DELHI TRANSPORT CORPORATIONversusSARDAR SINGH

A                   DELHI TRANSPORT CORPORATION
                                 v.
                            SARDAR SINGH

                               AUGUST 12, 2004
B
                (S.N. VARIAVA AND ARIJIT PASAYAT, JJ.]

         Labour Laws :

C        Delhi Road Transport Authhority (Conditions of Appointment and
    Service) Regulations, 1952: Regulation 15(1).

         Paragraphs 4(i), (ii) and J<;(h)-Absence without leave-Habitual
    long absence without sanctioned /eave-Effect of-Held: Such long ab-
    sence amounted to negligence and/or lack of interest in employer's work-
D   However, burden is on the employee to prove otherwise by placing relevant
    materials.

          Leave-Absence without leave-Employer treated unauthorized ab-
    sence of employee as leave without pay-Effect of-Held: Such treatment
E   is not the same as sanctioned or approved leave and does not render such
    absence as authorized-This is done only for the purpose of maintaining
    correct record of Jervice.

         industrial Disputes Act, 194 7:

F       Section 33(2)(b)-Dismissal/removal from service-Approval of Tri-
  bunal-Certain employees were dismissed/removed from serVice due to
  long unauthorized absence from duty which amounted to a misconduct
  under the relevant Standing Orders of the employer-Ample material was
  placed by the employer before the Tribunal to establish its case-
G Employees failed to establish otherwise-But Tribunal refused to grant
  approval on the ground that the said unauthorized absence was treated as
  leave without pay-Correctness of-Held: The Tribunal was not justified
  in refusing to grant approval-Such absence was unauthorized-Treating
  unauthorized absence as leave without pay was for the purpose of
H maintaining correct record of service.
                                       494
                     D.T.C. v. SARDAR SINGH                      495

     The respondent was working as a conductor with the appellant- A
Corporation. Departmental proceedings were initiated against the
respondent on the ground of misconduct due to unauthorized long
absence from duty; negligence of duties and lack of interest in the
employer's work in terms of Paragraphs 4(i) & (ii) and 19(h) of the
Delhi Road Transport Authority (Conditions of Appointment and B
Service) Regulations, 1952. After finding the respondent guilty, the
Disciplinary Authority imposed the punishment of dismissaVremoval
from service on the respondent. Since an industrial dispute was already
pending, approval for the order of dismissaVremoval from service was
sought for in terms of Section 33(2)(b) of the Industrial Disputes Act, C
1947. The Tribunal found that the appellant-Corporation had treated
the absence from duty as leave without.pay. The Tribunal, therefore,
held that availing leave without pay-did not amount to misconduct and
refused to grant the said approval. The High Court upheld the decision
of the Tribunal. Hence the appeal.
                                                                       D
     On behalf of the appellant, it was contended that the Standing
Order framed under Regulation 15(1) of the Regulations clearly
stipulated that leave was to be obtained in advance; that treating
absence from duty as leave without pay was nothing but maintaining
correct record of service; and that it did not amount to sanction of E
leave.

     Allowing the appeal, the Court

     HELD: I.I. Where an employee absents himself from duty, even
without sanctioned leave for a very long period, it prima facie shows F
lack of interest in work. Paragraph 19(h) of the Standing Order issued
under Regulation 15(1) of the Delhi Road Transport Authority (Con-
ditions of Appointment and Service) Regulations, 1952 relates to
habitual negligence of duties and lack of interest in the appella:tt-
Corporation 's work. When an employee absents himself from duty
without sanctioned leave the Corporation can, on the basis of the G
record, come to a conclusion about the employee being habitually
negligent in duties and exhibited lack of interest in the employer's
work. [500-D-E)

     1.2. Ample material was produced before the Tribunal to show as H
    496                SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.
A to how the respondent was remaining absent for long periods which
  affected the work of the employer and the respondent 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.
B There cannot be any sweeping generalization. But at the same time
  some telltale features can be noticed and pressed into service to arrive
  at conclusions in the departmental proceedings. [500-E-G)

      2.1. Even "hen an order is passed for treating absence as leave
  without pay after passing an order of termination that is for the
C purpose of maintaining correct record of service. [501-A]
          State of MP. v. Harihar Gopal, (1969) 3 SLR 274, relied on.

         2.2. The conduct of the respondent in this case is nothing but
D   irresponsible in extreme and can hardly be justified. The charge in this
    case was misconduct by absence. In view of the Governing Standing
    Orders unauthorized leave can be treated as misconduct. (501-A-B]

         2.3. Conclusions regarding negligence and lack of interest can be
    arrived at by looking into the period of absence, more particularly,
E   when the same is unauthorized. Burden is on the employee who claims
    that there was no negligence and/or lack of interest to establish it by
    placing relevant materials. (501-B-C]

          3.1. The Tribunal proceeded in this case on the basis as if the leave
F was sanctioned because of the noted leave without pay. Treating as leave
    without pay is not the same as sanctioned or approved leave. [501-D-E]

       3.2. That being the factual position, the Tribunal was not justified
  in refusing to accord approval to the order of dismissal/removal as
  passed by the employer. The tmployer was justified in passing the
G order of termination/removal. [501-E]
          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9600 of
    2003.

          From the Judgment and Order dated 25.9.2002 of the Delhi High
H Court in LP.A. No. 361 of 2002.
              D.T.C. v. SARDAR SINGH [PASAYAT, J.]                  497

     T.L.V. Iyer and Ms. A. Subhashini for the Apepllants.                A
    Shakeel Ahmed Syed and Md. Taiyab Khan for the Appellant in C.A.
No. 137/2004.

     K.C. Dubey, Ranjan Kumar, S. Pani, Nitin Bhardwaj, Prakash
Shrivastava, Dr. Kailash Chand, Anil Mittal, H.K. Chaturvedi, Rishi Kesh, B
Ms. Rekha Palli and Shakeel Ahmed for the Respondents.

     The Judgment of the Court was delivered by

     ARIJIT PASA YAT, J. : As the controversies in these appeals are C
based on identical premises, they are taken up together for disposal by this
common judgment.

     Background facts leading to these appeals are as follows:

      The respondent in each case was working as a conductor in the D
appellant - Delhi Transport Corporation (hereinafter referred to as the
'employer'). Departmental proceedings were initiated against each one of
them on the ground of misconduct due to unauthorized long absence from
duty; negligence of duties and lack of interest in the employer's work. The
terms and conditions of appointment and service were governed by the E
applic2ble service regulations i.e. Delhi Road Transport Authority (Con-
ditions of Appointment and Service) Regulations, 1952 (in short the
'Regulations'). According to the employer the unauthorized absence was
indicative of negligence, and lack of interest in employer's work amounted
to misconduct. Reference was made to Paras 4(ii) and 19(h) of the Standing F
Orders issued under Para 15(1) of the Regulations. After finding the
concerned employees guilty and being or" the view that removal from
service was the proper punishment, the Disciplinary Authority imposed
punishment of dismissal/removal from service. Since an industrial dispute
was already pending approval was sought for in terms of Section 33(2)(b)
of the Industrial Disputes Act, 1947 (in short 'the Act'). According to G
Tribunal, proper enquiry was not held. It, however, granted opportunity to
the employer to lead further evidence to justify its action. Employer led
further evidence. On consideration of materials brought on record,
Tribunal came to hold that availing leave without pay did not amount to
misconduct. It noted that since employer had treated absence from duty H
    498                 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A as leave without pay, it indicated sanction ofleave and, therefore, also there
  was no misconduct. According to the employer long absence without
  sanctioned leave clearly disclosed lack of interest in service and the
  concerned employee was guilty of misconduct. The approval sought for
  was refused by the Tribunal. The Tribunal did not accord approval
B primarily on the ground that in most cases the leave was treated as leave
  without pay and that being the position it cannot be said that the absence
  was unauthorized.

       The employer approached the Delhi High Court and learned Single
  judge of the Court held that the disapproval by the Tribunal was not in
C order. The concerned employees preferred Letters Patent Appeals before
  the Delhi High Court. A Division Bench of the Court by the impugned
  judgment disposed of several L.P.As. being of the view that the Tribunal's
  conclusions were in order and the learned Single Judge was not correct in
  his conclusions.
D         In support of the Appeals learned counsel for the appellant-employer
    Corporation submitted that the Division Bench of the High Court has
    missed to notice the true effect of paras 4(ii) and l 9(h) of the Standing
    Orders. Erroneously it was concluded that leave without pay meant grant
    of leave. It is nothing but keeping the record straight and for the purpose
E   of maintaining correct record of service. It did not amount to sanction of
    leave. The Standing Order clearly stipulates that the leave was to be
    obtained in advance. Above being the position, the Division Bench was
    not justified in interfering with the orders of the learned Single Judge.

F         In response, learned counsel for the concerned employees submitted
    that where the record shows that the absence was treated as leave without
    pay, it meant that leave was granted and mere long absence does not per
    se show lack of interest in work, something more was necessary for the
    purpose and the Tribunal therefore was justified in its view.

G         We have examined the factual position in each case. In C.A. No.
     960012003 the absence was 171 days between 1.11.1987 to 31.10.1988.
     In C.A. No. 9601 /2003 the absence was 92 days between January 1991 to
     October 1991. In C.A. No. 9608/2003 there was 105 days absence between
     1.1.1991to30.11.1991. In C.A. No. 9607/2003 the absence was 294 days
H    between 13.3.1991 and 1.1.1992. Jn C.A. No. 9611/2003 the absence was
                 D.T.C. v. SARDAR SINGH [PASAYAT, J.]                     499

95 days between January, 1987 to August, 1987. Jn C.A. No. 9602/2003 A
the absenc.e was 137 days between 1.1.1993 to 30.11.1993. In C.A. 9605/
2003 the absence was 188 days between 1.Ll992 to 15.7.1992. Addition-
ally a similar absence was there in 1990,1991 and 1998 for 81 days, 129
days and 45 days respectively. In C.A. No. 9613/2003 the absence was
166 days between January, 1991 to December, 1991. In C.A. No. 137/ B
2004 the absence was 272 days between 1983 upto August, 1985.

