IN THE COURT OF SH. [ENTITY]: PRESIDING OFFICER: LABOUR COURT NO. VII: DELHI. I.D. NO. : 86/2003 B E T W E E N The workman Sh. [ENTITY] S/o Sh. [ENTITY] B89, Golmohar Park, New Delhi 110 049. A N D The Management of M/s Statesman Ltd. Statesman House, Connaught Circus, New Delhi 110 001. Ref.: F.24(714)/2003Lab./735559 dated 27.6.2003. A W A R D 1. Workman Sh. [ENTITY] raised an industrial dispute against his illegal dismissal from services, which was : 1 : (RC) referred to this court for adjudication by the Secretary (Labour), Government of National Capital Territory of Delhi, in the following terms of reference : "Whether the dismissal of Sh. [ENTITY] S/o Sh. [ENTITY] by the management is illegal and unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?" 2. Brief facts of the case as made out from the record are that workman was working as PTS operator with the management with effect from 1.3.79. He had good record of service. His last drawn wages were Rs.4,500/ per month. It is alleged that management was indulging in antilabour and unfair labour practices, such as victimization of union minded workmen. The workman was an active member of the union and used to take part in its activities. It is alleged that Mr. [ENTITY], Senior Executive of the management asked him to leave the union activities and to stop taking up the grievances of other workmen : 2 : (RC) but the workman did not leave the union activities and taking up the grievances of other workmen. This annoyed the management and they started victimizing him. It is alleged that in order to victimize him, the workman was served with a concocted charge sheet dated 16.7.96. The workman replied to the same but his reply was not considered. It is alleged that in order to give legal colour to its illegal activities, management constituted an inquiry and appointed Ms. [ENTITY], Advocate as inquiry officer. However, suddenly she was replaced by another advocate Sh. [ENTITY]. It is alleged that Sh. [ENTITY] used to conduct inquiry against the workmen and used to declare everyone guilty as per the wishes of the management. Sh. [ENTITY] conducted the inquiry in violation of principles of natural justice and the workman was not given a reasonable opportunity to lead his evidence. The Inquiry Officer did not record the cross examination conducted by the workman and the statements of the workman witnesses truthfully and properly. The evidence and : 3 : (RC) documents produced by the workman were disbelieved unreasonably and without any reason. It is alleged that the report of the inquiry officer is perverse and has been made at the instance of the management. It is repeatedly claimed that the management failed to prove the charges but despite that the inquiry officer held the charges proved. It is alleged that on the basis of the inquiry report, workman was terminated illegally with effect from 4.12.97 without any notice or notice pay. Thereafter, workman served a demand notice dated 16.10.2002 on the management asking it to reinstate him with continuity of service and full back wages but to no use. Thereafter, he raised an industrial dispute before the conciliation officer which could not be settled and ultimately came to be referred to this court in the above terms of reference. It is claimed that the workman is unemployed. It is prayed that since his dismissal from service is illegal and unjustified and against the principles of natural justice, the same may be set aside and the management may be : 4 : (RC) directed to reinstate him with all consequential benefits including continuity of service and full back wages. 3. Management contested the claim and filed its written statement admitting that the workman was employed with it. However, a preliminary objection has been taken that the claim is liable to be dismissed as it has been filed after a long period, that is, he was terminated on 4.12.97 and he had received his full and final settlement from the management. It is claimed that the claim has been filed after a lapse of five years and, as such, is not maintainable. On merit, it is admitted that the workman was working with it and was chargesheeted vide chargesheet dated 16.7.96 for remaining unauthorizedly absent with effect from 1.7.96. The workman was asked to explain his absence but no explanation was received from him and, as such, an inquiry was instituted against him. Subsequently, the workman submitted his written explanation to the chargesheet. It is claimed that initially : 5 : (RC) Ms. [ENTITY], Advocate was appointed as inquiry officer and later on, on account of her nonavailability, Sh. [ENTITY] was appointed as inquiry officer. It is claimed that inquiry was conducted by the inquiry officer fairly and properly and the workman duly participated in the inquiry. He was represented by defence assistant and all the opportunity was granted to him. It is repeatedly claimed that inquiry was held in accordance with principles of natural justice in which workman was given full opportunity to defend himself and in the inquiry he was held guilty and, thereafter, he was lawfully terminated. It is claimed that workman is not entitled to any relief. Other allegations contained in the statement of claim have also been denied. It is prayed that the claim may be dismissed. 4. On the pleadings of the parties, following issues were settled for trial vide order dated 30.11.2005 : I) Whether the inquiry was fair and proper? : 6 : (RC) II) As per terms of reference. III) Relief. 