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Judgment
M.M. Sundresh, J.—This Writ Petition has been filed by the unsuccessful workman, challenging the dismissal of his Claim Petition filed in
I.D. No. 50 of 2000 dated 20.03.2002, upholding the order of dismissal passed by the Respondent No. 2 for unauthorised absence for a period
of 42 days.
Facts in brief:
The Petitioner herein was appointed as a substitute Bungalow Lascar by the Respondent No. 2. At the time of appointment, the Petitioner was
asked to undergo a medical fitness test and after satisfying with the certification, an order of appointment has been issued to the Petitioner on
24.04.1991. The appointment order specifically mentions that the Petitioner is eligible for regular absorption after one year of continuous service
subject to the availability of vacancy and other conditions being satisfied. It has been further mentioned therein that the order of appointment was
issued with the approval of the competent authority.
The Petitioner was made to work as a substitute Bungalow Lascar with one Dr. Mrs. Bageerathi Annamalai. The Petitioner was absent from
11.12.1993 for a total period of 42 days. In view of the unauthorised absence on the part of the Petitioner, a charge memo dated 05.01.1994 was
issued under Ex.M-2. Along with the charge memo, a letter of Dr. Mrs. Bageerathi Annamalai was also enclosed requesting the Respondent No. 2
to take action against the Petitioner for his unauthorised absence. The Petitioner did not choose to give any reply. Hence, an enquiry was directed
to be ordered against the Petitioner.
Before the Enquiry Officer, the Petitioner was asked about the charges framed against him. The Petitioner has stated that he agreed with the
charges framed. He also stated that since he was sick, he could not attend his duties regularly. The Enquiry Officer, in and by his report dated
11.02.1994 has found that the charges framed against the Petitioner have been proved. The Petitioner gave a reply on 24.02.1994 to the
Respondent No. 2 stating that as he was suffering from Jaundice, for which he took treatment from Siddha Doctor, he was compelled to take rest
and he was forced to stay at home. He further stated in his reply that he was not able to attend the Railway Hospital, Perambur, as he was insisted
by his parents not to go there. Therefore, the Petitioner had stated that considering the above said facts, he could be excused and in future he
would be careful in his duties. The Petitioner also enclosed a letter dated 24.02.1994 given by a private Siddha Medical Practitioner
acknowledging the illness of Jaundice. Not satisfied with the explanation given by the Petitioner and accepting the enquiry report, an order of
dismissal was passed by the Respondent No. 2. The Petitioner''s further appeal and revision were rejected by the appellate and the revisional
authorities respectively.
Challenging the said proceedings, the Petitioner approached the Central Administrative Tribunal by filing an Original Application in O.A. No. 48
of 1995. The Central Administrative Tribunal in and by the order dated 02.04.1996 was pleased to set aside the orders impugned on the ground
that the authorities have traversed beyond the charges framed, by going into the subsequent period, which was not part of the charge memo. The
Honourable Tribunal further found that the revisional authority ought not to have taken into consideration of the past conduct of the Petitioner.
Accordingly, the orders impugned therein have been set aside and the matter was remitted back to the Respondent No. 2 for a fresh
consideration.
The Respondent No. 2 by the order dated 12.09.1996, placed the Petitioner under suspension and thereafter, passed an order of removal on
02.10.1996, holding that the misconduct on the part of the Petitioner having been unauthorisedly absent from 11.12.1993 to 05.01.1994 is duly
violating Rule 3(1)(iii) of the Railway Services (Conduct) Rules, 1966. Challenging the said order, the Petitioner has approached the Respondent
No. 1 herein.
The Respondent No. 1 has held that the enquiry has been conducted in a free and fair manner by giving adequate opportunities to the Petitioner.
However, after rejecting the contention of the Respondent No. 2 by holding that the Railway Services (Conduct) Rules, 1966 and the other
relevant rules are applicable to the Petitioner, nonetheless dismissed the Claim Petition on the ground that the Petitioner had no lien over the post
and not absorbed by the Respondent No. 2 as a permanent workman. The Labour Court has declined to exercise the discretion u/s 11A of the
Industrial Disputes Act. Challenging the dismissal of the Claim Petition passed by the Respondent No. 1, the Petitioner has come forward to file
this present Writ Petition.
