Dtc vs Narayan Singh
2013 Latest Caselaw 4960 Del

$~R-155
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 5425/2001

                                     Decided on 29th October, 2013

      DTC                                              ..... Petitioner
                         Through     : Mr. Uday N. Tiwary, Adv.

                         versus

      NARAYAN SINGH                                      ..... Respondent

                  Through            : None

      CORAM:
      HON'BLE MR. JUSTICE A.K. PATHAK

      A.K.PATHAK, J.(ORAL)

1. Respondent was working with the petitioner as a Conductor. He

remained absent from duty for 211 days during the period 1 st January,

1991 to 30th November, 1991. Petitioner held an enquiry against the

respondent on the charge that he was irregular in attending his duty and

was not taking interest in the work, thus, had committed misconduct

within the meaning of para 4(i) and 19(h) & (m) of the Standing Orders

governing the conduct of the petitioners' employees. Respondent did not

participate in the enquiry and was proceeded against ex-parte. Enquiry

Officer considered the evidence adduced by the petitioner and concluded

that respondent was guilty of misconduct.

2. Disciplinary Authority considered the enquiry report and issued a

show cause notice dated 27th April, 1992 to the respondent. Respondent

did not submit any reply. Disciplinary Authority considered the enquiry

proceedings and passed the order of removal of respondent from service

on 19th May, 1992. On the same day, one month's wages were remitted

to the respondent through money order.

3. Petitioner filed an application under Section 33(2)(b) of the

Industrial Disputes Act, 1947 ("the Act", for short) before the Industrial

Tribunal seeking its approval in view of pendency of wage disputes

between the petitioner and its workers. Respondent filed written

statement. He alleged that he did not commit any misconduct. He also

took a plea that Depot Manager was not competent to take disciplinary

action. Enquiry was not conducted as per the Rules and Regulations and

principles of natural justice were violated. Respondent alleged that he

was on leave during the period of his absence. There was no material

before the Enquiry Officer and Disciplinary Authority to hold that

respondent was guilty of misconduct. Reply to the charge-sheet was not

considered by the enquiry officer. Respondent was never informed that

his leave applications were not received in the office nor that his absence

from duty was unauthorised. In the service-book of respondent,

petitioner had mentioned that he had remained on leave without pay

during the period in question, thus, his absence could not have been

treated as unauthorised. Respondent denied that one month's pay was

remitted to him.

4. On 15th September, 1993 following issue was framed:-

"Whether applicant held a legal and valid enquiry against the respondent according to principles of natural justice?"

5. Parties were permitted to lead evidence which they did. Upon

scrutiny of evidence adduced by the parties, Industrial Adjudicator vide

order dated 9th March, 1998 held that enquiry was not held in a proper

manner and was vitiated. Thereafter, Industrial Adjudicator proceeded to

enquire about the misconduct himself and following additional issues

were framed on 9th March, 1998:-

"1. Whether the respondent committed the

misconduct for which he charge-sheeted?

2. Relief."

6. Petitioner adduced evidence. It examined Smt. Manju Bala as

AW2 and Sh. Kamlesh Gupta as AW3. Respondent did not lead any

evidence. AW2 Smt. Manju Bala deposed that she had prepared the

report of unauthorised absence of respondent from duty for 211 days and

proved her report as Ex. AW2/1. In her cross-examination she deposed

that respondent was treated on leave without pay. AW3 Sh. Kamlesh

Gupta proved the charge-sheet dated 13th December, 1991. He also

deposed that pursuant to the report of Enquiry Officer show cause notice

Ex. AW3/2 was issued. Past record of the respondent was also proved by

this witness as Ex. AW3/1. He deposed that respondent did not file any

reply to the show cause notice. Copy of the money order receipt whereby

wages were remitted to him, was proved as Ex. AW3/5, certificate

containing details of wages of respondent was proved as Ex. AW3/6.

