JUDGMENT
Gita Mittal, J.
1. By way of this writ petition, the DTC has impugned an order dated 28th October, 2002 passed by the Industrial Tribunal dismissing its application seeking approval of the disciplinary action taken by it against the deceased workman under Section 33(2)(b) of the Industrial Disputes Act, 1947.
2. Sh. Balwan Singh was employed as a driver with the DTC. He was served with a chargesheet dated 14th August, 1992 wherein it was alleged that he has been unauthorisedly absent from duty with effect from 18th June, 1992 to 8th July, 1992 without any information. Based on the workman’s past record of three years, it was also alleged that Shri Balwan Singh had remained absent unauthorisedly for 79 days. The DTC has contended the workman failed to submit any reply to the notice to show cause and the chargesheet. Further all the charges levelled against the workman were proved. In these circumstances an order of removal from service was passed against Shri Balwan Singh which was dated 26th April, 1993 and one month wages were also simultaneously sent by a money order of the same date.
3. The industrial tribunal decided the issue with regard to the legality and validity of the inquiry against the employer vide an order dated 27th November, 1992. However on the request of the DTC to prove the misconduct, it was permitted to lead evidence before the Industrial Tribunal. The matter had proceeded to evidence and the Industrial Tribunal considered the matter in detail.
4. Before the Industrial Tribunal, it was on record that the period of absence prior to the year 1992 was treated as leave without pay and that so far as the period from 18th June, 1992 to 8th July, 1992 was concerned, the wages of the respondent/workman stood deducted. In these circumstances, it was held by the Industrial Tribunal that the chargesheet had been issued for a period which had been treated as leave without pay. For this reason vide its order dated 28th October, 2002, the Industrial Tribunal held that such leave without pay could not be treated as misconduct and accordingly answered the issue as to whether the workman is guilty of misconduct against the management. The application of the DTC seeking approval of its disciplinary action against the respondent under Section 33(2)(b) of the Industrial Disputes Act, 1947 was therefore dismissed vide the order dated 28th October, 2002. Aggrieved by this dismissal, the DTC has assailed the order dated 28th October, 2002 by way of the present writ petition.
5. I have heard learned counsel for the parties at length. While reliance has been placed by the petitioner on the pronouncement of the Apex Court reported at entitled DTC v. Sardar Singh, the respondent has vehemently contested the writ petition. Challenge has been made principally on the grounds of delay and laches on the part of the petitioner to contend that the DTC has impugned an order passed on 28th October, 2002, almost two years after its passing. It has further been contended that grave injustice would result to the respondent inasmuch as the workman has expired and that the writ petition is being pursued by his widow and children. Even otherwise, on merits it has been contended that the workman had submitted applications which are available on the record of the DTC and the DTC had treated his absence as leave without pay which amounted to its regularisation.
6. So far as the objection on delay is concerned, it has been submitted that the DTC had initially filed Writ Petition(Civil) 1844/2004 impugning the order dated 27th January, 1998 whereby the inquiry conducted by the DTC was vitiated and the order dated 28th October, 2002 whereby DTC’s application under Section 33(2)(b) of the Industrial Disputes Act, 1947 was dismissed. It has been submitted that the DTC was directed by the court to file separate petitions impugning the two orders separately. In these circumstances it is submitted that the present writ petition has been filed impugning only the order dated 28th October, 2002.
7. Further delay is explained on the ground that DTC had applied for certified copy of the order dated 28th October, 2002 which was made available to the DTC only on 6th January, 2003. The matter was delayed at the hands of counsel who handed over an incomplete file to the DTC. Despite the matter being entrusted to another counsel for filing of the writ petition, the writ petition could not be filed for want of record. The same had to be reconstructed. However even though the petition was ready for filing in the month of October, 2003, the learned counsel who had prepared the writ petition shifted residence and in this process, the file of the case was misplaced. It has been stated that the entire file had to be reconstructed and the petition redrafted and filed.
8. In these circumstances, I am satisfied by the explanation rendered by the writ petitioner explaining the delay in filing the writ petition. It is noteworthy that the statute does not prescribe a period of limitation for filing a writ petition. However it is well settled that such remedy must be invoked only within reasonable time. The certified copy of the order having been made available on 6th January, 2003, it cannot be possibly contended that the filing of this writ petition on or around 11th March, 2004 was unreasonably delayed by the petitioner disentitling the petitioner to maintain the same before this court on the ground of unexplained delay and laches.
