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Rajiv Shakdher, J.—Mrs Ahlawat has drawn my attention to an order dated 11.08.2009 whereby an order was passed in CM No. 14595/2007 imp leading Delhi Power Company Limited (in short "DPCL") and BSES Rajdhani Power Limited in place of the erstwhile Delhi Vidyut Board (in short "DVB"). Mrs Ahlawat submits that pursuant to the order of the Supreme Court passed in North Delhi Power Limited v. Government of National Capital Territory of Delhi and Ors.; 2010 (4) SCALE Page 546 it is no longer res integra that the successor companies of DVB would be those which operate in the area defined. In the instant case since the BSES Rajdhani Power Limited is the appropriate successor company, it would be the only entity which would represent the interest of the erstwhile DVB. She therefore contends that the order dated 11.08.2009 was passed when the afore-mentioned judgment of the Supreme Court had not been pronounced. It is accordingly prayed that appropriate directions be issued; albeit on an oral application, for deletion of DPCL as a party to the proceedings. I am in agreement with the submissions made by Mrs Ahlawat. Accordingly, it is directed that BSES Rajdhani Power Limited would representing the interest of DVB in the present proceedings. The record shall reflect this position hereon.
In so far as the merits of the writ petition are concerned, the writ petition is directed against an order dated 24.02.1994 passed by the Industrial Tribunal-I, Delhi (in short, "the Tribunal") in ID No. 498/1990. The impugned order came to be passed on the Petitioner passing an order dated 21.07.84 removing Respondent No. 1 from service on account of absence without leave.
The brief facts which are relevant for the purposes of disposal of this writ petition are delineated hereinafter:
On 28.07.1969 Respondent No. 1 was employed as a Carpenter with the Petitioner. Respondent No. 1''s employment with the Petitioner was confirmed vide order dated 05.06.1972.
It appears that Respondent No. 1 sought leave from the Petitioner to travel abroad.
An application was evidently made by Respondent No. 1 for obtaining a "no objection certificate" (in short NOC) of the Petitioner in order to secure a passport for traveling abroad. Based on the application, the Petitioner vide letter dated 28.02.79 (which was dispatched on 05.03.79) accorded its no objection for issuance of passport. In the said letter the Petitioner had indicated that the NOC was being given to Respondent No. 1 on the following conditions: (i) Respondent No. 1 shall not proceed abroad without obtaining requisite sanction to proceed on leave from the competent authority; (ii) no extension of leave would be permitted; and (iii) lastly, he will be allowed to proceed on leave, only if, the section head is satisfied that the same was not detrimental to the efficacious disposal of the work assigned to him.
6.1 There is no dispute that pursuant to the afore-mentioned communication, a passport was secured by Respondent No. 1 and he proceeded on leave for a period of two months from 30.07.79 to 30.09.79. It appears that Respondent No. 1 sought extension of leave, while he was abroad. The Petitioner contrary to the conditions of the NOC appears to have sanctioned extension of leave. The leave of Respondent No. 1 was accordingly extended up to 30.12.1979, vide Petitioner''s letter dated 07.01.1980.
Evidently, the difficulty qua Respondent No. 1 arose thereafter.
7.1 It is the contention of the Petitioner that several letters were written to Respondent No. 1 calling upon him to report to duty as he had been absent from duty unauthorisedly since 30.12.1979. In this regard the Petitioner has placed reliance on letters dated 17.12.1982, 24.09.1982, 11.04.1983 and 30.03.1984 . It is the case of the Petitioner before me that these letters were dispatched not only to the address of Respondent No. 1 that is, the place where he was located abroad but also at his addresses in India i.e., permanent address in Punjab and his official accommodation in Delhi.
The point to be noted is, that in so far as those address were concerned, which related to location outside, most of the letters dispatched by the Petitioner were addressed to a location in Sharjah in U.A.E. There is one letter which was also dispatched to an address in Baharain.
8.1 The other aspect to be noted is that the order of removal dated 21.07.84 had been sent to Respondent''s address in Baharain as well as that in Punjab and in New Delhi.
