Divi. Controller G.S.R.T.C. vs Heirs of Inayatkhan Sarifkhan Pathan

D.N. Patel, J.—Rule. Learned counsel Mr. G.K. Rathod waives service of notice of Rule on behalf of the respondents. At the request of the learned counsel for the parties, this matter is taken up for its final hearing.

The present petition has been preferred against the award dated 31st March, 2004 in Reference (LCN) NO. 118 of 1994 passed by the Labour Court, Nadiad, whereby punishment of dismissal awarded by the petitioner Corporation for a long and continuous absenteeism (from 1.11.1993 till his dismissal on 31.3.1994) has been set aside and the respondent workman has been ordered to pay the amount as if the workman is reinstated in service with 50% back wages with stoppage of three increments with future effect. Against the aforesaid reduction in punishment by the Labour Court, Nadiad in exercise of powers u/s 11A of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act"), the petitioner Corporation has preferred this petition.

The learned counsel for the petitioner mainly submitted that the respondent workman was working as a driver. The main activity of the petitioner is to run State Road Transport buses mainly for the welfare of the rank and file of the State of Gujarat. The buses can be run only with the help of drivers and conductors. They are the main persons so far as the petitioner Corporation is concerned. Without the help of drivers and conductors, the petitioner Corporation cannot run its activities. Both are holding the posts of trust. If a driver remains absent for a considerable long time, without any reason, worth the name, it tantamounts to grave misconduct. In the present case, the respondent workman was absent without intimation to the petitioner Corporation with effect from 1st November, 1993. Several notices were issued i.e. on 1st February, 1994; 14th February, 1994 and 21st February, 1994, but the respondent workman has never responded to the said show cause notices, neither he has resumed his duty as a driver. Ultimately, a charge-sheet was issued to him and inquiry was conducted and after the inquiry, he was dismissed from service with effect from 31st Mach, 1994. It is also submitted by the learned counsel for the petitioner that legality and validity of the inquiry has not been challenged by the respondent workman as stated in para-5 of the judgment of the Labour Court and no reasons for continuous absenteeism from 1st November, 1993 onwards have been given by the respondent workman to the petitioner Corporation. As per clause-38 of Discipline and Appeal Procedure Rules of the petitioner Corporation, the aforesaid absenteeism tantamounts to misconduct. For the first time, before Labour Court, it was stated by the respondent workman that as he was sick, he could not resume duty with the petitioner Corporation. Nonetheless, it is stated by the Labour Court in the award that no evidence has ever been produced by the respondent workman to support the contention of sickness, sickness. Thus, there was no evidence before the Labour Court as to the sickness of the respondent workman. Bare assertion can never substitute the proof. Looking to the nature of misconduct, the punishment of dismissal awarded by the petitioner was absolutely just, proper and adequate and it cannot be termed as shockingly disproportionate as the petitioner Corporation is totally dependent upon drivers for running their buses. The buses of the Corporation are being run with the help of drivers and conductors. If either of them is absent, the petitioner cannot run their buses. In the present case, without any reason, without any sickness, without any intimation and much less with the permission of the petitioner, the respondent workman has negligently remained absent. This tantamounts to grave misconduct. Absenteeism is continuously for a longer period with effect from 1st November, 1993 till his dismissal dated 31.3.1994 and therefore, punishment cannot be labelled as shockingly disproportionate punishment. This aspect of the matter has not been appreciated by the Labour Court, Nadiad and therefore, the award passed by the Labour Court, Nadiad deserves to be quashed and set aside.

I have also heard the learned counsel for the respondent workman who has mainly submitted that during pendency of the Reference before the Labour Court, Nadiad, the respondent workman has expired on 21st February, 2001 because of brain tumor. It is also admitted by the learned counsel for the respondent that perhaps because of this disease, the respondent workman might have remained absent in the year 1993, but there is no such evidence led by the respondent workman before the Labour Court. Nonetheless, it is submitted by the learned counsel for the respondent that looking to the nature of misconduct, dismissal from service is absolutely unreasonably excessive and, therefore, the Labour Court has rightly exercised its discretionary powers u/s 11-A of the Act and has rightly used its discretionary power u/s 11 of the Act in setting aside the punishment of dismissal by awarding 50% back wages by stoppage of three increments with future effect. Therefore, there is no error in the award and hence this court may not interfere with the impugned award passed by the Labour Court, Nadiad.

