SUPREME COURT OF INDIA
Delhi Transport Corporation
Vs.
Sardar Singh
C.A.No.9600 of 2003
(S. N. Variava and Arijit Pasayat JJ.)
12.08.2004
JUDGMENT
Arijit Pasayat, J.
1. As the controversies in these appeals are based on identical premises, they
are taken up together for disposal by this common judgment.
2. Background facts leading to these appeals are as follows:
3. 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.
4. 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 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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."
10. 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.”
11. 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.
12. 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 Gopal1 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.
13. 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.
14. 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.
15. 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.
16. We, therefore, allow these appeals and affirm the view taken by learned
Single Judge while reversing that of the Division Bench.
17. The appeals are allowed to the extent as indicated above. C.A. 9604/2003
18. In this appeal there was 190 days of unauthorized 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
19. 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.
20. Civil Appeal is accordingly disposed of.
C.A. NO. 9612/2003
21. 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 Division Bench is set aside and that of
the learned Single Judge is restored.
11969 (3) SLR 274