Shri Vijay Singh vs Delhi Transport Corporation
2009 Latest Caselaw 2978 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  W.P.(C) No. 10615/2009

%                  Date of Decision: 03rd August, 2009


# Shri Vijay Singh
                                                                ..... PETITIONER
!                  Through: Mr. H.K. Chaturvedi

                                    VERSUS

$ Delhi Transport Corporation
                                                            .....RESPONDENT

^                  Through: Nemo.

CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper 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

S.N.AGGARWAL, J (ORAL) This writ petition filed by the workman (petitioner herein) is

directed against an award dated 01.04.2009 passed by the Industrial

Adjudicator holding his removal from the service of respondent

Corporation to be legal and just.

2. Heard.

3. Briefly stated, the facts of the case are that the petitioner was

appointed as a driver with the respondent since 1977 and he was served

with a charge sheet dated 15.01.1992 for unauthorized absence from

duty for a period of 102 days during the period from 01.01.1991 to

31.12.1991. Domestic inquiry was held against the petitioner in which he

was found guilty of remaining unauthorizedly absent for a period of 102

days. The Disciplinary Authority, after considering the inquiry report and

past conduct of the petitioner, decided to remove him from its service

and accordingly, the petitioner was removed from the service of the

respondent w.e.f. 28.04.1992.

4. The petitioner, aggrieved by his removal from the service of the

respondent, raised an industrial dispute which was referred by the

appropriate Government for adjudication to the Labour Court and was

registered as ID No. 199/1994 (New No. 272/2008). The Court below vide

its order dated 13.05.2008 decided the inquiry issue against the

petitioner and in favour of the respondent management. After deciding

the inquiry issue against the petitioner, the Labour Court vide its

impugned award dated 01.04.2009 has held the removal of the petitioner

from the service of the respondent as legal but still granted some relief to

him and that was that the respondent was directed to calculate and pay

the gratuity for the period of the service rendered by the petitioner and

also to consider his case for pension, if found eligible without being

influenced by the order of removal.

5. Mr. H.K. Chaturvedi, learned counsel appearing on behalf of the

petitioner, has argued that the impugned award suffers from perversity

because according to him, the principles of natural justice were not

followed while conducting domestic inquiry into the charges against the

petitioner. Mr. Chaturvedi has contended that there was no Presenting

Officer before the Inquiry Officer and according to him, the Inquiry Officer

who conducted the inquiry into the charges of unauthorized absence

against the petitioner acted as Inquiry Officer as well as Presenting

Officer himself. Mr. Chaturvedi has also argued that no witness was

examined by the respondent management before the Court below to

prove the legality and validity of the inquiry.

6. I have given my anxious consideration to the above arguments

advanced by the learned counsel for the petitioner but I have not been

able to persuade myself to agree with him on any of the above two

points.

7. The contention raised on behalf of the petitioner that the inquiry is

vitiated as no Presenting Officer was appointed by the appointing

authority appears to be misconceived. The domestic inquiry cannot

vitiate only on the ground that there was no Presenting Officer before the

Inquiry Officer. The inquiry on this aspect can vitiate only in case there is

some rule in the department which mandates appointment of a

Presenting Officer before the Inquiry Officer. No such rule has been

shown to me by the learned counsel appearing on behalf of the

petitioner. Therefore, it cannot be said that the domestic inquiry held

against the petitioner was vitiated for non-appointment of Presenting

Officer.

8. As far as the argument of the petitioner's learned counsel that the

inquiry is vitiated for non-examination of any witness by the

management to prove the legality and validity of inquiry is concerned, it

will be significant to refer to a portion of the impugned order dated

13.05.2008 on inquiry issue, relevant portion of which is extracted herein

below :-

"It has been specifically mentioned in the Enquiry proceedings Ex.WW-1/M-1, that the workman himself stated that he does not require assistance of any co-worker. This clearly suggests that the workman was offered assistance of co-worker but it is the workman who refused to take the assistance. The workman was given opportunity to ask question from the witness Narain Singh and the workman himself did not ask any question to witness Narain Singh. This clearly suggests that the Enquiry officer gave full opportunity to the workman to defend his case. In the enquiry proceedings when the charge sheet was read over to the workman, the workman stated that he had taken the leave in accordance with the record but he had taken the leave under some MAZBOORI (compelling circumstances). Even during the enquiry, the workman has admitted that he has taken the leave, as per the record available with the management. Even the workman has not cross-examined MW- Narain Singh who has deposed during the enquiry that as per

MAR, Shri Vijay Singh Driver, had availed 102 excess leave, during the period January 1991 to December 1991, out of which for 79 days leaves, he did not give any application and leave applications for 23 leaves, was rejected. Accordingly there is nothing on record to disbelieve the statement of MW-Narain Singh. All this clearly suggests that the Enquiry was conducted by the Enquiry officer in accordance with the principles of natural justice and is not perverse. The workman was given proper opportunity to defend his case."

9. It may be seen from the above extracted portion contained in the

impugned order on inquiry issue that the petitioner has admitted his

unauthorized absence for 102 days before the Inquiry Officer. The Court

below has also taken note of the fact that the workman was given an

offer by the Inquiry Officer to take assistance of a co-worker to defend

him in the inquiry proceedings but he refused to take the said assistance.

The workman was also given an opportunity to cross-examine the witness

examined by the management before the Inquiry Officer and for that

reason, it cannot be said that the domestic inquiry held against the

petitioner was vitiated. What is important to notice is the admission of

the petitioner himself that he remained unauthorizedly absent for a

period of 102 days during the period from 01.01.1991 to 31.12.1991.

10. The Hon'ble Supreme Court in DTC Versus Sardar Singh AIR

2004 SC 4161 has held that the unauthorized absence of a driver or a

conductor in DTC amounts to a grave misconduct and has justified their

removal from the service of DTC on proof of such misconduct against

them.

11. In the present case, the petitioner admits his unauthorized absence

for 102 days for which he was charged vide charge sheet dated

15.01.1992. In view of the said admission of the petitioner, I fail to

understand how he was prejudiced by the inquiry held against him by the

respondent Corporation. It may be seen from the impugned order on

inquiry issue and also the impugned award dated 01.04.2009 that the

petitioner had only tried to justify his unauthorized absence for 102 days

during the period from 01.01.1991 to 31.12.1991. It is not his case that

he had applied for leave or that his leave was sanctioned. The

misconduct on the part of the petitioner of his remaining absent

unauthorizedly for a period of 102 days is squarely covered by the

judgment of the Hon'ble Supreme Court in Sardar Singh's case (supra).

12. For the foregoing reasons, I do not find any infirmity or illegality or

perversity in the impugned award that may call for an interference by

this Court in exercise of its extra-ordinary discretionary writ jurisdiction

under Article 226 of the Constitution of India. This writ petition,

therefore, fails and is hereby dismissed in limine.

AUGUST 03, 2009                                        S.N.AGGARWAL, J
'ma'