i N, i-.a.D.ri IQ .1 4 Orders Sr. Nor % 13.12.2004 Present: Mr.M. Taiyab Khan, Adv., for the petltoner. +W.P.fa.No.2372/2003 This case has been called out twice but nobody behalf of the workman,'' Even on the last date of I' appears on hearing. nobody appeared respondent/workman. Thus, there is no court except to hear this matter the matter in accordance with law. Challenge in this petition rnider Article 226 of the Conslltiition of India is to the order', dated 12,12,2002 passed by the Presiding Officer,, hidustrial Trlbimal-II, Karkardooma Courts, Delhi, vide which he rejected the application of the management imder Section 33 (2) (b) of thfe Industrial Disputes Act, 1947 (tiereinafter referred to as behalf of the on option before the parte and proceed with ex ! ’the Actj and declmed its approval. The workman who was working as a driver with the had imaiithorisedly absented respondent/CorjDoration himself during the period 1.6,1992 to 14,7,1992 . This was i I • - i W,P,fO.V.Kr^- SHRI SHYAM SALES 02-03 t I 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 r -'V>m /b Orders Date Sr, No. treated as misconduct by the Corporation under Para 19 Qi) and (m) of the Standing Orders governing the conduct of j DTC employees. After conducting a domestic enquiry, the disciplinary authority renioved the workman from service vide order dated 17,5.1996/ An application was filed under 4,:: Section 33 (2) (b) of the Industrial Disputes Act, 1947 before the Industrial Tribunal for grant of its approral, which as already noticed above, was declined vide order dated 12.12.2002. Vide order dated 5,3.1999, the Tribunal held that the enquiry conducted by the Goi^roration was not fair and proper and finally declined its approval. At the very outset, it may be useful to note the findings recorded by the Industrial Tribunal while rejecting the application as well as deciding the' other issue against the Corporation, The recorded findings read as imder;- "...He further admitted that respondent was not informed that his leave application had been rejected. He admitted that leave application of respondent dated 15,7..92 was rejected by the authority. I have gone through the document Ex.AWl/1 in which the period of absence of respondent i.e. From. .1* ' . 2372/2003 SHRI SHYAM SALES 02-03 , ’ i. S -O.O.H .'i'-i-i’r.v^ Sr..'.'T..'..'.r--sii;.?, Sr. No. Date \warjs^jscisass2m^««*«as6,/b.4*n,.*,.v sieb-sQ ■ s S'k O ■SBM ■ V. VJ,-,. ■ •'.V'-f-.A;'-'' - —.O-.V-J.-...-i-.. r.--.r<-f v:-»>•,.-...i-/,.,,i:. .'•.I-V.'. 1.6,92 to 14,7,92 was treatecJ as leave without pay. The admitted position is tlat availing of leave without pay! is not a misconduct as per its own orcler of DTC dated 14.12.88, Consequently, it Is held tliat applicant has failed to prove the alleged misconduct against the fespondmt. Consequently, the issue is decided agai|ist . the applicant” I I The above finding and the reasoning given in support thereof is in apparent conflict witlji the judgment of the Supreme Court in the case of pethi s- Cormmtion m. Sardar Sin^h. JT 2004 (6) SC #42. The mere fact that for the pur]3ose of completion service record, it wns recorded by the Disciplin y Authority that , the petitioner was treated to be on leave Without p ky' would condone the misconduct, if otherwise proved on tile part of the worlmian, is not sustainable. For the reasons afore-recorded and the law enunciated by the Supreme Court in Ssrdar Sio (s case (supra), this Court has no option, but to set aside fthe order dated 12.12.2002 and remand the matter to the liidustrial ■i !! - t ■ .1 1 I I , 2372/2003 SHRI SHYAM SALES 02^03 5S5SSS 1 4 Orders L"'- ■ Date Tribunal to be processed in accordance with law. Accordingly, the writ petition is allowed and the order dated / 12.12.2002 is set aside. The matter is remarided back to the Labour Court which shall proceed witli the matter in , accordance with law, after granting opportunities to the 4^. parties. The writ petition is accordingly disposed of, while lea^dng the parties to bear their own costs. Parties are directed to appear before the Industrial Tribunal, on 18.1,2005. December 13, 2004 sk W.PiCI Ho. 2372/2003 SHYAM SALES 02-03 \ 1- i ■ i. 4 ■ 1