Submissions of the Petitioner:
Ms. Anna Mathew, learned Counsel appearing for the Petitioner submitted that the enquiry conducted by the Respondent No. 2 is farce. In a
departmental proceedings, it is for the department to prove the charges. The onus has been wrongly placed on the Petitioner. The Enquiry Officer
merely concluded the enquiry by holding that the Petitioner has accepted the charges. The procedure contemplated under the Railway Servants
(Discipline & Appeal) Rules, 1968 and Railway Services (Conduct) Rules, 1966 have not been complied with. The necessary documents have not
been furnished to the Petitioner.
The learned Counsel for the Petitioner submitted that the Labour Court has committed an error in not deciding the preliminary issue of a fair and
proper enquiry before deciding the Claim Petition on merits. The Petitioner was not given sufficient opportunities before the Labour Court. The
Labour Court has committed an error in deciding the Claim Petition only on the ground that the Petitioner was not a permanent employee having
no lien, without appreciating the fact that the procedure contemplated for a temporary employee has to be adopted to the case of the Petitioner as
well. According to the learned Counsel, the order of the appointment would make it very clear that the Petitioner is eligible for regular absorption
after completion of one year and even assuming that he would not be required as a Bungalow Lascar, he has to be considered by transfer as a
Peon in the existing vacancies. The learned Counsel further submitted that the Petitioner has never admitted the charges and an admission has to be
unambiguous and uncontroverted. Assailing the order of dismissal passed by the Respondent No. 2 as confirmed by the first Respondent and
seeking reinstatement, the learned Counsel submitted that in view of the inherent defects in the proceedings, the Petitioner will have to be not only
reinstated, but also adequately compensated with backwages as well. The learned Counsel submitted that by applying the Doctrine of
Proportionality also the award of the Labour Court will have to be set aside. In support of the said submissions, the learned Counsel has made
reliance upon the following judgments:
Mohan Lal Vs. Management of Bharat Electronics Ltd.,
D.K. Yadav Vs. J.M.A. Industries Ltd.,
Nicks (India) Tools Vs. Ram Surat and Another,
Mahindra and Mahindra Ltd. Vs. N.B. Naravade etc.,
U.P. State Road Transport Corporation and Ors. v. Shivaji (2006) 13 SCC 637
Manik Sahadu Borshe Vs. Union of India (UOI) and Others,
S. Shanmugam v. Presiding Officer, Labour Court, Vellore and Anr. 2005 (1) L.L.N. 404
W.P. No. 23983 OF 2002 DECIDED ON 11.12.2009
W.P. Nos. 23044 and 24473 OF 2006 DECIDED ON 12.01.2011
Submissions of the Respondent No. 2
Endeavouring to sustain the order of dismissal, as confirmed by the Respondent No. 1, the learned Counsel appearing for the Respondent No.
2 submitted that the Petitioner admittedly was a casual employee and therefore, the relevant rules as applicable to the temporary employee and
permanent employee cannot be made applicable. The job of a Lascar is attached to an Officer. Once an Officer moves out of place, the
concerned Lascar also losses his job. The learned Counsel further submitted that the order of dismissal has been passed after giving sufficient
opportunities to the Petitioner. When an enquiry has been conducted in a free and fair manner, which has been approved by the authority having
jurisdiction, no interference shall be made by this Court. The learned Counsel further submitted that even assuming the Petitioner is entitled for
reinstatement, the consequential benefits are not automatic. Therefore, the learned Counsel submitted that the Writ Petition will have to be
dismissed.
Heard the learned Counsel appearing for the Petitioner as well as the learned Counsel appearing for the Respondents. It is also brought to the
knowledge of this Court that the Petitioner has been reinstated by the order dated 10.05.2010 as a Substitute Helper subject to the result of the
Writ Petition.
