Delhi District Court
Suraj Bhan S/O Sh. Mukhtiar Singh vs Delhi Transport Corporation on 8 October, 2013
Suraj Bhan Vs M/s D. T. C. ID No. 267/05
BEFORE SH. ANAND SWAROOP AGGARWAL: PO LC - XI:
KARKARDOOMA COURTS: DELHI
INDUSTRIAL DISPUTE (ID) No. 267/05
UNIQUE CASE ID No. 02402C0586212005
In the matter of:
Suraj Bhan S/o Sh. Mukhtiar Singh
R/o Village Kamod, P.O. Misri, Distt. Bhiwani
Haryana. ....Workman / Claimant
V/s.
Delhi Transport Corporation
Through its Chairman - Cum - Managing Director
I. P. Estate, New Delhi - 110002 ....Management
Date of Institution : 17.11.2005
Date of reserving for award : 03.10.2013
Date of award : 08.10.2013
AWARD
1 Vide ORDER No. F-24(796)/05/Lab./10268 - 72 dated 19.10.2005.
Secretary (Labour), Govt. of NCT of Delhi, Office of the Secretary (Labour),
5, Sham Nath Marg, Delhi made the following reference for adjudication by
this Court:
"Whether the removal of Sh. Suraj Bhan S/o Sh. Mukhtiar Singh from
services is illegal and/or unjustified and if so, to what sum of money
as monetary relief alongwith consequential benefits in terms of
existing laws / Govt. notifications and to other relief is he entitled
and what directions are necessary in this respect?"
2 The workman in his StatementofClaim alleged / pleaded as under:
(i) The workman was appointed as a Conductor and was brought on
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monthly rates of pay on 08.09.1978 and claimant was allotted Badge No.
11559 and lastly he was posted at Kesho Pur Depot.
(ii) The workman worked with the management with utmost honesty and
dedication and never gave any opportunity to the higher authority to have any
complaint against him.
(iii) The workman was served with the chargesheet dated 23.03.1993
containing false allegations that the workman remained absent for 118 days
unauthorisedly without any permission during the period from 01.01.1992 to
31.12.1992. Workman replied to the chargesheet vide reply dated 19.04.1993
in which he stated that he remained absent due to his self sickness and he
had submitted leave applications alongwith medical certificates in time and
that he was innocent.
(iv) Without considering the reply of the workman the Depot Manager
illegally and arbitrarily initiated enquiry proceedings.
(v) Information regarding the appointment of enquiry officer was not
supplied to the workman. No list of witnesses and documents were given to
the workman. No Labour Welfare Officer was present in the enquiry. No
management witness was summoned to depose before the enquiry officer
regarding the misconduct of the workman. The alleged report was not
exhibited by management witness in the enquiry proceedings.
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(vi) The enquiry officer gave perverse report holding the workman of
guilty of charges without there being any evidence and material. The leave
record of the claimant was never tendered in the enquiry proceedings nor any
statement of any management witness was taken in the enquiry proceedings
to prove the charges against the workman. The enquiry officer acted in a
biased manner and enquiry was not held as per principles of natural justice.
(vii) The enquiry officer in the enquiry report stated that the workman had
submitted the applications for 104 days but those were rejected and
applications of 14 days were not received. No information regarding
rejection of leave was ever communicated to the workman. No letter
regarding appearance before the Medical Board was ever issued to the
workman. The pay of the days of absence was cut from salary and absence
was regularised as leave without pay before the issuance of of chage sheet.
(viii) The copy of the past record was never supplied to the workman at any
stage and as such the order of removal is illegal and unjustified. The
disciplinary authority has illegally with malafide intention considered the
past record in which there is only one entry of a misconduct regarding
absence. The management passed the order of removal dated 14.05.1993 in
contravention of its own circular and regulations dated 03.01.1966 and
08.04.1968.
(ix) Workman is unemployed from the date of his termination and is
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facing acute financial hardship.