5. In support of his case, workman has placed on record his own affidavit Ex.WW1/A, along with documents Ex.WW1/1 to 21. 6. On the other hand, management has examined Sh. [ENTITY] as MW1, who has placed on record his affidavit Ex.MW1/A, along with documents Ex.MW1/1 to 8. 7. I have heard the arguments at the bar and have carefully gone through the file. 8. My findings on the issues are as under : ISSUE NO.1 : : 7 : (RC) 9. This issue was disposed of by me vide order dated 1.5.2007 with the following observations in paragraphs 11 to 24 : "11. It is submitted by learned authorized representative (Ld. AR) for the workman that inquiry was not conducted fairly and properly. The management has changed Ms. [ENTITY], Advocate with Sh. [ENTITY], Advocate. It is alleged that Sh. [ENTITY] was a man of the management and he conducted the inquiry as per the wishes of the management. It is submitted that inquiry report is perverse as there is no legally admissible evidence. It is repeatedly claimed that the workman was absent due to sickness and had filed his medical certificates but the same were not considered by the management. It is prayed that since the inquiry was conducted in violation of principles of natural justice and the inquiry report is perverse, the same may be set aside. 12. On the other hand, Ld. AR for the management submitted that inquiry was conducted fairly and properly in which workman had full opportunity to defend himself. Workman was given facility of defence assistant. The inquiry was conducted fairly and properly in which workman had full opportunity to defend himself. It is claimed that the workman was habitual : 8 : (RC) absentee and no intimation about his absence was given by him to the management, which led to the institution of inquiry against him. It is submitted that the inquiry was fair and proper. My attention has been invited to an authority reported as [PRECEDENT]. 13. Both parties have also filed written submissions, copies of which have been supplied to each other. 14. The first contention of the Ld. AR for the workman is that the inquiry was conducted in violation of principles of natural justice. However, he has not been able to point out specifically as to which principle of natural justice was violated. A mere allegation of violation of principles of natural justice is of no avail and the workman must specify as to which principle was violated and how its violation adversely impacted upon him. In this regard, it is instructive to quote an authority reported as [PRECEDENT], wherein Hon'ble Supreme Court while dealing with violation of principles of natural justice observed in paragraph 17 as under: "17. The principles of natural justice cannot be put in a straitjacket formula. It : 9 : (RC) must be viewed with flexibility. In a given case, where a deviation takes place as regard compliance of the principles of natural justice, the Court may insist upon proof of prejudice before setting aside the order impugned before it (See [PRECEDENT]" 15. Similarly in a recent authority reported as [PRECEDENT], Hon'ble Supreme Court while dealing with the removal of a workman preceded by a domestic inquiry dealt with the jurisdiction of Labour Court/Tribunal in such matters and observed in paragraphs 6, 15 to 23 as under : "6. Before we proceed further, we may observe at this stage that it is unfortunate that the High Court has acted as an appellate authority despite the consistent view taken by this Court that the High Court and the Tribunal while exercising the judicial review do not act as an appellate authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by reappreciating the evidence as an Appellate Authority. (See [PRECEDENT] at page SCC 379. 15. In the case of [PRECEDENT] it is held as under : "A disciplinary proceeding is not a criminal trial. The standard proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that lender was a person likely to have official dealings with the respondent was one which reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. The Letters Patent Bench had the same power of dealing with all questions, either of fact or of law arising in the appeal, as the Single Judge of the High Court. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. A finding cannot be characterized as perverse or unsupported by any relevant materials, if it was a reasonable inference from proved facts." 16. In [PRECEDENT] it is held at page SCC 189 as under : "27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment : 11 : (RC) cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to [SECTION] of the [ACT]. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is malafide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter. 17. In [PRECEDENT], this Court held at page SCC 315 para 12 as under : 12. After hearing the rival contentions, : 12 : (RC) we are of the firm view that all the four charge sheets which were inquired into relate to serious misconduct. The respondent was unable to demonstrate before us how prejudice was caused to him due to non supply of the enquiry authority's report/findings in the present case. It needs to be emphasised that in the banking bustness absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer. If this is not observed, the confidence of the public/depositors would be impaired. It is for this reason, we are of the opinion that the High Court had committed an error while setting aside the order of dismissal of the respondent on the ground of prejudice on account of nonfurnishing of the inquiry report/findings to him." 18. In [PRECEDENT], this Court held at page SCC 376 para 14 as under : "14. A Bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/ employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and : 13 : (RC) to do nothing which is unbecoming of a Bank Officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. As was observed by this Court in [PRECEDENT], it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a Bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court. 