Industrial Adjudicator scrutinized the evidence adduced by the petitioner

and concluded that petitioners' absence from duty was not unauthorised

since he was treated on leave without pay during the said period. As per

the Industrial Adjudicator, once the absence was treated as leave without

pay or any other kind of leave, his absence would not amount to

"misconduct". However, it was held that full one month's wages were

remitted to respondent. However, in view of the finding on issue No. 1

approval under Section 33(2)(b) of the Act has been declined vide Award

dated 7th February, 2000.

7. That is how, petitioner is before this Court by way of present writ

petition under Article 226 of the Constitution of India.

8. In Delhi Transport Corporation vs. Sardar Singh, AIR 2004

Supreme Court 4161, Supreme Court has held as under:-

"7. In all these cases almost the whole period of absence was without sanctioned leave. Mere making of an application after or even before absence from work does not in any way assist the concerned employee. The requirement is obtaining leave in advance. In all these cases the absence was without obtaining leave in advance. The relevant paras of the Standing Order read as follows:

"4. Absence without permission:-

(i) 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 D.T.S. 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 Organisation.

19. General Provisions:- Without prejudice to the provisions of the foregoing Standing Orders, 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."

8. 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 Atuhority:-

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

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

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

9. 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 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.

10. Great emphasis was laid by learned counsel for the respondent- employee on the absence being treated as leave without pay. As was observed by this Court in State of Madhya Pradesh v. Harihar Gopal 1969 (3) SLR 274 by a three-judge Bench of this Court, even when an order is passed for treating absence as leave without pay after passing an order of termination that is for the purpose of maintaining correct record of service. The charge in that case was, as in the present case,

absence without obtaining leave in advance. The conduct of the employees in this case is nothing but irresponsible in extreme and can hardly be justified. The charge in this case was misconduct by absence. In view of the Governing Standing Orders unauthorized leave can be treated as misconduct.

11. Conclusions regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly, when same is unauthorized. Burden is on the employee who claims that there was no negligence and/or lack of interest to establish it by placing relevant materials. Clause (ii) of Para 4 of the Standing Order shows the seriousness attached to habitual absence. In clause (i) thereof, there is requirement of prior permission. Only exception made is in case of sudden illness. There also conditions are stipulated, non-observance of which renders the absence unauthorized.

12. The Tribunal proceeded in all these cases on the basis as if the leave was sanctioned because of the noted leave without pay. Treating as leave without pay is not same as sanctioned or approved leave.

13. That being the factual position, the Tribunal was not justified in refusing to accord approval to the order of dismissal/removal as passed by the employer. The learned Single Judge was justified in holding that the employer was justified in passing order of termination/removal. The Division Bench unfortunately did not keep these aspects in view and reversed the view of learned Single Judge."

9. Supreme Court in the context of Regulation 25 and paras 4(i) 2(ii)

as well as 19(h) has taken a view that if an employee absents himself

form duty without sanctioned leave for very long period it prima facie

shows lack of interest in work. Habitual absence is a factor which

establishes lack of interest. It is for the employee to show as to how his

absence was on the basis of sanctioned leave and as to how there was no

negligence. In view of the governing Standing Orders unauthorised leave

can be treated misconduct. Treating as leave without pay is not same as

sanctioned or approved leave.

10. Accordingly, I am of the view that Industrial Adjudicator has

committed a patent error of law in holding that the petitioner had failed to

establish unauthorised absence of respondent for 211 days, in view of the

admission of AW2 that period of absence of respondent was treated as

period of leave without pay. Industrial Adjudicator has also committed a

patent error of law by holding that unauthorised absence from duty does

not amount to misconduct. In this case, respondent had remained absent

for 211 days. As per the respondent, he was on leave. Admittedly, he

did not lead any evidence before the Industrial Adjudicator to show that

he was on sanctioned leave. It is the case of the petitioner that

respondent remained absent without sanctioned leave. Merely because,

respondent was treated on leave without pay, would not automatically

mean that he remained on sanctioned leave.

11. For the forgoing reasons, impugned order is set aside/quashed and

permission under Section 33(2)(b) of the Act is granted to petitioner.

12. Writ petition is allowed.

A.K. PATHAK, J.

OCTOBER 29, 2013 rb