IMPORTANT POINT
When an employee absents himself from duty even without sanctioned leave for very long, it prima facie shows lack of interest in work and in departmental proceedings to trial it as misconduct was not unjustified view.

Headnote:Industrial Disputes Act, 1947-Section 33(2)(b)-Delhi Road Transport Authority (Conditions of Appointment and Services) Regulations, 1952-Order of dismissal/removal from service on charge of misconduct due to unauthorised long absence from duty, negligence of duties and lack of interest in employer s work-Approval sought from Tribunal was refused on a view that availing leave without pay did not amount to misconduct-Single Judge in appeal held that disapproval by Tribunal was not in order-Division Bench in LPA held Tribunal s conclusion to be in order-Appeal-Absence of employee-workman in each case was without sanctioned leave-Mere making of an application after or even before absence from work was of no avail as requirement was obtaining leave in advance-Absence without sanctioned leave prima facie showed lack of interest in work-Order passed for treating absence as leave without pay after passing an order of termination would be for maintaining correct record of service-Conduct of employee was nothing but irresponsible in extreme and could hardly be justified-Tribunal was not justified in refusing to accord approval.
Held : 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 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 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 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-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 unauthorized leave can be treated as misconduct. (Paras 8 and 9)

JUDGMENT

Arijit Pasayat, J.-As the controversies in these appeals are based on identical premises, they are taken up together for disposal by this common judgment.

2. Background facts leading to these appeals are as follows:

The respondent in each case was working as a conductor in the 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 applicable service regulations i.e. Delhi Road Transport Authority (Conditions 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 Para 4(ii) and 19(h) of the Standing Orders issued under Para 15(1) of the Regulations. After finding the concerned employees guilty and being of 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 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 as leave without pay, it indicated sanction of leave 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 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.

3. The employer approached the Delhi High Court and learned Single Judge of the Court held that the disapproval by the Tribunal was not in 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.

4. 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 19(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 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.

5. 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.

6. We have examined the factual position in each case. In C.A.No. 9600/2003 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

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2004 Supreme(SC) 865

IMPORTANT POINTWhen an employee absents himself from duty even without sanctioned leave for very long, it prima facie shows lack of interest in work and in departmental proceedings to trial it as misconduct was not unjustified view.

IMPORTANT POINT
When an employee absents himself from duty even without sanctioned leave for very long, it prima facie shows lack of interest in work and in departmental proceedings to trial it as misconduct was not unjustified view.