Naurang Singh vs The Presiding Officer

Gurmeet Singh Sandhawalia, J.—Civil Misc. No. 2855 of 2014

Prayer made in this Civil Misc. Application is for early hearing of the writ petition.

The main case is already at Sr. No. 972 on the regular Board of this Court.

With the consent of the parities, the main case is taken up for hearing today itself.

The Civil Misc. Application stands disposed of accordingly.

CWP No. 1331 of 2005

Challenge in the present writ petition is to the award dated 11.9.2003 (Annexure P/2) whereby the reference was answered against the workman and it was held that dismissal from service was fully justified on account of the fact that he was absent from duty and being a driver of a Public Utility Service his conduct has led to a financial loss.

The sole question that arises for consideration is that as to whether the Labour Court was justified in holding that punishment was valid and not exercising its powers under Section 11-A of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") and coming to the conclusion that termination was justified and not giving the benefit of lessor punishment. There is no dispute regarding the fact that the petitioner has rendered 17 years and 8 months services as a driver of the respondent Corporation when his services were terminated on 2.12.1996. The charge against the workman was that he remained absent from 4.12.1995 and did not take interest in his duties and his act was affecting the office discipline. On Enquiry Officer being appointed the workman admitted his guilt regarding his absence and in view of his admission he was held guilty of the charges levelled against him. Accordingly, show cause notice was served upon him proposing penalty of removal from service and personal hearing was given to him on 8.10.1996 and his services were dispensed with on 2.12.1996. Thereafter, the appeal filed by him was dismissed by the Addl. Managing Director on 20.6.1997. The Labour Court noticed that the workman had admitted the charges on the ground that he remained sick and applied for leave and thus, there was no necessity to order enquiry but even then two opportunities were given to him and he was heard at all possible stages. The doctor had not been produced and fact that he remained sick was not proved. It was further noticed that he had already attained the age of superannuation in April, 2003 during the pendency of reference proceedings. Accordingly, order of termination was upheld.

This Court is thus of the opinion that once the workman had never raised any worthwhile defence, the authorities should have taken into consideration his long period of service which they failed to do so. There is no denying the fact that the petitioner has more than 17 years of service and by virtue of his dismissal order, he has lost out on his retiral benefits. As per the rules of the Department, the workman could have been duly punished by imposing lessor punishment which the Labour Court failed to take into consideration and did not exercise its powers under Section 11-A of the Act merely on the ground that the workman had retired during the period of reference. The misconduct was not that of misappropriation or embezzlement and only on the ground of absence, the long period of service from 1979 should have been taken into account by the Labour Court keeping in view the provisions of Section 11-A of the Act.

Normally for reconsideration of penalty imposed the matter would be remanded for reconsideration to the department. However, at this stage in view of the fact that the workman has already superannuated in the present case in 2003 and the services were terminated in 1996 it would not be appropriate to remand the matter to the department. Therefore, this Court is of the opinion that this Court can substitute its own view as to the quantum of punishment as the Court is of the opinion that the punishment imposed is shockingly disproportionate. The Hon''ble Apex Court in Ramesh Chand v. Commissioner of Police, Delhi and others 1999 (2) CLR 692 : (1999 AIR SCW 4911) while noticing that the employee had put in 28 years of service, converted the order of dismissal into one of compulsory retirement after taking into the fact that employer had superannuated. Similarly in B.S. Shirol v. Sri Veerbhadreshwar Education Society and others (2004) 13 SCC 619 the Hon''ble Apex Court converted the order of dismissal into compulsory retirement but denied back wages. However, it was held that workman would be entitled for continuity of service for the purpose of calculating pension.

The Hon''ble Apex Court in U.B. Gadhe and Others Vs. G.M., Gujarat Ambuja Cement Pvt. Ltd., also held that the Tribunal is to examine these facts and power has to be exercised judicially. The relevant portion reads as under:--

"18. It is not necessary to go into in detail regarding the power exercisable under Section 11-A of the Act. The power under said Section 11-A has to be exercised judiciously and the Industrial Tribunal or the Labour Court, as the case may be, is expected to interfere with the decision of a management under Section 11-A of the Act only when it is satisfied that punishment imposed by the management is wholly and shockingly disproportionate to the degree of guilt of the workman concerned. To support its conclusion, the Industrial Tribunal or the Labour Court, as the case may be, has to give reasons in support of its decision. The power has to be exercised judiciously and mere use of the words ''disproportionate'' or ''grossly disproportionate'' by itself will not be sufficient."

In Chairman cum Managing Director, Coal India Limited and Another Vs. Mukul Kumar Choudhuri and Others, the employee on transfer proceeded on sanctioned leave and did not report for duty and despite reminder remained absent for 6 months. In enquiry proceeding he admitted the charge, and was removed from service. The Calcutta High Court granted him the benefit of reinstatement and the order was modified by the Hon''ble Apex Court after considering the issue whether the punishment was gravely disproportionate to the proved charge of unauthorised absence of more than 6 months. The case law on the issue was discussed and the reinstatement was upheld and only back wages were withheld from the date of removal until reinstatement. The relevant observations read as under:--

"26. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, be fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company''s Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the Respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months."

In such circumstances this Court is of the opinion that the writ petition is liable to be partly allowed. The award dated 11.9.2003 (Annexure P/2) is set aside. It is directed that dismissal order dated 2.12.1996 further upheld in appeal on 20.6.1997 is converted into an order of compulsory retirement with effect from 2.12.1996. The petitioner shall be entitled for his retiral benefits for the period he rendered service. The necessary benefits be paid to him within a period of two months from the date of receipt of certified copy of this order.