( a/o 1 WP(C)Nos. 3379103 & s712fl13 IN THE HIGH COURT OF DEIJ{T W.P.(C) No. 5712/2OOg Decided On : October II,2AO4 The Management of M/s. Delhi Transport Corporation ..Petitioner through : Ms. Arati Mahajan, Advocate. vs. Sh. Krishan Chancler & Anr. ..Respondents throug[r : Mr. II.K. Chatunredi, Advocate. Coranr : Hon'ble Dlr.Justice Swatanter Kusrar (1) Whether reporters. of local paper rnay be allovred to see the judgment? To be refe.rred to the reporter or not? Whethe.r the judgnre.nt should be reported in the Digest ? ,swatarrter Kumar. J. fOral) ' For orders see, W.P.[C) October 7I,zO04. sk .S.t --"\lf. (2) t3) s379/2OA3. ilryata1uc Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified 7 q. v 1 wP(C) Nos. 3379t93 & s712fl3 * IN THE HIGH COTIRT OF DEI;I]I + W.P.(C) No. BBZ9/ZO0S o/o Decided On : October II, ZOO4 Sh. Ikishan Chander ..Petitioner throug;h: Mr. H.K. Cha-hrrvedi, Advocate. Versus Delhi Transport Corporation & Anr. ..Respondents . througlr : Ms.Arati Mahajan, Advcrcate AI{D W.P.(C) No. 571212ol0l? - The Management rrf M/s. - Delhj Tlansport Corporation ..Petitioner througlr : Ms. Arati Mahajan, Advocate. vs. q v , WP(C)Nos 33?9/03 & 5712/{13 Sh. Krishan Chander & Aff. Coran : ..Respondents througlr : Ifr. H.K. Chaturwedi, Advocate. I{on'ble ltilr.'.Iustice Swatanter Kurnar t1) Whether reporters of local paper nr-ay be aliowed to see ihe judgment? To be referred to the reporte.r or not? Whether the judgnrent shcruld be reported in the Digest ? Sqratanter Krmrar. J. [OralJ 1. By this judgnr.ent I worrld dispose of two urrit pelitions being \U.P. (C) No. 3379/2003 and W.P. tC) No. 5772/2CrC,3. The first writ petition has been filed by the workman rrnder Article 226-227 of the Constitrrtion of India, praying for issuance of an appropriate writ/directirrn to the respondent-Delhi Transport Corprrration to grant him reinstatement \rnth conseqnentlal benefits after rejection of the application filed by the Corpcrration under Section 33[2) [b] of the Industrial Disprrtes Act, 7947 fhereinafte.r refered to as'ttre Act') vide order dated 23'd october, zooz, urhile in (2) t3) O 7 i' ul 3 WP(C)Nos.3379/03 & 5712$3 the latter the Corporation challenges the correctness of the order passed by the learned Industrial Tfibunal dated 23'd Octolrer, 2QO2. A,s both these petitions arise from one and the same award, it will be appropriate to dispose of both these petitions by a corlmon jrtdgment. 2. Befrrre examjning the merits or otherwise of the contentions raised before rne dtrring the corrse of hearing, it will be usefril to refer to the facts glving rise to the present petition. 3. Workman-Krishan Chander was working as a driver with De.lhi T?ansport Corporation. He was senred rgith charge-sheet'on 25fr October, 1991 rvith the allegations that he availed 4O days leave without pay during tJle period between 1.1.1991 to 30.6.1991. A domestic e.nqlury, jlr aqcordance udth the rtiles, was conducted against the workrran, llpon conchrsion l.ot which a show caltse notice : u/as served upon the rvorlsnan on 24*. Novenrber, 7992. Finally, an order of punishment removing t}re worlcrran from service of the Corporation vras passed on 7ft Jarruar5r, 1993. Ttrereafter the Corporation applied for approval of the actirrn p 4 WP(C)Nos.33?9/03 & 5712/03 llnder Section 33(2) [b) of the Act. The learned Indrrstrial Tbibunal, Karkardoma Cotrrts, Delhi, after recording the evidence, vide order dated 23'd October, 2OO2,, dechned to approve the action of the respondent-Corporation and rejected its application Sving rise to filing of the present wfit petition by the Corporation. As already notic.ecl above, the work:rran claims conseqtrential enforcement of the order by uray crf reinstatement with fi.r1l back wages.. 4. At the very outset of tJre arguments the learned Counsel appearing for the Corporation srrbnrlts tJlat the petitioner has alrea-dy been taken bacle urto senrice, of corlrse, sr.rbject to the final detenrrination of these utdt -U petitions. 