19. In [PRECEDENT], it was pointed out as under : "If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the mater leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, : 14 : (RC) highest degree of integrity and trustworthiness is a must and unexceptionable." 20. In [PRECEDENT] this Court at page SCC 247 held : "It is not a swellsettled principle of law that the principles of the [ACT] have no application in a domestic inquiry". 21. Confronted with the facts and the position of law, learned counsel for the respondent submitted that leniency may be shown to the respondent having regard to long years of service rendered by the respondent to the Bank. We are unable to countenance with such submission. As already said, the respondent being a bank officer holds a position of trust where honesty and integrity are inbuilt requirements of functioning and it would not be proper to deal with the matter leniently. The respondent was a manager of the Bank and it needs to be emphasised that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer so that the confidence of the public/depositors is not impaired. It is for this reason that when a bank officer commits misconduct, as in the present case, for his personal ends and against the interest of the bank and the depositors, he : 15 : (RC) must be dealt with iron hands and he does not deserve to be dealt with leniently. 22. In the case of [PRECEDENT] such plea had been rejected by this Court. It was pointed out at page SCC 267 para 29 as under : "29. Mr. [ENTITY] also submitted that a sum of Rs.34,436.85 being 5% of the total loss of Rs.6,88,735/ is sought to be recovered from the respondent and that the present departmental proceedings is the only known allegations against the respondent and there was no such allegation earlier and, therefore, a lenient view should be taken by this Court and relief prayed for by both the parties can be suitably moulded by this Court. We are unable to agree with the above submission which, in our opinion, has no force. The scope of judicial review is very limited. Sympathy or generosity as a factor is impermissible. In our view, loss of confidence is the primary factor and not the amount of money misappropriated. In the instant case, respondent employee is found guilty of mis appropriating the Corporation funds. There is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefor with the : 16 : (RC) quantum of punishment awarded by the disciplinary and Appellate Authority." 23. In the view that we have taken, this appeal deserves to be allowed. The impugned judgment and order of the High Court dated 2.8.2002 is, hereby, set aside. the orders of the Disciplinary Authority and that of the Appellate Authority are restored. The Writ Petition filed by the respondent stands dismissed." 16. In the instant case, it is instructive to extract relevant part of crossexamination of the workman which reads as under : "My appointment letter is Ex.WW1/M1. It is signed by me at point A. It is correct that I have received the chargesheet dt. 16.7.96 Ex.WW1/M2. Its registration receipt is Ex.WW1/M3 and acknowledgment is Ex.WW1/M4 which is signed by me at point A. My explanation to the chargesheet is Ex.WW1/M5. I had also received letter Ex.WW1/M6 which is signed by me at point A. I had also received letter Ex.WW1/M7 which is signed by me at point A regarding holding of enquiry. It is correct that the enquiry was conducted by Sh. [ENTITY]. Copies of the enquiry proceedings running from page 1 to 108, are Ex.WW1/M8. It is signed by me at each pages. I have also received copies of daytoday proceedings. During the enquiry I was represented by my coworker Sh. [ENTITY]. It is incorrect to : 17 : (RC) suggest that Sh. [ENTITY] was union official at the time of enquiry. Enquiry proceedings were also signed by Sh. [ENTITY]. I had also received a copy of the enquiry report Ex.WW1/M9 submitted by Sh. [ENTITY]. Copy of the standing orders are also exhibited during my examinationin chief
17. A bare perusal of the cross examination of the workman would reveal that he had received copy of the chargesheet. He had also assistance of Sh. [ENTITY], who was his defence assistant in the course of inquiry. It is also revealed that he received copy of documents and the entire proceedings bear his signatures. He had also received copy of day to day proceedings. He also admits that inquiry proceedings are also signed by Sh. [ENTITY]. He also admits that copy of standing orders was also exhibited in the course of his examination. As such, a bare perusal of the crossexamination of the workman reveals that the inquiry officer had followed the due procedure during the inquiry in which workman was given full opportunity to defend himself.
