Delhi Transport Corporation vs Delhi Administration & Ors.
2010 Latest Caselaw 2669 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C) 1341/1989

%                                             Date of decision: 19th May, 2010

DELHI TRANSPORT CORPORATION                 ..... Petitioner
                 Through: Mr. Alok Shankar, Advocate

                                     Versus

DELHI ADMINISTRATION & ORS.                                  ..... Respondents
                Through: None.

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 petitioner DTC by this writ petition impugns the award dated

28th July, 1988 of the Industrial Tribunal on the following reference: „

"Whether Shri Rajpal abandoned his services or the same were terminated by the management illegally and unjustifiably and, if so, to what relief is he entitled and what directions are necessary in this regard?"

The Tribunal held that the declaration dated 2nd May, 1979 of the

petitioner DTC that the respondent no.3 workman had resigned from his

job with effect from 16th February, 1979 is bad in law and has to be

struck down; it was further held that the respondent no.3 workman had not

abandoned his services and was entitled to be reinstated with effect from

16th February, 1979 with full back wages and continuity of service.

2. This Court vide ex parte order dated 11th May, 1989 issued Rule

in the petition and stayed the operation of the award. On 20 th August,

1990, it was informed that the respondent no.3 workman was reinstated

on 10th January, 1989 without prejudice to the rights and contentions in

the writ petition. This Court directed the petitioner DTC to pay to the

respondent no.3 workman wages on last drawn basis from the date of the

award i.e. 28th July, 1988 till 10th January, 1989 and to also pay to the

respondent no.3 workman the balance amount, if any, found due after

computation under Section 33C(1) of the I.D. Act not only for the period

of the award but even for the later period within one month of the order

under Section 33C(1) becoming final. In the circumstances, the earlier

order of stay of operation of the award was vacated. On 5th April, 2006,

it was informed that the respondent no.3 workman has died. The

petition was dismissed for non prosecution on 23rd January, 2007. CMs

No.7663-7664/2007 were filed for restoration of the writ petition. The

legal heirs of the respondent no.3 workman were substituted vide order

dated 25th September, 2009 and notice of the CMs No. 7663-7664/2007

of the petitioner DTC for restoration of the writ petition was ordered to

be issued to the legal heirs of the respondent no.3 workman. However,

the said notices remain unserved.

3. Need is however not felt to await the service of the notice of the

applications for restoration on the legal heirs of the respondent no.3

workman inasmuch as the action of the petitioner DTC against the

respondent no.3 workman was under Clause 14(10)(c) of the DRTA

(Conditions of Appointment & Service) Regulations, 1952 with respect

whereto several judgments have since been pronounced and in view

whereof this writ petition is liable to be dismissed.

4. The respondent no.3 workman joined the employment of the

petitioner DTC as a Conductor in 1970. The respondent no.3 workman

in the later part of the year 1978 absented himself. The Tribunal on the

basis of the evidence of the witnesses of the petitioner DTC found that

the respondent no.3 workman had sent several applications to the

petitioner DTC for leave and on which no order granting or rejecting the

leave was made; only an endorsement of "late received" was found on

some of the leave applications. The petitioner DTC however in these

circumstances deemed the respondent no.3 workman to have resigned

from employment under Clause 14(10)(c) supra.

5. Clause 14(10)(c) where-under the petitioner DTC has deemed the

respondent no.3 workman to have resigned is as under:-

"14. Holidays and Leave :-

(10). ..........................................

(b) The duration of extraordinary leave shall not ordinarily

exceed three months on any one occasion. In exceptional

cases; it may be extended to eighteen months subject to

such conditions as the Authority may by general or special

orders prescribe and only when the employee concerned is

under-going treatment for ....................

(c) Where an employee fails to resume duty on the expiry

of the maximum period of extraordinary leave granted to

him or where such an employee, who is granted a lesser

amount of extraordinary leave than the maximum amount

admissible, remains absent from duty for any period which

together with the extraordinary leave granted exceeds the

limit upto which he could have been granted such leave

under Clause (b), he shall be deemed to have resigned his

appointment and shall, accordingly cease to be in the

employment of the Authority."

6. A five judge bench of the Supreme Court in Delhi Transport

Corporation Vs. D.T.C. 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. Clause 14 (10)(c) also does not provide for any

opportunity for hearing to be given to the workman before declaring him

to have resigned from employment and would be bad for this reason

only. Similarly, in Uptron India Ltd. Vs. Shammi Bhan 1998 Labour

Industrial Cases 1545 also, it was held that where the standing orders

prescribe termination of service of a permanent employee without

holding any inquiry, such provision of the standing orders is illegal on

the ground of being violative of the principles of natural justice. This

Court also in Delhi Transport Corporation Vs. Om Kumar 95 (2002)

DLT 425 and Ram Phal Vs. Union of India 151 (2008) DLT 452 has

held dismissal under Clause 14 (10)(c) without holding any inquiry and

giving opportunity to the workman as invalid. The said judgments were

affirmed by the Division Benches of this Court in DTC Vs. Daya Nand

99 (2002) DLT 188 and in DTC Vs. Subhash Chander Mehta

MANU/DE/4025/2006. I have also recently in Delhi Transport

Corporation Vs. Arun Kumar W.P.(C) No.3345/2000 decided on 18th

March, 2010 held to the same effect.

