Delhi Transport Corporation & ... vs Devender Kumar Sehgal
2014 Latest Caselaw 1080 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Decided on February 28, 2014


+                             W.P.(C) 1327/2014
DELHI TRANSPORT CORPORATION & ANR.
                                                     ..... Petitioner

                     Represented by:    Ms.Avnish Ahlawat, Advocate

                     versus

DEVENDER KUMAR SEHGAL
                                                    ..... Respondent

                     Represented by:    None

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J. (Oral)

W.P.(C) 1327/2014

1. The challenge by the Delhi Transport Corporation is to the award dated September 28, 2013 in I.D. No. 02402C0645582007 passed by the Presiding Officer, Labour Court whereby the Labour Court has held that the punishment of removal from services awarded to the respondent by the petitioner is harsh and shocking and directed that, he may be simply discharged from services from the date of termination i.e. October 12, 2006 with retirement benefits.

2. The brief facts are that a charge sheet was issued to the respondent alleging therein that he remained absent from duties without intimation from December 12, 2004 and after four reminders to appear before the

Medical Board, he reported on March 20, 2005. The Medical Board recommended one month's rest to him. Again, the respondent remained absent from June 02, 2005 to August 02, 2005 without intimation and was again granted one month's medical rest by the Medical Board. He again remained absent from September 03, 2005 to November 15, 2005 without intimation and was given one month's rest on the advice of the Medical Board. Again on December 16, 2005, he remained absent and did not report to Medical Board despite reminders.

3. The respondent replied to the charge sheet wherein he pleaded that he was suffering from various diseases and got his treatment with JPN Hospital and even submitted his medical record and requested for a light duty. However, despite that, enquiry was initiated and the respondent pleaded guilty to the charges and the regular enquiry was dispensed with. On the basis of the Enquiry Officer's report, he was terminated with effect from October 12, 2006.

4. It was the contention of the respondent before the Labour Court that he was not well and this aspect was within the knowledge of the petitioner. He would plead that the Medical Board had recommended bed rest to him. The termination, one year and eighteen days, before superannuation and overlooking his 31 years of service, was illegal, mala fide and arbitrary.

5. On the other hand, it was the case of the petitioner that the petitioner had checked up past records of the respondent and he was imposed minor penalty in the past as well. It was also the case of the petitioner that the respondent remained unauthorizedly absent for a considerable period, without taking prior leave or without informing the petitioner-Corporation and as such, he deserved the punishment of

termination.

6. The Labour Court in its award has come to the following conclusion:

"7.In the instant case, the order of dismissal is not based on any previous record or conduct of the workman and is simply based on the inquiry held against him. It reads as "That the reply to the showcause notice considered thoroughly by the undersigned and found not satisfactory and hence, following punishment is imposed upon .............".

Thereafter the order for removal from service was passed. Thus, it is clear that the past record of the workman was not considered.

Even if the workman faulted on earlier occasion , he was reprimanded by imposing appropriate punishment.

8. It is clear from the records including the cross examination of MW1 that the management was aware about the ill-health of the workman since 2004. He admitted that the workman appeared before the Medical Board on three occasions and was even advised medical rest for one month on each occasion . He was also not medically examined even after the inquiry to evaluate his state of health on the ground, as deposed by MW1, that he had pleaded guilty.

9. It is an admitted fact that the workman had served the management for about 16 years and was on the verge of retirement with only one year and 18days left for the same. In such circumstances, in case the management felt that he was unable to perform his duties of driver, he could had been as signed lighter duties. Still, if the management was of the view that due to the ill health the workman

was unable to serve the management, it could have simply discharge the workman so that he could have availed the termin al benefits and his family could not have starved. The punishment of termination at the fag end of the career of a worker is not only harsh to him but also to his family and that too on the ground of absenteeism and not of dishonesty etc. The absenteeism has also been explained by the work man from time to time but was not considered by the management in the right prospective".

7. Ms. Avnish Ahlawat, learned counsel appearing for the petitioner- Corporation would submit that unauthorized absence is a serious misconduct. According to her, the respondent remained unauthorizedly absent without intimation and for unjustifiable reasons.

8. Having heard the learned counsel for the petitioner, I note, it is not a case where the respondent was feigning illness. He was suffering from "AN with depression psychosis" and "colitis" and had been taking treatment. As noted by the Labour Court that the respondent himself, on the advice of the petitioner, had appeared before the Medical Board on three occasions when the Medical Board had advised bed rest to him for one month on each occasion. It is also on record that the respondent was left with total service of one year and eighteen days for superannuation. He had already put in 31 years of service. Hence, it may be a case of unauthorized absence but in the facts of the case, it cannot be said to be wilful absence.

9. The Supreme Court in the case of Krushnakant B. Parmar Vs. Union of India (UOI) and Anr.,(2012) 3 SCC 178 has held as under:

"18. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean wilful. There

may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant".

10. In view of the aforesaid position, I do not find, in the facts, this case warrants any interference by this Court under Article 226 of the Constitution of India. The writ petition is dismissed.

11. No costs.

CM No.2763/2014 (stay)

In view of the dismissal of the writ petition, this application is also dismissed as infructuous.

(V.KAMESWAR RAO) JUDGE FEBRUARY 28, 2014 akb