D.T.C. vs Sh. Madan Lal
2007 Latest Caselaw 1997 Del

JUDGMENT

Hima Kohli, J.

1. The present petition has been filed by the petitioner Delhi Transport Corporation (DTC) challenging the orders dated 9.9.2002 and 20.12.2002 passed by the Industrial Tribunal (for short 'the Tribunal') in proceedings under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') invoked by the petitioner DTC. While by the former impugned order the Tribunal held that the enquiry proceedings were vitiated, by the latter the approval application filed by the petitioner DTC under Section 33(2)(b) of the Act, seeking approval of its action in removing the respondent workman from service, was rejected.

2. Precisely stated, facts of the case are that the respondent workman was appointed as a sweeper cleaner with the petitioner DTC. It was found on checking the leave record of the respondent that between May, 1991 and June 1991, he remained on unauthorized leave for a period of 50 days without prior information and approval from the competent authority. The leave however was treated as Leave Without Pay. Consequently, a charge sheet was issued to the respondent workman on 30.8.1991 for committing misconduct under Sections 4(11) of the DRTA Act and paras 19(h) and (m) of the Standing Orders. An enquiry was conducted wherein the enquiry officer found all the charges to be proved and vide order dated 25.2.1992, the respondent workman was removed from service. Thereafter, an approval application was filed by the petitioner DTC before the Tribunal, seeking approval of the action taken by it against the respondent workman. Reply was duly filed by the respondent workman before the Tribunal.

3. On the basis of the pleadings of the parties, the following issues were framed by the Tribunal:

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

2. Whether one month's wages were sent to the respondent simultaneously with the issuance of order of removal from service? If not, to what effect?

4. The enquiry officer tendered his evidence and was cross-examined, and on the basis of his deposition, the aforesaid issue was decided against the petitioner DTC and it was held by way of the impugned order dated 9.9.2002 that the enquiry was vitiated for the reasons that the findings of the enquiry officer were perverse and he did not conduct the enquiry in accordance with the rules and principles of natural justice and also that there was no material on record to hold the 50 days period as unauthorized absence when the alleged period had already been treated as leave without pay. As a result, issue No. 1 was decided against the petitioner DTC.

5. Simultaneously, on 9.9.2002 itself, another issue was framed, being issue No. 2a, to the effect as to whether the respondent workman committed the misconduct as alleged against him. Another witness of the petitioner management, namely Sh. Pratap Singh came in the witness box and stated that the concerned authority had issued a charge sheet dated 30.8.1991 to the respondent workman and one month's salary was also sent to the respondent workman with the removal order on 25.2.1992. Thus, issue No. 2 was decided in favor of the petitioner DTC. However, it was held ultimately that the alleged period of 50 days was on account of excessive leave taken by the respondent workman and not on account of his unauthorized absence, and thus the same did not amount to misconduct. Consequently, the approval application of the petitioner DTC was dismissed by the impugned order dated 20.12. 2002.

6. Counsel for the petitioner DTC contended that the Tribunal failed to appreciate that the respondent workman had participated in the enquiry proceedings and had been given an opportunity to examine the reporter and also to produce his witnesses, which opportunity he refused to avail of. It was further stated that the respondent workman had admitted the charges leveled against him, and in view of the said facts, there was no question of any breach of the principles of natural justice on the basis of which, the enquiry proceedings could be held to be vitiated.

7. It was submitted that the Tribunal erred in holding that it was an admitted case of excessive leave and not of absence, because the said unauthorized absence was termed as Leave Without Pay only according to custom and usage but it remained unsanctioned. It was averred that the unauthorized leave of 50 days amounted to misconduct within the meaning of para 19 (h) and (m) of the Standing Orders governing the petitioner DTC's employees. Reliance was placed on the judgment rendered by the Supreme Court in the case of DTC v. Sardar Singh , to state that unauthorized absence from duty ought to be treated as misconduct.