Continuing with the narrative, Respondent No. 1 appears to have returned to India some time in 1986, whereupon he made attempts to join the Petitioner. Since his attempts proved futile, Respondent No. 1 entered into correspondence with the Petitioner. It is also the stand of Respondent No. 1 that he had dispatched various letters, including letters dated 10.03.1986, 02.06.1986, 30.07.1986 and 10.09.1986. The purpose of these letters was to prevail upon the Petitioner to take Respondent No. 1 back in employment.
9.1. Since the attempts of Respondent No. 1 failed, he evidently issued a legal notice dated 11.05.88. As the demand for justice, did not lead to fruition, he raised an industrial dispute. Thereupon attempts were made to settle the dispute before the conciliation officer. The conciliation proceedings failed. This led to a reference being made by the appropriate government, in respect of the disputes which had arisen between the Respondent No. 1 and the Petitioner. The reference was made on 19.02.1990. The reference required the Tribunal to adjudicate upon the following dispute:
Whether the removal of Shri Gurdayal Singh from the services is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?
Upon completion of pleadings, and after evidence had been led by both parties, the Tribunal proceeded to decide the matter. To be noted in the intervening proceedings the Tribunal had framed the following issues:
(i) Whether the claim filed by the applicant is belated one?
(ii) As in the terms of reference.
(iii) Whether the action of the management in dispensing with the requirement of departmental inquiry in the circumstances of the case under provision(b) to Sub-Section 2 of Section 95 of the DMC Act is valid or not?
By the impugned award dated 24.02.1994, the Tribunal returned the following findings.
In respect of Issue No. (1) the Tribunal returned a finding in favour of the Respondent, i.e., the claim was within limitation. In so far as Issue No. (3) was concerned, the Tribunal found the issue in favour of the Petitioner. In respect of this issue, the upshot the Tribunal observations was that, the extraordinary powers conferred on the Petitioner to dismiss an employee without holding enquiry in case it was not practicable to hold such an enquiry was exercised correctly in the case of Respondent No. 1 as, no useful purpose would have been served in instituting a disciplinary proceedings against him since he could not have taken part in the said proceedings. The Tribunal also returned a findings of fact that: the communication sent by the Petitioner to Respondent No. 1 stood proved; and while Respondent No. 1 in his deposition was unable to state his address at Dubai, he had admitted that the address set out, in the communication dispatched to Baharain, was "correct and complete".
12.1. As regards the last issue i.e., Issue No. (2), the Tribunal returned the following findings: that the letters of which photocopies had been filed by Respondent No. 1, did not appear to have been dispatched as there were on record no supporting material to demonstrate dispatch; and also that the dates on the exhibits Ex WW1/4 to Ex WW1/7 i.e., the letters, were overwritten. In these circumstances, the Tribunal concluded that it was not satisfied, that the said letters which were evidently written by Respondent No. 1 for extension of leave, were actually dispatched to the Petitioner. The Tribunal also went on to observe that: Respondent No. 1 could not have reasonably compelled the Petitioner to sanction leave to him for a period of seven years when, he had been initially sanctioned leave for a period of two months; by merely putting in an application for extension unlawful absence would not become lawful; and lastly, the Petitioner was therefore fully justified in taking action against Respondent No. 1.
Despite, the aforementioned findings of fact, the Tribunal curiously, in the operative part of the judgment has observed as follows:
Sh. Gurdayal Singh had however, put in about 10 years? service with DESU by the time he was permitted to go abroad. The punishment of termination appears to be somewhat on the higher side because DESU should have reasonably permitted him to remain abroad for 3 years at least when he incurred expenses for his journey. He overstayed for four years. In such circumstances, he should be awarded lesser punishment than termination. Ends of justice would be met if the following award is passed:
i) The period 1.3.82 to 31.12.86 is excluded from his service for all purposes.
ii) The period from 1.1.87 onward till date is not counted for the purpose of back wages and
iii) He is given duty within two months of the publication of the Award.
