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IN THE HIGH COURT OF DELHI AT NEW DELHI
INDIRA BANERJEE and V. KAMESWAR RAO, JJ.
DELHI TRANSPORT CORPORATION - Appellant
Versus
RAJENDER KUMAR – Respondent
LPA 250 of 2016, CM Nos.14003-14005, 14047 of 2016
Decided On : 30-09-2016
Delay Condonation - Industrial Dispute - Standing Orders - Para 4, 19 - The judgment discusses the application seeking condonation of delay in filing the appeal and re-filing the appeal. The main legal provisions discussed are Para 4 and 19 of the Standing Orders governing the conduct of DTC employees. The court's decision is influenced by the interpretation of habitual absence without permission and lack of interest in the Authority's work under the Standing Orders.
Fact of the Case:
The case involves an appeal filed by the Delhi Transport Corporation challenging the dismissal of a writ petition filed against the Labour Court's award. The respondent-workman was removed from service due to unauthorized absence and the subsequent industrial dispute led to the Labour Court's award in favor of the respondent.
Finding of the Court:
The court found that the respondent's unauthorized absence without prior permission constituted misconduct under the Standing Orders. The court also noted the respondent's past record of availing excessive leave, which reflected habitual negligence of duties and lack of interest in the employer's work.
Issues: The main issue was whether the Labour Court could interfere with the penalty of removal imposed on the respondent and whether the respondent's unauthorized absence constituted misconduct under the Standing Orders.
Ratio Decidendi: The court relied on the interpretation of Para 4 and 19 of the Standing Orders, which showed the seriousness attached to habitual absence without permission and lack of interest in the employer's work. The court also emphasized the burden on the employee to establish the absence was not negligent or lacked interest.
Final Decision: The court allowed the appeal, setting aside the order of the learned Single Judge and the Labour Court's award in favor of the respondent. The court held that the respondent's unauthorized absence constituted misconduct under the Standing Orders, justifying the penalty of removal.
V. KAMESWAR RAO, J.
CM No.14004/2016
Exemption allowed subject to all just exceptions.
Application stands disposed of.
CM No.14005/2016
This is an application seeking condonation of 32 days delay in filing the appeal. For the reasons, stated in the application, the delay of 32 days in filing the appeal is condoned.
Application stands disposed of.
CM No.14047/2016
This is an application seeking condonation of delay in re-filing the appeal. For the reasons, stated in the application, the delay in re-filing the appeal is condoned.
Application stands disposed of.
LPA 250/2016
1. The Appeal has been filed by the Delhi Transport Corporation impugning order/judgment dated December 03, 2015, whereby the writ petition filed by the appellant, challenging the Award dated December 9, 2009 in ID 251/08/92 passed by the Labour Court, Karkardooma Courts, Delhi was dismissed.
2. Some of the facts, which are relevant to decide this appeal are, the respondent-Workman was appointed as a sweeper/cleaner with the appellant-Corporation on April 13, 1983. A charge sheet dated November 29, 1988 was issued to the respondent for availing leave without pay for 118 days between the period November 1987 to October 1988. The charge sheet stated that the aforesaid act of the respondent amounted to misconduct within the meaning of para 4(ii) and 19(h) of the Standing Orders governing the conduct of DTC employees. The charge sheet also stated that the respondent’s past record would also be taken into account at the time of passing of the order. The past record of the respondent showed that he was punished with stoppage of one increment with cumulative effect on three occasions for availing excessive leave. The respondent-workman replied the charges and explained that due to his own sickness and that of his wife, son during November 1987 to October 1988, he submitted leave applications. Enquiry was held. The findings of the enquiry officer were in favour of the respondent-workman but the appellant rejected the findings of the enquiry officer. A de-novo enquiry was conducted on January 17, 1989 into the allegations leveled against the respondent. In the charge sheet, as referred above, in which the respondent fully participated wherein he has admitted that he has taken leave without pay because of his illness and the illness of his children. The Enquiry Officer, in his findings found the charges leveled against the respondent as proved. The Disciplinary Authority issued notice dated January 30, 1989 to show cause as to why he should not be removed from the services of the appellant-Corporation. The Disciplinary Authority considered the reply submitted by the respondent and removed him from the services of the Corporation on July 06, 1990.
3. The respondent raised an industrial dispute. The Labour Court passed an Award dated May 25, 1999 in favour of the respondent. The appellant challenged the said Award by way of a W.P.(C) No.4030/2001. Vide order dated November 10, 2004, this Court had allowed the said writ petition and set aside the Award and remanded the matter back to the Labour Court to proceed in accordance with law. Pursuant to the directions of this Court, the parties led their evidence and vide the impugned Award dated December 09, 2009, the appellant was directed to reinstate the workman with continuity of service in the same post by paying the workman a lump sum amount of Rs. 50,000/- towards back wages.
4. The contention of the learned counsel for the appellant before the learned Single Judge was that respondent-workman remained absent from his duties without intimation/prior approval for 118 days during the period November 1987 to October 1988, which reflected his complete indifference and carelessness towards his duties and his action amounted to misconduct and the respondent admitted that for a period of 37 days, he did not submit any application for grant of leave. He also relied upon the past conduct of the respondent, which was not found to be un
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