Delhi High Court
Delhi Transport Corporation vs Sh. Mahender Kumar Sharma on 25 March, 2009
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) NO. 10665/2005
%
Date of Decision : 25.03.2009
Delhi Transport Corporation .... Petitioner
Through Ms. Kiran, Advocate
Versus
Sh. Mahender Kumar Sharma .... Respondent
Through Mr. Sanjay Ghose, Advocate
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)
*
1. The petitioner has challenged the award dated 26th March, 2004
passed by the learned Labour Court No.VII in ID No. 907/1996 in the
case titled Sh. Mahender Kumar Sharma Vs. Delhi Transport
Corporation.
2. By virtue of the impugned award the learned Labour Court came
to a finding that the workman did not commit any misconduct by
absenting himself as the respondent's had sanctioned the leave without
pay for his period of absence and it also held that the Inquiry report is
perverse and is liable to be quashed. Accordingly, the learned Labour
Court held the termination of the services of the respondent/workman
w.e.f. 2nd July, 1993 as illegal, biased and perverse and directed his
reinstatement with 50% back wages.
3. I have heard the learned counsel for the parties and gone through
the record. The learned counsel for the petitioner has challenged the
award on the ground that the entire basis of setting aside the order of
dismissal (of the petitioner which had taken place on account of his
unauthorized absence which was subsequently treated as leave without
pay) is the order of the Division Bench of this High Court in the case
titled Delhi Transport Corporation Vs. Sardar Singh bearing LPA No.
361/2002.
4. It was contended by the learned counsel for the petitioner that
the aforesaid Division Bench judgment was set aside by the Hon'ble
Supreme Court in Sardar Singh 2004 (6) JT SC 342 wherein the Apex
Court observed that unauthorized leave or remaining absent for a long
period without sanctioned leave can be treated as a misconduct
because it showed that the employee was habitually negligent in his
duties and exhibited lack of interest in the work and such conduct was
nothing but reprehensible in extreme and was hardly justified. It
constituted misconduct within para 4(ii) and 19(h) of the Standing
Orders of the DTC and was inconsistent with the Delhi Road Transport
Authority (Conditions of Appointment and Service) Regulations 1952.
The Division Bench judgment was accordingly set aside.
5. It was contended on the basis of the said judgment by the learned
counsel for the petitioner that the award of the learned Labour Court in
holding that the absence of the respondent/workman for a period of
106 days though he was granted leave without pay could not be said to
be not constituting a misconduct as has been held by the learned
Labour Court, and accordingly, the award of the learned Labour Court
is unsustainable in the eyes of law.
6. The second submission of the learned counsel for the petitioner is
that the learned Labour Court has wrongly held that the Inquiry report
is perverse and is liable to be quashed. This finding has been given by
the learned Labour Court without any reasoning as to why the learned
Labour Court has come to form such an opinion. The observation
passed by the learned Labour Court that the inquiry held by the Inquiry
Officer regarding the unauthorized absence was incomplete inquiry
because of non-giving of opportunity to the respondent/workman, is not
sustainable in the eyes of law because the respondent/workman had
himself admitted that he was absent for 106 days both in the year 1989
and 1990. Accordingly, it was contended that the award of the learned
Labour Court deserves to be set aside.
7. Per contra, the learned counsel Mr. Ghosh on behalf of the
respondent/workman contended that he does not dispute the
preposition of law laid down by the Hon'ble Supreme Court in Sardar
Singh's case (supra) but it was urged by him that he is not opposed, in
case the matter is remanded back to the learned Labour Court to be
decided afresh on the question as to whether the misconduct of the
petitioner in remaining absent constituted violation of the Standing
Orders of the DTC or not. With regard to the second submission of
incomplete Inquiry being conducted by the Inquiry Officer it was urged
by the learned counsel for the respondent that as the
respondent/workman was not given an opportunity to adduce evidence,
therefore, the observation of the learned Labour Court that the finding
of the Inquiry Officer were incomplete was also reasonable and correct.
8. I have considered the respective submissions and gone through
record.