I have heard arguments advanced by Mrs Ahlawat along with Mr Singla. Mrs Ahlawat has submitted that impugned order is perverse and hence deserves to be set aside in view of the findings returned by the Tribunal on all three issues. The learned Counsel has submitted that in view of the long absence of Respondent No. 1 without requisite permission, and the continued failure of Respondent No. 1 to report for duty; the action taken was in accordance with law, as it constituted a "misconduct". The learned Counsel also defended the removal order dated 21.07.1984, on the ground that the requisite power to pass such an order without an enquiry is contained in Regulation 7 & 10(ii) of DESU (DMC) Service (C&A) Regulations, 1976 read with Section 95(2)(b) of the DMC Act, 1957 (in short the DMC Act). It was the contention of the learned Counsel for the Petitioner that since the Respondent No. 1 was located abroad, and there was no response whatsoever from him, to various communications sent to him, it was impracticable to hold an enquiry prior to his removal from service and hence, the order of removal was in order. Mrs Ahlawat submitted that the Tribunal, while returning findings of fact in favour of the Petitioner has interfered with the order of removal, which is not in consonance with the findings returned in the earlier part of the impugned Award. In these circumstances, the Petitioner has sought relief''s, as prayed for in the writ petition.
At the outset, I may note that the matter is placed on the regular board. Rule in the writ petition was issued as far back as on 27.05.1994. There has been no representation on behalf of the Respondents on several dates, including 14.12.2009, 03.05.2010, 11.08.2010 and today as well. I, therefore, have had no benefit of hearing the Respondents.
15.1. However, having perused the record with the assistance of learned Counsels for the Petitioner, I am of the view that the operative part of the award dated 24.02.94 deserves to be quashed. The reasons for coming to this conclusion are that the Tribunal having come to a conclusion that the dispatch of the communications to the Respondent No. 1 was proved, in particular, the communications sent to Baharain, and there being was no explanation forthcoming as to why the Respondent No. 1 had not rejoined duty; then the only issue which required consideration was whether it was practicable for the Petitioner to hold an enquiry prior to passing the order of removal dated 21.07.84. On that aspect as well, the Tribunal purports to have agreed with the Petitioner, in as much as, it is held that since Respondent No. 1 was located abroad there was no purpose served in instituting an enquiry and inviting Respondent No. 1 to take part in it. Whether ordinarily this approach would sustain or not is an aspect which I need not detain myself with as the fact remains that Respondent No. 1 did not assail this aspect of the matter even in his statement of claim filed before the Tribunal. The case set up by Respondent No. 1 was that he had sought extension of leave; a case which he decidedly failed to prove. The Tribunal, in my view has got unnecessarily swayed by the fact that before proceeding abroad Respondent No. 1 had put in ten years of service with the Petitioner. The Tribunal seems to have discarded a very important fact, which was, that Respondent No. 1 had been sanctioned leave initially for a period of two months which was extended only till 30.12.1979. Thereafter, Respondent No. 1 did not return to the country till 1986. Order of removal was passed only on 21.07.1984. Five years is a long time. Long period of absence from employment without requisite authority has been considered by Courts in several judgments as misconduct and a valid ground for removal from service. Reliance in this regard was placed by the learned Counsel for the Petitioner on the judgment of the Supreme Court in Delhi Transport Corporation Vs. Sardar Singh, . In my view, present case fits the bill of a misconduct. It is proved, based on the findings returned by the Tribunal, that the Respondent No. 1 had not rejoined employment despite receipt of communication to do so. There was no response to official communication by Respondent No. 1. An enquiry in these peculiar circumstances would only be paying obeisance to a formality. Hence, in my opinion, the Petitioner had in this case the necessary justification available to it, to invoke the impracticability clause, to order removal without enquiry under the provisions of the DMC Act as well as the attendant DESU Regulations. Therefore, in my opinion, the Tribunal''s award whereby, it excluded a certain period from the service i.e., period between 01.03.82 to 31.12.86 and also proceeded to exclude the period beginning from 01.01.87 for the purposes of payment of backwages was uncalled for; as was the direction ordering Respondent''s re-instatement, given of the findings returned by the Tribunal. The award is decidedly perverse.
Thus, the operative directions contained in the order dated 24.02.1994 are quashed. The writ petition is allowed. In the circumstances, the parties are, however, left to bear their own costs.