Municipal Corporation Of Delhi vs Gurdayal Singh And Others
2011 Latest Caselaw 1445 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment delivered on: 11.03.2011

                            WP(C) 2416/1994

MUNICIPAL CORPORATION OF DELHI                                   ..... Petitioner

                                    -versus-

GURDAYAL SINGH & ORS.                                          ..... Respondents

Advocates who appeared in this case:

For the Petitioner : Mrs Avnish Ahlawat & Mr Nikhil Singla, Advocates

For the Respondents : None

CORAM :-

HON'BLE MR JUSTICE RAJIV SHAKDHER


1.     Whether the Reporters of local papers may
       be allowed to see the judgment ?                 No
2.     To be referred to Reporters or not ?             No
3.     Whether the judgment should be reported          Yes
       in the Digest ?

RAJIV SHAKDHER, J (ORAL)

1. Mrs Ahlawat has drawn my attention to an order dated 11.08.2009 whereby

an order was passed in CM No. 14595/2007 impleading Delhi Power Company

Limited (in short „DPCL‟) and BSES Rajdhani Power Limited in place of the

erstwhile Delhi Vidyut Board (in short „DVB‟). Mrs Ahlawat submits that

pursuant to the order of the Supreme Court passed in North Delhi Power Limited

vs Government of National Capital Territory of Delhi & Ors.; 2010(4) SCALE

Page 546 it is no longer res integra that the successor companies of DVB would be

those which operate in the area defined. In the instant case since the BSES

Rajdhani Power Limited is the appropriate successor company, it would be the

only entity which would represent the interest of the erstwhile DVB. She therefore

contends that the order dated 11.08.2009 was passed when the afore-mentioned

judgment of the Supreme Court had not been pronounced. It is accordingly prayed

that appropriate directions be issued; albeit on an oral application, for deletion of

DPCL as a party to the proceedings. I am in agreement with the submissions made

by Mrs Ahlawat. Accordingly, it is directed that BSES Rajdhani Power Limited

would representing the interest of DVB in the present proceedings. The record

shall reflect this position hereon.

2. In so far as the merits of the writ petition are concerned, the writ petition is

directed against an order dated 24.02.1994 passed by the Industrial Tribunal-I,

Delhi (in short, „the Tribunal‟) in ID No. 498/1990. The impugned order came to

be passed on the petitioner passing an order dated 21.07.84 removing respondent

no.1 from service on account of absence without leave.

3. The brief facts which are relevant for the purposes of disposal of this writ

petition are delineated hereinafter :-

4. On 28.07.1969 respondent no.1 was employed as a Carpenter with the

petitioner. Respondent no.1‟s employment with the petitioner was confirmed vide

order dated 05.06.1972.

5. It appears that respondent no.1 sought leave from the petitioner to travel

abroad.

6. An application was evidently made by respondent no.1 for obtaining a "no

objection certificate" (in short NOC) of the petitioner in order to secure a passport

for travelling abroad. Based on the application, the petitioner vide letter dated

28.02.79 (which was despatched on 05.03.79) accorded its no objection for

issuance of passport. In the said letter the petitioner had indicated that the NOC

was being given to respondent no.1 on the following conditions: (i) respondent

No.1 shall not proceed abroad without obtaining requisite sanction to proceed on

leave from the competent authority; (ii) no extension of leave would be permitted;

and (iii) lastly, he will be allowed to proceed on leave, only if, the section head is

satisfied that the same was not detrimental to the efficacious disposal of the work

assigned to him.

6.1 There is no dispute that pursuant to the afore-mentioned communication, a

passport was secured by respondent no.1 and he proceeded on leave for a period of

two months from 30.07.79 to 30.09.79. It appears that respondent no.1 sought

extension of leave, while he was abroad. The petitioner contrary to the conditions

of the NOC appears to have sanctioned extension of leave. The leave of

respondent no.1 was accordingly extended up to 30.12.1979, vide petitioner‟s letter

dated 07.01.1980.

7. Evidently, the difficulty qua respondent No.1 arose thereafter.

7.1 It is the contention of the petitioner that several letters were written to

respondent no.1 calling upon him to report to duty as he had been absent from duty

unauthorisedly since 30.12.1979. In this regard the petitioner has placed reliance

on letters dated 17.12.1982, 24.09.1982, 11.04.1983 and 30.03.1984 . It is the case

of the petitioner before me that these letters were despatched not only to the

address of respondent no.1 that is, the place where he was located abroad but also

at his addresses in India i.e., permanent address in Punjab and his official

accommodation in Delhi.

