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2026 Supreme(Online)(Del) 13703
IN THE HIGH COURT OF DELHI AT NEW DELHI
V. Kameswar Rao, Manmeet Pritam Singh Arora, JJ
Pyare Lal – Appellant
Versus
Delhi Transport Corporation – Respondent
LPA 550/2013
For the Appellants/Petitioners: Arun Bhardwaj, Pranava Rastogi, Ashu Tiwari
For the Respondents: Avnish Ahlawat, Uday Singh Ahlawat, Tania Ahlawat, Nitish Kumar Singh, Nitesh Kumar Singh, Aliza Alam, Mohnish Sehrawat
Unauthorized absence from duty constitutes misconduct, regardless of whether the employer subsequently marks the period as 'leave without pay' for administrative record-keeping purposes. Such internal financial adjustments do not retrospectively sanction the unauthorized absence or absolve the employee of disciplinary culpability.
Headnote:(A) Labor and Service Law - Termination of service - Unauthorized absence - Misconduct - Even if an employer treats a period of absence as leave without pay for the purpose of maintaining accurate service records, such an action does not absolve the employee of the misconduct of unauthorized absence. The administrative act of regularizing leave for record-keeping does not constitute an authorization or condonation of the underlying misconduct. (Paras 9, 10, 11)
(B) Appellate Review - Scope and Ambit - The appellate court is justified in setting aside an order where the lower authority has erroneously concluded that treating unauthorized absence as leave without pay constitutes a valid regularization that negates the underlying misconduct. (Paras 8, 12)
Facts of the case:
The employee was a worker who possessed a history of habitual unauthorized absence. The employer initiated disciplinary proceedings and subsequently removed the employee from service. An application for approval of the removal was filed before the labor tribunal, which was initially dismissed on the premise that the employer had treated the unauthorized absence as unpaid leave, thus failing to prove misconduct. A single judge of the appellate court set aside the tribunal's order, leading to the present appeal.
Findings of Court:
The treatment of absence as 'leave without pay' is purely an administrative measure to ensure the integrity of service records and does not function as an authorization or condonation of the initial unauthorized absence. Evidence of repeated and habitual absenteeism, even if not explicitly defined in the charges in exhaustive detail, provides sufficient grounds when the records are made available to the employee during proceedings.
Issues: Whether the categorization of an employee's unauthorized absence as 'leave without pay' by the employer invalidates a charge of misconduct based on that absence, and whether the employer's internal administrative adjustments inherently negate a charge of unauthorized absence.
Ratio Decidendi: The administrative act of recording unauthorized absence as 'leave without pay' does not signify the granting of sanctioned leave or the pardon of the misconduct. Misconduct is established by the act of failing to report for duty without prior authorization; administrative adjustments to payroll records are subsequent actions that do not obliterate the prior established instance of misconduct.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. procedural requirements and factual history of disciplinary removal for unauthorized absence. (Para 1 , 2 , 3 , 4 , 5) |
| 2. the impact of characterizing unauthorized absence as 'leave without pay' on the determination of misconduct. (Para 6 , 7) |
| 3. treatment as leave without pay does not absolve the employee of misconduct for unauthorized absence. (Para 8 , 9 , 10) |
| 4. final confirmation of the management's removal action and dismissal of the appeal. (Para 11 , 12 , 13) |
JUDGMENT
V. KAMESWAR RAO, J.
1. This appeal lays a challenge to the order dated 05.10.2012 passed by the learned Single Judge in W.P.(C) No.17192/2006 whereby the learned Single Judge has allowed the writ petition filed by respondent/ Delhi Transport Corporation (in short ‘Corporation’) challenging the orders dated 07.05.1997 and 11.02.1999 (impugned orders) passed by the learned Presiding Officer: Industrial Tribunal-II, Tis Hazari Courts, Delhi (Presiding Officer) in OP No. 245/1993. The Presiding Officer vide the impugned orders held that proper enquiry was not conducted by the Corporation and thus he dismissed the approval application under Section 33(2) (b) of the Industrial Disputes Act, 1947 (the Act) as the deceased employee - Pyare Lal was not guilty of the misconduct regarding the unauthorised absence because the absence period was treated as ‘leave without pay’.
2. At the outset, we may state the employee Pyare Lal had expired and the petition was filed against the legal representatives of the deceased Pyare Lal, who are the appellants herein.
3. The learned Single Judge while allowing the petition filed by the Corporation has noted the relevant facts in as much the deceased employee Pyare Lal was appointed as a driver by the Corporation on 23.05.1977. On 27.04.1979, the deceased employee was absent from the duty and was accordingly cautioned. Similar was the position on 30.08.1984 and also on 25.09.1989 when he was again absent from 07.06.1989 to 28.08.1989. He again absented from the duty on 20.05.1990 and was advised. He availed 61 days leave without pay for the period from January to April, 1991 and was accordingly advised on 03.05.1991. In the year 1991 he availed 107 days leave without pay for which the penalty of stoppage of next due increment with cumulative effect was imposed. In the month of February, 1993 the deceased employee was issued a charge sheet as he was absent without permission for 22 days, which amounts to misconduct.
4. The deceased employee did not reply to the charge sheet. He was called to appear in the proceedings on 02.03.1993, but he did not join the same. He was again informed vide letter dated 03.03.1993 to appear in the enquiry on 09.03.1993, but he did not appear. Even on 10.03.1993 he was intimated to appear in the proceedings scheduled on 16.03.1993. But on that date also the deceased employee was absent. Finally, the Enquiry Officer had submitted his report on 19.03.1993 wherein he proved the charges against the deceased employee.
5. After issuance of the show cause notice dated 23.03.1993, the penalty of removal from service was imposed on the deceased employee on 27.04.1993. On the said date, the respondent-corporation remitted one month’s wages and filed an application under Section 33(2) (b) of the Act, which was registered as OP No.245/1993. The Corporation produced the record of the proceedings as well as the past record of the deceased employee.
6. A preliminary issue was framed by the Presiding Officer on the validity of the domestic enquiry conducted by the Corporation, which resulted in the order dated 07.05.1997 whereby the Presiding Officer has held as under:-
“In this case, the applicant in support of its prayer for granting removal of the respondent from its service to had relief upon a departmental enquiry at fist instance and a preliminary issue was framed about the validity of the enquiry as the respondent had challenged the same. Since it was for the applicant to establish
