J.M. Malik, J.@mdashDespite second call, nobody appears for the Petitioner. It is not out of place to mention here that on 11th April, 2008, arguments were heard from M. Hussain Counsel for the Petitioner and Ms. Avnish Ahlawat Counsel for the Respondent and case was reserved for orders. Counsel for the Petitioner wanted to file judgments. He was given liberty to file judgment by 21st April, 2008. Since none has appeared till 3.15 P.M., therefore, I proceed to dictate the order.
Jai Singh, the Petitioner was appointed as Conductor with the Respondent DTC on 16.8.1983. He was confirmed as a conductor on 15.11.1984. The Petitioner and his wife, unfortunately remained seriously ill which forced the Petitioner to avail 130 days leave i.e. from 01.01.1993 to 31.05.1994. Although, the Petitioner submitted proper leave application in the office supported by medical certificate, yet the Respondent rejected the same as the leave was without prior information and unauthorized. The Respondent was issued a charge sheet for the above said unauthorized leave on 12.9.1994. On 24.3.1995 the services of the Petitioner were terminated. The Petitioner preferred an appeal before the Competent Authority on 20.12.1999 i.e., after the lapse of about four years and nine months. The Competent Authority rejected the appeal on 15.2.2000 as it was barred by time. On 24.02.2000 the Petitioner raised an industrial dispute before the Conciliation Officer, Labour Department; Govt. of NCT of Delhi at Pusa Road, New Delhi. The Government referred the matter before the Labour Court. On 3.09.2007 the Labour Court passed the impugned award against the Petitioner and the award was published on 31.12.2007. Aggrieved by the above said award the Petitioner has filed the present writ petition with the following prayer:
It is, therefore, most respectfully prayed that this Hon''ble Court may kindly be pleased to set aside the impugned award dated 03.09.2007 passed by Ld. Labour Court, presided over by Sh. S.K. Sarvaria, Karkardooma, Delhi and published on 31.12.2007 on notice board of Labour Commissioner of the Government of NCT of Delhi and enforceable w.e.f. 30.01.2008 and reinstate the Petitioner to the post of conduct with full back-wages and other service benefits accruing as per law,
OR
If this Hon''ble Court is of such opinion then it may substitute the lesser punishment instead of removal/termination from service;
Any other relief, which this Hon''ble Court may deem fit and proper also be passed in favour of the Petitioner and against the Respondent, in the interest of justice.
2. I have heard the Counsel for the Petitioner. The learned Counsel, for the Petitioner vehemently argued that the Petitioner and his wife were sick and therefore the Petitioner could not attend the duty for a period of 130 days. He also pointed out that the punishment of dismissal from service is disappropriate and instead of taking such a harsh view the DTC should have taken some lenient view.
3. I am unable to locate substance in these arguments. Regarding absenteeism the Labour Court has placed reliance upon
4. In a recent authority in
7. So far as the question whether habitual absenteeism means the gross Violation of discipline, it is relevant to take note of what was stated by this Court in Burn and Co. Ltd. v. Their Workmen and Ors. AIR 1959 SC 529.
There should have been an application for leave but Roy thought that he could claim as a matter of right leave of absence though that might be without permission and though there might not be any application for the same. This was gross violation of discipline. Accordingly, if the company had placed him under suspension that was in order. On these findings, it seems to us that the Tribunal erred in holding that it could not endorse the Company''s decision to dispense with the services altogether. In our opinion, when the Tribunal upheld the order of suspension it erred in directing that Roy must be taken back in his previous post of employment on the pay last drawn by him before the order of suspension.
11. When the factual background is considered in the light of principles indicated above, the inevitable conclusion is that the Labour Court and the High Court were not justified in directing the reinstatement by interference with the order of termination. The orders are accordingly set aside. The order of termination as passed by the concerned authority stands restored. The appeal is allowed with no orders as to costs.
5. The Labour Court also found that the punishment awarded to the Petitioner does not shock the conscience of the Court. For this the Labour Court has placed reliance on
6. The prayer made by the Petitioner was also rejected on the ground that the Petitioner did not raise the industrial dispute promptly without any in-ordinate delay and laches. In this respect and in order to bring his point home the Labour Court has relied upon certain authorities in
7. In the result the petition has no force and the same is therefore dismissed in limine. A copy of this order be sent to the Lower Court.
