proceeding not being a full-fledged proceeding for the purpose of adjudication of the industrial dispute which stage comes only when a matter is referred under Section 10 of the Act to a Labour Court/Industrial Tribunal, counsel for the petitioner has relied upon the following judgments:

1. Martin Burn, Ltd. v. Banerjee (R.N.) 1958 (1) LLJ 247;

2. State of Haryana and Anr. v. Ratan Singh 1977 (34) FLR 264;

3. DTC v. Ram Kumar and Anr. 1982 (2) LLJ 191.

9. I have heard the counsels for the parties and have also perused the impugned order dated 7.3.2001 in the light of the charge sheet issued to the respondent/workman. It is relevant to note that a preliminary issue was framed as to whether the petitioner/management held a legal and valid inquiry against the respondent/workman in compliance with the principles of natural justice. Vide order dated 8.8.1997, the preliminary issue was decided against the petitioner/management with the observations that the charge against the respondent/workman was that he had absented from duty without intimation, which stood falsified on the basis of the record placed before the Inquiry Officer, who himself took notice to two leave applications submitted by the respondent/workman where he had sought leave of 7-8 months. It was concluded that had the said leave applications being rejected and the decision so communicated to the respondent/workman, the matter would have been different but as there was no such document on record and it was admitted on behalf of the petitioner/ management that the period in question had been treated as leave without pay, the findings of the Inquiry Officer were held to be perverse and the enquiry report was set aside. Thus, the preliminary issue was decided against the petitioner/management.

10. This was followed by giving liberty to the parties to lead evidence. The petitioner/management examined two witnesses AW-2, the disciplinary authority and AW-3, the Inquiry Officer and placed on record the copies of the charge sheet, notice to show cause, reply thereto, the order of removal from service issued to the respondent/workman, proof of service along with one month's wages placed on the record, apart from the affidavits of both the witnesses and the report of the Inquiry Officer. On the other hand, the respondent/workman examined himself as RW-1 and filed an affidavit in his evidence.

11. After perusing the documents placed on the record and the deposition of the parties, the Industrial Tribunal gave a finding that it cannot be said that the respondent/workman remained absent from duty for 178 days without any intimation as he had sent two leave applications to the petitioner/ management under postal certificate and for the reason that Page 2646 the respondent/ workman was not charge-sheeted for remaining absent from duty without permission of the competent authority but was charge- sheeted for remaining absent `without intimation' to petitioner/management. Hence, the Tribunal did not go into the question of the respondent/ workman remaining absent from duty without permission but confined itself to examine as to whether the respondent/workman remained absent from duty without intimation. With the aforesaid observations, the Industrial Tribunal concluded that as the petitioner/management had permitted the respondent/ workman to take leave without pay for the period mentioned in the charge sheet, the authorities could not have charge- sheeted him for committing misconduct as alleged against him.

12. In the light of the judgment rendered by the Supreme Court in the case of Sardar Singh (supra), it can no longer be said that once the period of absence is treated as period of leave without pay or any other kind of leave, then the unauthorized absence does not remain misconduct. This issue is no longer res integra. In this regard, the Supreme Court in the case of Sardar Singh (Supra) observed as under:

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 Page 2647 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.

13. Further, the conclusion arrived at by the Industrial Adjudicator that as the charge-sheet refers to the absence of the respondent/workman for 178 days without intimation and does not refer to remaining absent without permission, hence the Tribunal could not go into the question as to whether the respondent/workman remained absent without permission, is also unacceptable. There is force in the arguments of the counsel for the petitioner/management that the charge-sheet is not to be read as a statutory provision. A charge-sheet is not a piece of legislation, but merely a mode of intimation to an employee of the alleged irregularities of conduct as comitted by him in service for purpose of initiating disciplinary action against him. Hence, the intention behind the charge-sheet has to be understood in the context of the misconduct alleged against the delinquent employee. To read the charge-sheet in such a rigid manner as sought to be urged on behalf of the respondent/workman will amount to making a mockery of the entire procedure.

14. Also, the very purpose of submitting an application for leave is to seek prior permission from an employer so as to enable the employer to make alternate arrangements and to ensure that its work does not suffer on account of the absence of the employee. In the present case, there is no dispute to the fact that the respondent/workman went on leave for the period w.e.f. 7.8.1991 to 31.1.1992. However, he chose to send a leave application only on 7.10.1991, i.e. after remaining absent for a period of 2 months. As observed by the Supreme Court in the case of Sardar Singh (supra), the conclusion regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly when the same is unauthoriszed. When an employee absents himself from duty without sanction of leave, then the authority can, on the basis of the record, arrive at a conclusion that the employee was habitually negligent in duty, thus adversely affecting the work of the employer.

15. There is also no quarrel with the proposition that the scope of jurisdiction exercised under Section 33(2)(b) of the Act is very limited as the Tribunal Page 2648 before whom an application is made under the said provision, is not to adjudicate upon an industrial dispute arising between the management and the workman, but is only to consider whether the ban imposed on the right of the employer in the matter of altering conditions of service to the prejudice of the workman during the pendency of the proceedings referred to therein, should be lifted or not. Thus, a prima facie case has to be made out by the employer for the purposes of lifting of such a ban and in this background, the Tribunal is required to either allow or to refuse such a permission so as to ensure that an employer is not acting in a mala fide manner or is not resorting to any unfair practice of victimization.

16. For the aforesaid reasons, this Court is unable to sustain the findings of the Industrial Tribunal to the effect that once absence of an employee is treated as leave of any kind, then the absence becomes `stingless'. On the contrary, habitual absence is a factor which ought to be given weightage to establish lack of interest in work and can certainly be a ground to arrive at an adverse conclusion against a delinquent employee in departmental proceedings. Thus, treating the absence of the respondent/ workman as leave without pay, cannot be equated with sanctioned and/or approved leave so as to exonerate an employee of charges of misconduct.

17. In the aforesaid circumstances and the position of law as discussed above, the writ petition filed by the DTC is allowed, and consequently, the petition filed by the workman is dismissed. The impugned order dated 7.3.2001 is set aside and the parties are directed to appear before the Industrial Adjudicator on 5th November, 2007 for further proceedings. The Industrial Adjudicator shall pass a fresh order after considering the evidence led by the parties including depositions made by both sides and the entire material placed on record, in the light of the judgment rendered by the Supreme Court in the case of Sardar Singh (supra).

18. There shall be no orders as to costs.