5. The learned Indr.r.strial Tribunal declined approval holding that the absene.e of the petitioner for days unauthorisedly without application, inchrsive of days leave r,vithout pay, was not a nrisconduct within tl:e five 40 the meaning of para 19ff1[h[m) of the standing orde.rs gove.rning the conduet of Corporation employees. Vide order dated 22'.d November, 2OOO a preli:ninary issue sras fra:rred b)' the // v rv s WP(C)Nos.3379/03 & 5712/{13 Labour CourL urhich reads as under:- '"\[rhether t]re applicant. held a 1egal arr.d valid enqutry against the respondent according to principles of natural justice?" 6. Thls issue was anslvered in favour of the worlnrran and against the Corporatlon by holding that tJle enqrriry was nr:t fair and proper. After passjng of the above rlrder, on both the issues in regard to misconduct by the enrployee as well as w.hether there was crrmpliance to tJ:e provisions rrf Section 33t2)tbl of the Act by paytare.nt of one month's wages, the first part was answered against the Corporation while the latte.r was answered in favour of the Corpora-tion. The flndings recorded by the Industrial Thibr.rnal on issue nrr.1 read as under:- "ISSLTE NO.1 To prove its case the applicant prodrrced AVf- 1 Sh. V.K. Paita who entered into ihe witness box and filed tris affidavit Ex AW1/1. He relied upon the documents Ex. AW7/A to Ex. AW1/8. IIe was cross examined at length. The relevant portion of crnss exarninatlon is reproduced as under: "Hou,'ever the period of 4O days was ireated as perioci of leave vrithout pay and it was so treated even before the issrrance of the R 6 WP(C) Nos. 3319103 & s712l03 chargesheet. .. .I was competent to treat the period as leave without pay and jn that capacitlr I sanctioned leave withor"rt pay for 4O days to the respondent." 8. On the other hand respondent did not lead any evidence in vievr of cross examination of V.I( Palta. The cross examination of qritness itself shows ttrat respondent has not comrnitted anlr misconduct. Consequently, the issue is decided against the applicant/petitioner. 7. Keelring in view the above finding, the learned Counsel appearing for the Corporation conte.nded that in t.y of tlre judgment in tfre case of Delhi TFa;nsport Corporation us. San{ar Sinqh, ,fr 2OO4 (6} SC 842 decided on 12fr August, 2OO4, the case is squarely covered and the order of the Indrrstrial Tribunal in rejecting the application of the managenrent rurder Section 33t2)tlr] of the Act needs to be qrrashed and the matter be remanded for frrrthe.r proceedings in accordance with law. On the other hand, the learned CounseJ appearing for the wrrrlanan statecl that Sardar Singh's case fsupra) itse]f can/es out certain exceptions and the case of the petitioner squarely t_ i"./ 7 WP(C) Nos.3379/03 & 5712/03 falls in those exceptions as the leave of the petitioner was specifically sanctioned and as srrch the rrrder of tJe Indrrstrial T?ibrrnal calls for no interference. 8. It will be a.ppropria.te to refer to the eharge vrhich was fra:ned against the petitioner-worlmran. The'charge reads as tmder:- "Scmtiny of yrlrr se.rvice record for the period 1.1.91 to 3O.6.91 revealed tJ:at you tooh leave without pay for 4O days fronr- 1.1.91 to 3O.6.91 out of which 5 days leave was unauthorisedly availed without sending any app)ieation or even intimation to the offi.ce. It is therefore clear that you have been careless towards yolrr duties and towards corporation, violating the rrles of the corporation and not taking interest in the works of the corporation. Your t-his act constitutes misconduct rrnder tJre provisions of Section 19 [0, 19 th) and 19 [m) of t]re standing adnrinistrative order governing the conduct of trIC employees." 9. Ttre charge ca-n- hardly stand the test of 1ega1 scmtiny in as nmch as the stateurent of AW1, V.K. Palta, the only witness exanrined by the Corporation eJearly absolves the worlarran of the alleged charge. It is not a case where leave urithor.rt pay was treated as sanctinned leave by deep // WP(C) Nos. 3379/03 & 5712/03 fieJicrn of fact or law. hr the present case aclmittedly, the worl<rran had moved an application for 35 days or.rt of 4O days of leave urhich was sanctioned by the connpetent arrthori{r. AW1 has stated t}rat" he was competent to sa-nction and he had sanctioned the leav. e of the worlcrran for 4O days. Once the leave of the 'wrrrlarraT,' after filing of the application was sanctioned by the competent