Sarwan Kumar vs Dtc
2011 Latest Caselaw 876 Del

           IN THE HIGH COURT OF DELHI AT NEW DELHI


                    WRIT PETITION(C) NO.122/2010

                                Date of Decision: 14th February, 2011


       SARWAN KUMAR                             ..... Petitioner
           Through              Mr. Suwarn Rajan, Advocate

                    versus


       DTC.                                           .....Respondent

                    Through     Mr. Hari Om Sharan Singh, Adv. for
                                Ms. Saroj Bidawat, 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 instant writ petition has been preferred against the

order dated 4th January, 2008 and the award dated 29th January,

2008, whereby the Labour Court held that the petitioner was guilty

of misconduct and that the punishment imposed upon him is neither

disproportionate nor harsh.

2. It is the case of the petitioner that he was appointed as

a driver with the respondent in the year 1988 and continued to

work with the corporation till his services were terminated by the

respondent because he was absent from duty for a period of 136

days without taking permission from the competent authority. The

petitioner states that this came about because he was suffering

from Jaundice and Typhoid during this period and he had

accordingly moved an application seeking leave for that period.

However, on 30th June, 1994 the concerned officer of the

department made a report to the competent authority that the

petitioner has been absent from the duty of the respondent since

10th June, 1994. It was also stated therein that the petitioner had

informed the respondent about his absence only for the period

between 15th June, 1994 to 19th June, 1994 and that no further

information has been received from the petitioner since 19 th June,

1994.

3. Thereafter, on 25th May, 1995 a charge sheet was

issued to the petitioner alleging that the petitioner had remained

absent from duty for 136 days during the period of 1st July, 1994 to

31st March, 1995 without taking permission from the competent

authority and that the aforesaid action amounted to misconduct in

terms of paragraph 19 (e) (h) & (m) of the Standing Orders of the

Delhi Transport Corporation. The relevant paragraph of the

Standing Orders reads as follows:

"4. Absence without permission -

(1) 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 the case of sudden illness he shall send intimation to the office immediately. If the illness lasts or 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 DTC. 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 service with the Organization."

The general provisions with regard to this type of

absence set down are as follows:

"19. General Provision - Without prejudice to the provisions of the foregoing Standing Orderss, the following acts of commission and omission shall be treated as mis- conduct:

(a) .........

(h) Habitual negligence of duties and lack of interest, in the Authority's work."

Clause 15 of the Regulations so far as relevant reads as

follows:

"2. Discipline - The following penalties may, for misconduct or for a good and sufficient reason be imposed upon an employee of the Delhi Road Transport Authority:-

(i) .............

(vi) Removal from the service of the Delhi Road Transport Authority.

(vii) Dismissal from the service of the Delhi Road Transport Authority. ........."

4. The enquiry officer held that the allegations of

misconduct leveled against the petitioner stood proved. On the

basis of the finding of the enquiry officer, the disciplinary authority

terminated the service of the petitioner on the ground that he had

remained unauthorizedly absent from duty for 136 days from 1st

July, 1994 to 31st March, 1995. The dispute was then referred to

the Labour Court for adjudication.

5. In the impugned Order dated 4th January, 2008, it was

held by the Labour Court that the testimony of the workman,

wherein he himself admitted that he had received the charge sheet

and had also appeared before the enquiry officer, makes it clear

that the enquiry was conducted in accordance with the principles of

natural justice.

6. Further, in the impugned award dated 29th January,

2008, the Labour Court also observed that the workman failed to

show that he remained on leave after due permission from the

competent authority. Moreover, the past record of the workman

shows that there were several adverse entries against him, out of

which one is regarding unauthorized absence from duty from 20 th

June, 1994 to 31st March, 1995 and another was for unauthorized

absence from duty for 91 days from July, 1993 to June, 1994.

Hence, the Court concluded that the act of the workman constitutes

serious misconduct and the punishment imposed upon him is

neither unjustified nor disproportionate to his misconduct.

Consequently, the Labour Court passed the impugned award

upholding the decision of the respondent to terminate the services

of the workman.

7. In the writ petition, counsel for the petitioner contends

that the Labour Court failed to appreciate the fact that it is not the

case of the respondent that the absence of the petitioner was not

due to his illness but was, in fact, deliberate and negligent. Counsel

further submits that illness of a person is not in his control and if he

remains absent for this reason he cannot be held guilty of

misconduct. Therefore, since the petitioner was absent from his

duty due to medical reasons, he cannot be held guilty of

misconduct. In support of this contention, the petitioner relies on

the case of DTC v. Sardar Singh AIR 2004 SC 4161, wherein the

Supreme Court held that absence due to medical or emergency

reasons is considered an exception and is not misconduct. He

further submits that, in any case, the punishment of removal from

service for absence due to serious illness is an exceptionally harsh

punishment and disproportionate to the misconduct.

8. The respondent contends that the petitioner did not

submit any leave application for the period he remained absent

from his duty, and, in fact, the medical certificates were produced

for the first time only before the enquiry proceedings. Counsel for

the respondent also relies on the Sardar Singh's case (supra)

wherein, inter alia, it was also held that mere making of an

application after, or even before, absence from work does not meet

all the requirements and it is also necessary for the concerned

employee to obtain leave in advance. It was also held in paragraph

9 of that case that :

"When an employee absents 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 Orders 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."

