Dtc vs Prem Prakash Through Lrs
2010 Latest Caselaw 4801 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
           EXTRAORDINARY CIVIL ORIGINAL JURISDICTION

+                          WP(C) No.6758/2007

                                       Date of pronouncement: 18-10-2010

       DTC                                      ..... Petitioner
               Through     Mr. Anand Nandan, Advocate.

                     versus

       PREM PRAKASH THROUGH
       LRs                                   ..... Respondent
            Through  Mr. A.K. Trivedi, Advocate.

CORAM:
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

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


SUDERSHAN KUMAR MISRA, J. (ORAL)

1. The impugned order dated 26th February, 2003 reveals that the

Tribunal concluded that the respondent remained absent on the basis of

Exhibit AW 1/1, which is a report prepared by Mr. Bhagwan Das. This

report is based on the Attendance Sheet, i.e. SAR. At the same time,

Exhibit AW1/R-1, which was also filed by the DTC/petitioner before the

Tribunal, is the "MAR", which showed that the respondent was on leave

without pay. However, being on leave without pay is quite different from

being absent. The respondent's contention is that availing of leave

without pay does not amount to misconduct, and that the Tribunal has

correctly believed that the respondent was on leave without pay and not

absent. The respondent's further contention is that, however, if there

are any consequences of having been on leave without pay, those could

follow.

2. Counsel for the DTC contends that in the case of DTC v. Sardar

Singh, 2004 (VIII) AD (SC) 371, the issue of misconduct has been

examined by the Supreme Court in the context of the requirement to

obtain sanction for the leave sought, in advance. It has held that even if

some leave without pay is still available to the employee, it does not

exempt the employee from applying for and obtaining the necessary

leave, before he actually goes on leave, and not doing so amounts to

misconduct. It was in this context that the Supreme Court had also

examined the standing order No.4 of the DTC which deals with "Absence

without permission". It was ultimately held in paragraph 9 as follows:

"9. When an employee absent himself from duty, even without sanctioned leave for very long period, it prima facie shows lack of interest in work. Para 19 (h) of the Standing Order as quoted above relates to habitual negligence of duties and lack of interest in the Authority's work. When an employee absents himself from duty without sanctioned leave the Authority can, on the basis of the record, come to a conclusion about the employee being habitually negligent in duties and an exhibited lack of interest in the employer's work. Ample material was produced before the Tribunal in each case to show as to how the concerned employees were remaining absent for long periods which affect the work of the employer and the concerned employee was required at least to bring some material on record to show as to how his absence was on the basis of sanctioned leave and as to how there was no negligence. Habitual absence is a factor which establishes lack of interest in work. There cannot be any sweeping generalization. But at the same time some telltale features can be noticed and pressed into service to arrive at conclusions in the departmental proceedings."

3. In the present case also, counsel for the DTC states that from

1990-1994 the respondent was in the habit of absenting himself, and

that he remained absent for 759 days. He further states that the

conduct of the respondent in absenting himself from duty without having

leave sanctioned exhibits a lack of interest and habitual negligence with

regard to his work. He submits that these absences were telltale

features that were also noticed by the management whilst deciding to

terminate the service of the respondent, notwithstanding the fact that

the notice of termination was ultimately prompted by the respondent

taking 12 days' leave without pay, without previous sanction.

4. On the other hand, it is contended by counsel for the respondent

that the impugned order was passed on 26 th February, 2003 and the

present writ petition impugning that award came to be filed only on 11 th

September, 2007. In the meanwhile, on 18 th March, 2003, the

respondent/workman had died and the petitioner chose to file the instant

writ petition against the legal representatives of the deceased. Counsel

for the respondent relies on a decision of the Supreme Court in the case

of Basudeo Tiwary v. Sido Kanhu University & ors., (1998) (8) SCC

194, in particular paragraph 4 thereof, for the proposition that since the

respondent had died before the filing of the writ petition against his legal

representatives, therefore, the impugned award of the Tribunal could not

be interfered with. I do not agree. Paragraph 14 of the aforesaid

judgment merely shapes the relief to be granted in view of the fact that

the appellant/workman in that case, who had challenged his dismissal,

had died during the pendency of the appeal. Naturally, if the court came

to the conclusion that the termination of service of that

appellant/workman was bad, consequences would ensue to his legal

representatives, to the extent permitted by law. In such a situation,

while there can be no reinstatement, all the monetary benefits that

would have been available to the deceased appellant would have flowed

to his legal representatives, if any. In the present case, the DTC, who is

the employer, is contending that the termination of the

respondent/workman was proper and that the award directing his

reinstatement deserves to be quashed. That is another thing altogether.

