Delhi High Court
Delhi Transport Corporation vs Bal Kishan S/O Shri Badlu Singh And ... on 19 September, 2005
Equivalent citations: 123(2005)DLT596, 2005(84)DRJ276, (2006)ILLJ314DEL
Author: Madan B. Lokur
Bench: Madan B. Lokur
JUDGMENT Madan B. Lokur, J.
1. The Appellant is aggrieved by an order dated 20th January, 2003 dismissing its writ petition being WP (C) No. 472 of 2003 whereby a challenge to an order passed by the Industrial Tribunal was rejected.
2. The Respondent/workman was employed with the Appellant as an Assistant Fitter. He was issued a charge sheet dated 20th July, 1992 on the allegation that he was unauthorizedly absent from duty for a period of 43 days between January, 1992 and 13th July, 1992. It was alleged that the Respondent/workman did not submit any application for leave nor did he give any intimation in this regard. The allegation was that the Respondent/workman had committed misconduct within the meaning of Paragraph 19(f), (h) and (m) of the Standing Orders governing the conduct of employees of the Appellant.
3. A departmental enquiry was held against the Respondent/workman in which he was found guilty and thereafter by an order dated 3rd December, 1992 he was removed from service.
4. Since there was an earlier industrial dispute pending between the Appellant and its employees, an application was moved by the Appellant under Section 33(2)(b) of the Industrial Disputes Act, 1947 (the Act) seeking approval of the Industrial Tribunal of its decision to remove the Respondent/ workman from service.
5. The Industrial Tribunal framed a preliminary issue whether a legal and valid departmental enquiry was held against the Respondent/workman and this question was answered in the negative. Thereafter, an opportunity was given to the Appellant to prove its case against the Respondent/workman and the following additional issues were framed:-
(1) Whether the respondent has committed misconduct as alleged in the charge sheet? (2) Whether the petitioner remitted one month's wages to the respondent as per provisions of section 33(2)(b) of the I.D. Act? (3) Relief.
6. The Appellant led oral evidence in support of its case but significantly the Respondent/workman did not lead any evidence at all, either to show that he had applied for leave or that leave was sanctioned to him.
7. As regards Issue No. 1, the Industrial Tribunal took the view that since the Appellant's witness admitted that the period of 43 days unauthorized absence was regularized as leave without pay, no case of misconduct had been made out against the Respondent/workman.
As regards Issue No. 2, it was held that one month's wages had been duly paid to the Respondent/workman and this issue was decided in favor of the Appellant.
In view of the finding with regard to Issue No. 1, the Industrial Tribunal rejected the Appellant's petition under Section 33(2)(b) of the Act.
8. The Appellant then filed WP (C) No. 472/2003 challenging the order of the Industrial Tribunal which came to be dismissed by the impugned order on 20th January, 2003. The learned Single Judge who dismissed the writ petition relied upon a Division Bench decision of this Court in Sardar Singh v. DTC, LPA No. 361/2002 decided on 25th September, 2002. It was held by the Division Bench that where unauthorized absence was regularized by treating the period of absence as leave without pay, no misconduct was committed by an employee and, therefore, there was no question of any disciplinary proceedings being initiated against him.
9. In appeal before us, learned counsel for the Appellant has brought to our notice that the decision of the Division Bench in Sardar Singh has since been overruled by the Supreme Court in Delhi Transport Corporation v. Sardar Singh, . In view of this, we are of the opinion that the impugned order dated 20th January, 2003 cannot be sustained.
10. The next question that would arise is what should be the appropriate order to pass. The submission of learned counsel for the Respondent/workman was that the matter should be remitted back to the Industrial Tribunal for reconsideration. We are of the view that this request cannot be accepted for the reason that in Sardar Singh, the Supreme Court held, in the context of unauthorized leave, that "Mere making of an application after or even before absence from work does not in any way assist the employee concerned. The requirement is obtaining leave in advance. In all these cases the absence was without obtaining leave in advance."
On the nature of evidence to be produced, the Supreme Court observed that "...the employee concerned 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."
It was further held that the burden is on the employee who claims that there was no negligence and/or lack of interest to establish it by placing relevant materials.
11. As already mentioned above, the Respondent/ workman failed to lead any evidence whatsoever, much less any evidence to show that his leave was authorized or sanctioned in any manner. Therefore, remitting the matter back to the Industrial Tribunal would be an exercise in futility because the Respondent/workman cannot now improve upon his case.
12. From a perusal of the order passed by the Industrial Tribunal, it is quite clear that the Respondent/workman was absent from duty without any leave sanctioned to him. This is a finding of fact which is based on the evidence of the witness produced by the Appellant, and which has not been doubted. There is no material before us to reverse this finding of fact or to take a contrary view.
13. The only question that survives for our consideration is whether the Respondent/workman had misconducted himself so as to invite disciplinary action against him. It is nobody's case that unauthorized absence from duty is not a misconduct within the meaning of the disciplinary rules of the Appellant. This being the position, it must be held that by remaining unauthorizedly absent from duty for 43 days between January, 1992 and 13th July, 1992, the Respondent/workman had committed misconduct, which was proved in the enquiry held by the Industrial Tribunal. Accordingly, the Industrial Tribunal ought to have granted approval to the Appellant under Section 33(2)(b) of the Act. Since it has not done so, the order passed by the Industrial Tribunal requires to be set aside. It is ordered accordingly and approval is granted to the Appellant to remove the Respondent/workman from service on the charges levelled against him.
14. We may note that the Respondent/workman was removed from service as far back as in December, 1992. The Industrial Tribunal set aside his removal and a learned Single Judge upheld that order. Notwithstanding this, it appears that the Respondent/workman was not reinstated in service, nor was he paid the wages due to him. Unfortunately for the Respondent/workman, during the pendency of this appeal the law came to be settled against him by the Supreme Court, with the result that he is unable to gain any advantage from his successes before the Industrial Tribunal and the learned Single Judge.
15. However, in the meantime, a Full Bench of this Court in Delhi Transport Corporation v. Jagdish Chander, 2005 V AD (Delhi) 217 has taken the view, after relying on MD, Tamil Nadu State Transport Corporation v. Neethivilangah Kumbakonam, 2001 LIC 1801 and Jaipur Zila Sehkari Bhoomi Bank Ltd. Vikas v. Ram Gopal Sharma and Ors., that once an application filed by an employer under Section 33(2)(b) of the Act is rejected, the order of removal against the workman is non est and inoperative in law. The consequence of this is that for all intents and purposes the workman continues to be in employment and is entitled to all benefits. Consequently, the employer is bound to treat the employee as continuing in service and to give him all consequential benefits.
16. As a result of the decision of the Full Bench, it must be held that the Respondent/workman was in employment at least till Appellant's writ petition was dismissed. Since the Respondent/ workman must be deemed to be continuing in service throughout this period, he is entitled to the wages that are due to him in accordance with law, at least until 20th January, 2003, when Appellant's writ petition was dismissed and its request for approval held bad.
17. Consequently, while allowing this appeal, we would direct the Appellant to pay to the Respondent/ workman the wages due to him from the date of his removal till the date of dismissal of Appellant's writ petition (20th January, 2003), if not already paid, within a period of six weeks.
18. The appeal is disposed of in the above terms.
Certified that the corrected copy of the judgment has been transmitted in the main server.