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D.T.C. Vs. THE P.O., I.T. NO. II & ANR.
December, 18th 2012
*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+    W.P. (C) No. 5344/2003

                                           Decided on: 11th December, 2012

       D.T.C.                                             ..... Petitioner
                             Through:   Mr. Hanu Bhaskar, Adv.

                    versus

       THE P.O., I.T. NO. II & ANR.                  ..... Respondents
                        Through:    Mr. Anuj Aggarwal, Adv. for R-2.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J (ORAL)

1.     By this petition the Petitioner challenges the order dated 19th
September, 2002 whereby the approval application of the Petitioner under
Section 33(2)(b) of the Industrial Disputes Act (in short the ID Act) was
dismissed as the Petitioner failed to prove the alleged misconduct.

2.     Learned counsel for the Petitioner contends that the decision of the
learned Trial Court is contrary to the law laid down in DTC. Vs. Sardar
Singh (2004) 7 SCC 574 wherein it has been held that even if absence is
treated as leave without pay the same is a misconduct. The learned Trial
Court misdirected itself in passing the impugned award and the same is
liable to be set aside and the matter be remanded back.




3.     Learned counsel for the Respondent on the other hand contends that
after the enquiry was held to be perverse no right accrued to the Petitioner to



W.P.(C) 5344/2003                                                Page 1 of 9
prove the misconduct before the learned Trial Court and the learned Trial
Court had no jurisdiction to take evidence as the scope of interference under
Section 33(2)(b) ID Act is limited. Learned counsel for the Respondent has
stated that absence from duty is not a misconduct and the employer is
required to prove that the absence was willful and not for compelling
circumstances. Reliance is placed on Krushnakant B. Parmar Vs. Union of
India (UOI) and Anr. (2012) 3 SCC 178. Reliance is also placed on the
order of this Court in the writ petition filed by the Respondent No.2 which
was disposed of issuing a mandamus to the Petitioner herein to treat the
Respondent as continuing in service with all consequential benefits vide
order dated 9th September, 2003. In response learned counsel for the
Petitioner points out that the order dated 9th September, 2003 in W.P.(C)
2300/2003 has been recalled by this Court on 28 th September, 2007 and thus
reliance of the learned counsel for the Respondent thereon is wholly
unjustified.

4.     I have heard learned counsel for the parties. Briefly the facts are that
the Respondent No.2 was appointed as a driver with the Petitioner in the year
1979. Since the Respondent No.2 remained absent for 98 days from 1 st
February, 1990 to 31st December, 1990 without intimation and prior
permission, a charge-sheet was issued to him on 3rd June, 1991 on the
allegations that the Respondent No.2 was habitual in remaining absent and
had no interest in performing the duties amounting to misconduct. An
enquiry officer was appointed and the Respondent admitted the charge
leveled against him before the enquiry officer and stated that he did not want
to carry on with the enquiry any further. The enquiry officer found that 4



W.P.(C) 5344/2003                                                Page 2 of 9
days leave had been sanctioned and the same was deducted and a finding
was returned that the Respondent No.2 was absent unauthorizedly for 94
days.    Pursuant to the decision of the enquiry officer, the disciplinary
authority issued a show cause notice to the Respondent No.2 as to why he be
not removed from services of the Corporation.            Not satisfied from the
explanation rendered by Respondent No.2 the disciplinary authority came to
the conclusion of removing the workman from his services, also taking into
consideration the 19 adverse entries against the Respondent No.2 including
fatal accidents, injuries to the passengers and causing accidents with other
buses as well.        Pursuant to removal from services an application under
Section 33(2)(b) of the ID Act was filed seeking approval of the order passed
by the disciplinary authority. By the impugned award the application of the
Petitioner was rejected. Hence the present petition.

5.      In the approval application under Section 33(2)(b) ID Act a
preliminary issue regarding legality and validity of the enquiry proceedings
was framed which was decided against the Petitioner vide order dated 11 th
April, 2001.        That order is not under challenge in the present petition.
Subsequently, on the other issues i.e. whether the Respondent committed
misconduct as mentioned in the petition under Section 33(2)(b) ID Act and
whether the Petitioner remitted one months salary at the time of removal of
the Respondent No.2 from his services, on the issue No.1 the Trial Court
held that availing of leave without pay is not a misconduct and hence the
Petitioner has failed to prove the alleged misconduct.

