DELHI TRANSPORT CORPORATION Vs. SIRI BHAGWAN

JUDGEMENT

(1.) The respondent, a Driver with the petitioner Corporation, absented from duty from 1.1.1991 to 31.8.1991, i.e. for a period of full eight months. He was issued a charge-sheet dated 17.9.1991 for having availed of 148 days leave without pay during the said period which showed that he was not taking interest in his work and that the action amounted to misconduct within the meaning of para 19(h) and (m) of the Standing Orders governing the conduct of the DTC employees. An inquiry was instituted on 22.1.1993. In the inquiry proceedings the respondent admitted the charge but said that he was not on leave out of free will but that he was unwell and that he did not want to produce either any documentary or oral evidence in his support and that he did not want any inquiry. In view of his admission, the Inquiry Officer did not examine any witness and held that the charge was proved. However, after his services were terminated, the petitioner filed an application under Section 33(2)(b) of the Industrial Disputes Act which was decided by the order dated 1.10.2002. Referring to the above statement of the respondent and to the grant of leave without pay, the Industrial Tribunal gave its opinion as under:

(2.) On this ground, the application under Section 33(2)(b) of the Industrial Disputes Act was dismissed.

(3.) The order of the Industrial Tribunal is in challenge in the present writ petition. It is contended on behalf of the petitioner Corporation that the Supreme Court in the case of Delhi Transport Corporation Vs. Sardar Singh, AIR 2004 SC 4161 considered whether the grant of leave without pay will mean that the worker or employee had not committed any misconduct. It was observed in this judgment that leave was required to be obtained before actually proceeding on leave or before actually absenting from work and that subsequent sanction of leave without pay, at best, could straighten the records but not obliterate the misconduct. Paras 9, 10, 11, 12 and 13 of this judgment are exactly on the issue before this Court. The Supreme Court held that it was improper to refuse to grant permission under Section 33(2)(b) on the ground that leave without pay had been sanctioned. Paras 9, 10, 11, 12 and 13 are as under: