{"id":110776,"date":"2004-08-12T00:00:00","date_gmt":"2004-08-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/delhi-transport-corporation-vs-sardar-singh-on-12-august-2004"},"modified":"2016-08-13T15:54:38","modified_gmt":"2016-08-13T10:24:38","slug":"delhi-transport-corporation-vs-sardar-singh-on-12-august-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/delhi-transport-corporation-vs-sardar-singh-on-12-august-2004","title":{"rendered":"Delhi Transport Corporation vs Sardar Singh on 12 August, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Delhi Transport Corporation vs Sardar Singh on 12 August, 2004<\/div>\n
Author: A Pasayat<\/div>\n
Bench: S.N. Variava, Arijit Pasayat<\/div>\n
           CASE NO.:\nAppeal (civil)  9600 of 2003\n\nPETITIONER:\nDelhi Transport Corporation\n\nRESPONDENT:\nSardar Singh\n\nDATE OF JUDGMENT: 12\/08\/2004\n\nBENCH:\nS.N. VARIAVA & ARIJIT PASAYAT\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
\t\t\t\t\tWith<\/p>\n
C.A.Nos. 9601\/2003, 9608\/2003, 9607\/2003, 9611\/2003,
\n9602\/2003, 9605\/2003, 9613\/2003, 9604\/2003, 9606\/2003,
\n9612\/2003 and C.A. No. 137\/2004.\n<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
\tAs the controversies in these appeals are based on identical
\npremises, they are taken up together for disposal by this common
\njudgment.\n<\/p>\n
\tBackground facts leading to these appeals are as follows:\n<\/p>\n
The respondent in each case was working as a conductor in the
\nappellant – Delhi Transport Corporation (hereinafter referred to as the
\n’employer’).  Departmental proceedings were initiated against each one
\nof them on the ground of misconduct due to unauthorized long absence
\nfrom duty; negligence of duties and lack of interest in the employer’s
\nwork.  The terms and conditions of appointment and service were
\ngoverned by the applicable service regulations i.e.  Delhi Road
\nTransport Authority (Conditions of Appointment and Service)
\nRegulations, 1952 (in short the ‘Regulations’).  According to the
\nemployer the unauthorized absence was indicative of negligence, and
\nlack of interest in employer’s work amounted to misconduct. Reference
\nwas made to Para 4(ii) and 19(h) of the Standing Orders issued under
\nPara 15(1) of the Regulations. After finding the concerned employees
\nguilty and being of the view that removal from service was the proper
\npunishment, the Disciplinary Authority imposed punishment of
\ndismissal\/removal from service.  Since an industrial dispute was
\nalready pending approval was sought for in terms of Section 33(2)(b) of
\nthe Industrial Disputes Act, 1947 (in short ‘the Act’). According to
\nTribunal, proper enquiry was not held. It, however, granted opportunity
\nto the employer to lead further evidence to justify its action.
\nEmployer led further evidence.  On consideration of materials brought
\non record, Tribunal came to hold that availing leave without pay did
\nnot amount to misconduct.  It noted that since employer had treated
\nabsence from duty as leave without pay, it indicated sanction of leave
\nand, therefore, also there was no misconduct. According to the employer
\nlong absence without sanctioned leave clearly disclosed lack of
\ninterest in service and the concerned employee was guilty of
\nmisconduct.  The approval sought for was refused by the Tribunal. The
\nTribunal did not accord approval primarily on the ground that in most
\ncases the leave was treated as leave without pay and that being the
\nposition it cannot be said that the absence was unauthorized.\n<\/p>\n
The employer approached the Delhi High Court and learned Single
\njudge of the Court held that the disapproval by the Tribunal was not in
\norder.  The concerned employees preferred Letters Patent Appeals before
\nthe Delhi High Court. A Division Bench of the Court by the impugned
\njudgment disposed of several L.P.As.  being of the view that the
\nTribunal’s conclusions were in order and the learned Single Judge was
\nnot correct in his conclusions.\n<\/p>\n
\tIn support of the Appeals learned counsel for the appellant-
\nemployer Corporation submitted that the Division Bench of the High
\nCourt has missed to notice the true effect of paras 4(ii) and 19(h)  of
\nthe Standing Orders.  Erroneously it was concluded that leave without
\npay meant grant of leave. It is nothing but keeping the record straight
\nand for the purpose of maintaining correct record of service.  It did
\nnot amount to sanction of leave.  The Standing Order clearly stipulates
\nthat the leave was to be obtained in advance.  Above being the
\nposition, the Division Bench was not justified in interfering with the
\norders of the learned Single Judge.\n<\/p>\n
\tIn response, learned counsel for the concerned employees
\nsubmitted that where the record shows that the absence was treated as
\nleave without pay, it meant that leave was granted and mere long
\nabsence does not per se show lack of interest in work, something more
\nwas necessary for the purpose and the Tribunal therefore was justified
\nin its view.\n<\/p>\n
\tWe have examined the factual position in each case.  In C.A. No.