18. It has also been submitted by the workman that he has been victimized and harassed by the management as he was an active member of the union and the : 18 : (RC) management was indulging in unfair labour practices. It is also submitted by him that the entire genesis of the incident is the fact that he was an active member of the union. However, the workman has not placed any document on record that he was an union member much less an active union member. Mere allegations regarding unfair labour practices being practiced by the management are of no use. There must be some evidence to that effect and in this regard, it is instructive to quote an authority reported as [PRECEDENT], wherein Hon'ble Supreme Court while dealing with the question of victimization and unfair labour practices observed in paragraph 10 as under : "The onus of establishing a plea of victimization will be upon the person pleading it. Since a charge of victimization is a serious matter reflecting, to a degree, upon the subjective attitude of the employer evidenced by acts and conduct, these have to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced."
19. It is next contended that the : 19 : (RC) inquiry report is perverse as there is no legally admissible evidence against the workman. I have carefully perused the entire inquiry proceedings and find that the workman was chargesheeted vide charge sheet dated 16th July, 1996 for his willful and unauthorized absence. It is alleged that he was a habitual absentee. I find that management had examined two witnesses, that is, MW1 Sh. [ENTITY] and MW2 Sh. [ENTITY]. Both witnesses have testified that the workman was absent during the relevant period and no intimation was received regarding his sickness. Not only this, his own witnesses Sh. [ENTITY] and Sh [ENTITY] had also admitted that they do not know if any intimation was received regarding his absence in July, 1996. As such, I find that there is enough incriminating evidence against the workman in the inquiry proceedings.
20. In view of the testimonies of MW1 Sh. [ENTITY] and MW2 Sh. [ENTITY], it is clear that there is enough incriminating evidence against the workman and it is not possible to conclude that there is no incriminating evidence against the workman and the inquiry report is perverse. In this regard, I may add that if there is some evidence against the workman regarding his misconduct, that is, enough and sufficiency or insufficiency of the same cannot be disputed. In this regard, it is instructive to quote a : 20 : (RC) recent authority reported as [PRECEDENT], wherein Hon'ble Supreme Court observed in paragraph 7 as under : "It may be observed that the expression "sufficiency of evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence, however voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in the law "
21. Similarly, in another authority reported as [PRECEDENT], Hon'ble Supreme Court observed in paragraphs 18 and 19 as under: "18. In [PRECEDENT] the scope of judicial review was indicated by stating that review by the Court is of decision making process and where the findings of the disciplinary authority are based on some evidence, the Court or the Tribunal cannot re appreciate the evidence and substitute its own finding.
19. As observed in [PRECEDENT] in paragraphs 16 and 17 the scope of interference is rather limited and has to be exercised within the circumscribed limits. It was noted as follows:
"16. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non application of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiry authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy of reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.
17. A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions. In our opinion, have been taken in a reasonable : 22 : (RC) manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any nonapplication of mind on the part of the inquiring authority. Likewise the High Court has looked into the material based on which the enquiry officer has come to the conclusion, within the limited scope available to it under [SECTION] of the [ACT] and we do not find any fault with the findings of the High Court in this regard."
22. In view of the above discussion, I find that the inquiry was conducted fairly and properly and the workman has failed to show that it was conducted in violation of principles of natural justice or that he was denied a fair opportunity to defend himself. In these circumstances, the court cannot sit in appeal over the inquiry officer. In this regard, I am fortified by an authority reported as [PRECEDENT], wherein Hon'ble Supreme Court observed in paragraph 32 (3) as under : "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 : 23 : (RC) 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"
23. In view of the above discussion, I am satisfied that the inquiry has been conducted fairly and properly in accordance with the principles of natural justice in which workman had full opportunity to defend himself and I find that the workman has failed to prove : A) That he is a victim of victimization;
B) That the inquiry was conducted in violation of principles of natural justice;
C) That the report of the inquiry officer is perverse; and D) That the management is guilty of commission of unfair labour practices.