Admittedly, the Petitioner was absent for a period from 11.12.1993 to 05.01.1994. The Petitioner was issued with a charge memo on the
ground of unauthorised absence. For the reasons best known to the Petitioner, he has not chosen to give a reply. Accordingly, an Enquiry Officer
was appointed and an enquiry was conducted. The Petitioner participated in the enquiry. During the enquiry, a question was put to the Petitioner as
to how he actually felt about the charges framed against him. A reply was made by him stating that he agreed. To a further question asking the
Petitioner about his other remarks for the charges framed, he replied that he was sick and therefore, he could not attend the duties regularly. It is
further seen that even before the Respondent No. 2, after the receipt of the enquiry report, the Petitioner has stated that he was sick due to
Jaundice and he may be excused. He has further stated that in future he would be more careful in his duties. The Enquiry Officer found that the
Petitioner has not followed the procedure contemplated by informing the Railway Hospital, Perambur about his sickness.
As found by the Respondent No. 1, the Petitioner was given all opportunities before the enquiry. He was permitted to peruse the records and
a copy of the letter of Dr. Mrs. Bageerathi Annamalai was also enclosed along with the charge memo. The Petitioner was asked as to whether he
would like to have any assistance of a third party. Therefore, taking into consideration of the above said facts, the Tribunal was pleased to hold
that the enquiry was conducted in a free and fair manner.
This Court is of the view that the Petitioner cannot have any grievance about the enquiry conducted. It is also the case of the Petitioner that he
was absent. The only defence raised by the Petitioner is that he should be pardoned, as he was sick. In a case where charges have been framed
for authorised absence, the onus is very much on the delinquent employee to substantiate his case. Therefore considering the facts of the case, this
Court is of the view that the Petitioner has not raised anywhere either before the disciplinary authority or before the higher authorities about the fact
that the enquiry has not been conducted properly. Hence, this Court holds that the enquiry has been conducted in a free and fair manner. This
Court also does not accept the contention of the learned Counsel for the Petitioner that after holding that the enquiry has been conducted in a free
and fair manner, further opportunity should have been given to the Petitioner to redress his grievance, as the Petitioner was fully heard by the
Tribunal on merits, by affording adequate opportunities.
Whether the charges are proved or not:
The charge against the Petitioner is that he has unauthorisedly absented himself. The Petitioner for the first time before the first Respondent, that
too in an application seeking filing of the proof affidavit as he was not conversant with English has stated that his brother has informed Dr. Mrs.
Bageerathi Annamalai about his absence. Inasmuch as the Tribunal has upheld that the enquiry has been conducted in a free and fair manner, it has
rightly eschewed the said statement made for the first time before it. It is further seen that nowhere in the enquiry proceedings, the Petitioner has
raised such a plea. He has produced a medical certificate for the first time before the Respondent No. 2. Even thereafter, the Petitioner has not
stated about the intimation during the period of unauthorised absence before the authorities concerned.
On the contrary, the Petitioner has accepted the fact that he has unauthorisedly absented himself. It is no doubt true that a sworn statement
made by the delinquent employee cannot be construed as an admission. But in the present case on hand, the Petitioner has not made any contra
statement before the Enquiry Officer. His consistent plea before the authorities was that he was sick and therefore he could not be present for duty.
He further explained as to why he could not report the matter to the concerned hospital authorities. In other words, the reply of the Petitioner was
more of a pleading than of a denial. The judgment relied upon by the learned Counsel for the Petitioner in S. Shanmugam v. Presiding Officer,
Labour Court, Vellore and Anr. 2005 (1) L.L.N. 404 does not help the case of the Petitioner, as in that case no enquiry was conducted and an
order adversely affected the rights of the delinquent officer, has been passed based upon a statement. Therefore, this Court finds that considering
the facts and circumstances of the case, the charges framed against the Petitioner have been proved. It is further to be seen that the Petitioner was
aware of the relevant rules, even though he pleaded ignorance, as for the similar occurrence, he was imposed with a minor punishment earlier.