\n9600\/2003 the absence was 171 days between 1.11.1987 to 31.10.1988.  In
\nC.A. No. 9601\/2003 the absence was 92 days between January 1991 to
\nOctober 1991.  In C.A. No. 9608\/2003 there was 105 days absence between
\n1.1.1991 to 30.11.1991.  In C.A. No. 9607\/2003 the absence was 294 days
\nbetween 13.3.1991 and 1.1.1992.  In C.A. No. 9611\/2003 the absence was
\n95 days between January, 1987 to August, 1987.   In  C.A. No. 9602\/2003
\nthe absence was 137 days between 1.1.1993 to 30.11.1993.  In C.A.
\n9605\/2003 the absence was 188 days between 1.1.1992 to 15.7.1992.
\nAdditionally a similar absence was there in 1990,1991 and 1998 for 81
\ndays, 129 days and 45 days respectively.  In C.A. No. 9613\/2003 the
\nabsence was 166 days between January 1991 to December, 1991.  In C.A.
\nNo. 137\/2004 the absence was 272 days between 1983 upto August, 1985.\n<\/p>\n
\tIn all these cases almost the whole period of absence was without
\nsanctioned leave.  Mere making of an application after or even before
\nabsence from work does not in any way assist the concerned employee.
\nThe requirement is obtaining leave in advance.  In all these cases the
\nabsence was without obtaining leave in advance. The relevant paras of
\nthe Standing Order read as follows:\n<\/p>\n
“4. Absence without permission:-\n<\/p>\n
(i)\tAn employee shall not absent himself from his
\nduties without having first obtained the
\npermission from the Authority or the competent
\nofficer except in the case of sudden illness.\n<\/p>\n
In the case of sudden illness he shall send
\nintimation to the office immediately. If the
\nillness lasts or is expected to last for more
\nthan 3 days at a time, applications for leave
\nshould be duly accompanied by a medical
\ncertificate, from a registered medical
\npractitioner or the Medical Officer of the
\nD.T.S.  In no case shall an employee leave
\nstation without prior permission.\n<\/p>\n
(ii)\tHabitual absence without permission or sanction
\nof leave and any continuous absence without
\nsuch leave for more than 10 days shall render
\nthe employee liable to be treated as an
\nabsconder resulting in the termination of his
\nservice with the Organisation.\n<\/p>\n
19. General Provisions:- Without prejudice to the
\nprovisions of the foregoing Standing Orders, the
\nfollowing acts of commission and omission shall be
\ntreated as mis-conduct:\n<\/p>\n
(a)……………………..\n<\/p>\n
(h)\tHabitual negligence of duties and lack of
\ninterest in the Authority’s work.”\n<\/p>\n
\tClause 15 of the Regulations so far as relevant reads as follows:\n<\/p>\n
“2. Discipline:- The following penalties may, for
\nmisconduct or for a good and sufficient reason be
\nimposed upon an employee of the Delhi Road Transport
\nAtuhority:-\n<\/p>\n
 (i)……………….\n<\/p>\n
(vi) Removal from the service of the Delhi Road
\nTransport Authority.\n<\/p>\n
(vii) Dismissal from the service of the Delhi Road
\nTransport Authority.\n<\/p>\n
…………………….”\n<\/p>\n
 \tWhen an employee absents himself from duty, even without
\nsanctioned leave for very long period, it prima facie shows lack of
\ninterest in work.  Para 19(h) of the Standing Order as quoted above
\nrelates to habitual negligence of duties and lack of interest in the
\nAuthority’s work.  When an employee absents himself from duty without
\nsanctioned leave the Authority can, on the basis of the record, come to
\na conclusion about the employee being habitually negligent in duties
\nand an exhibited lack of interest in the employer’s work.  Ample
\nmaterial was produced before the Tribunal in each case to show as to
\nhow the concerned employees were remaining absent for long periods
\nwhich affect the work of the employer and the concerned employee was
\nrequired at least to bring some material on record to show as to how
\nhis absence was on the basis of sanctioned leave and as to how there
\nwas no negligence.  Habitual absence is a factor which establishes lack
\nof interest in work.  There cannot be any sweeping generalization.  But
\nat the same time some telltale features can be noticed and pressed into
\nservice to arrive at conclusions in the departmental proceedings.\n<\/p>\n
Great emphasis was laid by learned counsel for the respondent-
\nemployee on the absence being treated as leave without pay.  As was
\nobserved by this Court in State of Madhya Pradesh v. Harihar Gopal<\/a>
\n(1969(3) SLR 274] by a three-judge Bench of this Court, even when an
\norder is passed for treating absence as leave without pay after passing
\nan order of termination that is for the purpose of maintaining correct
\nrecord of service.  The charge in that case was, as in the present
\ncase, absence without obtaining leave in advance.  The conduct of the
\nemployees in this case is nothing but irresponsible in extreme and can
\nhardly be justified. The charge in this case was misconduct by absence.
