Delhi High Court
Dtc vs Om Singh on 6 September, 2007
Bench: M Sharma, S Khanna
ORDER
1. This appeal is directed against the judgment and order dated 23rd March, 2006 passed by the learned Single Judge, whereby the writ petition of the appellant was dismissed. The learned Single Judge by the aforesaid order decline to interfere with the order passed by the industrial adjudicator under Section 33(2)(b) of the Industrial Disputes Act, 1947 dismissing the application filed by the management. While dismissing the writ petition, the learned Single Judge has held that there was no material whatsoever before the industrial adjudicator to arrive at a conclusion that the workman was negligent in performing his duties or was indulging in habitual absentism, which had caused any kind of loss to the management.
2. Being aggrieved by the aforesaid order of the learned Single Judge, the present appeal is filed by the Delhi Transport Corporation. Learned Counsel for the appellant has submitted before us that the order passed by the learned Single Judge holding that there was no material before the industrial adjudicator to arrive at a conclusion that the workman was habitually negligent from performing his duties is perverse as in the chargesheet itself, reference was made to the past records of the respondent. It is also stated that along with the chargesheet, a copy of the past records of the respondent was also communicated to him so that he could file his reply and thus there was enough material on record to show that he was in the habit of absenting himself from duty without authority. It is submitted that in any case, order of the learned Single Judge and also the order of the industrial adjudicator are liable to be set aside and quashed as they have failed to appreciate the gravity of the offence committed by the respondent absenting from duty without authority and therefore, negligent in performing his duties.
3. In order to appreciate the aforesaid contention of the learned Counsel for the appellant, we have also heard the learned Counsel for the respondent and perused the records.
4. The respondent was absent from duty from 28th May, 1992 to 10th June, 1992 for about 14 days. It also transpires from the records that the respondent reported on duty on 11th June, 1992 when he also submitted an application seeking for leave for the aforesaid period of 14 days when he was absent. The application was also supported by a medical certificate from 28th May, 1992 to 10th June, 1992. The aforesaid application submitted by the respondent supported by a medical certificate for the said period was neither attended to nor any order was passed by the appellant. No action was taken, though the respondent was examined by the medical board before he was allowed to join duty. Therefore, the aforesaid prayer for leave was neither rejected nor accepted by the appellant. There is nothing to suggest and hold that the aforesaid leave application supported by a medical certificate was not acceptable and in any manner incorrect or false.
5. The period of absence was also 14 days, which stand explained by the application submitted by the respondent while reporting for duty on 11th June, 1992. It was necessary for the appellant to act upon the said application either way. It is true that in the charge sheet, reference was made to the past records but the same was for the purpose of passing the final order. The specific charge was salient in this regard. It appears that the respondent was warned sometime in 2004 for not stopping the bus inspite of request by passengers at the bus stand. This was the only document of past conduct enclosed with the charge sheet. No documents that the respondent was a habitual absentee in the past was enclosed with the charge sheet filed before the industrial adjudicator.
6. There is an interesting aspect to be noted here. The aforesaid past record, which is being referred to and heavily relied upon by the counsel for the appellant is dated 30th June, 1992, whereas the offence is shown to have been committed on 24th July, 2004. Learned Counsel for the appellant has stated that there is some mistake. The aforesaid document appears to be part of the record maintained by the appellant themselves. In any case, no reliance can be placed on the said document as apparently there is a mistake, which is also admitted by the learned Counsel for the appellant.
7. The next document which is sought to be relied upon is annexure A2, which is said to be a past record of the respondent. The same is dated 11th June, 1992. Copy of the said document when perused clearly established that the said record is very vague and does not give a clear picture. The said document was not produced before the industrial adjudicator or before the learned Single Judge and is now placed before this Court for the first time without there being any explanation for the same. A typed copy of the same is placed on record. A perusal of the same would indicate under the heading punishment in 1991, 105 is mentioned. There being no explanation and clarification. We are unable to follow the contents of the said documents and we hold that the said document cannot be relied upon for the purpose of explaining contention of the learned Counsel for the appellant.
8. Considering the facts and circumstances of the case, we are of the considered opinion that it cannot be said that any interference by the appellate Court is called for. There are no valid grounds for reversing the orders passed by the industrial adjudicator and the learned Single Judge. At this stage, learned Counsel relied upon the decision of the Supreme Court in DTC v. Sardar Singh reported in 2004 (6) 613. In our considered opinion, the facts in the said case are distinct and different from the case in hand. In the present case immediately after having remained absent for 14 days the respondent had submitted an application for leave supported by a medical certificate. The said application has not been rejected by the appellant and no order has been passed. The facts in detail have been stated above.
9. We are informed that the appellant has already reinstated the respondent in service without prejudice to the contentions to be raised in the appeal. 50% of back wages have been deposited in this Court, which is also without prejudice to the rights and contention of the appellant. Learned Counsel for the respondent states that the respondent-workman will be satisfied with 50% of the back wages, provided the appellant is granted continuity of service.
10. We accordingly uphold the order of the industrial adjudicator and the learned Single Judge rejecting the application of the appellant under Section 33(2)(b) of the Industrial Disputes Act and also uphold the direction that the respondent shall be reinstated in service but with 50% back wages and continuity of service and other benefits. In terms of the aforesaid order, the orders passed by the learned Single Judge and industrial adjudicator stand modified to the aforesaid extent.
11. The appeal is disposed of in terms of the aforesaid order.