With these averments, workman has prayed that order of removal
dated 14.05.1993 be set aside as illegal and unjustified and management may
be directed to reinstate the workman in service with full back wages,
continuity of service and all consequential benefits.
3 In its WS, management has taken the stand that claimant was
removed from the services of Corporation vide order dated 14.05.1993 and
the claimant has come before the Court in the year 2005 (i.e. after 12 years)
and, therefore, present claim of the claimant suffers from delay and latches
and there is no cause of action muchless legal and valid cause of action in
favour of the claimant for raising the dispute in hand. Claimant has been
imposed the punishment of removal after holding domestic enquiry and, as
such, the claimant has rightly been removed from the services of
Corporation. It is further alleged that since joining of the management,
claimant remained negligent towards his duties and as per his past record he
was also imposed punishments of "warned", "censured", "stoppage of one
increment with cumulative effect" and "reduction of the initial stage in the
time scale etc.". As alleged, claimant was very much irregular in his duties
and used to remain absent unauthorisedly. The claimant remained absent for
129 days in year 1981, 140 days in year 1982, 137 days in year 1983, 237 days
in year 1984, 86 days in year 1989, 180 days in year 1990, 239 days in year
1991, 191 days in year 1992 and 67 days during the period 01.01.1993 to
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14.05.1993.
Management has denied the case as pleaded by workman in the
StatementOfClaim. As per management, reply submitted by the claimant
was duly considered but the same was not found satisfactory and as such the
enquiry was initiated to enquire into the charges levelled against him vide
chargesheet dated 23.03.1993. Further, as per management, relevant
documents were duly supplied to the claimant and during the enquiry
proceedings the claimant admitted the charges levelled against him vide
chargesheet dated 23.03.1993. As such, there was no need to take statement
of management's witness in the enquiry proceedings. As per management,
leave record of claimant was very much there before the enquiry officer and
the enquiry proceedings were held according to the principles of natural
justice and the claimant was given sufficient opportunities to defend and
present his case, which the claimant duly availed. As alleged, the claimant
admitted the charges levelled against him during the enquiry proceedings and
the charges were duly proved during enquiry proceedings. The enquiry
officer gave its report after considering the material on record. As per
management, salary for the days of absence was cut, which is in itself a
communication of nonregularisation of the absence of claimant and absence
of claimant was never regularised. Further, as alleged, past record of the
claimant was rightly considered by the disciplinary authority and the past
record of claimant is not a surprise to the claimant and, moreover, before
imposing the punishment of removal, the workman was given due
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opportunity to inspect the documents on record vide show cause notice dated
29.04.1993. As submitted, claimant remained gainfully employed
somewhere else since his termination and same is evident from the fact that
claimant raised this industrial dispute after about 12 years of his removal
from the services of corporation. At last, management has prayed for
dismissal of claim of claimant with exemplary cost.
4 On 04.03.2009 workman submitted that he does not want to file
rejoinder to WS of management.
5 Vide order dated 04.03.2009, the ld. predecessor of this court has
framed the following issues:
(i) Whether the claim of the claimant suffer from lay and latches
and whether the same is maintainable?
(ii) Whether the domestic enquiry held against workman is not
fair and proper?
(iii) Whether services of claimant have been terminated illegally
or unjustifiably and if so, to what relief is he entitled?