9. So far as the merits of the case is concerned, the Apex Court has authoritatively pronounced the law in DTC v. Sardar Singh(supra) in the following terms :-
10. When an employee absents himself from duty, even without sanctioned leave for very long period, it prima facie shows lack of interest in work. Para 19(h) of the Standing Order as quoted above relates to habitual negligence of duties and lack of interest in the Authority’s work. When an employee absents himself from duty without sanctioned leave the Authority can, on the basis of the records, come to a conclusion about the employee being habitually negligent in duties and an exhibited lack of interest in the employer’s work. Ample material was produced before the Tribunal in each case to show as to how the concerned employees were remaining absent for long periods which affect the work of the employer and the concerned employee was required at least to bring some material on record to show as to how his absence was on the basis of sanctioned leave and as to how there was no negligence. Habitual absence is a factor which establishes lack of interest in work. There cannot be any sweeping generalisation. But at the same time some telltale features can be noticed and pressed into service to arrive at conclusions in the departmental proceedings.
11. Great emphasis was laid by learned counsel for the respondent-employee on the absence being treated as leave without pay. As was observed by this Court in State of Madhya Pradesh v. Harihar Gopal [1969 (3) SLR 274] by a three-judge Bench of this court, even when an order is passed for treating absence as leave without pay after passing an order of termination that is for the purpose of maintaining correct record of service. The charge in that case was, as in the present case, absence without obtaining leave in advance. The conduct of the employees in this case is nothing but irresponsible in extreme and can hardly be justified. The charge in this case was misconduct by absence. In view of the Governing Standing Orders unauthorised leave can be treated as misconduct.
12. Conclusions regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly, when same is unauthorised. Burden is on the employee who claims that there was no negligence and/or lack of interest to establish it by placing relevant materials. Clause (ii) of Para 4 of the Standing Order shows the seriousness attached to habitual absence. In clause (i) thereof, there is requirement of prior permission. Only exception made is in case of sudden illness. There also conditions are stipulated, non-observance of which renders the absence unauthorised.
10. In the instant case, the findings arrived at by the Industrial Tribunal were erroneous as it was held that the DTC had treated the petitioner’s unauthorised absence as leave without pay which amounted to its regularisation. Consequently, the tribunal had rejected the application seeking approval of disciplinary action taken against the workman by the petitioner against the workman. The Apex Court however has held that the action of the management in treating unauthorised absence as leave without pay does not amount to its regularisation and that the same would continue to be covered within the sweep of ‘misconduct’ . In given circumstances, as noticed by the court, the same would entitle the employer to take disciplinary action and impose penalty upon the workman.
11. It has been submitted on behalf of the respondent that the workman had submitted leave applications and that the same are available on the record of the DTC.
12. The Apex Court has held that the burden of proof of the fact that there was no negligence or lack of interest on the part of the workman is upon the workman who so states. The question as to whether a leave application was submitted or not, whether the same was bonafide, whether the same was sanctioned or rejected, whether the workman remained absent without sanction of leave, whether the workman was ailing, the date of submission of the application, the date of its sanction/rejection, the period for which the application was actually submitted and period for absence for which no application is made etc. are all questions of fact which are required to be proved by oral/documentary evidence which has to be adduced before the industrial adjudicator in accordance with law. The effect of rejection, its communication or non-communication; the effect of failure to pass orders on the application(s) of the workman are to be raised and pressed before the industrial adjudicator. The person claiming would be entitled to call for production of records from the authorities to prove its case and would have to stand the test of cross examination. Similarly the management would have an opportunity to prove its case and to establish that the circumstances of the case fell within the parameters of misconduct or negligence laid down in DTC v. Sardar Singh (supra) and the other statutory provisions governing the same.
13. For the reasons noticed hereinabove, the order dated 28th October, 2002 passed by the Industrial Tribunal is not sustainable in law. Accordingly the same is hereby set aside and quashed and the matter is remanded for fresh adjudication to the Industrial Tribunal No. III. The Industrial Adjudicator shall give an opportunity to both parties in accordance with law to prove their respective contentions and thereafter pass an award in accordance with the settled principles of law. This writ petition is accordingly allowed.
14. The litigation expenses which were paid to the workman in terms of the order dated 13th August, 2004 shall be unconditionally released in favor of the legal heirs of Shri Balwan Singh, respondent herein, in case the same has not been done already.