W.P.(C) 8871/2004 Page 1 of 4 *IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 8871/2004 % Date of decision: 3rd May, 2010 DELHI TRANSPORT CORPORATION ..... Petitioner Through: Mr. Sarfaraz Khan, Advocate. Versus SHRI BIR SINGH ..... Respondent Through: Ms. Kittu Bajaj, Advocate. CORAM :- HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Whether reporters of Local papers may be allowed to see the judgment? NO 2. To be referred to the reporter or not? NO 3. Whether the judgment should be reported NO in the Digest? RAJIV SAHAI ENDLAW, J. 1. The challenge in this petition is to the order dated 23rd July, 2003 of the Industrial Tribunal dismissing the application of the petitioner DTC under Section 33(2)(b) of the ID Act. The respondent workman, working as a sweeper / cleaner with the petitioner DTC was dismissed from service on 16th August, 1994 after holding a domestic inquiry. The charge against the respondent workman was of absenteeism without intimation from 17th April, 1993 to 9th June, 1993. The said absenteeism was/is not disputed by the respondent workman also. The case of the respondent workman was that he suddenly fell sick and had to be taken to his village for treatment. The respondent workman produced a medical certificate for the period from 17th April, 1993 to 22nd May, W.P.(C) 8871/2004 Page 2 of 4 1993. He further pleaded that he had sent a telegram for grant of leave; that though he had recovered from sickness on 25th May, 1993 but then his wife fell sick, preventing him from joining the duty and he ultimately reported for duty on 10th June, 1993. 2. The Inquiry Officer / Disciplinary Authority held that the leave application though, sent by the respondent workman were sent late. The Industrial Tribunal however held that the leave application sent by the respondent workman had not been considered by the Inquiry Officer and DTC had also failed to produce before the Inquiry Officer the decision, if any, taken on the said leave application. It was thus held that the petitioner DTC having kept away relevant record/documents from the Inquiry Officer, the inquiry was perverse. The petitioner DTC sought opportunity to prove misconduct before the Industrial Tribunal. The Tribunal found from the record produced before it that the entire period of absence of the respondent workman had been treated as leave without pay, before the issuance of the chargesheet and thus held that the petitioner DTC had failed to prove misconduct. Accordingly, approval under Section 33(2)(b) was declined. 3. The matter is now no longer res integra. The Supreme Court in DTC Vs. Sardar Singh AIR 2004 SC 4161 has held that when an employee absents himself from duty without sanctioned leave, it primarily shows lack of interest in work and DTC can, on the basis of the record, come to the conclusion about the employee being habitually negligent in duty and exhibiting lack of interest in the employer’s work. Though in the facts under consideration in the said judgment W.P.(C) 8871/2004 Page 3 of 4 the absence was for a very long period and the observations were made in that context only, the Supreme Court held that the requirement in the standing order of the DTC is of obtaining leave in advance and that merely because in the record of service the absence is recorded as leave without pay it does not prevent DTC from establishing that the absence amounts to misconduct and habitual absence without permission/sanction of leave and habitual negligence of duty and lack of interest in work. 4. The counsel for the respondent workman has urged that in the present case DTC, neither before the Inquiry Officer nor before the Industrial Court produced its record showing the fate of the application submitted by the respondent workman for leave and cannot be allowed a third chance by this court. However, the Supreme Court has held that since under the standing order of the DTC, absence for ten days or more without leave renders the employee liable to be treated as an absconder resulting in the termination of his service, once it is established that the employee was absent for ten days and if the employee was unable to show any sanction therefor, the onus is on the employee to prove that such absence without sanction of leave was for such circumstances and for such reasons which rebut the presumption under the standing orders of the same being habitual and indicative of lack of interest in the employer’s work. 5. In the present case, even in the absence of the record produced by DTC of the fate of the application for leave found to have been submitted by the respondent workman, the fact remains that the absence of the respondent workman was without sanction. Mere submission of an application for leave is W.P.(C) 8871/2004 Page 4 of 4 not sanction of leave as held in the judgment aforesaid of the Supreme Court. The Tribunal was to then decide whether the respondent workman has been able to make out a case of such nature which prevented him from obtaining prior sanction of DTC and even if he was so prevented, whether the facts of the case were such which did not justify the penalty of dismissal from service. Faced with the aforesaid, the counsel for the respondent workman states that the respondent workman be also given liberty to produce evidence on remand. 6. The writ petition is therefore allowed. The order dated 23rd July, 2003 of the Tribunal is set aside and the matter is remanded to the Tribunal for decision afresh of the application under Section 33(2)(b) in accordance with the judgment aforesaid of the Supreme Court and the observations hereinabove. It is clarified that both the parties shall be entitled to lead fresh evidence before the Tribunal. Since the matter has remained pending for long, the Tribunal is directed to dispose of the same expeditiously. The parties to appear before the Tribunal/Successor Tribunal on 26th May, 2010. Litigation expenses having already been paid, no order as to costs. The writ petition is disposed of. RAJIV SAHAI ENDLAW (JUDGE) 3rd May, 2010 M