Delhi High Court
Shri Mahavir Singh vs M/S. Delhi Transport Corporation on 17 July, 2009
Author: S.N. Aggarwal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 10175/2009 & CM No. 8642/2009
% Date of Decision: 17 July, 2009
# SHRI MAHAVIR SINGH
..... PETITIONER
! Through: Mr. Dharam Raj Ohlan, Advocate.
VERSUS
$ M/S DELHI TRANSPORT CORPORATION
.....RESPONDENT
^ Through: Mr. Jitender Kumar, Advocate
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 (the petitioner herein) is
directed against an award dated 29.01.2008 passed by Ms. Nisha
Saxena, POLC XXI, Delhi rejecting the claim of the petitioner for his
reinstatement and back wages for his removal from service by Delhi
Transport Corporation (the respondent herein) w.e.f. 09.07.1992.
2 Heard.
3 The petitioner was appointed as a conductor in Delhi Transport
Corporation on 31.03.1979. In the course of his employment with Delhi
Transport Corporation, he got 18 adverse entries in his service record
prior to he was charge-sheeted on 20.03.1992 for his remaining absent
unauthorizedly for 77 days during the period from January, 1991 to
December, 1991. Domestic inquiry was held against the petitioner. He
was found guilty of the charges attributed to him by the Inquiry Officer.
The disciplinary authority after considering the report of the Inquiry
Officer and taking into account the past conduct of the petitioner decided
to remove the petitioner from its service and accordingly the petitioner
was removed from service of Delhi Transport Corporation w.e.f.
09.07.1992.
4 The petitioner, aggrieved by his removal, raised an industrial
dispute which was referred by the appropriate Government for
adjudication to the Labour Court. Both parties adduced evidence before
the Labour Court on the point of inquiry issue. The court below vide its
order dated 04.12.2007 decided the inquiry issue against the workman
and it was held that the principles of natural justice were duly adhered to
while holding the departmental inquiry against the petitioner. After the
inquiry issue was decided by the court below against the workman, the
court below heard the learned counsel for both the parties on the
question of quantum of punishment and after taking their submissions
into account and relying on various judgments referred in the impugned
award, came to the conclusion that the removal of the petitioner from the
services of the Delhi Transport Corporation was justified and for that
reason, declined to grant any relief to him.
5 The petitioner aggrieved by the impugned award of the court below
has filed the present writ petition seeking to set aside the said award.
Learned counsel appearing on his behalf has contended that the
petitioner has remained absent unauthorizedly only for a period of 77
days during 13 years of his service and therefore, according to him, the
punishment of removal from service is highly disproportionate to the mis-
conduct proved against the petitioner. Learned counsel for the petitioner
also contends that as per the standing order R-90-14(1)(c), an employee
of Delhi Transport Corporation can be terminated only when he remained
absent for more than 90 days. It is submitted that since the unauthorized
absence of the petitioner was only for 77 days, he could not have been
removed from service in view of the above standing order. It may be
noted that the petitioner has not annexed the copy of the standing order
R-90-14(1)(c) referred in ground 'A' at page 4 of the writ petition. On
being asked the counsel has not been able to show this rule even at the
time of hearing of this writ petition and therefore, there is nothing before
the Court to know what exactly the standing order referred above relied
upon by the petitioner's counsel says. Even if it is assumed that as per
the standing order relied upon by the petitioner's counsel, services of an
employee of Delhi Transport Corporation cannot be terminated unless he
remains absent for 90 days, still this rule does not help the petitioner.
This rule at best deal with the continuous absence of more than 90 days
wherein in the case of the petitioner it has been proved that he was a
habitual absenter and during one year in 1991, he remained
unauthorizedly absent for 77 days. It is an admitted case of the petitioner
himself that he remained unauthorizedly absent for 77 days in 1991 and
his case in the writ petition is that his absence for 77 days does not
deserve to be visited with penalty of removal from service. It shall be
significant to mention that the petitioner had 18 adverse entries in his
service record all relating to his unauthorized absence from duty and
does it not show that the petitioner is a habitual absenter which amounts
to a mis-conduct in terms of paras 19 (f), (h) & (m) of certified standing
order applicable to him. In Borman Vs. Presiding Officer, Labour Court
and Ors.; 2003 LLR 364, the court held that absence of a workman for 62
days will justify his dismissal from service. In identical circumstances in
Delhi Transport Corporation Vs. Sardar Singh AIR 2004 SC 4161, the
Hon'ble Supreme Court has held that the habitual absence of a conductor
from service of Delhi Transport Corporation amounts to a grave mis-
conduct requiring his removal from service of Delhi Transport
Corporation. In my view, the impugned award of the court below is a well
reasoned award and hardly calls for any interference by this Court in
exercise of its extraordinary discretionary writ jurisdiction under Article
226 of the Constitution of India.
6 In view of the above, this writ petition is dismissed in limine. Since
the main writ petition has been dismissed, application being CM No.
8642/2009 filed by the petitioner for condonation of delay of more than
one year in filing of the present writ petition does not survive for any
order.
JULY 17, 2009 S.N.AGGARWAL, J
'a'
