Unauthorized absence without sanctioned leave constitutes misconduct, and the reliance on a judgment later set aside by a higher court is erroneous.

MANJU GOEL, J.

( 1 ) THE respondent was an employee of the petitioner Corporation as a Driver. He was charge-sheeted on July 7, 1988 for having been absent for 112 days without sanctioned leave. He was charged with misconduct within the meaning of para 95 (1) of D. M. C. Act read with paras 19 (h) and (m) of the Standing Orders governing the conduct of DTC employees. Thereafter an inquiry was ordered. The respondent admitted before the Inquiry Officer that he had availed of 112 days' leave without pay and asked for forgiveness. The Inquiry officer returned a finding on September 7, 1988 that the charges have been proved. The respondent was eventually removed from the service of the petitioner Corporation under clause 15 (2) (vi) of the D. R. T. A. (Condition of Appointment and Service) Regulation, 1952. The respondent raised an industrial dispute about the illegality and unjustifiability of the termination of his employment. The Tribunal passed an Award on August 4, 2004. It appears from the Labour Court's Award that no objection to the validity of the inquiry into the alleged misconduct was raised. The only contention of the workman before the Labour court was that the workman had availed of 112 days' leave without pay and that this did not constitute any misconduct. The Labour Court relying upon the judgment of this Court in the case of Sardar Singh v. DTC, in LPA No. 361/2002 held that there was no misconduct. The Labour Court, accordingly, directed the petitioner to reinstate the workman/respondent herein and to pay him back wages and other dues from the date of his termination from service. It is submitted by the management/ petitioner before this Court that the judgment relied upon by the Labour Court has since been set aside by the Supreme Court in the case of delhi Transport Corporation v. Sardar Singh, (2004) 7 SCC 574 : 2004-III-LLJ-543. Since the judgment relied upon by the Labour Court has been upset by the Supreme Court, the award has naturally to be set aside as the same was not based on correct principles of law.

( 2 ) WHAT is submitted now by the respondent is that the respondent had not remained absent unauthorisedly and that he had submitted his applications. This, however, is a plea which is altogether new. It was admitted before the Labour Court and also before the inquiry Officer that he had availed of 112 days of leave without pay. There was no plea that he had actually applied for leave. His absence was treated as leave without pay. In the case of sardar Singh v. DTC (supra) also the workman had remained absent and his absence had been treated as leave without pay. This did not mean that his absence was authorised or that there was no misconduct. In para-9 of the judgment this position has been considered. It specifically said, after referring to para 19 (h) of the standing Orders under which the petitioner was charged, that when an employee absents 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 exhibited lack of interest in the employer's work. Further, the Supreme Court has already ruled in the case of State of M. P. v. Harihar Gopal, (1969) 3 SLR 274 (SC) that even when an order is passed for treating absence as leave without pay for the purpose of maintaining correct record of service, the same would not mean that the misconduct is condoned. Admittedly, the respondent was absent without any sanctioned leave. If subsequently his absence is treated to be leave without pay, that would not amount to condoning the misconduct of having been absent without sanctioned leave and thereby showing lack of interest in the work of the employee. In the present case the respondent has been unauthorisedly absent for more than 100 days during the period June 1, 1987 to May 31, 1988. Except for about two days, for no other date any medical certificate was produced. The charge, it is pointed out by the le