\nIn view of the Governing Standing Orders unauthorized leave can be
\ntreated as misconduct.\n<\/p>\n
\tConclusions regarding negligence and lack of interest can be
\narrived at by looking into the period of absence, more particularly,
\nwhen same is unauthorized.  Burden is on the employee who claims that
\nthere was no negligence and\/or lack of interest to establish it by
\nplacing relevant materials. Clause (ii) of Para 4 of the Standing Order
\nshows the seriousness attached to habitual absence.  In clause (i)
\nthereof, there is requirement of prior permission.  Only exception made
\nis in case of sudden illness.  There also conditions are stipulated,
\nnon-observance of which renders the absence unauthorized.\n<\/p>\n
The Tribunal proceeded in all these cases on the basis as if the
\nleave was sanctioned because of the noted leave without pay.  Treating
\nas leave without pay is not same as sanctioned or approved leave.\n<\/p>\n
That being the factual position, the Tribunal was not justified
\nin refusing to accord approval to the order of dismissal\/removal as
\npassed by the employer.  The learned Single Judge was justified in
\nholding that the employer was justified in passing order of
\ntermination\/removal.  The Division Bench unfortunately did not keep
\nthese aspects in view and reversed the view of learned Single Judge.\n<\/p>\n
We, therefore, allow these appeals and affirm the view taken by
\nlearned Single Judge while reversing that of the Division Bench.\n<\/p>\n
\tThe appeals are allowed to the extent as indicated above.\n<\/p>\n
C.A. 9604\/2003<\/p>\n
In this appeal there was 190 days of unauthorised absence between
\n1.1.1989 to 31.12.1989. It is noticed that the Tribunal did not give
\nany opportunity to the management to lead evidence being of the view
\nthat adequate opportunity had been granted earlier. We find that the
\nfactual aspects were not examined and it is a fit case where the
\nTribunal ought to have granted a further opportunity to the management
\n(employer) to place material in support of its case. That having not
\nbeen done, we think it would be appropriate to remit the matter back to
\nthe Tribunal to consider the matter afresh after granting due
\nopportunity to the parties before it.\n<\/p>\n
\tCivil appeal is disposed of accordingly.\n<\/p>\n
C.A. NO.  9606\/2003<\/p>\n
In this appeal the absence was 132 days between 1.1.1989 to
\n31.12.1989. According to the appellant there was an admission regarding
\nthe alleged misconduct.  The Tribunal does not appear to have
\nconsidered the entire matter in its proper perspective, in particular,
\nthe effect of admission as claimed.  We, therefore think it appropriate
\nto remit the matter back to the Tribunal with a direction to the
\nTribunal to permit the parties before it to place materials in support
\nof their respective stands, we make it clear we have not expressed any
\nopinion on merits.\n<\/p>\n
Civil Appeal is accordingly disposed of.\n<\/p>\n
C.A. NO. 9612\/2003<\/p>\n
In this appeal the absence was 170 days in 1991. The Tribunal in
\nthis case held that the enquiry was proper.  But following its earlier
\nview that unauthorized absence was not misconduct, it did not accord
\napproval.  If the Tribunal holds that the enquiry is proper then no
\nfurther evidence was necessary to be produced. In view of what has been
\nobserved supra, the view of the Tribunal, that there was no misconduct,
\ndoes not appear to be justified. The appeal is allowed, judgment of the
\nDivision Bench is set aside and that of the learned Single Judge is
\nrestored.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Delhi Transport Corporation vs Sardar Singh on 12 August, 2004 Author: A Pasayat Bench: S.N. Variava, Arijit Pasayat CASE NO.: Appeal (civil) 9600 of 2003 PETITIONER: Delhi Transport Corporation RESPONDENT: Sardar Singh DATE OF JUDGMENT: 12\/08\/2004 BENCH: S.N. VARIAVA & ARIJIT PASAYAT JUDGMENT: J U D G M E N T […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-110776","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDelhi Transport Corporation vs Sardar Singh on 12 August, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/delhi-transport-corporation-vs-sardar-singh-on-12-august-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Delhi Transport Corporation vs Sardar Singh on 12 August, 2004 - 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