The General Manager vs Prem Singh

Gurmeet Singh Sandhawalia, J.—Challenge in the present writ petition, by the petitioner-Management, is to the award dated 07.08.2008 (Annexure P10), passed by the Labour Court, Hisar, vide which, the workman has been directed to be reinstated, whose services were terminated on the ground of absence from duty. The benefit of continuity of service along with all other consequential benefits, including 40% back wages, from the date of issuance of the demand notice, i.e., 01.10.1999 till the date of publication of award and full back wages, thereafter, till reinstatement, on the ground that the dismissal order was too harsh and thus, excessive. A perusal of the paperbook would go on to show that the workman raised demand notice dated 01.10.1999 (Annexure P8), under Section 2-A of the Industrial Disputes Act, 1947 (for short, the ''Act'') on the ground that he was appointed as Driver in the Haryana Roadways on 01.01.1990, on regular basis, through Service Selection Board, after proper selection. He had fallen ill on 03.01.1995 and joined back on duty on 07.02.1995 and also remained absent on 12.02.1995, due to the illness. A chargesheet was issued to him on the ground of wilful absence and an Enquiry Officer was appointed to conduct departmental enquiry, which was conducted in an arbitrary manner, without following the proper procedure and on the basis of the said enquiry, the services of the workman were terminated on 07.12.1998. The department, in its reply, submitted that the workman''s work and conduct was not upto the mark and that he remained absent from duty for the period, as mentioned above and show cause notices were issued to him to come on duty and accordingly, he was chargesheeted on 07.03.1995 and since he failed to reply to the chargesheet, an Enquiry Officer was appointed to look into the allegations. Publication was done to give him personal hearing but he did not turn up and the termination order was passed. On the matter being referred to the Labour Court, the Enquiry Officer''s report was taken into consideration. It was noticed that the workman, who appeared as WW1, had deposed that he had fallen sick and that he reported for duty on 12.02.1995 and he also submitted his leave application for the absent period. The deposition of the Enquiry Officer, S.K. Maheshwari, MW2, was taken into account and Labour Court came to the finding that the report was not fair and proper since the Enquiry Officer himself had admitted that he had not recorded the statements of the complainants. It was noticed that once the leave had been applied for and sanctioned by the competent authority and the application also received for the relevant period, it cannot be said that he remained wilfully absent. Accordingly, the termination of the services of the workman were held to be highly disproportionate and excessive, for the said charge and the relief of reinstatement was granted with continuity of service and back wages to the extent of 40%.

This Court noticed the fact that it would be material to note whether the period of absence of the respondent-workman was treated as leave of kind due and whether he was paid salary for the period of absence, as it would have direct affect on the merits of the case. The affidavit of the Officiating Superintendent was filed wherein it has been deposed that the workman had remained absent from 03.01.1995 to 07.02.1995 and on 12.02.1995. It has further been deposed that the period of unauthorized absence was not converted into sanctioned leave and only the pay for the month of February, 1995 was made, inadvertently, due to clerical mistake and thus, there is admission that the salary was paid for the month of February, 1995. Relevant portion of the affidavit reads as under:

"That as per the direction of the Hon''ble High Court the deponent has checked the service book of the respondent/workman and also has verified the factual assertion of the workman by consulting the General Manager, Haryana Roadways, Gurgaon. The respondent Sh. Prem Singh, D. No. 295/20 was initially appointed on 01.01.1990 in Haryana Roadways, Gurgaon Depot, and he jointed later on at Jind Depot on 05.09.1997. However, the respondent remained willful absent unauthorizedly w.e.f. 03.01.1995 to 07.02.1995 and 12.02.1995 to 23.12.1995. His period of unauthorized absent was not converted into sanction leave and only the pay for the month Feb. 1995 was made inadvertently due to clerical mistake and also the salary of whole period of unauthorized absence of respondent was not made to the respondent. This lapse was not knowingly and deliberately.

That the bona fide and inadvertently mistake of the concerned department of paying salary of just one month i.e. Feb. 1995 was due to the clerical mistake."

