*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 19th May, 2011
+ W.P.(C) 3390/2011
% BANWARI LAL ..... Petitioner
Through: Mr. N.A. Sebastian, Adv.
Versus
THE MANAGEMENT OF M/S MOOLCHAND
KHARAITIRAM HOSPITAL ..... Respondent
Through: Mr. Jatin Zaveri, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No
be allowed to see the judgment?
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 writ petition impugns the award dated 22 nd January 2008 of the
Industrial Adjudicator on the following reference:
“Whether the services of Sh. Suresh S/o Sh. Pistola have been
terminated illegally and/or unjustifiably by the management,
and if so, to what sum of money as monetary relief along withW.P.(C)3390/2011 Page 1 of 6
consequential benefits in terms of existing laws/Govt.
Notifications and to what other relief is he entitled and what
directions are necessary in this respect?”
2. The Industrial Adjudicator first framed an issue as to the fairness
and compliance of principles of natural justice in the departmental inquiry
held by the respondent preceding the order of termination of the petitioner
and vide order dated 15th January, 2008 held that the departmental inquiry
was fair, proper and conducted in accordance with the principles of natural
justice. The Industrial Adjudicator thereafter vide award dated 22 nd
January, 2008 impugned in this writ petition held that the penalty imposed
on the petitioner was proportionate to the charges of which the petitioner
had been found guilty.
3. The petitioner was charged with unauthorized absence from duty
from 11th January, 1997 to 24th January, 1997, 4th February, 1997 to 27th
February, 1997, 3rd March, 1997 to 25th May, 1997, 28th May, 1997, 2nd
June, 1997 to 21st July, 1998, 23rd July, 1998 to 19th July, 2001, 21st July,
2001 to 23rd January, 2002 and 9th January, 2003 to 2nd February, 2003.
4. An Inquiry Officer was appointed. The petitioner appeared before
the Inquiry Officer and admitted receipt of charge sheet along with list of
W.P.(C)3390/2011 Page 2 of 6
witnesses and document and admitted the charge. The only defence
statement offered in his admittal of the charge was that during the period of
absence, the petitioner had remained ill and heavily upset due to bad evils;
that the reason for remaining heavily upset was the unfortunate demise of
his two sons aged 4 and 6 years. It was also stated that the petitioner
belonged to poor Scheduled Caste family and being low paid as well as
illiterate, he did not know the Rules & Regulations. The petitioner sought
pardon for his guilt and offered assurance that he would in future not
remain absent from duty.
5. The Inquiry Officer submitted a report reporting admittance of
charge by the petitioner and accordingly finding the petitioner guilty of
unauthorized absence. The two Medical Certificates issued by the
petitioner for the period 11th January, 1997 to 27th February, 1997 and from
13th January, 1997 to 21st May, 1997 were held to have been proved.
6. The Disciplinary Authority of the respondent Delhi Jal Board (DJB)
imposed the punishment aforesaid of removal of service.
7. The contention of the counsel for the petitioner is that the finding of
the Industrial Adjudicator of inquiry being fair and in compliance of
W.P.(C)3390/2011 Page 3 of 6
principles of natural justice is erroneous. It is contended that the petitioner
had only admitted the factum of his unauthorized absence and not his guilt.
It is contended that the Inquiry Officer did not give any opportunity to the
petitioner to prove the reason for his absence.
8. In this regard it may be noticed that the Industrial Adjudicator has in
order 15th January, 2008 (supra) held that the petitioner in the cross-
examination of the witnesses of the respondent DJB did not even give any
suggestion that the inquiry conducted was not fair or proper or not in
accordance with the principles of natural justice. It thus appears that there
was no challenge really to the inquiry proceedings before the Industrial
Adjudicator as made before this Court. Even otherwise, reading of the
statement made by the petitioner before the Inquiry Officer shows that the
petitioner did not give any particulars of treatment of ailment from which
he remained ill or of demise of his two children or any explanation for the
long time of four years for which he had remained absent.
9. The counsel for the respondent DJB appearing on advance notice
has contended that with such long unauthorized absence of employees, the
respondent DJB cannot be expected to function efficiently. He has also
W.P.(C)3390/2011 Page 4 of 6
referred to DTC Vs. Sardar Singh (2004) 7 SCC 374. Though in the said
judgment the observations were made in the context of the standing orders
of the DTC but the spirit thereof is that unauthorized absence amounts to
misconduct.
10. The counsel for the petitioner has been unable to show that any
opportunity for proving the reasons for absence was sought before the
Inquiry Officer. Rather, the petitioner had unequivocally admitted the
charge and had sought pardon and lenient view of the matter to be taken.
No error can thus be found with the order of the Industrial Adjudicator on
the validity of the inquiry.
11. Similarly, no reason for interference is found, with the award
holding the punishment of removal from service to be proportionate for the
long unauthorized absence of the petitioner.
12. The counsel for the respondent DJB has also contended that even the
present writ petition has been filed after more than three years of the award
impugned herein. Though the petitioner in the writ petition has purported
to give an explanation for the said delay by pleading that the petitioner was
not possessed of resources to challenge the award earlier but the same are
W.P.(C)3390/2011 Page 5 of 6
again vague and it has not been stated as to how the resources has been
mustered now. The petitioner before the Industrial Adjudicator was
represented by Jal Mal Karamchari Morcha, a Union and as such
explanation for long delay in filing the petition does not inspire
confidence. The entire conduct of the petitioner is of the petitioner being
not interested in employment. The worker who is without employment
and wages and keen to join back, would not have waited for over three
years to challenge the award against him.
13. No merit is thus found in the writ petition; the same is dismissed.
No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
MAY19, 2011
bs
W.P.(C)3390/2011 Page 6 of 6