6 Issue no.1 and no.2 were treated as preliminary issues. On these
issues, workman appeared in the witness box as WW1 Suraj Bhan and
workman's evidence was closed on 26.08.2011. The management examined
MW1 Sh. B. S. Chauhan and management's evidence was closed on
22.02.2012. Vide order dated 12.09.2012 passed by the ld. predecessor of
this court issue no.1 was held to be "not proved" by the respondent /
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PO - LC - XI: KKD COURTS: DELHI Suraj Bhan Vs M/s D. T. C. ID No. 267/05 management and while deciding issue no.2, enquiry was held to be vitiated. 7 After decision on preliminary issues, matter was listed for proof of misconduct by the workman before the court. Management examined MW1, Sh. B. S. Chauhan and management's evidence was closed on 13.02.2013. Workman appeared in the witness box as WW1/R1 and workman's evidence was closed on 17.04.2013. Workman is relying upon no document except his affidavit by way of evidence Ex. WW1/R1A. Management is relying upon affidavit of MW1 Sh. B. S. Chauhan, Ex. MW1/A1 and (i) Report dated 19.03.1993 regarding leaves of the claimant Ex. MW1/1; (ii) Chargesheet dated 23.03.1993 Ex.MW1/2; (iii) Reply of claimant dated 19.04.1993 Ex. MW1/3 to the chargesheet Ex. MW1/2; (iv) Enquiry proceedings dated 19.04.1993 Ex. MW1/4 (colly); (v) Enquiry Report dated 19.04.1993 and Noting of disciplinary authority Ex. MW1/5; (vi) Past Record of workman Ex.MW1/6; (vii) Yearwise Leave Record of workman Ex. MW1/7; (viii) Showcause Notice dated 29.04.1993 Ex. MW1/8; (ix) Reply Ex.MW1/9 by claimant to the Show Cause Notice Ex. MW1/8; (x) Order dated 14.05.1993 removing workman from services Ex.MW1/10; (xi) Identity Card of MW1 Sh. B. S. Chauhan, Ex.MW1/11; (xii) Letter dated 11.03.1997 regarding authority of officials to sign legal documents, affidavits, agreements etc. Ex. MW1/12 and (xiii) Letter dated 08.04.1994 Ex. MW1/13 regarding compliance of instructions in Ex. MW1/12.
8 I have heard Sh. G. S. Charya, adv. for the workman and Sh. H. K.
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Tolani, adv. for the management. Written submissions have also been filed by both the parties. Ld. cousel for workman has relied upon case laws reported as (i) Management of M/s D.T.C. Vs Ramesh Chander W.P. (C) No. 1185 / 2012 (D.O.D. 28.02.2012) 2012 LLR 389: MANU / DE / 0908 / 2012;
(ii) D.T.C. Vs Om Singh 144 (2007) DLT 94 (DB); (iii) Ramesh Kumar Rawat Vs. Management of Northern Scales Company W.P. (C) No. 7385/2007 (D. O. D. 14.05.2012); (iv) J. K. Synthetics Ltd. Vs. K. P. Aggarwal and anr. (2007) 2 SCC 433; (v) Order dated 09.11.2004 passed in WP (C) No. 710/2002 in Delhi Transport Corporation Vs Suraj Bhan (workman himself); (vi) Neeta Kaplish Vs Presiding Officer, Labour Court and Anr. AIR 1999 SC 698 and (vii) Krushnakant B. Parmar Vs Union of India & Anr. 2012 II AD (SC) 582. On the other hand, ld. counsel for management has relied upon case laws reported as (i) Delhi Transport Corporation Vs. Sardar Singh AIR 2004 SC 4161; (ii) The Nedungadi Bank Ltd. Vs K. P. Madhavankutty & Ors. AIR 2000 SC 839 and (iii) Asst. Engineer (AD) Kota Vs Dhan Kunwar (2006) 5 SCC 481. I have gone through material available on Judicial file very carefully and perused the case laws with utmost regards.
9. My issuewise findings are as under: ISSUE NO. 1. Whether the claim of the claimant suffer from lay and latches and whether the same is maintainable?
Vide detailed ORDER dated 12.09.2012 passed by ld. predecessor of Page 8 of 24 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD COURTS: DELHI Suraj Bhan Vs M/s D. T. C. ID No. 267/05 this court, this issue, as a preliminary issue, has been decided as "Not proved" by the respondent / management Delhi Transport Corporation. ISSUE No. 2 Whether the domestic enquiry held against workman is not fair and proper?
