Delhi Transport Corporation vs Shri Krishan Pal
2010 Latest Caselaw 3021 Del

                 *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                          W.P.(C) 15838/2004

%                                                          Date of decision: 1st July, 2010

DELHI TRANSPORT CORPORATION                       ..... Petitioners
                  Through: Ms. Saroj Bidawat, Advocate.

                                                  Versus

SHRI KRISHAN PAL                                                              ..... Respondent
                                       Through:       Proxy counsel for Mr. Sukhbir Singh,
                                                      Advocate.

                                                      AND

                                            W.P.(C) No.264/2010

SHRI KRISHAN PAL                                                                  .... Petitioner
                                           Through:        Proxy counsel for Mr. Sukhbir Singh,
                                                                                       Advocate.

                                                      Versus


DELHI TRANSPORT CORPORATION                       ..... Respondent
                  Through: Ms. Saroj Bidawat, Advocate.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers 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                            NO
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The workman Krishan Pal was employed with the DTC as a Conductor. He

was found to have unauthorizedly remained absent from duty for 22 days from

15th April, 1993 to 6th May, 1993 and was chargesheeted on 3rd June, 1993 for the

same. The Inquiry Officer found the charge to have been established and the

Disciplinary Authority of DTC, after issuing show cause notice to the workman on

18th November, 1993 meted out the punishment of removal of the workman from

service. Owing to the pendency then of a general dispute between DTC and its

employees, an application under Section 33(2)(b) came to be filed.

2. The aforesaid application of the DTC under Section 33(2)(b) was dismissed

vide order dated 7th August, 2000 by the Industrial Tribunal on the ground of DTC

during the period of absence having marked the workman as absent without pay.

DTC preferred W.P.(C) No.2372/2001 challenging the order of dismissal of its

application under Section 33(2)(b). The said writ petition was allowed by this

Court vide order dated 28th July, 2005 in view of the dicta in DTC Vs. Sardar

Singh AIR 2004 SC 4161 and the application under Section 33(2)(b) remanded to

the Industrial Tribunal for fresh adjudication.

3. It appears that the workman, in or about the year 2001 also raised the

industrial dispute under Section 10 of the ID Act with respect to the order of his

termination and on which the following reference was made on 19th September,

2001.

"Whether the punishment imposed upon Shri Krishan Pal s/o Sh. Malkhan Singh by the management vide their orders dated 18th November, 1993 is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

The said industrial dispute was decided vide award dated 23rd August, 2003

of the Industrial Tribunal in favour of the workman and against DTC. The

Industrial Tribunal directed DTC to reinstate the workman. Qua back wages, the

award notes that certain back wages had already been received by the workman

under orders of this Court; the remaining back wages were directed to be paid to

the workman within one month, failing which the same were to attract interest at

9% per annum.

4. Aggrieved from the aforesaid award, W.P.(C) No.15838/2004 was filed.

Vide ex parte order dated 29th September, 2004, while issuing notice of the

petition the operation of the award was stayed. The workman applied under

Section 17B of the ID Act and which application was allowed vide order dated 4th

March, 2008. DTC was directed to pay last drawn / minimum wages, whichever is

higher, to the workman from the date of the award i.e. 23rd August, 2003 onwards.

5. The Industrial Tribunal, post remand as aforesaid of the application under

Section 33(2)(b), vide order dated 26th July, 2008 allowed the application under

Section 33(2)(b) and granted approval to DTC of its action of removal of the

workman from employment. Aggrieved therefrom, the workman has preferred

W.P.(C) No.264/2010 in this Court.

6. The approval under Section 33(2)(b) is on a prima facie view of the matter.

The adjudication of the dispute on merits is in a reference under Section 10 of the

Act. Thus W.P.(C) No.15838/2004 is treated as the main matter.

7. The Industrial Tribunal has in the award dated 23rd August, 2003 held that

the inquiry preceding the order of removal from service was conducted and

concluded on one single date on 5th July, 1993 by merely stating that the workman

had not produced any co-employee as his defence assistant and that the workman

was read over the charge and that the workman had admitted his guilt and pleaded

that due to illness he was unable to send intimation to the department and on

recovering from illness he moved an application along with medical certificate and

as such a lenient view be taken. The Inquiry Officer held the said statement of the

workman to be an admission of guilt. The Industrial Tribunal held the inquiry

proceedings so conducted to be vitiated for the reason of -

(i) the Inquiry Officer having recorded the statement of the workman in

a language unknown to the workman; it was observed that admission

of guilt has to be recorded in a language known to the person

admitting the guilt.

(ii) the explanation given by the workman for absence could not be

treated as admission of guilt and rather amounts to exoneration of

guilt.

(iii) that for absence even if unauthorized, on account of illness, the

workman could not be held to be negligent which is a misconduct

under the Standing Orders of DTC.

(iv) the finding of the Inquiry Officer was thus held perverse and without

any evidence whatsoever.

(v) the report on the basis of which inquiry was instituted having also

not been placed before the Industrial Tribunal.

(vi) the Inquiry Officer and the Disciplinary Authority having relied on

the past conduct of the workman without giving the workman an

opportunity to explain the said record and without putting the said

record to the workman.

8. The Industrial Tribunal further found that the workman had filed a leave

application dated 7th May, 1993 accompanied with medical certificate and fitness

certificate; that the witness of DTC in his cross examination before the Industrial

Tribunal admitted receipt of the said application and further admitted that the same

was neither placed before the Inquiry Officer nor formed part of the record of the

inquiry; it was further admitted by him that no action of acceptance or rejection of

the said leave application was taken. The Industrial Tribunal in the aforesaid facts

held the penalty of removal from service to be unjustified and made the award as

aforesaid.