8. The point to be noted is, that in so far as those address were concerned,

which related to location outside, most of the letters dispatched by the petitioner

were addressed to a location in Sharjah in U.A.E. There is one letter which was

also despatched to an address in Baharain.

8.1 The other aspect to be noted is that the order of removal dated 21.07.84 had

been sent to respondent‟s address in Baharain as well as that in Punjab and in New

Delhi.

9. Continuing with the narrative, respondent no.1 appears to have returned to

India some time in 1986, whereupon he made attempts to join the petitioner. Since

his attempts proved futile, respondent no.1 entered into correspondence with the

petitioner. It is also the stand of respondent no.1 that he had despatched various

letters, including letters dated 10.03.1986, 02.06.1986, 30.07.1986 and 10.09.1986.

The purpose of these letters was to prevail upon the petitioner to take respondent

no.1 back in employment.

9.1. Since the attempts of respondent no.1 failed, he evidently issued a legal

notice dated 11.05.88. As the demand for justice, did not lead to fruition, he raised

an industrial dispute. Thereupon attempts were made to settle the dispute before

the conciliation officer. The conciliation proceedings failed. This led to a

reference being made by the appropriate government, in respect of the disputes

which had arisen between the respondent no.1 and the petitioner. The reference

was made on 19.02.1990. The reference required the Tribunal to adjudicate upon

the following dispute:-

"Whether the removal of Shri Gurdayal Singh from the services is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?"

10. Upon completion of pleadings, and after evidence had been led by both

parties, the Tribunal proceeded to decide the matter. To be noted in the

intervening proceedings the Tribunal had framed the following issues:-

"(i) Whether the claim filed by the applicant is belated one?

(ii) As in the terms of reference.

(iii) Whether the action of the management in dispensing with the requirement of departmental inquiry in the circumstances of the case under provision(b) to sub-Section 2 of Section 95 of the DMC Act is valid or not?"

11. By the impugned award dated 24.02.1994, the Tribunal returned the

following findings.

12. In respect of Issue No.(1) the Tribunal returned a finding in favour of the

respondent, i.e., the claim was within limitation. In so far as Issue No.(3) was

concerned, the Tribunal found the issue in favour of the petitioner. In respect of

this issue, the upshot the Tribunal observations was that, the extraordinary powers

conferred on the petitioner to dismiss an employee without holding enquiry in case

it was not practicable to hold such an enquiry was exercised correctly in the case of

respondent no.1 as, no useful purpose would have been served in instituting a

disciplinary proceedings against him since he could not have taken part in the said

proceedings. The Tribunal also returned a findings of fact that: the communication

sent by the petitioner to respondent no.1 stood proved; and while respondent no.1

in his deposition was unable to state his address at Dubai, he had admitted that the

address set out, in the communication dispatched to Baharain, was "correct and

complete".

12.1. As regards the last issue i.e., Issue No.(2), the Tribunal returned the

following findings: that the letters of which photocopies had been filed by

respondent No.1, did not appear to have been dispatched as there were on record

no supporting material to demonstrate dispatch; and also that the dates on the

exhibits Ex WW1/4 to Ex WW1/7 i.e., the letters, were overwritten. In these

circumstances, the Tribunal concluded that it was not satisfied, that the said letters

which were evidently written by respondent no.1 for extension of leave, were

actually dispatched to the petitioner. The Tribunal also went on to observe that:

respondent no.1 could not have reasonably compelled the petitioner to sanction

leave to him for a period of seven years when, he had been initially sanctioned

leave for a period of two months; by merely putting in an application for extension

unlawful absence would not become lawful; and lastly, the petitioner was therefore

fully justified in taking action against respondent no.1.

13. Despite, the aforementioned findings of fact, the Tribunal curiously, in the

operative part of the judgment has observed as follows:-

"Sh. Gurdayal Singh had however, put in about 10 years‟ service with DESU by the time he was permitted to go abroad. The punishment of termination appears to be somewhat on the higher side because DESU

should have reasonably permitted him to remain abroad for 3 years atleast when he incurred expenses for his journey. He overstayed for four years. In such circumstances, he should be awarded lesser punishment than termination. Ends of justice would be met if the following award is passed:

i) The period 1.3.82 to 31.12.86 is excluded from his service for all purposes.

ii)The period from 1.1.87 onward till date is not counted for the purpose of back wages and

iii)He is given duty within two months of the publication of the Award."

