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2006 DIGILAW 1296 (DEL)

MAHENDER SINGH v. D. T. C.

2006-08-04

MANJU GOEL

body2006
MANJU GOEL, J. ( 1 ) THIS writ petition is directed against an order passed under Section 33 (2) (b) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the act') dated 4. 11. 2000 whereby the Presiding Officer, Industrial Tribunal-II, karkardooma Courts, Delhi has accorded sanction to respondent No. 1 to terminate the services of the petitioner. The respondent/delhi Transport corporation filed an application under Section 33 (2) (b) of the Act seeking approval of the Industrial Tribunal of its decision taken to remove the respondent (petitioner herein) from service on account of his act of misconduct. The petitioner was employed as a Driver with the respondent/dtc. The disciplinary authority issued a charge-sheet on him on 18. 9. 1992 with the allegations that during the period of 1. 1. 1992 to 15. 8. 1992 the petitioner remained absent from duty unauthorizedly for 88 days. The respondent/dtc conducted an enquiry and dismissed the petitioner from service on 5. 3. 1993. Thereafter the respondent applied to the industrial Tribunal under Section 33 (2) (b) of the Act for approval of its action. The petition was opposed by the petitioner, inter alia, on the ground that he had not been given full opportunity to defend his case in the departmental enquiry. The Industrial Tribunal framed the following issue: "whether the applicant held legal and valid enquiry against the respondent according to principles of natural justice?" ( 2 ) THE respondent/dtc failed to file any affidavit in support of its claim of a legal and valid enquiry. The issue was, accordingly decided against the respondent/dtc and it was given an opportunity to establish its case on merit before the Tribunal. Accordingly, the Tribunal framed the following issues: " 1. Whether the respondent committed the misconduct for which he was chargesheeted? 2. Relief. ( 3 ) THE Tribunal examined the evidence led by the parties. The witness of the applicant (respondent herein) stated on an affidavit that the petitioner had remained absent from duty for 8 days and leave applications for other 80 days were rejected as the same had been received late. According to the record of the respondent the reports Ex. AW1/1 and AW1/2 were prepared. In cross-examination, the witness denied that leave for 80 days had been sanctioned. He also denied that the applications for leave had been submitted in time. According to the record of the respondent the reports Ex. AW1/1 and AW1/2 were prepared. In cross-examination, the witness denied that leave for 80 days had been sanctioned. He also denied that the applications for leave had been submitted in time. The petitioner (respondent before the Industrial tribunal) submitted his own affidavit Ex. RW1/a along with the copies of charge-sheet, reply to the charge-sheet, show cause notice and reply to show cause notice and the letter of termination from service. The main contention in his affidavit was that he had submitted reply to the charge-sheet pleading therein that he had availed of the leaves due to his own illness and due to illness of his wife and that he had informed the respondent of his own illness and had given the medical certificates. The petitioner, however, did not actually bring any medical certificate on record nor did he question the witness of the respondent about any medical leave being filed by him. The industrial Tribunal concluded that the petitioner had remained absent from duty unauthorizedly as alleged in the charge-sheet. Petitioner's unauthorized absence for 88 days in a period of 7. 1/2 months indicated that he was habitual of committing the misconduct of unauthorized absence. Further, it was observed that the respondent, which was a public transport organization, could not provide public service if the drivers were habituated to absenteeism. The misconduct was found to have been established. The order of removal from service was approved. ( 4 ) THE petitioner has challenged the order of the Tribunal on three grounds. The first grievance of the petitioner is that the respondent had failed to produce any evidence of any valid enquiry and, therefore, the industrial Tribunal should not have allowed the respondent to lead evidence before it to prove the misconduct of the petitioner. Secondly, it is contended that on the basis of the evidence led before the Industrial Tribunal a finding of misconduct could not have been arrived at and, as such, the finding is perverse. Thirdly, it is contended that even if the misconduct is found to have been proved, the punishment is highly disproportionate to the offence and is liable to be set aside. ( 5 ) SO far as the first grievance is concerned, Mr. Saini, advocate, appearing for the petitioner has failed to show any law in his support. Thirdly, it is contended that even if the misconduct is found to have been proved, the punishment is highly disproportionate to the offence and is liable to be set aside. ( 5 ) SO far as the first grievance is concerned, Mr. Saini, advocate, appearing for the petitioner has failed to show any law in his support. He does not dispute that in case the Industrial Tribunal finds the enquiry to be vitiated for any reason, it can take evidence to enquire into the alleged misconduct. However, he says that in the present case since the management/respondent made no effort to' establish that it had conducted a proper enquiry, such a course was not open. Having accepted that the industrial Tribunal had the jurisdiction to take evidence to enquire into the allegations of misconduct, there is no gainsaying that in this case because the management/respondent conceded the issue in favour of the workman by failing to produce any evidence, such a course was not open. ( 6 ) SO far as the second objection is concerned, again I find no merit. Admittedly, there was evidence before the Industrial Tribunal. The respondent, apart from producing the affidavit of a witness, also produced the previous record of the Conductor/driver showing how on various occasions he had remained absent from duty and had been warned or punished with minor penalties. As discussed above, the leave applications have been submitted late. It was the prerogative of the management to allow or dis-allow the leave. The management was not bound to allow every leave application whether or not the same was accompanied by a medical certificate. Since there was evidence before the Industrial Tribunal and it has arrived at a finding on the basis of such an evidence, this Court cannot sit in appeal over the finding of the Industrial Tribunal and set aside the same. ( 7 ) SO far as the third submission is concerned, the settled position of law is that punishment inflicted by the management upon a workman can be interfered with by the Court only in very limited circumstances. In this regard reliance can be taken from the judgment of the Supreme Court in the case of Chairman and Managing Director, United Commercial Bank and Ors. In this regard reliance can be taken from the judgment of the Supreme Court in the case of Chairman and Managing Director, United Commercial Bank and Ors. v. P. C. Kakkar, JT 2003 (2) SC 78 wherein it was held that this court can interfere in the punishment imposed by the employer only if the punishment is so disproportionate to the offence that it shocks the conscience of the court. ( 8 ) IN view of the above, I find that none of the contentions against the impugned order has any merit. The petition deserves to be" dismissed. It is, accordingly, dismissed.