7. Clause 14(10)(c) aforesaid in the Regulations of the DTC is

nothing but a provision for abandonment of service by an employee. I

find the Division Bench of this Court in Shakuntala's Export House (P)

Ltd Vs. Secretary (Labour) MANU/DE/0541/2005 to have held that

abandonment amounts to misconduct which requires proper inquiry. The

judgment of the Single Judge of this Court upheld by the Division Bench

is reported as 117 (2005) DLT 479. To the same effect is another

judgment of this Court in MCD Vs. Begh Raj 117 (2005) DLT 438

laying down that if the workman had abandoned employment, that

would be a ground for holding an enquiry and passing an appropriate

order and that having not been done, the action of MCD could not have

been sustained. The Supreme Court also in D.K. Yadav Vs J.M.A.

Industries Ltd (1993) 3 SCC 259 has held that even where the standing

orders of the employer provide for dismissing the workman from service

for unexplained absence, the same has to be read with the principles of

natural justice and without conducting domestic inquiry and without

giving an opportunity of being heard, termination of service on the said

ground cannot be effected. The same view was reiterated in Lakshmi

Precision Screws Ltd. Vs. Ram Bahagat AIR 2002 SC 2914 (in this

judgment Sakattar Singh mentioned below was distinguished).

Recently, in V.C. Banaras Hindu University Vs. Shrikant AIR 2006 SC

2304 it was held that although laying down a provision providing for

deemed abandonment from service may be permissible in law, it is not

disputed that that an action taken thereunder must be fair and reasonable

so as to satisfy the requirements of Article 14 of Constitution of India; if

the action is found to be illogical in nature, the same cannot be

sustained. In Punjab & Sind Bank Vs. Sakattar Singh

MANU/SC/0733/2000 it was held that no inquiry may be conducted

where the standing orders of the Bank provided a procedure for treating

such absentee employee to have deemed to have voluntarily retired after

a particular period of unauthorized absence. To the same effect is the

recent dicta in The Regional Manager, Central Bank of India Vs. Vijay

Krishna Neema AIR 2009 SC 2200. The Regulation 14(10)(c) of the

petitioner DTC does not provide a procedure and thus cannot be saved

even on the basis of the said judgments. Further the action of the

petitioner DTC is found to be illogical and not complying with

principles of natural justice.

8. The counsel for the petitioner DTC however invites attention to

notice dated 27th February, 1979 issued by the petitioner DTC to the

respondent no.3 workman to show cause as to why he should not be

deemed to have resigned under Clause 14(10)(c) aforesaid. It is

contended that the order dated 2nd May, 1979 deeming the respondent

no.3 workman to have resigned from service had been issued after

complying with the principles of natural justice and after giving an

opportunity of being heard to the respondent no.3 workman. It is further

contended that the respondent no.3 workman was admittedly absent and

has not proved that the reasons stated by him for his absence existed. It

is further urged that as per the judgment in DTC Vs. Sardar Singh AIR

2004 SC 4161 mere making of an application for leave is not enough

and the requirement is of obtaining leave in advance. Reliance in this

regard is also placed on:

(a) Jai Shanker Vs. State of Rajasthan AIR 1966 SC 492

laying down that even if a Service Regulation provides that

an employee who absents without permission should be

considered to have sacrificed his appointment, the employer

should give such employee an opportunity showing cause

why he should not be removed.

(b) Viveka Nand Sethi Vs. Chairman, J&K Bank Ltd. (2005)

5 SCC 337 where a provision in the agreement between the

bank and its employees of deemed resignation was upheld.

9. As far as the contention of the counsel for the petitioner DTC of

principles of natural justice having been complied with in the present

case is concerned, though show cause notice was issued by the petitioner

DTC prior to the order treating the respondent no.3 workman to have

deemed to have resigned, but in the order of deemed resignation there is

no discussion whatsoever of the applications for leave/extension of leave

as aforesaid submitted by the respondent no.3 workman and/or as to

genuineness or effect thereof. The petitioner DTC has not considered

whether the same constituted sufficient reason for absence. Moreover,

even if it were to be held that an opportunity had been given to the

respondent no.3 workman, the fact remains that the explanation

furnished by the respondent no.3 workman in his leave applications

giving reasons for absence have not been considered. The order of

deemed resignation is absolutely silent in this regard. The principle of

natural justice of giving an opportunity of being heard is not to be an

empty or abstract exercise. Giving of an opportunity of hearing has a

corresponding obligation to deal with the representations and to give

reasons for the decision. An opportunity of hearing would be

meaningless and its purpose would be frustrated, if the authority giving

the hearing does not consider the representations of the noticee or does

not give any reasons for agreeing or disagreeing with the noticee. The

petitioner DTC has not carried out the said determination. 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 Assistant Commissioner Vs. Shukla &

Brothers MANU/SC/0258/2010).

10. The petitioner DTC is thus not found to have complied with

principles of natural justice and its action found to be illogical. Thus the

judgment in Jai Shanker (supra) & Viveka Nand Sethi (supra) relied by

the petitioner DTC are of no avail, the principles of natural justice

having not been complied with in the present case.

11. In the circumstances aforesaid, no error can be found with the

award impugned in the present petition. The petitioner DTC,

notwithstanding various judgments aforesaid on Clause 14 (10)(c) of its

Regulations, is found to have contested the matter and to its own

prejudice. The petition is dismissed. However, costs of legal

proceedings having already been paid, no order as to costs. The

petitioner DTC is directed to comply with the award within six weeks of

today. .

RAJIV SAHAI ENDLAW (JUDGE) 19th May, 2010 gsr