Delhi Transport Corporation vs Shri Bir Singh
2010 Latest Caselaw 2344 Del

                *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) 8871/2004

%                                                 Date of decision: 3rd May, 2010

DELHI TRANSPORT CORPORATION                     ..... Petitioner
                  Through: Mr. Sarfaraz Khan, Advocate.


                                       Versus

SHRI BIR SINGH                                                  ..... Respondent
                              Through:      Ms. Kittu Bajaj, 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 challenge in this petition is to the order dated 23rd July, 2003 of the

Industrial Tribunal dismissing the application of the petitioner DTC under

Section 33(2)(b) of the ID Act. The respondent workman, working as a sweeper

/ cleaner with the petitioner DTC was dismissed from service on 16th August,

1994 after holding a domestic inquiry. The charge against the respondent

workman was of absenteeism without intimation from 17th April, 1993 to 9th

June, 1993. The said absenteeism was/is not disputed by the respondent

workman also. The case of the respondent workman was that he suddenly fell

sick and had to be taken to his village for treatment. The respondent workman

produced a medical certificate for the period from 17th April, 1993 to 22nd May,

1993. He further pleaded that he had sent a telegram for grant of leave; that

though he had recovered from sickness on 25th May, 1993 but then his wife fell

sick, preventing him from joining the duty and he ultimately reported for duty on

10th June, 1993.

2. The Inquiry Officer / Disciplinary Authority held that the leave

application though, sent by the respondent workman were sent late. The

Industrial Tribunal however held that the leave application sent by the

respondent workman had not been considered by the Inquiry Officer and DTC

had also failed to produce before the Inquiry Officer the decision, if any, taken

on the said leave application. It was thus held that the petitioner DTC having

kept away relevant record/documents from the Inquiry Officer, the inquiry was

perverse. The petitioner DTC sought opportunity to prove misconduct before the

Industrial Tribunal. The Tribunal found from the record produced before it that

the entire period of absence of the respondent workman had been treated as leave

without pay, before the issuance of the chargesheet and thus held that the

petitioner DTC had failed to prove misconduct. Accordingly, approval under

Section 33(2)(b) was declined.

3. The matter is now no longer res integra. The Supreme Court in DTC Vs.

Sardar Singh AIR 2004 SC 4161 has held that when an employee absents

himself from duty without sanctioned leave, it primarily shows lack of interest in

work and DTC can, on the basis of the record, come to the conclusion about the

employee being habitually negligent in duty and exhibiting lack of interest in the

employer's work. Though in the facts under consideration in the said judgment

the absence was for a very long period and the observations were made in that

context only, the Supreme Court held that the requirement in the standing order

of the DTC is of obtaining leave in advance and that merely because in the

record of service the absence is recorded as leave without pay it does not prevent

DTC from establishing that the absence amounts to misconduct and habitual

absence without permission/sanction of leave and habitual negligence of duty

and lack of interest in work.

4. The counsel for the respondent workman has urged that in the present case

DTC, neither before the Inquiry Officer nor before the Industrial Court produced

its record showing the fate of the application submitted by the respondent

workman for leave and cannot be allowed a third chance by this court. However,

the Supreme Court has held that since under the standing order of the DTC,

absence for ten days or more without leave renders the employee liable to be

treated as an absconder resulting in the termination of his service, once it is

established that the employee was absent for ten days and if the employee was

unable to show any sanction therefor, the onus is on the employee to prove that

such absence without sanction of leave was for such circumstances and for such

reasons which rebut the presumption under the standing orders of the same being

habitual and indicative of lack of interest in the employer's work.

5. In the present case, even in the absence of the record produced by DTC of

the fate of the application for leave found to have been submitted by the

respondent workman, the fact remains that the absence of the respondent

workman was without sanction. Mere submission of an application for leave is

not sanction of leave as held in the judgment aforesaid of the Supreme Court.

The Tribunal was to then decide whether the respondent workman has been able

to make out a case of such nature which prevented him from obtaining prior

sanction of DTC and even if he was so prevented, whether the facts of the case

were such which did not justify the penalty of dismissal from service. Faced

with the aforesaid, the counsel for the respondent workman states that the

respondent workman be also given liberty to produce evidence on remand.

6. The writ petition is therefore allowed. The order dated 23rd July, 2003 of

the Tribunal is set aside and the matter is remanded to the Tribunal for decision

afresh of the application under Section 33(2)(b) in accordance with the judgment

aforesaid of the Supreme Court and the observations hereinabove. It is clarified

that both the parties shall be entitled to lead fresh evidence before the Tribunal.

Since the matter has remained pending for long, the Tribunal is directed to

dispose of the same expeditiously. The parties to appear before the

Tribunal/Successor Tribunal on 26th May, 2010. Litigation expenses having

already been paid, no order as to costs.

The writ petition is disposed of.

RAJIV SAHAI ENDLAW (JUDGE) 3rd May, 2010 M