9. There is no dispute that the Division Bench judgment in Sardar
Singh case has been set aside by the judgment of the Hon'ble Supreme
Court in DTC Vs. Sardar Singh JT 2004 (6) SC 342 wherein it has been
held that unauthorized leave can be treated as a misconduct. Leave
without pay is not the same as sanctioned or approved leave. It was
observed that the conduct of the respondent in remaining absent for
long periods without sanctioned leave showed that he was habitually
negligent in duties and exhibited lack of interest in the work and such
conduct was nothing but reprehensible in extreme and can hardly be
justified. The Hon'be Supreme Court also observed that unauthorized
absence was not only in contravention of Delhi Road Transport
Authority (Conditions of Appointment and Service) Regulations 1952
but it also constituted violation of Regulations 15 and paras 4(ii) and
19(h) of the Standing Orders framed thereunder and the
petitioner/management in a given charge would be well within its right
to terminate the services of the respondent/workman.
10. In the instant case, the learned Labour Court has primarily held
that the absence of the respondent/workman for a period of 25 days in
1989 and 81 days in 1990 (wrongly recorded as 18 days) was not
misconduct because the petitioner/management had sanctioned leave
without pay to the respondent/workman.
11. In the light of the holding by the Hon'ble Supreme Court to the
effect that sanction of the leave without pay cannot be construed as an
approved leave or sanctioned leave and thereby cannot be said to be a
ground for not treating long unauthorized absence as misconduct.
Accordingly, I am of the considered opinion that the
respondent/workman himself had admitted that he was absent for a
period of 25 days in the year 1989 and for 81 days in the year 1990
without any leave and that too unauthorisedly. This constituted the
misconduct within Delhi Road Transport Authority (Conditions of
Appointment and Service) Regulations 1952 but it also constituted
violation of Regulations 15 and paras 4(ii) and 19(h) of the Standing
Orders of the DTC. It could not be said that merely because the said
period was regularized by granting him leave without pay that the
aforesaid unauthorized absence would not be treated as misconduct.
To that extent the finding of the learned Labour Court is not
sustainable in the light of judgment of the Apex Court in Sardar Singh
case and is accordingly liable to set aside.
12. So far as the second finding of the learned Labour Court is
concerned, that the finding of the Inquiry Officer is perverse or that the
Inquiry was incomplete because the respondent/workman was not
given an opportunity to adduce evidence also is not sustainable as
being perverse because this has come on record that the factum of the
respondent/workman being absent for 25 days in 1989 and 81 days in
1990 is not disputed by him. As a matter of fact he has admitted before
the Inquiry Officer. Merely, because the petitioner had been sanctioned
leave without pay for the aforesaid period, it could not be assumed that
he was absolved of the misconduct which is ex-facie established. The
observation of the learned Labour Court that the respondent/workman
was not given an opportunity to adduce evidence is also not correct or
sustainable because the general law is that a fact which is admitted
need not be proved. The charge against the respondent/workman was
that he was absent for 25 days in 1989 and 81 days in 1990 (wrongly
recorded as 18 days) is itself admitted by the respondent/workman
even before the Inquiry Officer. Having done so, it was not the case of
the respondent/workman that he was unable to attend office because of
some reason. He had also not sought any opportunity to justify his
absence for which he had been sanctioned leave without pay.
13. In the background of these facts, I am of the considered opinion
that the learned Labour Court was not right in holding that the Inquiry
was incomplete or the finding of the Inquiry Officer was perverse. To
that extent the learned Labour Court's award is unsustainable. Now,
the question which arises for consideration is as to whether the matter
deserves to be remanded back as is suggested by the learned counsel
for the respondent/workman or not.
14. I am of the considered opinion that the remand of the matter to
the learned Labour Court afresh will be a total futile exercise. The
factum of the respondent/workman being absent and the period thereof
is not disputed that the respondent/workman was also sanctioned the
leave without pay for the aforesaid period of absence. In the light of
these two submissions, if we apply the proposition of law laid down by
the Hon'ble Supreme Court it can hardly be said that the action of the
respondent/workman in remaining absent for a prolonged period did
not constitute misconduct for which he has been visited with the
punishment of dismissal for which approval was refused by the learned
Labour Court. The refusal to grant approval in the light of Sardar Singh
judgment was also unwarranted and illegal and therefore cannot be
sustained.
15. I, accordingly, hold that the petitioner/management entitled to
the approval and the same is granted after setting aside the award
dated 26th March, 2009 passed by the learned Labour Court. No order
as to costs.
CM No.7198/2006
16. Since the writ petition has been disposed of, no order is called for
on this application. Accordingly, the same is also disposed of as having
been infructuous.
MARCH 25, 2009 V.K. SHALI, J.
KP
