Delhi Transport Corporation vs Shri Kanhiya Lal and Others

Gita Mittal, J.

CM No. 11035/2003 in WP (C) No. 2056/2003

By this application, the respondent/workman is seeking grant of wages on the ground that by an industrial award dated 11th July, 2000, the industrial tribunal has held that termination of the services of the respondent was illegal and has directed his reinstatement into service. This award has been assailed by the petitioner before this Court and interim stay thereof has been granted. It is submitted on behalf of the workman that he remains unemployed since the date of termination of his service and that he has no source of income. According to the workman, despite best efforts, he could not get any job in any other establishment and that he is surviving with the assistance of his eldest son. The workman has sworn an affidavit submitting that he was neither gainfully employed in any establishment during the pendency of the dispute before the labour court nor is he gainfully employed in any establishment even now.

The petitioner has contested the application and has contended that the petitioner has a good case on merits and for this reason, the application itself would not be maintainable.

The principles governing adjudication on an application which is filed by a workman who has an industrial award directing reinstatement into service in his favour in a writ petition filed by the management challenging such award, are well settled. It has been held by the Apex Court that such wages are in the nature of non-refundable subsistence allowance and that minimum wages which are notified by the statutory authorities are a fair index of quantum of such wages which deserve to be awarded. There is no dispute at all with regard to the submission of the workman that he is not gainfully employed since the date of termination of his service.

In the light of the well settled principles of law, the relief sought deserves to be granted. The application is hereby allowed. The petitioner is directed to make payment of wages to the workman which were being paid to him at the time when his services were terminated. Payment of wages in terms of the order passed today shall be effected within a period of four weeks from today.

WP (C) No. 3667/2000 & WP (C) No. 2056/2003

It is pointed out that WP (C) No. 3667/2000 and WP (C) No. 2056/2003 are connected in as much as the parties are same and identical issues of law and fact arise. Consequently, with the consent of both parties, the writ petitions are taken up for hearing.

By way of WP (C) No. 3677/2000, the petitioner (DTC) has assailed an order dated 3rd January, 2000 passed in OP No. 466/1993 by Industrial Tribunal No. II rejecting an application of the D.T.C. filed u/s 33(2)(b) of the Industrial Disputes Act, 1947. It is contended on behalf of the petitioner that on account of unauthorised absence of the respondent/workman who had been employed as a driver by the D.T.C., a charge-sheet was issued to him and after conducting a disciplinary inquiry in accordance with law and after compliance with the principles of natural justice, by an order dated 6th August, 1993, the services of the respondent/workman were terminated. During the pendency of the industrial dispute in which the workman was a concerned party, the petitioner had consequently filed an application u/s 33(2)(b) of the Industrial Disputes Act, 1947 seeking approval of the disciplinary action taken against the workman. However, the workman has contended before the industrial tribunal that the petitioner had treated the period of 104 days of the absence of the workman as leave without pay and that by such act has regularised the absence of the workman.

The industrial tribunal was of the view that once the period of such absence is treated as a period of leave without pay and any other kind of leave, this absence would not be treated as misconduct. Consequently, it was held by the industrial tribunal that the respondent had not committed any misconduct and as a consequence, dismissed the application of the petitioner by an order passed on 3rd January, 2000.

The workman had separately made a grievance with regard to the termination of his service by agitating the same before the labour authorities. The appropriate government had passed an order dated 31st October, 1994 u/s 10 & Section 12(5) of the Industrial Disputes Act, 1947 referring a dispute relating to the illegality and justifiability of the removal of service of the respondent. This reference was registered as ID No. 2067/1994.

Thereafter, in view of the order dated 3rd January, 2000 passed by the industrial tribunal whereby the application of the petitioner u/s 33(2)(b) of the Industrial Disputes Act, 1947 was dismissed, the industrial adjudicator was of the view that it was of no fruitful use to record the management''s evidence. It was held that the position in law was that once the application for approval is refused, the workman would be deemed to have been reinstated. By the award dated 11th July, 2000, the industrial adjudicator answered the reference in favour of the workman.

Learned Counsel for the petitioner has contended that the view taken by the industrial adjudicator is wholly erroneous in law in as much as once an order of reference is made and the industrial adjudicator proceeds in the matter, the proceedings can be closed only upon an adjudication in accordance with law and passing of the award. Aggrieved thereby, the DTC has assailed the award dated 11th of July, 2000 by way of WP (C) No. 2056 of 2003.

Be that as it may, it would not be necessary to delineate on this issue in elaboration in view of the position in law on the view taken by the industrial tribunal on the application filed by the D.T.C. u/s 33(2)(b) of the Act.

So far as the issue relating to unauthorised absence and the same having been treated as leave without pay by the management is concerned, the principles applicable to the same have been authoritatively laid down by the Apex Court in its pronouncement reported at Delhi Transport Corporation Vs. Sardar Singh, wherein the Apex Court has held thus:

In all theses cases almost the whole period of absence was without sanctioned lave. 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:

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 cases 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.

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.

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 records, 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 generalisation. 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 unauthorised leave can be treated as misconduct.

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 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 unauthorised.

The position in law having been stated thus, it has to be held that the view of the industrial tribunal to the effect that the period of absence having been treated as leave without pay does not remain misconduct, cannot be sustained in law. The effect of such absence and the same having been treated as leave without pay would require to be considered in the light of the specific evidence which is brought before the labour court which will have to assess the same in order to arrive at a conclusion as to whether the absence was negligent and wilful and also as to whether the same resulted in prejudice and loss to the employer and thereafter as to whether the absence was habitual as to render the same as negligence.

In view of the law laid down in DTC v. Sardar Singh (supra), the order dated 3rd January, 2000 cannot be sustained. WP (C) No. 3667/2000 is hereby allowed.

The order dated 3rd January, 2000 is hereby set aside and quashed and the matter is remanded for further and fresh consideration to the Industrial Tribunal No. II which shall proceed in the matter in accordance with law. The parties may be given opportunity to place such further and other evidences and material as have been necessary and relevant before the industrial tribunal.

The parties shall appear before the industrial Tribunal on 15th May, 2006 for further directions in the matter.

In as much as the award dated 11th July, 2000 is based only on the order dated 3rd January, 2000 which has been set aside, the writ petition (C) No. 2056/2003 has to be allowed. The award dated 11th July, 2000 is hereby set aside and quashed and the matter is remanded for further consideration to the Labour Court No. IX for fresh adjudication in the light of the law laid down by the Apex Court. The parties shall appear before the Labour Court No. IX in ID No. 2067/1994 for directions on 15th of May, 2006. The Labour Court shall given an opportunity to both parties to such evidence as may be permissible in law in support of their respective contentions.