Having heard the learned counsel for both the sides and considering the facts and circumstances of the case, I am of the opinion that the award dated 31st March, 2004 in Reference (LCN) No. 118 of 1994 passed by the Labour Court is erroneous, bad in law and deserves to be quashed and set aside for the following reasons.

(i) Absenteeism for a longer period, without any reason, sickness or permission is like a contagious disease. It spreads like a whirlwind in workmen and deteriorates with great speed, the standards of discipline which institution might have attained, after the efforts of years. The respondent workman was working as a driver with the petitioner. The petitioner Corporation is managed and run by the State Government mainly for the welfare of rank and file of the State of Gujarat. The main function of the petitioner Corporation is to run buses for the transportation of the people at large. The buses of the petitioner can be run only with the help of drivers and conductors. If any of one of them is absent, buses cannot be run by the petitioner Corporation. Conductors are collecting fares from which mainly services can be provided and salaries can be paid to the employees of the Corporation. Drivers are driving buses who are helping in carrying out functions of the petitioner Corporation. Without drivers and conductors, the whole activities of the Corporation will come to a standstill. All the rest of posts of the petitioner Corporation are aiding and assisting drivers and conductors. If a driver remains absent without any justifiable reasons, without any intimation and without any permission for a considerable long period, it amounts to grave misconduct. In the present case also, the respondent workman has remained absent without giving any intimation and without any reason, much less for sickness, with effect from 1.11.1993.

(ii) Even after remaining absent without any intimation and without prior permission, several notices were issued by the petitioner Corporation to the respondent workman. However, no reply was given by the respondent workman. Continuous absenteeism of the respondent workman till he was dismissed from service with effect from 31st March, 1996, caused great difficulties to the petitioner Corporation in performing its statutory duties. This also tantamounts to misconduct as per clause 38 of Discipline and Appeal Rules of the petitioner Corporation.

(iii) Dismissal of the respondent workman has taken place after holding a departmental inquiry. Legality and validity of the inquiry is not challenged by the respondent workman as per para-5 of the award passed by the Labour Court.

(iv) If the departmental inquiry is legal and valid, the only question left out for the Labour Court u/s 11A of the Industrial Disputes Act, 1947 is to evaluate quantum of punishment vis a vis the nature of misconduct. Powers conferred upon the Labour Court u/s 11A of the Act are to be exercised keeping in mind several factors like nature of duty of the respondent workman, nature of misconduct of the workman, reasons for which misconduct was committed, if the opportunity to rectify the the effect of misconduct is given, whether workman has availed such opportunity or continued the misconduct and such other factors. Discretionary powers are to be utilised keeping in mind the aforesaid types of factors. In the present case, there was not an iota of evidence before the Labour Court as to the sickness of the respondent workman. In fact, it has been observed in the award by the Labour Court that the respondent workman who is alleging sickness, is unable to produce any evidence before the Labour Court. Bare assertion of sickness is not the proof of sickness. Thus, in absence of any reason and in absence of cogent and convincing circumstances, continuous absenteeism with effect from 1.11.1993 by the respondent workman till the date of his dismissal i.e. 31st March, 1994 is such a grave misconduct that the dismissal from service cannot be labelled as shockingly disproportionate punishment. Therefore, this aspect of the matter has not been properly appreciated by the Labour Court and Leniency shown by the Labour Court is misplaced sympathy.

For the aforesaid reasons, this petition deserves to be allowed and the award passed by the Labour Court deserves to be quashed and set aside.

In the result, this petition is allowed. The award dated 31st March, 2004 in Reference (LCN) No. 118 of 1994 passed by the Labour Court, Nadiad is hereby quashed and set aside. Rule made absolute accordingly with no order as to costs.