Again vide detailed ORDER dated 12.09.2012 passed by ld. predecessor of this court, this issue, as a preliminary issue, has been decided and it has been held that enquiry can not be allowed to sustain and the same stands vitiated.
ISSUE No.3 Whether services of claimant have been terminated illegally or unjustifiably and if so, to what relief is he entitled? * Hon'ble Supreme Court of India in case law reported as The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management & Ors. AIR 1973 SC 1227 observed / ruled as under: "40. From those decisions, the following principles broadly emerge: (1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified. (2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an Page 9 of 24 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD COURTS: DELHI Suraj Bhan Vs M/s D. T. C. ID No. 267/05 empty formality.
(3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
(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 employees to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(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.
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(7) It has never been recognised that the Tribunal should
straightway, 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) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed can not be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate Vs. The Workmen [1971] (1) S. C. R. 742, within the judicial decision of a Labour Court or Tribunal."
* It is a settled proposition of law that, that strict rules of evidence are not applicable in the enquiry proceedings / proceedings before Labour Court. Further, it is settled proposition of law that in the departmental proceedings, the standard of proof is not that the misconduct must be proved beyond all Page 11 of 24 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD COURTS: DELHI Suraj Bhan Vs M/s D. T. C. ID No. 267/05 reasonable doubt, there should be preponderence of probabilities. Also Hon'ble Supreme Court of India in case law reported as Workmen of Balmadies Estate Vs Management, Balmadies Estate & Ors. (2008) 4 SCC 517 ruled / observed as under: "10. It is fairly well settled now that in view of the wide power of the Labour Court it can, in an appropriate case, consider the evidence which has been considered by the domestic tribunal and in a given case on such consideration arrive at a conclusion different from the one arrived at by the domestic tribunal. The assessment of evidence in a domestic enquiry is not required to be made by applying the same yardstick as a Civil Court could do when a lis is brought before it. The Evidence Act, 1872 (in short "the Evidence Act") is not applicable to the proceeding in a domestic enquiry so far as the domestic enquiries are concerned, though principles of fairness are to apply. It is also fairly well settled that in a domestic enquiry guilt may not be established beyond reasonable doubt and the proof of misconduct would be sufficient. In a domestic enquiry all materials which are logically probative including hearsay evidence can be acted upon provided it has a reasonable nexus and credibility.
11. In J. D. Jain Vs. SBI (1982) I SCC 143 it was held, almost in a similar factual background, that confessional evidence and circumstantial evidence, despite lack of any direct evidence, was sufficient to hold the delinquent guilty of misconduct and to justify the order of termination that had been passed."
* Further, Hon'ble Supreme Court of India in case law reported as Maharashtra State Board of Secondary and Higher Secondary Education Vs Page 12 of 24 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD COURTS: DELHI Suraj Bhan Vs M/s D. T. C. ID No. 267/05 K. S. Gandhi & Ors. (1991) 2 SCC 716 observed / ruled as under:
"37. It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inference in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. In some cases the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made the method of inferences fails and what is left is mere speculation or conjecture. Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which such an inference could be drawn. The standard of proof is not proof beyond reasonable doubt "but" the preponderance of probabilities tending to draw an inference Page 13 of 24 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD COURTS: DELHI Suraj Bhan Vs M/s D. T. C. ID No. 267/05 that the fact must be more probable. Standard of proof cannot be put in a straitjacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries.
* Also, in my considered opinion what should be nature and / or extent of evidence which management is supposed to bring on judicial record to prove misconduct of the workman for the first time before the Labour Court largely depends on the extent / nature of contest put by the workman to the charges levelled against him during the enquiry proceedings conducted by the management and, also, on the averments made by the workmen in the statement of claim vide which workman challenges enquiry proceedings and the ultimate punishment imposed upon him as a result of the findings arrived out of enquiry proceedings. I have so stated particularly keeping in view the observations made in the order dated 12.09.2012 vide which enquiry was held to be vitiated. Enquiry stands vitiated on the point of authority of signatory to WS to sign the WS on behalf of DTC and of MW1 Mr. B. S. Chauhan to appear as a witness for DTC. For these reasons pleadings and evidence of DTC was held as liable to be discarded and status of the case was taken to be that of an exparty case where DTC has failed to plead and lead evidence whereas workman has led the evidence. No part of the enquiry proceedings was held to be not truely and correctly recorded in the course of enquiry proceedings. Now the authority which was lacking earlier has been Page 14 of 24 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD COURTS: DELHI Suraj Bhan Vs M/s D. T. C. ID No. 267/05 shown to be existing in view of Ex.MW1/11 to Ex.MW1/13. Also, no issue as regards said authority has been raised and the same has remained unchallenged in the course of arguments.
In the case in hand vide chargesheet Ex. MW1/2 workman was charged with the allegations that during the period from 01.01.1992 to 31.12.1992, workman remained absent unauthorizedly without sanctioned leaves and this conduct is indicative of lack of interest in performing duty and negligence amounting to misconduct under para. 4 and 19 (h) and (m) of Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952. Alongwith the chargesheet workman was supplied with report of the Salary Bill Clerk dated 19.03.1993 Ex. MW1/1 which mentioned that on seeing the attendance register it has been found that during the period from 01.01.1992 to 31.12.1992 workman remained absent from duty for 191 days out of which (i) absence for 73 days was allowed as leaves without pay as no leave was due to the workman; (ii) leaves for 104 were rejected and (iii) for 14 days absence no leave application was received in the office. The Report of the Salary Bill Clerk also mentioned the entries made in the Annual Confidential Report of the workman in the last three years as follows: Year L W P 1990 14 + 166 (MC) Irregular 1991 17 + 218 (MC) Irregular 1992 31 + 160 (MC) Irregular Page 15 of 24 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD COURTS: DELHI Suraj Bhan Vs M/s D. T. C. ID No. 267/05 The chargesheet Ex.MW1/2 also mentioned that in taking final decision or making advise, workman's past conduct would also be taken into account.
Workman replied the chargesheet Ex.MW1/2 vide reply Ex. MW1/3 stating therein that due to self illness workman could not attend to his duty and he has already given medical and application and he is innocent. Vide enquiry proceedings Ex. MW1/4 (colly.) workman stated that he does not want to take assistance of any coworker and further workman admitted the charges levelled against him. Workman, further, accepted reply Ex. MW1/3 to chargesheet Ex. MW1/2 as his reply. Lastly, workman stated that he does not want to say anything more in this case. Court is relying upon reply Ex. MW1/3 to chargesheet and enquiry proceedings Ex.MW1/4 (colly.) in as much as these documents / contents thereof have not been put to challenge by the workman in these proceedings nor these documents have been held to be not worth reliance / credence or suffering from any infirmity as regards their contents while holding the domestic enquiry conducted by management to have been vitiated. Also these very documents are being relied upon by the management to prove misconduct before the Court. Judgment of Neeta Kaplish Vs. Presiding Officer, Labour Courts & Anr. (Supra) has no application in this case in as much as contents of no part of Ex. MW1/3 and Ex. MW1/4 (colly) has been, as such, challenged by the workman. Workman himself is admitting Ex.MW1/3 in his statementofclaim and, also, it is not the case of workman that Ex.MW1/4 does not reflect the true Page 16 of 24 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD COURTS: DELHI Suraj Bhan Vs M/s D. T. C. ID No. 267/05 state of affairs taking place on 19.04.1993 in the course of enquiry proceedings. Infact copy of enquiry proceedings Ex.MW1/4 (colly) was duly supplied to workman and Ex.MW1/4 (colly.) bears signatures of workman in this regard. Workman in the statementofclaim has alleged that he was served with chargesheet dated 23.03.1993 containing false allegations. This averment of the workman is very vague in as much as workman did not specifically plead as to in what particular matter(s) / aspect(s), the chargesheet Ex.MW1/2 was containing false allegations. Even in the statementofclaim workman reiterated the contents of reply Ex.MW1/3 submitted by him in the course of enquiry proceedings. The workman nowhere in the statementofclaim even pleaded that, the leaves availed by him were duly sanctioned by allowing his leave applications. Report Ex. MW1/1 has also not been put to challenge at all by the workman in the statementofclaim. Workman in the statementofclaim not even pleaded that all the leaves availed by him were infact sanctioned leaves. Workman for the first time in his affidavit Ex.WW1/R1A filed in evidence after the enquiry stood vitiated vide order dated 12.09.2012 deposed as under: ".................... 5. That the period of absence as shown in the chargesheet is not authorised but has been duly sanctioned by the management and no misconduct is made out against the deponent......."
[Note: There appear to be typing mistake in above paragraph as word "not authorised" appears to have been written for "not unauthorized."] Above depositions of workman carries no substance / credence in as much as (i) above depositions are beyond the averments made in the Page 17 of 24 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD COURTS: DELHI Suraj Bhan Vs M/s D. T. C. ID No. 267/05 statementofclaim; (ii) workman neither in the cross examination of MW1 Mr. B S Chauhan nor in his own evidence sought for the production of relevant record to show / establish on judicial record that leaves which were mentioned as unauthorized leaves in the report Ex.MW1/1 were infact sanctioned by the management. At this juncture, it would be pertinent to refer to case law reported as Delhi Transport Corporation Vs. Sardar Singh AIR 2004 SC 4161 wherein it has been ruled / observed as under: "7. 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 Page 18 of 24 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD COURTS: DELHI Suraj Bhan Vs M/s D. T. C. ID No. 267/05 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."
8. 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 Authority:
(i).............................
(vi) Removal from the service of the Delhi Road Transport Authority.
(viii) Dismissal from service of the Delhi Road Transport Authority......................................."
9. 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 Page 19 of 24 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD COURTS: DELHI Suraj Bhan Vs M/s D. T. C. ID No. 267/05 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 can not 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.
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 Madhya Pradesh Vs Harihar Gopal 1969 (3) SLR 274 by a threeJudge 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.
11. 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, Page 20 of 24 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD COURTS: DELHI Suraj Bhan Vs M/s D. T. C. ID No. 267/05 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............." In view of abovesaid case law once absence from duty stands admitted by the workman, as in the present case, it is / was for the workman to bring on record some material to show as to how his absence was on the basis of sanctioned leaves to contradict / controvert the report Ex.MW1/1. This could have been done by the workman by seeking production of relevant record from the management either in the cross examination of MW1 Mr. B S Chauhan or in which own evidence. But this was not so done by workman. In his cross examination WW1/R1 workman deposed that "............................... I have not filed any proof of sanctioning of my leave.................". The net effect of this all is that report Ex. MW1/1 has remained uncontradicted and, thus, preponderance of probabilities in the above mentioned facts and circumstances lies in favour of management and against the workman. The depositions made by MW1 Mr. B S Chauhan to the effect that, ".........It is correct that I have no personal knowledge regarding the period of absence of workman from duties as mentioned in the chargesheet dated 23.03.1993. Vol. I am deposing in the court on the basis of the record..............." does not help the workman in any manner in as much as, being the disciplinary authority other then signatory to Ex. MW1/1, he could have deposed on the basis of record only which he has done as volunteered by him. Also workman has not sought production of Page 21 of 24 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD COURTS: DELHI Suraj Bhan Vs M/s D. T. C. ID No. 267/05 record referred to by MW1 Mr. B S Chauhan so as to discredit the testimony of MW1 Mr. B S Chauhan. MW1 Mr. B S Chauhan in his cross examination has deposed that, "............. It is correct that no information was given to the workman regarding rejection of his leave applications. Vol. He must have known through his pay slips. It is correct that as per Ex.MW1/1 73 days leave were sanctioned to workman.