arrthorit5r, it is not possible to assltrne that this was ndscondrrr-'t on the part of the.e.mployee. Their Lordsl:ips of the Srrprem-e Corrt urhile deallng utth the case of Sardar Singp's case (supra), held as under:- "Habitual abse.nce is a fac.tor rrhich establishes lack of interest, in work. There cannot be any sweeping generalization. But at the sarne time some telltale featrres carr be noticed and pressed jnto service to a:rive at conclusions in the departmental proceedings. Great ennphasis was laid by learned counseJ for the respondent-employee on the absence being treated as leave 'uritJlout pay. As was observed by this Crnrt in State rrf Marlhya Pradesh v. Harihar Gopal [1969 (3) SLR 274] by a t]rree- judge Bench of this Court, even when an order is passed for treating absence as leave qrithout pay aft,er passing an order of ternrination that is for the purpose of maintaining correct record of se.rvice. The charge in that case 'was, as in ib.e present case, absence nrithout obtaining /f \ 9 WPfC)Nos.3379/03 & 5712/{13 leave in advance. The conduct of the enrployees in this case is noiJ:ing but i:responsible in extreme and can hardly be justified. Ttre charge in this ca.se was nrisconduct by absence. In vieur of the Governing Standing Orders unauttrorized leave can be treated as nrlsconduct. Conchrsions regarding neghgence a.nd lack of interest can be a:rived at by looking into t}re period of absence, rnore particularly, when sam.e in rmauthorized. Burden is on the enrployee who claims that there was no negligenee and/or lack of interest to establish it by placing relevarrt materials. Clause (ii) of Para 4 of the Standing Order shows the seriousness attached to'habitual absence. In clarrse [i) the.reof, there is requirennent of prior penrrission. o::ly exception made is in case of sudden ilbress. There also conditions are stipulated, non-observance of which renders the abs ence unauthorized. The TYibr.rnal proceeded in all these cases on the basis a.s if ttre leave was sanctioned bee.arrse of the noted leave vrithor.rt pay. Tleating as leave wil]rout pay is not sa:rre as sanctioned or approved leave. That being the factrral position, the TFibrmal was not justified in refusing to accord approval to tJ:e order of dismissal/removal as passed by the enrployer. Ttre learned Single Judge was justified in holding that the enrployer was justitred in passing . . orcler of tennination/re.moval. The Division Bench unfortrrnately did not keep these aspects in view and reversed the view of learned Single Judge." ts -!? 10 lvP(C) Nos. 3379/03 & 5712fl13 10. It is unarrrbiguotrs\r clear from the above emrnciated principles of law tha-t the burclen is on the enrployee to show lt to the satisfaction of the Labrrur court that there was no ne$igence or lack of interest on the part of t]:e employee in his emplo5nrrent. The enrployee normally should place relevant ma-terial on record in support of such a plea. In the present case, the Tfibunal has mainly proceeded on the basis that leave was sanctioned because of the noting recorded in t}.e file of the enrployee fteave urithout pay). The workman had moved an application for !!ra:rt rrf lea-ve, whjch wa-,s sa.nctionecl-. In tre fa-ce of conrplete adnrission by the competent authority who was examined as Aw1, the workman was a.ble to discharge the primary omrs of burden to prcrve, placed npon hinr. The brrrden then, \f,€.s shiftecl to the maxagement to esta-trlish by documentar5r and oral evidence that worlarran was neg[igent brrt t]re management ha-ve produced no of-he.r evidence except examining AW1. 11, In addition to the above it can aLso lre usefully noticed here that t]le order of the Tyibu-nal holding the issue s^,/ /7 \r' 11 WP(C) Nos.3379/03 & 5712/{13 of enquiry being just and fair against the Management has never been assailed hy the Ma:ragement, even in this writ petition. The hedrrstrial Tfibrmal has held fleat there was no nrisconduct on the part of the employee. This finding of fact is based lrpon proper appreciation of evidence. The finding is not based lrpon me.re recording of leav. e without pay, but, the lea-ve applled for by tJre employee was drrly sa-nctioned in tenrrs of nrles, as per the statemerrt of AW1, the sanctioning authorifr. There is no dispute, even in these proceedings, trr the fact that AW1 was ttre sanctioninS arrthorit;r and ha-d, as a matter of fact, sanctioned the leave of the workman. 