I do not see anything to prevent this. Were this Court to accept the

petitioner's contention, i.e. if the employer/DTC were to succeed, all

monetary benefits that could have flowed in terms of the award either to

the workman himself or to his legal representatives after his death,

would be quashed.

5. Counsel for the respondent then relies on the decision of this Court

in the case of Bhoop Singh v. UOI & Ors., WP(C) No.501/97, decided

on 8th January, 2010, and in particular paragraph 8 thereof. A perusal of

paragraph 8 of the aforesaid judgment shows that, that judgment was

rendered with regard to the status of the service of an ex-employee,

whose termination had been set aside and who had since died, as a

result of which the respondent/employer was not in a position to issue

another show cause notice and decide the matter afresh. In those

circumstances, and also keeping in mind paragraph 79 of the P & T

Manual, Vol.III of Swamy's Compilation of CCS (CCA) Rules, which were

applicable to that case, and which stated that proceedings came to an

end immediately on the death of alleged offender; no disciplinary

proceedings could be continued thereafter. Consequently, since the

notice to show cause, as well as the order of termination, had already

been set aside, there was no question of issuing any fresh notice to show

cause or for any further enquiry to be carried out against the deceased

employee. It, therefore, followed in that case that the said employee

was deemed to be in service up to his date of demise and would be

entitled to all the relevant benefits. To my mind, this judgment also does

not help the respondent. It does not mean that in every case where the

workman dies before proceedings can be instituted impugning the

Tribunal's Award, the employer is automatically divested of his

constitutional remedy and the award becomes immune from challenge. I

find no force in submissions of the counsel for the respondent on this

aspect of the matter. Here, what is being examined is the validity of the

decision given by the Tribunal in the impugned award, whereby

termination of the workman was set aside. Simply because the

respondent has died cannot possibly mean that the validity of the

decision given in favour of the workman cannot be impugned. It is not

as if disciplinary proceedings are being initiated afresh against the

deceased workman. In that view of the matter, surely, the correctness or

otherwise of the decision setting aside the termination of the

respondent/workman's service can always be examined.

6. Further, a perusal of the charge-sheet dated 18th November, 1993

shows that the same was issued to the workman on the ground that he

was not interested in the job and remained absent from 22nd September,

1993 to 3rd October, 1993 without any information or prior approval. At

the same time, the report, on the basis of which this charge-sheet was

prepared, along with a copy of the respondent's past record which was

intended to be relied on with a view to proving the fact that the workman

was not interested in his job, was also annexed with the charge-sheet.

Admittedly, the past record of the respondent clearly sets out repeated

and habitual absence, all of which were without intimation or sanction.

For all the aforesaid reasons, to my mind, the conclusion drawn in the

impugned award that availing of leave without pay does not amount to

misconduct, has been passed in a cursory manner and without due

application of mind. Basic facts such as failure to apply for and obtain

sanction for the leave have not been examined. The same deserves to be

set aside.

7. In this view of the matter, and looking to the fact that even the

Supreme Court in Sadar Singh's case (supra) has clearly held that

habitual absence can only lead to the conclusion of negligence and lack

of interest in pursuing the job, the writ petition deserves to be allowed.

The impugned finding in Issue No.1 in the order passed by the Tribunal

dated 26th February, 2003 is set aside. The application of the

petitioner/DTC filed under Section 33(2) (b) of the Industrial Disputes

Act, 1947, which was filed before the Tribunal, is allowed.

8. The petition stands disposed of in the above terms.

CM Nos.12798/2007 & 15720/2009

9. Since the main petition has been allowed and disposed of, these

applications have become infructuous and the same are disposed of as

such.

SUDERSHAN KUMAR MISRA, J.

OCTOBER 18, 2010 dr