Delhi High Court
Dtc vs Sh.Ajit Singh on 20 April, 2009
Author: V.K.Shali
* THE HIGH COURT OF DELHI AT NEW DELHI
+ Writ Petition (Civil) Nos.12284/2005 & 12294/2005
Date of Decision : 20.4.2009
WP(C) No.12284/2005
1. DTC ......Petitioner
Through : Mr.Ataul Haque
Advocate.
Versus
SH.AJIT SINGH ...... Respondent
Through : Mr. R.K.Sharma with
Ms.Meenakshi Arora, Advs.
AND
WP(C) No.12294/2005
2. DTC ......Petitioner
Through : Mr.Ataul Haque
Advocate.
Versus
SH.AJIT SINGH ...... Respondent
Through : Mr. R.K.Sharma with
Ms.Meenakshi Arora, Advs.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment? YES
2. To be referred to the Reporter or not ? YES
3. Whether the judgment should be reported
in the Digest ? YES
V.K. SHALI, J. (Oral)
Rule. With the consent of the learned counsel for the
parties, the following order is passed:-
1. This is a common order disposing of the aforesaid two writ
petitions with the consent of the learned counsel for the parties.
These two writ petitions bearing WP(C) No. 12284/2005 and
12294/2005 are having same title s DTC Vs. Sh.Ajit Singh.
2. In the first writ petition, the petitioner had given a charge
sheet to the respondent/workman on account of his having
remained absent from duty for a period of 35 days in a year
starting from 1st January, 1991 to 31st December, 1991. On the
basis of the said absence, enquiry was held and it was observed
in the said enquiry report that the respondent was guilty of
misconduct in terms of the standing orders and the various other
provisions with which the conduct of the respondent /workman
was governed. The respondent/workman was thereafter imposed
penalty of punishment of removal.
3. Since the punishment of removal was inchoate, the
petitioner had to obtain approval of the learned Labour Court by
applying Section 33(2) (b) of the Industrial Disputes Act.
4. For such an approval, an application was filed and an issue
was framed in the following terms:-
"Whether the applicant held a legal and
valid enquiry against the respondent
according to principles of natural justice ?
(OPA)"
5. The learned Labour Court came to a finding that as the
period of absence of the respondent /workman was treated as
leave without pay therefore, in terms of the judgment of the
Division Bench of this Court in case titled Sardar Singh Vs. DTC
in LPA No.361/2002 that did not constitute a misconduct so as
to warrant initiation of the departmental proceedings against
him. Accordingly, the learned Labour Court came to a finding
that the punishment of removal which was imposed on the
respondent /workman was disproportionate to the misconduct of
the respondent /workman which was quantified, as his absence
for 90 days. Thus the learned Labour Court refused to grant
approval to the petitioner under Section 33(2) (b) of the Industrial
Disputes Act. Once the permission to grant approval was
refused, the respondent /workman is deemed to be in service.
6. In the second WP(C) No.12294/2005, the reference which
was made by the appropriate Government was as under:-
"Whether the removal of Sh.Ajit Singh from
service is illegal and/or unjustified and if
so, to what relief is he entitled and what
directions are necessary in this respect?"
7. This reference was simply decided in the light of the earlier
award dated 14.9.2004 passed by the Presiding Officer, Labour
Court VII, Delhi holding the permission for approval on
imposition of punishment of removal was not granted.
Therefore, this was ipso facto treated a case where the
termination of services of the respondent/workman as illegal and
unjustified and accordingly, was directed to be reinstate with
continuity of service and payment of back wages.
8. Both these awards by the same Labour Court given on the
same date i.e. 14.9.2004 have been challenged by the petitioner
/Management in two separate writ petitions before this Court.
9. I have heard the learned counsel for the parties. Learned
counsel for the parties have agreed that the judgment in Sardar
Singh Vs. DTC which was decided by the Division Bench of this
Court in LPA has been set aside by the Supreme Court in case
titled DTC Vs. Sardar Singh on Special Leave Petition having
been taken by the petitioner/Management to the Supreme Court.
The said judgment is reported at 2004 (7) SCC 574. In the said
judgment, the Supreme Court has observed that merely on
account of the fact that the leave is regularized to the
delinquent/workman by granting him leave without pay or
sanctioning him the leave does not ipso facto tantamount to
condoning his absence and accordingly, the same cannot be
treated to be not a misconduct. The learned Labour Court have
to still go into the question of deciding as to whether the absence
itself does constitute misconduct and violation of various
standing orders and other Rules and regulations of the DTC with
which his conduct is governed and given a finding on whether it
constitutes misconduct. In the light of the aforesaid legal
position laid down by the Apex Court, both the counsel have
agreed that the matter needs to be remanded back after setting
aside both the award.
10. I, accordingly, in view of the submission made before this
Court by counsel for the parties and in the light of the judgment
of the Supreme Court in Sardar Singh's case (supra) set aside
both the awards dated 14.9.2004 passed by the learned Labour
Court -VII passed in OP No.1/2000 of 1992 and ID No.44/1999.
11. The parties are directed to appear before the learned
Labour Court on 1st May, 2009 and the Labour Court shall
decide the matter both afresh after giving reasonable
opportunities to the parties in accordance with law.
No order as to costs.
V.K. SHALI, J.
APRIL 20, 2009
RN