Hence, this Court finds that the charges framed against the Petitioner are duly proved.
Whether the Railway Services (Conduct) Rules, 1966 and the Railway Servants (Discipline & Appeal) Rules, 1968 are applicable to the case of
the Petitioner or not:
Admittedly, the Respondent No. 2 initiated proceedings against the Petitioner under the relevant rules. The order of suspension passed against
the Petitioner has been made under Rule 5(1) of the Railway Servants (Discipline & Appeal) Rules, 1968 and the consequential order of dismissal
passed by the Respondent No. 2 was also for the violation of the Railway Services (Conduct) Rules, 1966. The Honourable Central
Administrative Tribunal also interfered with the orders impugned passed by the authorities on merits, which indicates that the Petitioner was treated
as a temporary employee, to whom the rules are applicable. When the Respondent No. 2 itself has followed the rules by framing a charge memo,
conducting an enquiry, suspending the Petitioner and thereafter imposing the order of punishment, it is not open to it to contend that the Petitioner,
being a lascar, the rules are not applicable. The issue is no longer res integra and the same has been concluded against the Respondent No. 2 by
this Court in W.P. Nos. 23044 and 24473 of 2006 decided on 12.01.2011. The passage dealing with the said issue by the learned single Judge of
this Court is apposite:
Thus, the above-said paragraph makes it clear that substitutes would be entitled to all rights and privileges as are available to temporary
Railway servants from time to time on completion of four months'' continuous service. Paragraph 1501 defines temporary Railway servant to mean
a Railway servant without a lien on a permanent post in the Railways or any other administration or even in the Railway Board. Temporary Railway
service, however, does not include casual labour, including casual labour with temporary status, contract or part-time employee or apprentices.
Paragraph 1502 deals with termination of service and period of notice. Sub para (6) of paragraph 1502 contains a non-obstante clause to Clauses
1, 2 and 4 that nonwithstanding anything contained therein, if the Railway Servant or an apprentice is one to whom the provisions of the Industrial
Disputes Act, 1947 applies, he shall be entitled to notice or wage in lieu thereof, in accordance with the provisions of the Industrial Disputes Act.
The note appended below the said paragraph states, where the temporary Railway servant remained absent on extraordinary leave beyond a limit
of five years, for whom no show cause notice is required, as in the case of permanent Railway servant, there is no need for issuance of any notice
of termination. The Manual also contains Rules governing the pay and protection.
A similar view was also taken by this Court in W.P. No. 23983 of 2002 decided on 11.12.2009.
It is further to be seen that the Respondent No. 1 itself has rejected the contention of the Respondent No. 2 by holding that the punishment
order made in favour of the Petitioner itself, would exemplify the fact that the rules are applicable to him. The Petitioner was appointed in pursuant
to a medical test conducted. The appointment order was issued with the concurrence of the higher officials. The order also further states that the
Petitioner will be eligible for a regular absorption. Therefore, the Tribunal taking into consideration of the above said facts, has rejected the
contention of the Respondent No. 2. In this connection, it is useful to refer the judgment of the Honourable Apex Court in Telecom District
Manager and Others Vs. Keshab Deb, which is as follows:
He, according to the Appellants, has committed a misconduct. His services had been terminated on that ground. But therefore he was entitled
to an opportunity of being heard. A regular departmental proceeding should have been initiated against him; the order of termination being stigmatic
in nature....
Therefore, from the above said position of law, coupled with the facts involved in the present case on hand, it is too late in the day for the
Respondent No. 2 to contend that the Petitioner, not being a temporary or a regular employee, the relevant rules are not applicable.
