Delhi Transport Corporation v. Nand Kishore

Order of Officer Reason Form of penalty

¶1KJD/AI(T)/Susp117/85/7 480/dt.20.11.85 "Warned" for absent from his duty without information on dt.

21.7.85 "warned"

¶2KJG/Ai(T)/Appeal/45/85/ 86/245 dt.13.1.86 The punishment of warning reduced "Advised" "Advised"

¶3KJD/AICD/mt-84/80/80/6721 dt. "Warning for absent same duty on 10.6.80 "Warning"

15.10.1980

¶4KJD/AICT/MT.190/80/77 4 dt.8.11.80 "Censure" for absent from duty w/o intimation w.e.f.

28.10.80 to 30.10.80 "Censured" Leave Record w.e.f. last three year earn etc.

1991

1992

1993

¶16It is clear from the above that on two occasions the petitioner was warned, once advised and once censured. The two instances of warning and censure are of 1980 when the workman was not even in regular employment. There is one incidence of warning on 21.7.1985 that too, for absent for one day only. Thereafter the chargesheet on the basis of which present proceedings arise, is of the year 1993. This past record is hardly convincing to prove that the appellant was habitual absentee. The entire thrust is on the leave record of last three years i.e. 1991, 1992 and 1993. However, this record is based on "leave" which does not indicate whether the appellant remained absent unauthorisedly. On the contrary, it shows that leave was granted. When the matter is to be examined in this context, the learned Single judge rightly pointed out that the DTC has not been able to show

under which circumstances the leave was obtained. The very fact that the leave is granted "as it is not the case of the DTC the workman remained untuthorisedly absent during this period" would show that the reasons for remaining leave was found to be justified. This record, therefore, cannot become the basis of imposing severe penalty of removal from service. Various judgments cited by the learned counsel for the DTC would have, thus, no bearing on the facts of this case. We agree with the learned counsel for the respondent that in such circumstances, the learned Single judge rightly did not exercise is limited jurisdiction available under Article 226 of the Constitution while entertaining writ petition against an Award by the Labour Court.

¶17We do not find any merit in this writ petition which is accordingly dismissed with costs quantified @ 15,000/-.

ACTING CHIEF JUSTICE

(RAJIV SAHAI ENDLAW) JUDGE APRIL 20, 2012 skb

* IN THE HIGH COURT OF DELHI AT NEW DELHI LPA No.921 of 2011 % Judgment Reserved on:30.3.2012 Judgment Delivered on:20.4.2012 DELHI TRANSPORT CORPORATION . . . APPELLANT Through : Mr. Uday N. Tiwari, Advocate. VERSUS NAND KISHORE … RESPONDENT Through: Mr. Sanjoy Ghose, Advocate with Mohd. Farrukh, Advocate. CORAM :- HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K. SIKRI, ACTING CHIEF JUSTICE: 1. In this Letters Patent Appeal filed by the appellant Delhi Transport Corporation (DTC) challenge is laid to the judgment dated 12.9.2011 passed by the Learned Single Judge of this Court in W.P.(C) 6608/2011 which was preferred by the DTC questioning the validity of Award dated 21.8.2010 passed by the Labour Court, Delhi directing the reinstatement of the respondent workman with continuity of service but without back wages. The relevant facts leading to the filing of this appeal are as under: The respondent workman was working as a Bus Conductor with the appellant when on 27.10.1993 he was issued a chargesheet for remaining absent from duty for 32 days during the period 1.1.1993 to 30.6.1993 . In this chargesheet it was stated "past record will be taken into consideration at the time of passing the final orders in this case". A domestic inquiry was held. During the inquiry, the workman admitted his absence but his explanation was that it was on account of sickness. Charge was held proved. As per the Inquiry Report, apart from 32 days of unauthorized absence which was the subject matter of charge, the workman had also remained unauthorisedly absent for 194 days in 1991 and 173 days in 1992 and also between 7.10.1993 to 9.11.1993. Show cause notice was issued 17.6.1994 proposing the punishment of removal from service. The penalty of removal was inflicted upon the appellant vide orders dated 18.7.1994. 2. The workman thereafter raised industrial disputes which was referred to the Labour Court with the following terms of reference:- "Whether the removal of Shri Nand Kishore from service is illegal and/or justified and if so, what relief is he entitled and what directions are necessary in this respect?" 3. The Labour Court framed the issues and one preliminary issue related to the validity of the inquiry conducted against the workman. Vide order dated 29.1.2005 this issue was decided in favour of the workman holding that the inquiry conducted was not valid and in violation of the principle of natural justice. Thereafter, Award dated 28.11.2005 was passed granting reinstatement with 75% back wages. The DTC preferred writ petition thereagainst which was allowed vide orders dated 20.7.2009. Award was quashed and the matter was remanded back to the Labour Court for fresh decision on merits after giving opportunity of hearing to both the parties. 4. On remand, the Labour Court examined the matter afresh after giving opportunity to both the parties and proceedings culminated into Award dated 21.8.2010. The Labour Court held that misconduct on the part of the respondent stood proved on the evidence led before it. However, at the same time, according to the Labour Court, the punishment of removal from service was excessive having regard to 32 days absence of the workman and, therefore, exercising the power given to the Labour Court under Section 11A of the Industrial Disputes Act, it reduced the penalty to stoppage of two increments with cumulative effect. The direction was given to reinstate the workman but without back wages. 5. The DTC challenged this Award by filing the writ petition which has been dismissed by the learned Single Judge vide orders dated 12.9.2011. The contention of the DTC before the writ Court (which remains in this appeal also) was that the Labour Court took into consideration the unauthorized absence of 32 days only and failed to take into account the past record of the workman which was exhibited in the proceedings through the Management witness. It was submitted that the past record showed that the