9. The counsel for DTC has based her case only on the judgment in Sardar

Singh (supra). Sardar Singh is a judgment only on the proposition that merely

because the workman is marked in the records of DTC as absent without pay does

not come in the way of DTC chargesheeting the workman for absenteeism. Mere

absenteeism is not a misconduct under the Standing Orders of DTC. Under the

said Standing Orders an employee is prohibited from absenting from duty without

first obtaining permission except in case of sudden illness; in case of sudden

illness an employee is required to send intimation to the office immediately and if

the illness lasts or is expected to last for more than three days at a time,

applications of leave are to be accompanied by a medical certificate. Habitual

absence without permission or sanction of leave and any continuous absence

without such leave for more than 10 days renders an employee liable to be treated

as an absconder resulting in a termination of his service. It is only habitual

negligence of duties and lack of interest in DTC's work which is made a

misconduct which "may" entail punishment of removal from service.

9. The Standing Orders/Regulations of DTC also provided for an employee to

be deemed to have resigned if he failed to resume duty on the expiry of the leave

period or otherwise. A five judge Bench of the Supreme Court in DTC Vs. DTC

Mazdoor Congress 1991 Supp. (1) SCC 600 held Clause 9(b) of the Regulations

of DTC to be void for the reason of not giving an opportunity of being heard to the

workman before terminating his services. The Supreme Court in D.K. Yadav Vs.

JMA Industries Ltd. (1993) 3 SCC 259 has held that there can be no automatic

discharge from service and even if the Standing Orders of an organization provide

for automatic discharge in the event of absenteeism, the principles of natural

justice must be read into such Standing Orders and the action of the employer

must be fair, just and reasonable.

10. Thus notwithstanding the absenteeism of the workman in the present case,

DTC was required to furnish an opportunity to him to explain and which had

admittedly been done. However such opportunity is not to be an empty exercise or

to be a formality. An opportunity of hearing would be meaningless and its purpose

would be frustrated if the authority giving the hearing does not consider the

representation of the noticee or does not give any reason for agreeing or

disagreeing with the noticee. DTC has not carried out the said determination in the

present case. The principle requiring reasons to be given in support of an order is a

basic principle of natural justice and it must be observed in its proper spirit and

mere pretence of compliance with it would not satisfy the requirement of law. (See

Maruti Udyog Ltd. Vs. Income Tax Appellate Tribunal MANU/DE/1460/2000

and Asstt. Commissioner Vs. Shukla & Brothers MANU/SC/0258/2010).

11. Though the workman was absent in the present case and admitted the

unauthorized absence but had furnished explanation for the same. However, DTC

did not go into the question of whether the said explanation of the workman was

correct or not and if it was correct whether it still entailed the harsh punishment of

removal from service. Neither the Standing Orders of DTC nor the judgment in

Sardar Singh hold that in all cases of absenteeism, whatsoever may be the

explanation, the order of termination or any other punishment shall follow. If the

reasons for absenteeism are found to be genuine and sufficient and similarly if the

reasons for failure to apply for leave in advance or contemporaneously are found

to be genuine and satisfactory, certainly the punishment or harsh punishment of

removal from service cannot be meted out.

12. Neither the Inquiry Officer nor the Disciplinary Authority of DTC has in

the present case gone into the question of the validity of the reason furnished by

the workman i.e. of his illness. It is not the case of DTC that the medical

certificate and fitness certificate furnished by the workman were false or that the

workman was hale and hearty and was feigning illness. Rather the said inquiry

was not conducted at all. The Inquiry Officer as well as DTC had proceeded on the

premise that mere absence is a misconduct but which is not so. It is only such

absence which amounts to negligence, which is a misconduct under the Standing

Orders of DTC.

13. In the aforesaid circumstances, no error can be found in the award and the

petition of DTC being W.P.(C) No.15838/2004 is liable to be dismissed.

14. The counsel for DTC has contended that since the workman has not worked

for DTC for all these years, he is not entitled to full back wages. As aforesaid,

wages under Section 17B have been received by the workman.

15. Though there is some merit in the contention of the counsel for DTC but

the fact remains that the situation is of own creation of the DTC. DTC not only

failed to deal with the application submitted by the workman for leave but also

persisted in contesting the proceedings. DTC is found to have done so at the cost

of public monies. It has been paying 17B wages to the workman for the last nearly

ten years without taking any work from him. In the light of various

pronouncements as noticed above, DTC ought to have known / have been advised

of the certain fate of the proceedings. Unfortunately that has not been done. There

is no reason as to why the workman should suffer for such conduct of DTC. DTC

has been unable to say that the respondent workman is employed anywhere else.

However still since the workman has not worked for DTC, it is deemed expedient

to modify the award from that of full / 100% back wages to that of 75% of the

back wages from the date of termination till the date of reinstatement. Out of the

said amount, the amounts paid under Section 17B under orders in the present writ

petition as well as under orders in the earlier writ petition shall be deducted.

16. W.P.(C) No.15838/2004 is accordingly dismissed save to the aforesaid

extent. DTC is directed to comply with the award by reinstating the workman and

by paying the back wages as aforesaid within eight weeks failing which the same

shall incur simple interest @ 7% p.a. Consequently, W.P.(C) No.264/2010 is

infructuous and is disposed of. Costs of litigation having already been paid to the

workman, no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 1st July, 2010 pp