WP(C) Nos.12284/05 & 12294/05 Page 1 of 5 * THE HIGH COURT OF DELHI AT NEW DELHI + Writ Petition (Civil) Nos.12284/2005 & 12294/2005 Date of Decision : 20.4.2009 WP(C) No.12284/2005 1. DTC ……Petitioner Through : Mr.Ataul Haque Advocate. Versus SH.AJIT SINGH …… Respondent Through : Mr. R.K.Sharma with Ms.Meenakshi Arora, Advs. AND WP(C) No.12294/2005 2. DTC ……Petitioner Through : Mr.Ataul Haque Advocate. Versus SH.AJIT SINGH …… Respondent Through : Mr. R.K.Sharma with Ms.Meenakshi Arora, Advs. CORAM : HON’BLE MR. JUSTICE V.K. SHALI 1. Whether Reporters of local papers may be allowed to see the judgment? YES 2. To be referred to the Reporter or not ? YES 3. Whether the judgment should be reported in the Digest ? YES V.K. SHALI, J. (Oral) Rule. With the consent of the learned counsel for the parties, the following order is passed:- WP(C) Nos.12284/05 & 12294/05 Page 2 of 5 1. This is a common order disposing of the aforesaid two writ petitions with the consent of the learned counsel for the parties. These two writ petitions bearing WP(C) No. 12284/2005 and 12294/2005 are having same title s DTC Vs. Sh.Ajit Singh. 2. In the first writ petition, the petitioner had given a charge sheet to the respondent/workman on account of his having remained absent from duty for a period of 35 days in a year starting from 1st January, 1991 to 31st December, 1991. On the basis of the said absence, enquiry was held and it was observed in the said enquiry report that the respondent was guilty of misconduct in terms of the standing orders and the various other provisions with which the conduct of the respondent /workman was governed. The respondent/workman was thereafter imposed penalty of punishment of removal. 3. Since the punishment of removal was inchoate, the petitioner had to obtain approval of the learned Labour Court by applying Section 33(2) (b) of the Industrial Disputes Act. 4. For such an approval, an application was filed and an issue was framed in the following terms:- “Whether the applicant held a legal and valid enquiry against the respondent according to principles of natural justice ? (OPA)” 5. The learned Labour Court came to a finding that as the period of absence of the respondent /workman was treated as leave without pay therefore, in terms of the judgment of the Division Bench of this Court in case titled Sardar Singh Vs. DTC WP(C) Nos.12284/05 & 12294/05 Page 3 of 5 in LPA No.361/2002 that did not constitute a misconduct so as to warrant initiation of the departmental proceedings against him. Accordingly, the learned Labour Court came to a finding that the punishment of removal which was imposed on the respondent /workman was disproportionate to the misconduct of the respondent /workman which was quantified, as his absence for 90 days. Thus the learned Labour Court refused to grant approval to the petitioner under Section 33(2) (b) of the Industrial Disputes Act. Once the permission to grant approval was refused, the respondent /workman is deemed to be in service. 6. In the second WP(C) No.12294/2005, the reference which was made by the appropriate Government was as under:- “Whether the removal of Sh.Ajit Singh from service is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this respect?” 7. This reference was simply decided in the light of the earlier award dated 14.9.2004 passed by the Presiding Officer, Labour Court VII, Delhi holding the permission for approval on imposition of punishment of removal was not granted. Therefore, this was ipso facto treated a case where the termination of services of the respondent/workman as illegal and unjustified and accordingly, was directed to be reinstate with continuity of service and payment of back wages. 8. Both these awards by the same Labour Court given on the same date i.e. 14.9.2004 have been challenged by the petitioner /Management in two separate writ petitions before this Court. WP(C) Nos.12284/05 & 12294/05 Page 4 of 5 9. I have heard the learned counsel for the parties. Learned counsel for the parties have agreed that the judgment in Sardar Singh Vs. DTC which was decided by the Division Bench of this Court in LPA has been set aside by the Supreme Court in case titled DTC Vs. Sardar Singh on Special Leave Petition having been taken by the petitioner/Management to the Supreme Court. The said judgment is reported at 2004 (7) SCC 574. In the said judgment, the Supreme Court has observed that merely on account of the fact that the leave is regularized to the delinquent/workman by granting him leave without pay or sanctioning him the leave does not ipso facto tantamount to condoning his absence and accordingly, the same cannot be treated to be not a misconduct. The learned Labour Court have to still go into the question of deciding as to whether the absence itself does constitute misconduct and violation of various standing orders and other Rules and regulations of the DTC with which his conduct is governed and given a finding on whether it constitutes misconduct. In the light of the aforesaid legal position laid down by the Apex Court, both the counsel have agreed that the matter needs to be remanded back after setting aside both the award. 10. I, accordingly, in view of the submission made before this Court by counsel for the parties and in the light of the judgment of the Supreme Court in Sardar Singh’s case (supra) set aside both the awards dated 14.9.2004 passed by the learned Labour Court –VII passed in OP No.1/2000 of 1992 and ID No.44/1999. WP(C) Nos.12284/05 & 12294/05 Page 5 of 5 11. The parties are directed to appear before the learned Labour Court on 1st May, 2009 and the Labour Court shall decide the matter both afresh after giving reasonable opportunities to the parties in accordance with law. No order as to costs. V.K. SHALI, J. APRIL 20, 2009 RN