12. In view rrf the above reasoning I have no hesitation in holding that the order of fhe Indrrstrial Ttibunal dated 23i d October, 2OOZ does not call for arry interference. 13. This fi-rrthe.r brings me to the discussion on the merits rrf the writ petition filed by the worhnan clainring e.nforcement of t}re orcl-er a.nd the resrrltant reinsta-tement urith full ba-ck ura-ges rvit-h tJre respondent-Corporation. A,s far as the relief rrf reinstatement is conce.rned, the workm-an has already been taken back into service. He shall contirrre /x V 12 WP(C)Nos.33?9/03 & 5712/{f3 has already been taken back into service. He shall contimre in his employrrent. In relation to the back wages, there are no specific averm-ents made in the petitirrn that he was not employed during the interregmrm period trf disnrissal of his service till the date of his reinstatement. F\rrthenrrore, it carmot lie presumed that he is a person who was incapable of earning. Workman is admittedly a driver. Thtts, in norma-l colrrse of life he wort-ld be a.ble to nnake his two ends meet. In these circrrmstances and keepin$ in vieur ttre judgurent of this Court in lW.P. State Electricitg Boord us. Smt. Jcrina Bee, {T 2OOg (5, SC 5&, it is not necessal5r frrr this Corrt to go into greater deta-il in relalion to paynnent of back wages and pa-rticularly in vieur of tJ:e fact ttrat there are no pleadings to the e.ffect that worlaman'was not able to get errqlloSnrrent despite his best effrrrts. The relevant portion of the judgnnent in the case of M"F. Stcrte Eleetricitg Bowd(supral reads as under: "Alternatively, it was subnritted that full back wages are to be paid, considering the nature of the allegations and findings reeorded by the labotrr cottrt, indtrstrial court and t]:e High Court and tJle directions canrnot be faulted on the facts of the case. \.., ry t'f WP(C) Nos. 3379/03 & 5712/{13 Para 5- In PGI of Medical Education and research, Chandigarh Vs. Raj Eusrar , this Court found fault with tJle High cour[ in setting aside the award of the laborr corrrt which restricted the back wages to 60p/o and directing payment of full back wages. It was obsenre thus : "The la-bour court being the final court of facts cam-e to a conclusion ihat palnrrent of 6U/o wages would conrply \Mith the reqrrirement of law. The finding of perversilr or bein$ erroneous or not in aeeordance iilitli law shall have to be recorded \r/ith reasons in trrder to assail the fining of tJ:e tribunal or the labour court. It is not for the I Iigh court to go into the factrral aspects of the matter and there is an existing limitation on the High Court to ttrat effecf'. Again at paragpaph 72, this court obsenre:- " Palrutent rrf back wages having a discretionaty element involired jn it has to be dealt with, in the facts and circumstances of each case and no straig[rt jaclret forrrnrla can be evolved, thougfr, however, there is statrrtory sanc;tion to direct payment of back wagies in its entiret5r." Para 6 - The position was reiterate in Hindustan Motors Ltd. Vs. Tapan Kunr.ar Bhattachaqia and Arrother and Indiari Railuray Crrnstmction Co. Ltd. Vs. Ajay Kumar. \*' tl .-,fr '\e/ 14 WP(C) Nos. 3379/03 & 5712/03 'Para 7- Applyrng the legal principles, the inevitable conclusion is that the Higlt Court cournrjtted an error in holding that ttre award of full back wa-ges 'wa-s the natural consequen ce." 14. For the reasons afore-recorded, I allow this petition and direct tJle respondents to reinstate the worlcrran vrith lr' contimrrt5r of service with back wages, however restricted trr ,l" ^ 25a/o of the said wages for ttre interregmrm perirrd i.e. from the date of ternrination till r'einstatement. I have restricted the back wages to 25o/o, keeping in view the ahsence of specific pleadings and normal crrndrrct of the worlsnar in the fae.ts and circrrnr,stances of this case. 15. The writ.petitirrn is, accordingly, partially allowed w. hjle leaving tJle parties to bear their own costs. . Octrrbe.r 11, zA04- sh - K( il..,>^r/{