Delhi Transport Corporation vs Delhi Administration and Others

Rajiv Sahai Endlaw, J.—The petitioner DTC by this writ petition impugns the award dated 28th July, 1988 of the Industrial Tribunal on the following reference:

Whether Shri Rajpal abandoned his services or the same were terminated by the management illegally and unjustifiably and, if so, to what relief is he entitled and what directions are necessary in this regard?

The Tribunal held that the declaration dated 2nd May, 1979 of the petitioner DTC that the respondent No. 3 workman had resigned from his job with effect from 16th February, 1979 is bad in law and has to be struck down; it was further held that the respondent No. 3 workman had not abandoned his services and was entitled to be reinstated with effect from 16th February, 1979 with full back wages and continuity of service.

This Court vide ex parte order dated 11th May, 1989 issued Rule in the petition and stayed the operation of the award. On 20th August, 1990, it was informed that the respondent No. 3 workman was reinstated on 10th January, 1989 without prejudice to the rights and contentions in the writ petition. This Court directed the petitioner DTC to pay to the respondent No. 3 workman wages on last drawn basis from the date of the award i.e. 28th July, 1988 till 10th January, 1989 and to also pay to the respondent No. 3 workman the balance amount, if any, found due after computation u/s 33C(1) of the I.D. Act not only for the period of the award but even for the later period within one month of the order u/s 33C(1) becoming final. In the circumstances, the earlier order of stay of operation of the award was vacated. On 5th April, 2006, it was informed that the respondent No. 3 workman has died. The petition was dismissed for non prosecution on 23rd January, 2007. CMs No. 7663-7664/2007 were filed for restoration of the writ petition. The legal heirs of the respondent No. 3 workman were substituted vide order dated 25th September, 2009 and notice of the CMs No. 7663-7664/2007 of the petitioner DTC for restoration of the writ petition was ordered to be issued to the legal heirs of the respondent No. 3 workman. However, the said notices remain unserved.

Need is however not felt to await the service of the notice of the applications for restoration on the legal heirs of the respondent No. 3 workman inasmuch as the action of the petitioner DTC against the respondent No. 3 workman was under Clause 14(10)(c) of the DRTA (Conditions of Appointment & Service) Regulations, 1952 with respect whereto several judgments have since been pronounced and in view whereof this writ petition is liable to be dismissed.

The respondent No. 3 workman joined the employment of the petitioner DTC as a Conductor in 1970. The respondent No. 3 workman in the later part of the year 1978 absented himself. The Tribunal on the basis of the evidence of the witnesses of the petitioner DTC found that the respondent No. 3 workman had sent several applications to the petitioner DTC for leave and on which no order granting or rejecting the leave was made; only an endorsement of "late received" was found on some of the leave applications. The petitioner DTC however in these circumstances deemed the respondent No. 3 workman to have resigned from employment under Clause 14(10)(c) supra.

Clause 14(10)(c) where-under the petitioner DTC has deemed the respondent No. 3 workman to have resigned is as under:

Holidays and Leave:

(10)....

(b) The duration of extraordinary leave shall not ordinarily exceed three months on any one occasion. In exceptional cases; it may be extended to eighteen months subject to such conditions as the Authority may by general or special orders prescribe and only when the employee concerned is under-going treatment for....

(c) Where an employee fails to resume duty on the expiry of the maximum period of extraordinary leave granted to him or where such an employee, who is granted a lesser amount of extraordinary leave than the maximum amount admissible, remains absent from duty for any period which together with the extraordinary leave granted exceeds the limit upto which he could have been granted such leave under Clause (b), he shall be deemed to have resigned his appointment and shall, accordingly cease to be in the employment of the Authority.

A five judge bench of the Supreme Court in Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, held Clause 9 (b) of the Regulations of DTC to be void for the reason of not giving an opportunity of being heard to the workman before terminating his services. Clause 14(10)(c) also does not provide for any opportunity for hearing to be given to the workman before declaring him to have resigned from employment and would be bad for this reason only. Similarly, in Uptron India Ltd. v. Shammi Bhan 1998 LIC 1545 also, it was held that where the standing orders prescribe termination of service of a permanent employee without holding any inquiry, such provision of the standing orders is illegal on the ground of being violative of the principles of natural justice. This Court also in Delhi Transport Corporation Vs. Om Kumar and Others, and Ram Phal Vs. Union of India (UOI) and Others, has held dismissal under Clause 14(10)(c) without holding any inquiry and giving opportunity to the workman as invalid. The said judgments were affirmed by the Division Benches of this Court in Delhi Transport Corporation Vs. Daya Nand and Others, Delhi Administration and Others, Om Kumar and Others, Vinod Kumar and Others, The Presiding Officer, Industrial Tribunal-I and Another, Ram Kishan and Another, Azad Singh and Another, Kali Ram and Another, Chander Pal and Another, Munna Lal and Another, Chand Ram and Another, The Presiding Officer, Labour Court No. 1 and Another and Prakash Chand and Another, and in D.T.C. Vs. Subhash Chander Mehta and Others, I have also recently in Delhi Transport Corporation v. Arun Kumar W.P.(C) No. 3345/2000 decided on 18th March, 2010 held to the same effect.

