Delhi Transport Corporation vs Shri Ashok Kumar
2009 Latest Caselaw 4215 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C.) No. 12515/2009

%                 Date of Decision: 20th October, 2009


#     DELHI TRANSPORT CORPORATION

                                                          ..... PETITIONER

!                 Through:   Mr. J.S. Bhasin, Advocate.

                                   VERSUS

$     SH. ASHOK KUMAR

                                                          ....RESPONDENT

^                 Through:   NEMO.


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

1. Whether reporters of Local paper may be allowed to see the judgment? NO

2. To be referred to the reporter or not? NO

3. Whether the judgment should be reported in the Digest? NO

S.N.AGGARWAL, J (ORAL)

C.M. No. 13010/2009 in W.P.(C.) No. 12515/2009

Exemption as prayed for is granted subject to all just exceptions.

W.P.(C.) No. 12515/2009 and C.M. No. 13009/2009 (for stay)

The management of DTC (petitioner herein) in this writ petition

seeks to challenge an order dated 16.05.2009 passed by the Labour

Court in O.P. No. 22/1994 rejecting its approval application under Section

33(2)(b) for removal of the respondent from its service w.e.f. 25.02.1994

for alleged unauthorised absence from 29.01.1993 to 16.03.1993 and

08.04.1993 to 02.05.1993 (total 72 days).

2. Heard on admission.

3. Mr. J.S. Bhasin, learned counsel appearing on behalf of the

petitioner, has argued that the Court below has wrongly declined

approval to the petitioner for removal of the respondent from its service.

He has submitted that the Court below has failed to take into account the

past conduct of the respondent in remaining unauthorizedly absent even

in the past. Mr. Bhasin submits that the respondent had remained absent

for 23 days in 1991, for 147 days in 1992 and again for 174 days in 1993.

4. I have carefully gone through the impugned order and have

considered the submission regarding past conduct made on behalf of the

petitioner. On giving my anxious consideration to the same, I have not

been able to persuade myself to agree with Mr. Bhasin, learned counsel

appearing on behalf of the petitioner. The respondent, in the present

case, was charge-sheeted for remaining absent unauthorizedly for 72

days, i.e., for 47 days from 29.01.1993 to 16.03.1993 and 25 days from

08.04.1993 to 02.05.1993. The inquiry regarding the said absence was

made against him. The past conduct of the respondent was not the

subject matter of the inquiry conducted by the Inquiry Officer. The Court

below has taken all the facts and circumstances into consideration in

rejecting the approval sought for by the management of the petitioner for

removal of the respondent from its service. I am in complete agreement

with the reasoning given by the Court below in the impugned order for

rejecting the approval sought for by the management. In para 13 of the

impugned order, the Court below has discussed the evidence produced

by the management itself and the para 13 of the impugned order is

extracted below:

"In her cross-examination, she has stated that respondent had submitted leave application with medical certificates for the days mentioned in her report but same were submitted late. She has also stated that she cannot tell as to when the applications of the respondent was received. At the same time, she has also stated that DTC had sanctioned leaves without pay to the respondent for 47 days for the period 29.1.93 to 16.3.93

(47 days) and for the period 8.4.93 to 2.5.93 (25 days) and same was done before charge sheet was issued to the workman. In other words, her deposition in the court is contrary to the reports submitted by her which are Ex AW2/A and AW2/B respectively. However, fact remains that AW-2 has stated that whole of the period of absence of the workman had been treated as leaves without pay. Only question which arises is whether remaining on leave for 27 days and 25 days amounts to misconduct within the meaning of para 4 of Standing Rules 19 (h) which is reproduced as under:-

"4. Absence without permission-(i) An employee shall not absent himself from his duties without having first obtained the permission from the Authority or the Competent Officer except in the case of "sudden illness". In case of sudden illness he shall send the intimation to the office immediately. If the illness lasts for is expected to last for more than 3 days at a time, applications for leave should be duly accompanied by a medical certificate, from a registered medical practitioner or the Medical Officer of the D.T.S. In no case shall an employee leave station without prior permission. (ii) Habitual absence without permission or sanction of leave and any continuous absence without such leave for more than 10 days shall render the employee liable to be treated as an absconder resulting in the termination of his services with the organization.""

5. In paras 14 to 18 of the impugned order, the Court below has

discussed and given reasons as to why the judgment of the Hon'ble

Supreme Court in DTC Vs. Sardar Singh, AIR 2004 SC 4161, is not

applicable to the facts of the present case. The material on record shows

that the management of the petitioner had not conducted any inquiry to

ascertain whether the respondent was actually suffering from the disease

given in the medical certificate or that the medical certificate submitted

by him was fictitious and had been procured just to support his case. The

period of absence of the respondent from the service of the petitioner

was the period during which he was ill and this fact is supported by the

medical certificate produced by him when he went to join duties after he

was declared medically fit to join duties by the doctor. Under the

circumstances, the Court below has rightly reached to the conclusion that

the alleged misconduct against the respondent could not be a ground to

remove him from service and, for that reason, approval under Section

33(2)(b) was rightly declined.

6. In view of what has been stated above, I do not find any illegality or

perversity in the impugned order that may call for an interference by this

Court in exercise of its extraordinary discretionary writ jurisdiction under

Article 226 of the Constitution. This writ petition, therefore, fails and is

hereby dismissed in limine. The stay application is also dismissed.

OCTOBER 20, 2009                                        S.N.AGGARWAL, J
'BSR'