Whether the approach of the Labour Court is correct:
The Labour Court strangely after holding that the rules are applicable to the case of the Petitioner, rejected the case of the Petitioner on the
ground that not being a permanent employee, having no lien for the post, he cannot get the relief. This Court is afraid that the approach of the
Labour Court is totally wrong and against the basic principles of law. When the Labour Court was of the view that the rules are applicable to the
case of the Petitioner, the findings of such a nature is totally unwarranted. Admittedly, an enquiry was conducted against the Petitioner as per the
rules and after providing sufficient opportunities, the charges were held to be proved. Therefore, the Labour Court ought not to have been given
such a finding, which has got no relevance to the dispute pending before it. Hence, this Court is of the view that the Railway Services (Conduct)
Rules, 1966 and The Railway Servants (Discipline & Appeal) Rules, 1968 are very much applicable to the case of the Petitioner and merely
because the Petitioner is a lascar, he cannot be dismissed as per the whims and fancies of the employer as held by this Court on the earlier
occasions. Doctrine of Proportionality and inference by the High Court when the punishment is disproportionate:
The next issue to be considered in the present case on hand is that of the quantum of punishment that ought to have been passed by the
Respondents. Considering the facts of the case it is very clear that it is the constant and specific case of the Petitioner that only due to the illness, he
was unable to attend his work. This Court finds considerable force in the submissions made by the learned Counsel for the Petitioner that there is
nothing on record to substantiate that the Petitioner was not ill. The Petitioner has also produced the medical certificate in support of his contention.
The admission of the Petitioner is only to the unauthorised absence, but the same cannot be construed to hold that he was not sick. It is common
knowledge that an illiterate person would normally approach the Siddha Doctor for taking treatment for Jaundice. It is also common in this part of
the world that people from different strata of the society would approach the native doctors and people well versed with the medicinal herbs for
treatment towards Jaundice. There is also no reference to the medical certificate produced by the Petitioner in the order passed by the Respondent
No. 2.
Considering the above said undisputed facts leading to the factual scenario, the Labour Court ought to have exercised the power u/s 11A of
the Industrial Disputes Act, 1947. Here is a case of an illiterate employee who pleaded before the authorities about his inability to attend work due
to his illness. Being a public authority who is supposed to be a model employer, the Respondent No. 2 ought to have considered the said request
and imposed a lesser punishment. As rightly contended by the learned Counsel for the Petitioner Ms. Anna Mathew, there is no reference in the
order passed by the Respondent No. 2 about the appropriate punishment for the charges proved against the Petitioner. The order of dismissal
merely states that the unauthorised absence would amount to violation of Rule 3(1)(iii) of the Railway Services (Conduct) Rules, 1966. Further,
Rule 3(1)(iii) of the Railway Services (Conduct) Rules, 1966 has no application at all in the present case on hand. Perhaps, what could be applied
to the present case on hand is Rule 3(1)(ii) as it stipulates that every railway servant shall at all times maintain the devotion to duty. The said rules
are general in nature and there is no indication about the corresponding punishment for their violation.
The Labour Court is envisaged with the primary duty to find out as to whether the discretion available u/s 11A of the Industrial Disputes Act,
1947 can be exercised or not. While exercising the said discretion, the Respondent No. 1 ought to have been taken into consideration, the nature
of misconduct of the parties and the manner in which the enquiry proceedings have been conducted. The jurisdiction of the Respondent No. 1 is
rather wide. Considering the charges levelled against the Petitioner, this Court is of the view that the Respondent No. 1 ought to have considered
the exercise of the power u/s 11A of the Industrial Disputes Act, 1947.
Considering the scope of Section 11A of the Industrial Disputes Act, 1947, the Honourable Apex Court in LIC of India Vs. R. Suresh, has
held as follows:
Indisputably again, the jurisdiction must be exercised having regard to all relevant factors in mind. In exercising such jurisdiction, the nature of
the misconducts alleged, the conduct of the parties, the manner in which the enquiry proceeding had been conducted may be held to be relevant
factors. A misconduct committed with an intention deserves the maximum punishment. Each case must be decided on its own facts. In given cases,
even the doctrine of proportionality may be invoked.
In fact this Court in Union of India (UOI) and Others Vs. J. Ahmed, opined that negligence by itself may not be held to be a misconduct. The
Court stated:
(SCC p.293, para 11) ""11"" It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached
to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or
error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the
consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of
culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence.