It is correct that these 73 sanctioned leaves were also shown as leave without pay in the pay slip. It is written on the pay slip that the workman is being given salary for the days he had worked. It is not specified on the pay slip that whether the said leave without pay is sanctioned or not. Vol. The workman can confirm the same from pay bill clerk.................".
In view of these depositions, it is observed that from the pay slips workman could not make out as to whether the leaves availed by him were sanctioned or not as a matter of fact. This factum, however, does not necessarily imply that leaves were sanctioned and to establish that leaves were duly sanctioned workman was supposed to bring on record requisite material which he failed to do in this case.
MW1 Mr. B S Chauhan in his cross examination has been made to depose that "................ It is correct that the competent authority passes an order of rejection or sanction of leave applications. It is wrong to suggest that no order of rejection of leave applications was passed by the competent authority................". Even at this juncture workman, to make the cross examination meaningful and fruitful and not the cross examination for the Page 22 of 24 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD COURTS: DELHI Suraj Bhan Vs M/s D. T. C. ID No. 267/05 sake of cross examination, ought to have sought for production of relevant record but it was not so done by him.
In view of above discussion, it is observed that management has been able to prove report Ex.MW1/1 prepared on seeing the attendance register, which mentions that workman remained on unauthorized leaves for 104 days and for 14 days of unauthorized absence workman even did not move leave applications and, on the other hand, workman has failed to bring on judicial record requisite material to show that leaves availed by him were duly sanctioned. Thus, to my mind, on the basis of preponderance of probabilities, charges against the workman stand duly established. The case laws relied upon by ld. Counsel for workman are not of any help to workman as precedents in the particular facts and circumstances of this case as discussed in detail herein above. Hon'ble Delhi High Court in case law reported as DTC Vs. Pyare Lal 2012 LLR 1171 ruled / observed as under:
"..............7. Thus, in view of the law laid down by the Supreme Court, even if the absence is treated as leave without pay, the same does not absolve the employee of his misconduct of absence. Thus, the learned Trial Court grossly erred in holding the same to be not a misconduct................"
Also Hon'ble Delhi High Court in case law reported as Management of Bokaro Steel Plant, a subsidiary of Steel Authority of India Ltd. Vs. The State of Jharkhand and Shri B. Manjhi 2011 LLR 847 observed / ruled as under:
"8. ........................ With regard to past conduct, it is Page 23 of 24 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD COURTS: DELHI Suraj Bhan Vs M/s D. T. C. ID No. 267/05 settled position that, 'it is desirable that the delinquent employee may be informed by the disciplinary authority that his past conduct would be taken into consideration while imposing the punishment. But in case of misconduct of grave nature or indiscipline, even in the absence of statutory rules, the authority may take into consideration the indisputable past conduct / service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require." (Please see paragraph 30 of the judgment reported in MANU/SC/0887/2009 :
(2009) 13 SCC 102 Union of India Vs. Bishamber Das Dogra.
Past conduct of workman has been brought on judicial record as Ex.MW1/6. Also his ACR's for the year 1990, 1991 & 1992, as per Ex.MW1/1, are "Irregular". Yearwise leave record of workman has been brought on record as Ex.MW1/7. In my considered opinion, in the totality of facts and circumstances of this case, no fault can be found in the decision of disciplinary authority removing the workman from the services of Delhi Transport Corporation. Accordingly, workman is held to be entitled to no relief from this court. Reference stands answered accordingly. 10 A copy of the award be sent to the concerned Office of the Deputy Labour Commissioner for necessary action. File be consigned to Record Room after completing due formalities.
PRONOUNCED IN THE OPEN COURT ON 08.10.2013 (ANAND SWAROOP AGGARWAL) POLCXI: Karkardooma Courts: Delhi Page 24 of 24 (ANAND SWAROOP AGGARWAL) PO - LC - XI: KKD COURTS: DELHI