However, the petitioner failed to prove that he had submitted

leave applications, and even if submitted, that they were duly

sanctioned.

9. It is, therefore, the case of the respondent that the

petitioner had taken unauthorized leave, which amounted to

misconduct. On the other hand, the petitioner denies this allegation

and contends that he had not committed any misconduct as his

absence from duty was for justified reasons and there was neither

negligence nor any lack of interest on his part. The Standing Orders

of the Delhi Transport Corporation require that leave must be

secured in advance. However, in case of an emergency, information

must reach the DTC within three working days. Admittedly, the

petitioner resides in Sonipat (Haryana) from where he came for work

to Delhi everyday. According to the petitioner, suddenly and

unexpectedly, on 10th June, 1994, he fell ill. Assuming it was so,

even then the petitioner was obliged to send an intimation of his

incapacitation, "immediately", in terms of the aforesaid Regulations

of the DTC.

10. I have put a question to the counsel for the petitioner as

to when did the petitioner send intimation of his illness to the

respondent. His reply is that the petitioner fell ill on 10th June,

1994, and that the petitioner got leave sanctioned for the period 15th

to 19th June, 1994. He also stated that the report of 30th June, 1994,

which was issued by the respondent regarding the petitioner's

absence, clearly states that the petitioner had given information of

his absence for the period from 15th - 19th June, 1994, i.e. for four

days. Nothing further is stated by counsel for the petitioner in reply

to the above query or with regard to the remaining days, out of a

total of 136 days, on which his client remained absent. The

aforesaid report also states that the petitioner last attended his

duties on 9th June, 1994, meaning thereby, that the petitioner did

not attend his duties from 9th June, 1994 onwards. Not only that,

there was also no information from 9th June, 1994 to 14th June, 1994

with regard to the status of the petitioner's health.

11. Furthermore, the Standing Orders state, inter alia, that,

"if the illness lasts or is expected to last for more than three days at

a time, application for leave should be duly accompanied by medical

certificate from the registered medical practitioner or the medical

officer of the DTC." In order to justify his conduct in the light of the

Standing Orders, the petitioner relies on the answers to two

questions which were asked by the Enquiry Officer to the petitioner.

The first question was whether the petitioner had given any

application with regard to the leave, to which the petitioner replied

that he had sent a medical certificate to the office of the DTC. The

second question was whether the petitioner had given information

about the leave on time. To this, the petitioner answered that he

had sent an application for leave through UPC within time. An

examination of these answers shows that no particulars whatsoever

have been given by the petitioner in his answers. Not only that, no

particulars have been furnished even before the Labour Court.

12. Counsel for the petitioner states that his client has

annexed the relevant UPC receipts, through which he had sent his

medical certificate to the respondent, along with the writ petition.

According to counsel for the petitioner, these receipts are dated 28th

June, 1994, which would mean that they were despatched on 28th

June, 1994. An examination of the medical certificate which is relied

upon by the petitioner, and which, according to counsel for the

petitioner, was also inserted and dispatched along with the other

documents by UPC to the respondent, shows that it was issued on

the night of 25th October, 1994. It was, therefore, not possible for

this document to have been transmitted on 28th June, 1994, even

assuming that this UPC receipt is to be relied upon. When this aspect

was brought to the notice of counsel for the petitioner during the

course of hearing, he stated that it is possible that the medical

certificate of the petitioner, which is dated 25th October, 1994,

"might not have gone". Further, the last endorsement on another

the document, which seems to be the treatment sheet, also

purported to have been sent through the same UPC on 28th June,

1994, is dated 28th September, 1994. This makes it obvious that

this document was also not sent. The only document which is dated

before 28th June, 1994 is a diagnostic report dated 10th June, 1994.

Counsel for the petitioner further states that when the UPC was sent,

no covering letter was sent along with the Medical Certificate.

13. It is the case of the respondent that it had not received

any information with regard to the petitioner's alleged illness.

Admittedly, no allegations of any bias or malafides or of the

petitioner being singled out on account of enmity with anyone have

been made. Hence, there is nothing to presume that the respondent

would have suppressed any record regarding the documents or the

medical certificate or had not maintained its records in the normal

course.

14. There was no acceptance or finding by the Enquiry

Officer to the effect that the petitioner had acted in conformity with

the Standing Orders applicable to him or that he had given due

intimation of his illness, in terms thereof, to the respondent.

Furthermore, there is no finding that there was any acceptance of

the request for leave, if the same was sent through UPC. These facts

have not been proved by the petitioner despite opportunity given by

the trial court.

15. The Supreme Court, in the Sardar Singh case,

observed that unauthorized leave, or remaining absent for a long

period without sanctioned leave, showed that the employee was

habitually negligent in his duties and exhibited lack of interest in the

work and therefore, it amounted to misconduct within paragraph

4(ii) and 19(h) of the Standing Orders of the DTC and the

management in a given case would be well within its right to

terminate the services of the workman. It was also held therein that

the only exception to the requirement of prior permission is in case

of sudden illness. However, even there, conditions have been

stipulated, non-observance of which renders the absence

unauthorized. Under the circumstances, I do not think that the

finding in the impugned order is perverse or irrational requiring

interference by a writ court.

16. This petition is, therefore, dismissed.

SUDERSHAN KUMAR MISRA, J

FEBRUARY 14, 2011