A perusal of the chargesheet (Annexure P3) would go on to show that the period of absence, for which the workman was chargesheeted, was only from 03.01.1995 (wrongly typed as 1985 since the workman was only appointed in 1990) to 07.02.1995 and for 12.02.1995. The period of absence was, thus, slightly little over a month, after the workman had rendered 5 years of service and the order of dismissal, in such circumstances, was totally unjustified. A finding of fact was also recorded by the Labour Court that the enquiry was not proper, after taking into account the statement of the Enquiry Officer. A factual finding has, thus, been recorded that the procedure followed was not correct. Even in the order dated 07.12.1998, vide which, the services of the workman were terminated, the charge of absence from duty was only from 03.01.1995 to 07.02.1995 and then, for 12.02.1995. The Labour Court was well justified in holding that the punishment imposed was totally disproportionate to the charges.

In a Division Bench judgment of this Court in Gajraj v. JMP Industries and others 1996(3) RSJ 802, legal position was summarized by referring to The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, and it was held that the Labour Court is required to evaluate the evidence and satisfy itself whether findings recorded by the employer are justified or not and whether punishment awarded is justified or highly disproportionate. Relevant paragraph reads as under:-

"Argument of the learned counsel for respondent No. 1 that the Labour Court is bound to confirm the action taken by the employer if the finding on the issue of fairness of domestic enquiry is in favour of the employer is wholly without substance. This argument is based on the legal position which held the field till 14.10.1971, i.e. the date on which the Industrial Disputes (Amendment) Act, 1971 came into force by which apart from other provisions, Section 11-A was incorporated in the Act, 1947 conferring wide powers on the Labour Courts/Tribunals and National Tribunal in cases involving termination of services of the workmen by way of discharge or dismissal. This section came up for interpretation before the Supreme Court in The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, . Their Lordships referred to the legal position which obtained prior to the incorporation of Section 11-A and held that the legislature has designedly conferred much more wider powers on the Labour Courts and Tribunals to deal with the cases in which the workman is removed from service as a measure of disciplinary action. Their Lordships held that after coming into force of Section 11-A, the Labour Court is required to examine the issue of fairness of enquiry and give opportunity to the employer to produce evidence in cases where no enquiry is held or the enquiry held by the employer is found to be defective and a prayer is made at an opportune moment by the employer for permission to adduce evidence in case finding on the issue of fairness of enquiry is adverse to it. In case of fair and proper enquiry the Labour Court is required to evaluate the evidence and decide for itself whether the finding recorded by the employer is justified or not. In cases where the employer produces evidence before the Labour Court to support the allegation of misconduct, evidence produced during the course of proceedings before the Labour Court has to be analysed by the Court itself for recording a finding whether the action of the employer is supportable or not. In either of these cases, the Labour Court has to further examine whether the punishment awarded by the employer/the action taken by the employer is just or not and if it is found that the punishment is harsh or highly disproportionate or is wholly unjustified, the Labour Court can reduce the punishment or substitute it by some other penalty."

In Life Insurance Corporation of India Vs. R. Dhandapani, , Chairman cum Managing Director, Coal India Limited and Another Vs. Mukul Kumar Choudhuri and Others, and Syeed Zahir Hussain v. Union of India 1999 LAB. I.C. 2616, the Apex Court discussed the principles of substitution of punishment imposed by the employer by a lessor punishment on account of it being disproportionate, being unduly harsh.

Once it is settled proposition that under Section 11-A of the Act, the Labour Court has the power to examine whether the punishment imposed has been imposed judiciously and it is not wholly and shockingly disproportionate, then the punishment which suffers from abovesaid illegalities can be validly interfered with. The Apex Court in U.B. Gadhe and Others Vs. G.M., Gujarat Ambuja Cement Pvt. Ltd., has held 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 recent times, there is an increasing evidence of this, perhaps well-meant but wholly unsustainable, tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the Courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability. [See: Kerala Solvent Extractions Ltd. Vs. A. Unnikrishnan and Another, ."

Accordingly, this Court is of the opinion that the Labour Court has balanced the equities between the parties and set aside the order of termination and granted continuity of service along with all other consequential benefits and only granting 40% back wages, from 01.10.1999 till publication of the award and full back wages, thereafter. The workman has, thus, been penalised enough for his absence and it is settled principle of law that this Court is not sitting as a Court of appeal and would not interfere in the discretion which has been exercised by the Labour Court, while granting the relief of reinstatement. Accordingly, finding no merit in the present writ petition, the same is dismissed.