Tata Iron and Steel Co. Ltd. vs Sri Latu Tury and Others

R.L. Narasimham, C.J.—This is an application to quash the order of the Central Government Industrial Tribunal, Dhanbad (Annexure G) dated the 30th January, 1965, refusing to grant approval to the action of the employer (the petitioner) in dismissing one of its workmen namely Latu Tury, a minor of the colliery. The application was made under the proviso to Sub-section 2(b) of Section 33 of the Industrial Dispute Act. The charge against the work man (Annexure A) was that he absented himself without any leave or permission on three days in September, 1963, namely, 12-9-1963, 18-9-1963 and 21-9-1963. It was further stated in the charge that the absence on the aforesaid three dates was sufficient to show that the workman was a "habitual absentee" and was, therefore, guilty of misconduct punishable under Clause 19(4) of the Company''s Standing Order. The workman''s explanation was that as a result of an accident his left hand was injured and he used to get pain suddenly off and on and hence there was no wilful absence on his part. It was further urged that Clause 19(4) of the Standing Order was not applicable. Some sort of domestic enquiry was held and it was reported (Annexure E) that the workman may be discharged for the following reasons:

The charge against Sri Latu Tury for habitual absenteeism has been established. This is his third offence of similar nature.

I recommend that Sri Latu Tury may be discharged from Company''s service as per code of punishment.

On receipt of this report, the Company dismissed him from service and sought the approval of the Tribunal u/s 33(2)(b) of the Industrial Disputes Act.

The main reason for the refusal of the Tribunal to approve the action of the Company was that the finding that the workman was guilty of habitual absenteeism was based not only on his absence on the three specified dates, namely, 12-9-1963, 18-9-1963 and 21-9-1963 but also for his absence for two days in 1959, five days in 1960 and five days in 1962, although these dates were not mentioned in the charge nor was the petitioner given an opportunity of explaining his absence on those days. The Tribunal rightly pointed out that in the charge itself reference to habitual absenteeism on previous occasions (on the basis of which the employer came to the conclusion that the absence was not of an isolated nature but was due to habit) should have been made. The Standing Order on which reliance has been placed on behalf of the Company shows clearly in Sub-clause (4) of Clause 19 that it is not mere absence on a few days that is an act of misconduct, but there must be "habitual absence without leave or without sufficient cause". So far as mere absence is concerned, there is another Sub-clause (16) to Clause 19 which shows that if there is absence without permission and without satisfactory cause for more than ten days, it is an act of misconduct. There was no charge of contravention of this sub-clause. Hence we are merely concerned with the question whether on the charge as it was framed it could be held in law that the workman was guilty of habitual absenteeism. The Tribunal rightly held that he could not be so held. Mere absence on three occasions in the month of September in 1963, the absence being only for one day on each occasion, will not suffice in law to prove habitual absenteeism. The employer seems to have realised this and that is why his past record showing absence in 1959, 1960 and 1962 was produced before the Tribunal. But as these instances of absence were not put forward in the charge, they could not be taken into consideration as establishing the charge of habitual absenteeism.

The Tribunal has further observed that when the workman gave an explanation to the effect that on account of an accident to his hand on 26-10-1961 he used to get pain now and then in consequence of which he was unable to attend his duties, the employer should have got him examined by the doctor particularly to ascertain if this explanation was true or not. Mr. Balbhadra Prasad Singh for the employer, however, urged that it was the duty of the workman to go to the doctor and obtain a certificate in support of his explanation. But as Sub-clause (4) of Clause (19) of the Standing Order says that even habitual absence with leave or with sufficient cause will not amount to an act of misconduct, it would primarily be the duty of the Company to satisfy the Tribunal that the explanation given by the workman for his absence will not amount to sufficient cause within the meaning of the said clause. The fact that the workman met with an accident on 26-10-1961 appears to have been admitted. Hence, there should have been no difficulty in getting him further examined by the doctor during the course of the domestic enquiry with a view to ascertain if the plea of the workman concerned was reasonable or not. It was, therefore, open to the Tribunal to accept the ex-parte explanation given by the workman himself and to hold that his explanation was acceptable. In other words, according to the finding of the Tribunal there was sufficient cause for the workman''s absence on the three specified dates and hence the charge under Sub-clause (4) of Clause 19 of the Standing Order is not established. This is a finding on a question of fact which cannot be interfered with by this Court in exercise of its writ jurisdiction.

Mr. Balbhadra Prasad Singh thereupon contended that whether absence for three days amounts to habitual absence or not is purely a matter for the employer to decide and will not be justiciable (sic) (justifiable). I am not prepared to accept this extreme contention. The question whether on the admitted facts there has been contravention of Sub-clause (4) of Clause 19 of the Standing Order is a pure question of law and it is open to the Tribunal to hold that even if there was absence on the three specified dates in one month in the year 1963, (though the workman was in service, from 1948) habitual absence as required by law was not established. That finding is clearly unassailable in a writ petition.

For these reasons, the petition is dismissed with costs. Hearing fee Rs. 100/- payable to respondent.

Anwar Ahmad, J.

I agree.