Madan B. Lokur, J.

( 1 ) THE Petitioner is aggrieved by an order dated 26th February, 2003 passed by Industrial Tribunal-II in O. P. 389/93, which was an approval application filed by the Petitioner under the provisions of Section 33 (2) (b) of the Industrial Disputes Act, 1947 (for short the Act ).

( 2 ) THE Respondent workman was a driver with the Petitioner. The allegation against him was that from 1st April, 1991 to 31st December, 1991, he was absent for 183 days. One Asha Rani submitted a report on 23rd March, 1992 in this regard.

( 3 ) ON the basis of Asha Rani s report, a charge sheet dated 14th July, 1992 was issued to the Respondent workman. It was alleged that he had misconducted himself within the -meaning of paragraph 19 (f), (h) and (m) of the Standing Orders governing the conduct of the employees of the petitioner. These provisions read as follows:-

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) to (e) xxx xxx xxx (f) Habitual breach of any rules, law, instructions or orders etc. applicable to the employees of the Authority. (g)xxxxxxxxx (h) Habitual negligence of duties and lack of interest in the Authority s work. (i) to (1) xxx xxx xxx (m) Any other activity not specifically covered above, but which is prima facie detrimental, to the interests of the organisation.

( 4 ) SINCE the Respondent workman did not file any response to the charge sheet, he was proceeded against eat parte and it was held by the Enquiry officer on 9th December, 1992 that the Respondent workman had remained absent for a period of 183 days between 1st April, 1991 and 31st December, 1991. It was held that this shows that the Respondent workman was not taking any interest in his work.

( 5 ) THE disciplinary authority thereafter issued a notice dated 18th December, 1992 to the Respondent workman to show cause why he should not be removed from service. Even though the show cause notice was sent to his residential address, it came back undelivered. A daftari was thereafter deputed to serve the show cause notice on the Respondent workman and on 13th May, 1993 it was received by his sister-in-law at his residential address. The Respondent workman did not reply to the show cause notice and, therefore, an order was passed by the disciplinary authority removing him from service. This was duly communicated to the Respondent workman by a letter dated 28th May, 1993.

( 6 ) THEREAFTER, the Petitioner filed an application under Section 33 (2xb) of the Act seeking approval of the action taken against the Respondent workman.

( 7 ) THE learned Tribunal framed a preliminary issue on 2nd September, 1996 to the effect whether a legal and valid enquiry had been held against the Respondent workman. By an order dated 7th August, 2002 this issue was decided against the Petitioner. On the same date, the following issues were framed by the learned Tribunal in respect of the main controversy in the case:-

1. Whether the Respondent committed misconduct as alleged against him?

2. Whether-the Petitioner remitted full one month wage to the respondent at the time of his removal from service?

3. Relief.

( 8 ) THE second issue was decided in favour of the Petitioner and there is no controversy in this regard.

( 9 ) IN so far as the first issue is concerned, the only reason given by the learned Tribunal for deciding against the Petitioner is that the period of absence of the Respondent workman had been treated as leave without/ pay. This, according to the learned Tribunal shows that the absence of the respondent workman does not amount to misconduct. Consequently, the approval application filed by the Petitioner was rejected.

( 10 ) OVER the last few years, there has been some controversy, particularly in this Court, whether an order passed in respect of a workman granting him leave without pay amounts to condoning his absence and thereby leading to a

Click Here to Read the rest of this document