14. I have heard arguments advanced by Mrs Ahlawat alongwith Mr Singla.

Mrs Ahlawat has submitted that impugned order is perverse and hence deserves to

be set aside in view of the findings returned by the Tribunal on all three issues.

The learned counsel has submitted that in view of the long absence of respondent

no.1 without requisite permission, and the continued failure of respondent no.1 to

report for duty; the action taken was in accordance with law, as it constituted a

"misconduct". The learned counsel also defended the removal order dated

21.07.1984, on the ground that the requisite power to pass such an order without an

enquiry is contained in Regulation 7 & 10(ii) of DESU (DMC) Service (C&A)

Regulations, 1976 read with Section 95 (2)(b) of the DMC Act, 1957 (in short the

DMC Act). It was the contention of the learned counsel for the petitioner that

since the respondent no.1 was located abroad, and there was no response

whatsoever from him, to various communications sent to him, it was impracticable

to hold an enquiry prior to his removal from service and hence, the order of

removal was in order. Mrs Ahlawat submitted that the Tribunal, while returning

findings of fact in favour of the petitioner has interfered with the order of removal,

which is not in consonance with the findings returned in the earlier part of the

impugned Award. In these circumstances, the petitioner has sought reliefs, as

prayed for in the writ petition.

15. At the outset, I may note that the matter is placed on the regular board.

Rule in the writ petition was issued as far back as on 27.05.1994. There has been

no representation on behalf of the respondents on several dates, including

14.12.2009, 03.05.2010, 11.08.2010 and today as well. I, therefore, have had no

benefit of hearing the respondents.

15.1. However, having perused the record with the assistance of learned counsels

for the petitioner, I am of the view that the operative part of the award dated

24.02.94 deserves to be quashed. The reasons for coming to this conclusion are

that the Tribunal having come to a conclusion that the dispatch of the

communications to the respondent no.1 was proved, in particular, the

communications sent to Baharain, and there being was no explanation forthcoming

as to why the respondent no.1 had not rejoined duty; then the only issue which

required consideration was whether it was practicable for the petitioner to hold an

enquiry prior to passing the order of removal dated 21.07.84. On that aspect as

well, the Tribunal purports to have agreed with the petitioner, in as much as, it is

held that since respondent no.1 was located abroad there was no purpose served in

instituting an enquiry and inviting respondent no.1 to take part in it. Whether

ordinarily this approach would sustain or not is an aspect which I need not detain

myself with as the fact remains that respondent no.1 did not assail this aspect of the

matter even in his statement of claim filed before the Tribunal. The case set up by

respondent no. 1 was that he had sought extension of leave; a case which he

decidedly failed to prove. The Tribunal, in my view has got unnecessarily swayed

by the fact that before proceeding abroad respondent no.1 had put in ten years of

service with the petitioner. The Tribunal seems to have discarded a very important

fact, which was, that respondent no.1 had been sanctioned leave initially for a

period of two months which was extended only till 30.12.1979. Thereafter,

respondent no.1 did not return to the country till 1986. Order of removal was

passed only on 21.07.1984. Five years is a long time. Long period of absence

from employment without requisite authority has been considered by Courts in

several judgments as misconduct and a valid ground for removal from service.

Reliance in this regard was placed by the learned counsel for the petitioner on the

judgment of the Supreme Court in Delhi Transport Corporation vs Sardar Singh:

(2004) 7 SCC 574. In my view, present case fits the bill of a misconduct. It is

proved, based on the findings returned by the Tribunal, that the respondent no.1

had not rejoined employment despite receipt of communication to do so. There

was no response to official communication by respondent no.1. An enquiry in

these peculiar circumstances would only be paying obeisance to a formality.

Hence, in my opinion, the petitioner had in this case the necessary justification

available to it, to invoke the impracticability clause, to order removal without

enquiry under the provisions of the DMC Act as well as the attendant DESU

Regulations. Therefore, in my opinion, the Tribunal‟s award whereby, it excluded

a certain period from the service i.e., period between 01.03.82 to 31.12.86 and also

proceeded to exclude the period beginning from 01.01.87 for the purposes of

payment of backwages was uncalled for; as was the direction ordering

respondent‟s re-instatement, given of the findings returned by the Tribunal. The

award is decidedly perverse.

16. Thus, the operative directions contained in the order dated 24.02.1994 are

quashed. The writ petition is allowed. In the circumstances, the parties are,

however, left to bear their own costs.

MARCH 11, 2011                                           RAJIV SHAKDHER, J.
mb