Clause 14(10)(c) aforesaid in the Regulations of the DTC is nothing but a provision for abandonment of service by an employee. I find the Division Bench of this Court in Shakuntala''s Export House (P) Ltd. Vs. Secretary (Labour) and Others to have held that abandonment amounts to misconduct which requires proper inquiry. The judgment of the Single Judge of this Court upheld by the Division Bench is reported asVZ Shakuntala Export House (P) Ltd. Vs. P.O. Labour Court X and Another, . To the same effect is another judgment of this Court in Municipal Corporation of Delhi Vs. Shri Begh Raj, laying down that if the workman had abandoned employment, that would be a ground for holding an enquiry and passing an appropriate order and that having not been done, the action of MCD could not have been sustained. The Supreme Court also in D.K. Yadav Vs. J.M.A. Industries Ltd., has held that even where the standing orders of the employer provide for dismissing the workman from service for unexplained absence, the same has to be read with the principles of natural justice and without conducting domestic inquiry and without giving an opportunity of being heard, termination of service on the said ground cannot be effected. The same view was reiterated in Lakshmi Precision Screws Ltd. Vs. Ram Bahagat, (in this judgment Sakattar Singh mentioned below was distinguished). Recently, in V.C., Banaras Hindu University and Others Vs. Shrikant, it was held that although laying down a provision providing for deemed abandonment from service may be permissible in law, it is not disputed that that an action taken thereunder must be fair and reasonable so as to satisfy the requirements of Article 14 of Constitution of India; if the action is found to be illogical in nature, the same cannot be sustained. In Punjab and Sind Bank and Others Vs. Sakattar Singh, it was held that no inquiry may be conducted where the standing orders of the Bank provided a procedure for treating such absentee employee to have deemed to have voluntarily retired after a particular period of unauthorized absence. To the same effect is the recent dicta in The The Regional Manager, Central Bank of India Vs. Vijay Krishna Neema and Others, The Regulation 14(10)(c) of the petitioner DTC does not provide a procedure and thus cannot be saved even on the basis of the said judgments. Further the action of the petitioner DTC is found to be illogical and not complying with principles of natural justice.

The counsel for the petitioner DTC however invites attention to notice dated 27th February, 1979 issued by the petitioner DTC to the respondent No. 3 workman to show cause as to why he should not be deemed to have resigned under Clause 14(10)(c) aforesaid. It is contended that the order dated 2nd May, 1979 deeming the respondent No. 3 workman to have resigned from service had been issued after complying with the principles of natural justice and after giving an opportunity of being heard to the respondent No. 3 workman. It is further contended that the respondent No. 3 workman was admittedly absent and has not proved that the reasons stated by him for his absence existed. It is further urged that as per the judgment in Delhi Transport Corporation Vs. Sardar Singh, mere making of an application for leave is not enough and the requirement is of obtaining leave in advance. Reliance in this regard is also placed on:

(a) Jai Shanker Vs. State of Rajasthan, laying down that even if a Service Regulation provides that an employee who absents without permission should be considered to have sacrificed his appointment, the employer should give such employee an opportunity showing cause why he should not be removed.

(b) V Viveka Nand Sethi Vs. Chairman, J and K Bank Ltd. and Others, where a provision in the agreement between the bank and its employees of deemed resignation was upheld.

As far as the contention of the counsel for the petitioner DTC of principles of natural justice having been complied with in the present case is concerned, though show cause notice was issued by the petitioner DTC prior to the order treating the respondent No. 3 workman to have deemed to have resigned, but in the order of deemed resignation there is no discussion whatsoever of the applications for leave/extension of leave as aforesaid submitted by the respondent No. 3 workman and/or as to genuineness or effect thereof. The petitioner DTC has not considered whether the same constituted sufficient reason for absence. Moreover, even if it were to be held that an opportunity had been given to the respondent No. 3 workman, the fact remains that the explanation furnished by the respondent No. 3 workman in his leave applications giving reasons for absence have not been considered. The order of deemed resignation is absolutely silent in this regard. The principle of natural justice of giving an opportunity of being heard is not to be an empty or abstract exercise. Giving of an opportunity of hearing has a corresponding obligation to deal with the representations and to give reasons for the decision. An opportunity of hearing would be meaningless and its purpose would be frustrated, if the authority giving the hearing does not consider the representations of the noticee or does not give any reasons for agreeing or disagreeing with the noticee. The petitioner DTC has not carried out the said determination. The principle requiring reasons to be given in support of an order is a basic principle of natural justice and it must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law (see MARUTI UDYOG LTD. Vs. INCOME TAX APPELLATE TRIBUNAL and Others, and Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota Vs. Shukla and Brothers,

The petitioner DTC is thus not found to have complied with principles of natural justice and its action found to be illogical. Thus the judgment in Jai Shanker (supra) and Viveka Nand Sethi (supra) relied by the petitioner DTC are of no avail, the principles of natural justice having not been complied with in the present case.

In the circumstances aforesaid, no error can be found with the award impugned in the present petition. The petitioner DTC, notwithstanding various judgments aforesaid on Clause 14(10)(c) of its Regulations, is found to have contested the matter and to its own prejudice. The petition is dismissed. However, costs of legal proceedings having already been paid, no order as to costs. The petitioner DTC is directed to comply with the award within six weeks of today.