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CASE NO.: Appeal (civil)  9600 of 2003

PETITIONER: Delhi Transport Corporation

RESPONDENT: Sardar Singh

DATE OF JUDGMENT: 12/08/2004

BENCH: S.N. VARIAVA & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T              

                                       With

C.A.Nos. 9601/2003, 9608/2003, 9607/2003, 9611/2003,  9602/2003, 9605/2003, 9613/2003, 9604/2003, 9606/2003,  9612/2003 and C.A. No. 137/2004.

ARIJIT PASAYAT, J.

       As the controversies in these appeals are based on identical  premises, they are taken up together for disposal by this common  judgment.                  Background facts leading to these appeals are as follows:

The respondent in each case was working as a conductor in the  appellant - Delhi Transport Corporation (hereinafter referred to as the  ’employer’).  Departmental proceedings were initiated against each one  of them on the ground of misconduct due to unauthorized long absence  from duty; negligence of duties and lack of interest in the employer’s  work.  The terms and conditions of appointment and service were  governed by the applicable service regulations i.e.  Delhi Road  Transport Authority (Conditions of Appointment and Service)  Regulations, 1952 (in short the ’Regulations’).  According to the  employer the unauthorized absence was indicative of negligence, and  lack of interest in employer’s work amounted to misconduct. Reference  was made to Para 4(ii) and 19(h) of the Standing Orders issued under  Para 15(1) of the Regulations. After finding the concerned employees  guilty and being of the view that removal from service was the proper  punishment, the Disciplinary Authority imposed punishment of  dismissal/removal from service.  Since an industrial dispute was  already pending approval was sought for in terms of Section 33(2)(b) of  the Industrial Disputes Act, 1947 (in short ’the Act’). According to  Tribunal, proper enquiry was not held. It, however, granted opportunity  to the employer to lead further evidence to justify its action.  Employer led further evidence.  On consideration of materials brought  on record, Tribunal came to hold that availing leave without pay did  not amount to misconduct.  It noted that since employer had treated  absence from duty as leave without pay, it indicated sanction of leave  and, therefore, also there was no misconduct. According to the employer

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long absence without sanctioned leave clearly disclosed lack of  interest in service and the concerned employee was guilty of  misconduct.  The approval sought for was refused by the Tribunal. The  Tribunal did not accord approval primarily on the ground that in most  cases the leave was treated as leave without pay and that being the  position it cannot be said that the absence was unauthorized.   

The employer approached the Delhi High Court and learned Single  judge of the Court held that the disapproval by the Tribunal was not in  order.  The concerned employees preferred Letters Patent Appeals before  the Delhi High Court. A Division Bench of the Court by the impugned  judgment disposed of several L.P.As.  being of the view that the  Tribunal’s conclusions were in order and the learned Single Judge was  not correct in his conclusions.

       In support of the Appeals learned counsel for the appellant- employer Corporation submitted that the Division Bench of the High  Court has missed to notice the true effect of paras 4(ii) and 19(h)  of  the Standing Orders.  Erroneously it was concluded that leave without  pay meant grant of leave. It is nothing but keeping the record straight  and for the purpose of maintaining correct record of service.  It did  not amount to sanction of leave.  The Standing Order clearly stipulates  that the leave was to be obtained in advance.  Above being the  position, the Division Bench was not justified in interfering with the  orders of the learned Single Judge.   

       In response, learned counsel for the concerned employees  submitted that where the record shows that the absence was treated as  leave without pay, it meant that leave was granted and mere long  absence does not per se show lack of interest in work, something more  was necessary for the purpose and the Tribunal therefore was justified  in its view.

       We have examined the factual position in each case.  In C.A. No.  9600/2003 the absence was 171 days between 1.11.1987 to 31.10.1988.  In  C.A. No. 9601/2003 the absence was 92 days between January 1991 to  October 1991.  In C.A. No. 9608/2003 there was 105 days absence between  1.1.1991 to 30.11.1991.  In C.A. No. 9607/2003 the absence was 294 days  between 13.3.1991 and 1.1.1992.  In C.A. No. 9611/2003 the absence was  95 days between January, 1987 to August, 1987.   In  C.A. No. 9602/2003  the absence was 137 days between 1.1.1993 to 30.11.1993.  In C.A.  9605/2003 the absence was 188 days between 1.1.1992 to 15.7.1992.   Additionally a similar absence was there in 1990,1991 and 1998 for 81  days, 129 days and 45 days respectively.  In C.A. No. 9613/2003 the  absence was 166 days between January 1991 to December, 1991.  In C.A.  No. 137/2004 the absence was 272 days between 1983 upto August, 1985.                  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

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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."             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.

........................."                          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.   

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.

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       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.         

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.

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.          We, therefore, allow these appeals and affirm the view taken by  learned Single Judge while reversing that of the Division Bench.                  The appeals are allowed to the extent as indicated above.          C.A. 9604/2003

In this appeal there was 190 days of unauthorised absence between  1.1.1989 to 31.12.1989. It is noticed that the Tribunal did not give  any opportunity to the management to lead evidence being of the view  that adequate opportunity had been granted earlier. We find that the  factual aspects were not examined and it is a fit case where the  Tribunal ought to have granted a further opportunity to the management  (employer) to place material in support of its case. That having not  been done, we think it would be appropriate to remit the matter back to  the Tribunal to consider the matter afresh after granting due  opportunity to the parties before it.

       Civil appeal is disposed of accordingly.

C.A. NO.  9606/2003

In this appeal the absence was 132 days between 1.1.1989 to  31.12.1989. According to the appellant there was an admission regarding  the alleged misconduct.  The Tribunal does not appear to have  considered the entire matter in its proper perspective, in particular,  the effect of admission as claimed.  We, therefore think it appropriate  to remit the matter back to the Tribunal with a direction to the  Tribunal to permit the parties before it to place materials in support  of their respective stands, we make it clear we have not expressed any  opinion on merits.

Civil Appeal is accordingly disposed of.

C.A. NO. 9612/2003

In this appeal the absence was 170 days in 1991. The Tribunal in  this case held that the enquiry was proper.  But following its earlier  view that unauthorized absence was not misconduct, it did not accord  approval.  If the Tribunal holds that the enquiry is proper then no  further evidence was necessary to be produced. In view of what has been  observed supra, the view of the Tribunal, that there was no misconduct,  does not appear to be justified. The appeal is allowed, judgment of the

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Division Bench is set aside and that of the learned Single Judge is  restored.