8. On the other hand, counsel for the respondent workman submitted that the impugned award did not suffer from the vices of illegality or perversity, as it was based on the evidence on record and the facts of the case. It was stated that since the alleged period of 50 days of excessive leave which the respondent workman had taken because of the ill- health of his wife, had been treated as Leave Without Pay by the petitioner DTC, therefore the same could not be treated as unauthorized absence and it is not covered under Section 4(11) of the DRTA Act and clause 19(h) and (m) of the Standing Orders of the petitioner DTC. Reliance was placed on the judgment of the Supreme Court in the case of State of Punjab and Ors. v. Bakshish Singh decided on 8.09.1998 and the judgment of this Court in the case of DTC v. Harbir Singh being W.P.(C) No. 6394/1999, dated 25.10.1999 to say that once the period of absence was treated by the petitioner DTC as Leave Without Absence, the same could not them be deemed to be a misconduct.

9. On the issue of the validity of the enquiry, it was submitted that in view of the evidence on record, the Tribunal rightly held that the same was vitiated for non-compliance with the principles of natural justice. It was pointed out that the cross-examination of AW-1, Sh. Sumeet Mudgal, clearly reveals that he had admitted that he did not hold the designation of enquiry officer and that he could not say whether the notice issued by him was delivered to the workman or not and also that the enquiry was concluded on the same day on which it began and there was no presenting officer.

10. I have heard the rival contentions of the counsels for both the parties and have perused documents placed on record including the impugned orders.

11. The first issue that needs to be addressed herein is with regard to the validity of the enquiry proceedings. A perusal of the records of the enquiry proceedings shows that respondent workman was given an opportunity to be represented, but he refused the said offer and stated that he would conduct the cross-examination on his own. He was also given an opportunity to question the reporter, which opportunity also he refused. It is further revealed that the respondent workman also refused to bring any witnesses on his behalf and stated that his reply to the charge sheet be treated as his closing statement. In view of the refusal of the respondent workman to avail his rights, it was erroneous on the part of the Tribunal to hold the enquiry to be vitiated. A perusal of the aforestated documents also makes it evident that the respondent workman had in clear and unequivocal terms, admitted that he had taken the leave due to his wife's illness, and he never disputed the fact of his absence. Also, the fact as to whether the enquiry officer was so designated or not by the petitioner DTC, ought not to have weighed with the Tribunal so much so as to hold the entire enquiry proceedings as vitiated on the said ground. It is now a settled principle of law that rules of natural justice ought not to be applied in an abstract manner or as a straight-jacket formula. The main test is whether any real prejudice has been caused to the respondent workman or not. In the present case, it cannot be said that any real prejudice has been caused to the respondent workman by the fact that the enquiry officer who conducted the proceedings did not hold the said designation, as long as the enquiry was entrusted to him on the file of the case of the respondent workman and he had been authorized to conduct the enquiry. Also, in view of the admission of the respondent workman of the charges leveled against him, there was no arbitrariness or illegality in the proceedings being initiated and concluded on the same day. Therefore, this Court has no option but to hold that the Tribunal erred in concluding that the enquiry proceedings were vitiated for non-compliance of the principles of natural justice.

12. The findings of the Tribunal, to the effect that as the alleged period of 50 days was on account of excessive leave and not absence, and that the said leave had been treated by the petitioner DTC as Leave Without Pay, cannot withstand the scrutiny of law, 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 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. The judgments in the cases of Bakshish Singh (supra) and Harbir Singh (supra), on which the respondent workman has relied upon, were rendered before the decision in the case of Sardar Singh (supra), and as of today, position of law is as enunciated in Sardar Singh's case.

14. In the aforesaid facts and circumstances, and the position of as discussed above, the writ petition filed by the petitioner DTC is allowed, and consequently the impugned orders dated 9.9.2002 and 20.12.2002 are set aside. The parties are directed to appear before the Industrial Tribunal on 6th November, 2007 for further proceedings. The Industrial Tribunal 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 light of the judgment rendered by the Supreme Court in the case of Sardar Singh (supra). As the dispute relates to the year 1992, the Tribunal shall make an endeavor to decide the case as expeditiously as possible, and in any case, preferably within a period of six months. There shall be no orders as to costs.