24. In these circumstances, I do not find that the inquiry has been conducted illegally or unjustifiably in violation of principles of natural justice. The inquiry has been held in accordance with the principles of natural justice in which workman was granted : 24 : (RC) full opportunity to defend himself. The issue is accordingly decided in favour of the management and against the workman."
ISSUE NO.2:
10. It is submitted by Ld. AR for workman that workman was absent for a short period, that is, about fifteen days and for that also there were valid reasons. The workman was sick and he had duly conveyed the fact of his sickness to the management. It is submitted that a lenient view may kindly be taken and some other punishment, in place of dismissal, may be awarded. My attention has been invited to an authority reported as [PRECEDENT].
11. On the other hand, Ld. AR for management submitted that workman was a habitual absentee. He remained absent without any reason. The absence was unauthorized and : 25 : (RC) uncalled for. It is submitted that workman does not deserve any leniency and the punishment of dismissal awarded to the workman is lawful and justified in the facts and circumstances of the case. My attention has been invited to an authority reported as [PRECEDENT].
12. [SECTION] of the [ACT] provides as under : "Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct : 26 : (RC) reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:
Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be , shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter."
13. In Life Insurance Corporation (Supra), Hon'ble Supreme Court dealt with powers of court under [SECTION] of the Act and observed in paragraphs 8 to 10 as under: "8. It is not necessary to go into in detail regarding the power exercisable under [SECTION] of the Act. The power under said [SECTION] has to be exercised judiciously and the Industrial Tribunal or the Labour Court, as the case may be, is expected to interfere with the decision of a management under [SECTION] of the Act only when it is satisfied that punishment imposed by the management is wholly and : 27 : (RC) shockingly disproportionate to the degree of guilt of the workman concerned. To support its conclusion the Industrial Tribunal or the Labour Court, as the case may be, has to give reasons in support of its decision. The power has to be exercised judiciously and mere use of the words 'disproportionate' or 'grossly disproportionate' by itself will not be sufficient.
9. In recent times, there is an increasing evidence of this, perhaps well meant but wholly unsustainable, tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the Courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability.
: 28 : (RC)
10. Though under [SECTION], the Tribunal has the power to reduce the quantum of punishment it has to be done within the parameters of law. Possession of power is itself not sufficient; it has to be exercised in accordance with law."
14. In the instant case, workman was absent with effect from 1.7.96. There is also record of his previous absence. I find merit in the submission of Ld. AR for the management that workman was a habitual absentee. Unexpected and frequent absence of an employee causes disruption in the smooth functioning of an organization.
15. Unauthorized absence from the duty for a long period without any reason is a serious misconduct and furnishes a good ground for termination of service of a workman, more so when the absence is unduly long and without any reason. In this regard I am fortified by an authority reported as [PRECEDENT], wherein : 29 : (RC) Hon'ble Supreme Court dealt with a case of unauthorized absence of an employee from duty and observed in paragraphs 9 to 11 as under: "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 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.
: 30 : (RC)
10. Great emphasis was laid by learned counsel for the respondentemployee on the absence being treated as leave without pay. As was observed by this Court in [PRECEDENT] 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. [SECTION] 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 : 31 : (RC) stipulated, nonobservance of which renders the absence unauthorized".
16. Considering the fact that workman was absent from his place of duty and he did not convey the fact of his absence to the management and there is record of his previous absence also, I do not find any reason to interfere with the punishment awarded to the workman. I find that the dismissal of the workman is lawful and justified and does not call for any interference by the court. The workman is not entitled to any relief. The issue is accordingly decided in favour of the management and against the workman.
17. The reference is answered in the above terms and award is passed accordingly. Six copies of the award be sent to the appropriate government. File be consigned to record room.
Dated : 4.5.2007 ([ENTITY]) PRESIDING OFFICER, LABOUR COURT NO. VII, DELHI. : 32 : (RC) : 33 : (RC)