DTC Vs. RAJBIR SINGH

JUDGEMENT

(1.) This petition impugns the Award dated 04.11.2009 of the learned Labour Court in ID No.354/1996 whereby the petitioner has been directed to pay the respondent's legal heirs his full back wages for the period commencing from the date of his dismissal on 27.07.1994 till his demise. It is the petitioner's case that the Award is erroneous because the workman was absent from duty for 71 days without any sanctioned leave. Pursuant to an inquiry it was decided that the workman be removed from service. An application was made under Section 33(2)(b) to the Industrial Tribunal under the Industrial Disputes Act, 1947 seeking permission/ approval for the termination of service of the respondent. The permission was declined. In the meanwhile, the workman had filed a complaint regarding his termination of service and had sought compensation for back wages on which an Award was passed on 03.08.2004 directing the reinstatement of the workman with full back wages to be paid to his LRs. The management preferred two writ petitions before this Court, being WPC No.18018/2005 and WPC No.17565/2005, which were disposed off with the direction to the trial court to hear the matter afresh and decide the same on merits, giving due opportunity to the parties. The present impugned Award dated 04.11.2009 is a result of the subsequent adjudication which has directed the payment of back wages. In the impugned Award two issues were framed:

(2.) The first issue has been returned in favour of the petitioner management. Apropos the second issue, the Award concludes that the removal from service for being absent from duty for 71 days was disproportionate to the misconduct because the workman had submitted his leave application along with medical certificate of sickness and fitness; therefore, the extreme action of his dismissal from service was inappropriate and unwarranted.

(3.) Mr. Sarfaraz Khan, the learned counsel for the petitioner submits that the workman had not adduced any evidence apropos his leave applications, nor did he produce any medical certificate while applying to the Management for grant of his leave. Therefore, for a workman to consistently stay away from work for 71 days, is most unbecoming of the workman and is akin to abandoning work. He relies on the judgment of the Supreme Court in DTC vs. Sardar Singh, 2004 7 SCC 574, which holds that in case of continuous absence from duty without sanctioned leave for a long tenure, the burden lies on the employee concerned to prove that the said absence was not intentional.