6.      In Delhi Transport Corporation Vs. Sardar Singh (2004) 7 SCC 574 it
was held:


W.P.(C) 5344/2003                                                 Page 3 of 9
       "9. When an employee absents himself from duty, even
       without sanctioned leave for a 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 employees concerned were remaining absent for
       long periods which affects the work of the employer and the
       employee concerned 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
       generalisation. 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 M.P. v.
       Harihar Gopal [ (1969) 3 SLR 274 (SC)] 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 the
       extreme and can hardly be justified. The charge in this case was
       misconduct by absence. In view of the governing Standing
       Orders unauthorised 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 unauthorised. Burden is on the


W.P.(C) 5344/2003                                               Page 4 of 9
       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 Orders 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 unauthorised.

       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 the order of termination/removal. The
       Division Bench unfortunately did not keep these aspects in
       view and reversed the view of the learned Single Judge.


7.     No doubt the disciplinary authority has to prove that the absence was
willful and in the absence of such a finding the absence will not amount to
misconduct. However, the willfulness of the absence can be proved on the
basis of leave applications if at all filed by the employee and other material
on record. In the case in hand, the learned Trial Court failed to consider the
entire material and only held that since the absence has been treated as leave
without pay, the same is not a misconduct.

8.     Further, with regard to the jurisdiction of the Court to have examined
the issue of misconduct independently after coming to the conclusion that
the enquiry was not proper, in Engineering Laghu Udyog Employees' Union






W.P.(C) 5344/2003                                               Page 5 of 9
Vs. The Judge, Labour Court and Industrial Tribunal and Anr. (2003) 12
SCC 1, it was held:

       "9. It is not in dispute that in a proceeding for obtaining
       approval of an order of dismissal from the Labour Court or the
       Industrial Tribunal, as the case may be, in terms of Section
       33(2)(b) of the Act or where a reference has been made under
       Section 10 thereof, if it is found that an inquiry has been
       conducted in violation of the principles of natural justice, the
       employer is entitled to raise the said question in its written
       statement by way of preliminary issues and pray for grant of
       such an opportunity to prove the charges levelled against him.

       10. In Workmen v. Motipur Sugar Factory (P) Ltd.
       [Workmen v. Motipur Sugar Factory (P) Ltd., AIR 1965 SC
       1803 : (1965) 3 SCR 588] this Court held: (AIR p. 1808, para
       11)
             "11. It is now well settled by a number of decisions of
             this Court that where an employer has failed to make an
             enquiry before dismissing or discharging a workman it is
             open to him to justify the action before the Tribunal by
             leading all relevant evidence before it. In such a case the
             employer would not have the benefit which he had in
             cases where domestic inquiries have been held. The
             entire matter would be open before the Tribunal which
             will have jurisdiction not only to go into the limited
             questions open to a Tribunal where domestic inquiry has
             been properly held (see Indian Iron & Steel Co. Ltd. v.
             Workmen [ AIR 1958 SC 130 : 1958 SCR 667] ) but also
             to satisfy itself on the facts adduced before it by the
             employer whether the dismissal or discharge was
             justified. We may in this connection refer to Sasa Musa
             Sugar Works (P) Ltd. v. Shobrati Khan [ AIR 1959 SC
             923 : 1959 Supp (2) SCR 836] , Phulbari Tea Estate v.
             Workmen [ AIR 1959 SC 1111 : (1960) 1 SCR 32] and
             Punjab National Bank Ltd. v. All India Punjab National
             Bank Employees' Federation [ AIR 1960 SC 160 : (1960)
             1 SCR 806] . These three cases were further considered


W.P.(C) 5344/2003                                               Page 6 of 9
               by this Court in Bharat Sugar Mills Ltd. v. Jai Singh [
               (1962) 3 SCR 684 : (1961) 2 LLJ 644] and reference was
               also made to the decision of the Labour Appellate
               Tribunal in Ram Swarath Sinha v. Belsund Sugar Co. [
               1954 LAC 697] It was pointed out that ,,the important
               effect of omission to hold an enquiry was merely this:
               that the Tribunal would not have to consider only
               whether there was a prima facie case but would decide
               for itself on the evidence adduced whether the charges
               have really been made out. It is true that three of these
               cases, except Phulbari Tea Estate case [ AIR 1959 SC
               1111 : (1960) 1 SCR 32] , were on applications under
               Section 33 of the Industrial Disputes Act, 1947. But in
               principle we see no difference whether the matter comes
               before the Tribunal for approval under Section 33 or on a
               reference under Section 10 of the Industrial Disputes Act,
               1947. In either case if the enquiry is defective or if no
               enquiry has been held as required by Standing Orders,
               the entire case would be open before the Tribunal and the
               employer would have to justify on facts as well that its
               order of dismissal or discharge was proper. Phulbari Tea
               Estate case [ AIR 1959 SC 1111 : (1960) 1 SCR 32] ,
               was on a reference under Section 10, and the same
               principle was applied there also, the only difference
               being that in that case there was an enquiry though it was
               defective. A defective enquiry in our opinion stands on
               the same footing as no enquiry and in either case the
               Tribunal would have jurisdiction to go into the facts and
               the employer would have to satisfy the Tribunal that on
               facts the order of dismissal or discharge was proper."

             The employer, thus, has got a right to adduce evidence
       before the Tribunal justifying its action, even where no
       domestic inquiry whatsoever has been held.

       11. Yet again in Workmen v. Firestone Tyre & Rubber Co. of
       India (P) Ltd. [(1973) 1 SCC 813 : 1973 SCC (L&S) 341 :
       (1973) 3 SCR 587] this Court while interpreting the provision



W.P.(C) 5344/2003                                                Page 7 of 9
       of Section 11-A of the Act held that in terms thereof, the
       management need not necessarily rely on the materials on
       record as while introducing Section 11-A of the Act, the
       legislature must have been aware of the decisions of this Court
       which are operating in the field for a long time. This Court
       enunciated several principles bearing on the subject and,
       therefore, it held that it was difficult to accept that the
       expression "materials on record", used in the proviso to Section
       11-A was set at naught. The Court formulated the propositions
       of law emerging from the decisions rendered by this Court, the
       relevant portions whereof are as under: (SCC pp. 827-28, para
       32)
              "32. From those decisions, the following principles
              broadly emerge:
              (1)-(3) * * *
              (4) Even if no enquiry has been held by an employer or if
              the enquiry held by him is found to be defective, the
              Tribunal in order to satisfy itself about the legality and
              validity of the order, has to give an opportunity to the
              employer and employee to adduce evidence before it. It
              is open to the employer to adduce evidence for the first
              time justifying his action, and it is open to the employee
              to adduce evidence contra.
              (5 ) * * *
              (6) The Tribunal gets jurisdiction to consider the
              evidence placed before it for the first time in justification
              of the action taken only if no enquiry has been held or
              after the enquiry conducted by an employer is found to
              be defective.
              (7) It has never been recognised that the Tribunal should
              straight away, without anything more, direct
              reinstatement of a dismissed or discharged employee,
              once it is found that no domestic enquiry has been held or
              the said enquiry is found to be defective.
              (8) * * *"




W.P.(C) 5344/2003                                                  Page 8 of 9
            Even in Firestone case [(1973) 1 SCC 813 : 1973 SCC
       (L&S) 341 : (1973) 3 SCR 587] no distinction, thus, has been
       made between a defective inquiry and no inquiry."

9.     Thus, in view of the legal position as laid down in DTC Vs. Sardar
Singh (supra) the impugned award is set aside. The matter is remanded back
to the learned Labour Court for deciding the matter afresh. The parties are
directed to appear before the learned Labour Court on 8th January, 2013.

10.    Petition is disposed of.



                                                        (MUKTA GUPTA)
DECEMBER 11, 2012
`ga'




W.P.(C) 5344/2003                                              Page 9 of 9
 
 
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