Carelessness can often be productive of more harm than deliberate wickedness or malevolence.
This Court in I.T.C. Ltd., Monghyr, Bihar Vs. Presiding Officer, Labour Court, Patna (Bihar) and Others, opined that negligence by itself
cannot be held to constitute misconduct stating: (SCC p.517, para 16) ""16. "" Mr Pai submitted that even neglect of work simpliciter can be a
misconduct within the meaning of Sub-clause (1) of Clause (ii) of Standing Order 20 apart from its being a fault within the meaning of Sub-clause
(b) of Clause (i) of the said Standing Order as the word ""habitual"" in the former merely qualifies the word ""negligence"" and not the expression
neglect of work"". This argument has to be stated merely to be rejected. Mere neglect of work cannot be both. If it is so, it is a fault. If it is
habitual, that is, if it is repeated several times then only it is misconduct. It may well be that fault of one kind or the other as enumerated in Sub-
clauses (a) to (g) of Standing Order 20(i) if repeated more than once may be habitual within the meaning of Standing Order 20(ii)(1), and
especially in the light of the fourth fault being a misconduct within the meaning of Standing Order 20(a), but on the facts of this case, there was no
charge against Respondent 3 that he was guilty of habitual neglect of work. Moreover the Labour Court found that the negligence of the workman
was not of a serious kind. Some others in the factory also contributed to it. We, therefore, reject Point 2.
The jurisdiction of the Industrial Court being wide and it having been conferred with the power to interfere with the quantum of punishment, it
could go into the nature of charges, so as to arrive at a conclusion as to whether the Respondent had misused his position or his acts are in breach
of trust conferred upon him by his employer.
Hence considering the facts discussed above and applying the law laid down, this Court finds that the order of dismissal imposed on the
Petitioner is very harsh and totally disproportionate to the charges framed. The Central Administrative Tribunal has disapproved the reasoning of
the revisional authority in making reliance upon the past conduct. The Petitioner''s specific case regarding the illness was also not taken into
consideration either by the Respondent No. 2 or by the Respondent No. 1. The said fact also has not been disputed.
Considering the case of unauthorised absence vis-a-vis the punishment to be imposed, the Honourable Apex Court was pleased to observe as
follows:
In the recent judgment, in Jagdish Singh Vs. Punjab Engineering College and Others, , the Honourable Apex Court, considering the case of a
sweeper, who was dismissed from service on account of his absence on four spells totalling to fifteen days in all in two months to sort out his
daughter''s problem with her-in-laws and considering the fact that it is not a case of habitual absenteeism and the major punishment of dismissal
from service is shocking the consciousness of the Court, has observed and held as follows:
The instant case is not a case of habitual absenteeism. The Appellant seems to have a good track record from the date he joined service as a
sweeper. In his long career of service, he remained absent for fifteen days on four occasions in the months of February and March 2004. This was
primarily to sort out the problem of his daughter with her in-laws. The filial bondage and the emotional attachment might have come in his way to
apply and obtain leave from the employer. The misconduct that is alleged, in our view, would definitely amount to violation of discipline that is
expected of an employee to maintain in the establishment, but may not fit into the category of gross violation of discipline. We hasten to add, if it
were to be habitual absenteeism, we would not have ventured to entertain this appeal.
In the result, we allow the appeal and set aside the order passed by the disciplinary authority dated 30-9-2004 and affirmed by the High Court
vide its order dated 28-8-2007.
Taking the totality of the facts and circumstances of the case and having due regard to the unblemished record of the Appellant, and the
reasons for which he remained absent without obtaining permission, the ends of justice would be met, if punishment imposed by the disciplinary
authority is modified to that of stoppage of two increments with cumulative effect and further declare that he would not be entitled for any monetary
benefits during the period he was out of service and that period would be counted only for the purpose of his service benefits. We direct the
disciplinary authority to issue appropriate orders in this regard within one month from the date of production of certified copy of this Court''s order
by either of the parties.
