DELHI TRANSPORT CORPORATION v. TEJ PAL SINGH

1. I have heard learned counsel for the parties and proceed to dispose of the writ petition.

2. The petitioner has preferred the present writ petition to assail the industrial award dated 15.05.2010 passed in I.D. No.21/2006. By the impugned award, the Labour Court - VII (East District), Karkardooma Courts, Delhi has disposed of the reference made to it by the Appropriate Government in respect ofthe respondent's dismissal from service.

3. The respondent was employed by the petitioner management in the year 1979 as a bus conductor. He was issued charge-sheet dated 19.06.2004 on account of his remaining absent fr-om duty between 01.01.2004 to 31.07.2004 for the period of 95 days without intimation or application. The said conduct was claimed to constitute misconduct under paragraphs 4 and 19(f), (h) & (m) ofthe Standing Orders applicable to the employees ofDTC.

4. Since the respondent denied the charges, a domestic inquiry was f 2013:DHC:7737 c conducted in which the charges stood duly proved. On the basis of the inquiry report, after grant of opportunity, the orders of dismissal of the respondent from service were passed on 29.01.2005. Consequently, the respondent raised an industrial dispute, which has been decided by the impugned award.

5. Before the Labour Court, the preliminary issue with regard to the legality and validity of the domestic inquiry was decided in favour of the petitioner management vide order dated 09.04.10. The respondent has not assailed that order. Consequently, it has attained finality. The Labour Court then proceeded to consider the aspect of proportionately of the punishment imposed by the petitioner. Reference was made to office order issued by the General Manager (Transport) dated 08.04.1968 which talked about uniformity in imposition of penalties on the employees for misconduct and other irregularities. The Labour Court proceeded on the basis that as per the said office order, for habitual absence from duty without intimation and prior permission of the competent party and leaving station without permission, the penalty prescribed was stoppage of increments with, or without, cumulative effect. The Labour Court, by placing reliance on the explanation furnished by the respondent for his absence, i.e., that his wife was bed-ridden and was suffering from various diseases, and that there was no one to look after her, proceeded to substitute the penalty of dismissal from service with award of penalty of stoppage of increments with cumulative effect. The respondent was also awarded 50% back wages and consequential benefits.

6. The submission of learned counsel for the petitioner is that the Labour // Court while passing the impugned award has not taken into account the judgment of the Supreme Court in Delhi Transport Corporation Vs. Sardar Singh, (2004) 7 SCC 574, wherein the Supreme Court has held that when an employee absents himself from duty, even without sanctioned leave for a very long period, it prima facie shows his lack of interest in work. The Supreme Court held that on absence without sanctioned leave, the authority can, on the basis ofthe record, come to the conclusion about the employee's habitual negligence in duties and his lack of interest in the employer's work. f " The Supreme Court held that there cannot be any sweeping generalisation, but some telltale features can be noticed and pressed into service to arrive at conclusions in the departmental proceedings.

7. Learned counsel for the petitioner further submits that the past record of the respondent was not even examined by the Labour Court while proceedings to substitute the penalty of dismissal with stoppage of two increments. Learned counsel has produced before the Court its record which shows that in the year 2002, the respondent had remained unauthorisedly absent for 96 days after his reinstatement in service on 23.04.2004. In the year 2003, the respondent had remained unauthorisedly absent for 254 days.

8. Mr. Charya places reliance on the office order dated 08.04.1968 to submit that the said office order lays down the guidelines with regard to the imposition of penalty, inter alia, in the case of unauthorised absence from place of work. He submits that in terms of the said circular, the said misconduct is categorised-for purpose of award of punishment, as a minor misconduct. r

9. The second submission of learned counsel for the respondent is that since the Labour Court has exercised its discretion under Section 11-A of the Act in substituting the penalty of dismissal with that of stoppage of two increments, this Court should not interfere with the same in exercise of its writ jurisdiction.

10. Having considered the impugned award, the submission of the parties and perused the record, it appears to me that the Labour Court was not ^ justified in interfering with the award of punishment of dismissal from service in the present case, in the light of the respondent's conduct. It was evident that the respondent was habitual in taking unauthorised leave. His past record bears testimony to this. Pertinently the impugned award, neither discusses the past record, nor notices that no evidence was led by the respondent with regard to the justification for his absence of 94 days in the year 2004, i.e. from 01.01.2004 to 31.07.2004. The respondent has not produced before this Court as well any material on record to show that his wife remained ill throughout the entire period, i.e., 01.01.2004 to 31.07.2004. i

11. I do not find any merit in the submission of learned counsel for the respondent founded upon the circular dated 08.04.1968. A perusal of the said circular in itself shows that it is acknowledged that "each case will have distinctive features which will be considered by the disciplinary authority for determining the quantum ofpunishment". Thesaid guidelines have to be read in that light. The list of misconducts placed in Annexure-A includes "unauthorisedabsencefrom place ofworK\ and the quantum of punishment is stated to be as "corrective measures or by imposing of warning or reprimandor censure". However, this circular does not deal with habitual and unauthorised absence for long periods. The said circular, therefore, is of no avail in the present case whichis a clear case of unauthorised absence for a very longer period, and chronicmisconduct of the respondent in remaining unauthorisedly absent, as already noted hereinabove. In the light of the standing orders applicable to the employees of the DTC, which have been discussed in Sardar Singh (supra), in any event, the said circular appears to have lost its efficacy. The same cannot override or overrule the Standing Orders framed under the service Regulations. These aspects have been completely overlooked by the Labour Court while passing the impugned award on the basis of the circular dated 08.04.1968.

12. Though this Court may not, normally, interfere with exercise of the discretion by the Industrial Adjudicator under Section 11-A of the Act, in a case where the said exercise of discretion is misguided, misplaced and borders on perversity, this Court would not hesitate to interfere therewith. In the present case the exercise of discretion appears to be completely mindless as germane and relevant aspects have been missed out by the Labour Court while interfering with the penalty imposed by the petitioner upon the respondent. The judgment of the Supreme Court in Sardar Singh (supra) has also not been considered.

13. For all the aforesaid reasons, the impugned award is set aside leaving the parties to bear their respective Costs MAY 13, 2013 BSR VIPIN SANGHI, J.