     In all these cases almost the whole period of absence was without
sanctioned leave. Mere making of an application after or even before
absence from work does not in any way assist the concerned employee.
The requirement is obtaining leave in advance. In all these cases the C
absence was without obtaining leave in advance. The relevant paras of the
Standing Order read as follows:

        "4. Absence without permission:-

                (i)      An employee shall not absent himself from his duties D
                         without having first obtained the pennission from the
                         Authority or the competent officer except in the case
                         of sudden illness. Jn the case of sudden illness he shall
                         send intimation to the office immediately. If the illness
                         lasts or is expected to last for more than 3 days at a E
                         time, applications for leave should be duly accompa-
                         nied by a medical certificate, from a registered medical
                         practitioner or the Medical Officer of the D.T.S. In no
                         case shall an employee leave station without prior
                         permission.
                                                                                F
                (ii) Habitual absence without permission or sanction of
                     leave and any continuous absence without such leave
                     for more than I 0 days shall render the employee liabl~
                     to be treated as an absconder resulting in the tennina-
                     tion of his service with the Organisation.              G
        19. General Provisions:- Without prejudice to the provisions of
        the foregoing Standing Orders, the following acts of commission
        and omission shall be treated as misconduct:

        (a) ......................... .                                         H
    500                      SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A            (h) Habitual negligence of duties and lack of interest in the
             Authority's work."

          Clause 15 of the Regulations so far as relevant reads as follows:

             "2. Discipline:- The following penalties may, for misconduct or
B            for a good and sufficient reason be imposed upon an employee
             of the Delhi Road Transport Atuhority:-

              (i) .................. .

C            (vi) Removal from the service of the Delhi Road Transport
             Authority.

             (vii) Dismissal from the service of the Delhi Road Transport
             Authority.

D                                        "
          When an employee absents himself from duty, even without sanc-
    tioned 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
E   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 record, 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 befo•e the
F   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
G   generalization. But at the same' time some telltale features can be noticed
    and pressed into service to arrive at conclusions in the departmental
    proceedings.

        Great emphasis was laid by learned counsel for the respondent-
H   employee on the absence being treated as leave without pay. As was
              D.T.C. v. SARDAR SINGH [PASAYAT, J.)                   501

observed by this Court in State of Madhya Pradesh v. Harihar Gopal, A
(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 B
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 unauthorized leave can be treated as misconduct.

       Conclusions regarding negligence and lack of interest can be arrived
at by looking into the period of absence, more particularly, when same is C
unauthorized. 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 D
also conditions are stipulated, non-observance of which renders the
absence unauthorized.

     The Tribunal proceeded in all these cases on the basis as if the leave
was sanctioned because of the noted leave without pay. Treating as leave
without pay is not same as sanctioned or approved leave.                    E
      That being the factual position, the Tribunal was not justified in
refusing to accord approval to the order of dismissal/removal as passed by
the employer. The learned Single Judge was justified in holding that the
employer was justified in passing order of termination/removal. The F
Division Bench unfortunately did not keep these aspects in view and
reversed the view of learned Single Judge.

     We, therefore, allow these appeals and affirm the view taken by
learned Single Judge while reversing that of the Division Bench.
                                                                           G
     The appeals are allowed to the extent as indicated above.

C.A. 9604/2003

     In this appeal there was 190 days of unauthorised absence between
1.1.1989 to 31.12.1989. It is noticed that the Tribunal did not give any H
    502                SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A opportunity to the management to lead evidence being of the view that
  adequate opportunity had been granted earlier. We find that the factual
  aspects were not examined and it is a fit case where the Tribunal ought
  to have granted a further opportunity to the management (employer) to
  place material in support of its case. That having not been done, we think
B it would be appropriate to remit the matter back to the Tribunal to consider
  the matter afresh after granting due opportunity to the parties before it.

    Civil appeal is disposed of accordingly.

    C.A. NO. 9606/2003
c
          In this appeal the absence was 132 days between 1.1.1989 to
    31.12.1989. According to the appellant there was an admission regarding
    the alleged misconduct. The Tribunal does not appear to have considered
    the entire matter in its proper perspective, in particular, the effect of
D   admission as claimed. We, therefore, think it appropriate to remit the
    matter back tci the Tribunal with a direction to the Tribunal to permit the
    parties before it to place materials in support of their respective stands, we
    make it clear we have not expressed any opinion on merits.

          Civil Appeal is accordingly disposed of.
E
    C.A. NO. 9612/2003

          In this appeal the absence was 170 days in 1991. The Tribunal in this
    case held that the enquiry was proper. But following its earlier view that
F   unauthorized absence was not misconduct, it did not accord approval. If
    the Tribunal holds that the enquiry is proper then no further evidence was
    necessary to be produced. In view of what has been observed supra, the
    view of the Tribunal, that there was no misconduct, does not appear to be
    justified. The appeal is allowed, judgment of the Division Bench is set aside
    and that of the learned Single Judge is restored.
G
    V.S.S.                                                      Appeal allowed.