The judgment of the Honourable Division Bench was quoted with approval by the Honourable Division Bench of this Court in V. Senthurvelan
v. High Court of Judicature At Madras (2009) 7 MLJ 1213. Therefore, considering the ratio laid down by the Honourable Apex Court and as
held by the Honourable Division Bench, this Court is of the view that the punishment imposed on the Petitioner is harsh and excessive, being
disproportionate to the charges.
The Honourable Apex Court while considering the Doctrine of Proportionality in U.P. State Road Transport Corporation and Ors. v. Shivaji
(2006) 13 SCC 637 has held in the following manner:
In fact, the Presiding Officer, Labour Court, did not assign any reason as to how the charges could be said to have been proved. He had not
taken into consideration his power u/s 11A of the Act in regard to quantum of punishment. Why he had opined that the workman was guilty of
serious misconduct and had no right to remain in service has not been explained.
The matter in ordinary course should have been remitted to the Labour Court for passing an appropriate award, but keeping in view the fact
that the matter is pending for a long time, we ourselves considered the evidence on record.
We, therefore, are of the opinion that the impugned judgment cannot be faulted in its entirety. The High Court has granted reinstatement of the
Respondent with only 50% back wages. The said order has been stayed by this Court. The Respondent was out of service for a long time. He, as
noticed hereinbefore, even during the pendency of the domestic inquiry had been kept under suspension. He, however, was driving rashly and
negligently.
In a case of this nature, doctrine of proportionality would also be applicable. Doctrine of irrationality is now giving way to doctrine of
proportionality. (See The Commissioner of Police and Others Vs. Syed Hussain, . The Labour Court also did not consider this aspect of the
matter. If only a charge of negligence had been proved against him, we are of the opinion that the interest of justice would be subserved if he is
directed to be reinstated in service with 25; back wages.
Hence applying the Doctrine of Proportionality as narrated by the Honourable Apex Court, this Court is of the view that it is a fit case, where
the order of dismissal passed by the Respondent No. 2 will have to be set aside by ordering reinstatement.
Whether the Petitioner is entitled to get backwages:
The Honourable Apex Court in a catena of judgments was pleased to hold that backwages are not automatic. Even in a case where
reinstatement has been ordered, it has been held by the Honourable Apex Court that backwages are not automatic. The question as to whether in
a given case where a workman is entitled to get reinstatement or not depends upon its own facts, length of litigation and the nature of employment
and the charges framed. When that is the position while reinstating the employee on merits, the Court will have to exercise more caution in ordering
backwages, while exercising the power u/s 11A of the Industrial Disputes Act, 1947. A judicial discretion u/s 11A of the Industrial Disputes Act,
1947 and the exercise under Article 226 of the Constitution of India is based upon goodwill and fairness leading to the Doctrine of Proportionality.
This Court has to bear in mind that the relief is given inspite of the fact that the charges have been proved.
However, considering the facts of the case particularly with reference to the charges framed against the Petitioner and his explanation, coupled
with the further fact that he was no way responsible for the pendency of the lengthy proceedings right from the year 1993 to till date, this Court is
of the view that while awarding reinstatement, the Petitioner shall have to be given 25; of the backwages. This Court is also conscious of the fact
that the Petitioner was yet to be made permanent, at that time. It has to be seen if a lesser punishment had been awarded to the Petitioner, he
would have been made permanent long time back. However, the question of making an employee permanent is in the hands of the employer
concerned, of course, subject to the relevant rules. Hence, taking into consideration of the peculiar circumstances of the facts and circumstances of
the case, the Respondent No. 2 is directed to consider the case of the Petitioner for making him permanent in accordance with law.
Accordingly, the Writ Petition is allowed, setting aside the award passed by the Respondent No. 1 by ordering reinstatement with 25%
backwages, with a further direction to the Respondent No. 2 to consider the case of the Petitioner for making him permanent on merits and in
accordance with law. No costs.