1. The first party-employer in Reference (LCV) No. 822/1997 in the Court of Presiding Officer, Labour Court, Vadodara, has approached this Court by way of filing this petition under Articles 226 and 227 of the Constitution of India, challenging the award and order passed by the Labour Court, partly allowing the reference directing reinstatement of the workman-respondent no.1 with continuity of service and 10% of back wages without any cost. This award and order was passed on 13.02.2008.
2. Facts in brief leading to filing this petition, as could be culled out from the memo of petition as well narration in the award be set out as under.
3. The workman was engaged initially as trainee by the petitioner vide order dated 05.07.1992. With effect from 01.12.1992, petitioner was confirmed in the service and the workman was upgraded as workman Grade-II w.e.f. 01.07.1993. Again he was upgraded as worker Grade-I w.e.f. 01.09.1995. The workman is alleged to have developed habit of remaining unauthorizedly absent from duties. During the period from January 1996 to February 1996, the workman is said to have remained absent from duty for total number of 153 days. On account of such conduct on the part of the workman, the charge sheet came to be issued on 11.03.1997 and elaborate detailed inquiry was conducted in accordance with law. The workman did not attend the inquiry. The conclusion of the Inquiry Officer was to the effect that the charge against the workman was proved. The second show cause notice came to be issued proposing punishment of dismissal from the service, in view of the misconduct. The explanation being unsatisfactory and punishment of dismissal was imposed vide order dated 09.04.2007. While terminating the services of the workman, the dues were paid, which was accepted by him.
4. The workman raised industrial dispute, which came to be referred to the competent Court, wherein it is numbered as Reference (LCV) No. 822/1997. The Court after taking evidence on record came to the conclusion that punishment of dismissal for the alleged misconduct was highly disproportionate and hence invoking Section 11(A) ordered reinstatement with only 10% of back wages and considered that 90% of deduction in the back wages would be sufficient penalty or punishment commensurate with the misconduct and passed the award impugned on 13.02.2008, which is subject matter of challenge in this petition, as it is stated hereinabove.
5. Learned counsel appearing for the employer invited this Court's attention to the facts, which has not been disputed in any manner, which indicated that from January 1996 to February, the workman remained absent on many occasion, as could be seen from page no.20. The intermittent absence of the workman caused consternation and impediment in smooth production and functioning which left the management with no choice, but to issue charge sheet of misconduct, wherein also during the inquiry proceedings, the workman chose to remain absent and did not care to come forward to defend his stand in any manner. Ultimately, when the charge sheet culminated into second show cause notice and dismissal order, the same was assailed by way of raising dispute by way of reference which could not have been even partly allowed by the Court.
6. Learned counsel for the petitioner relying upon the following authorities;
(i) in case of J.K.Synthetics Ltd. Vs. K.P.Agrawal And Another, reported in (2007) 2 SCC 433, laid emphasis upon observations in paragraph nos.19 and 27.
(ii) in case of Chairman and MD, V.S.P. and Others Vs. Goparaju Sir Prabhakara Hari Babu reported in 2008-II-LLJ-645 (SC), and laid emphasis upon paragraph nos.15 and 17.
(iii) in case of Gsrtc Vs. Pratapsinh Chaturbhai Zala, reported in 2007 JX(Guj) 201, equivalent whereof 2007 GLHEL_HC 217568.
(iv) in case of New India Assurance Co. Ltd. Vs. Vipin Behari Lal Srivastava, reported in (2008) 3 Supreme Court Cases 446.
relying upon these authorities a contention was raised that the workman when held to be guilty of misconduct of absentism or rather habitual absentism, without any rhyme or reason the said misconduct could not have been viewed as an act deserving any condonation from the Court of law.
7. Learned counsel for the petitioner further submitted that the misconduct alleged and proved is misconduct, which could be said to be habitual absentism without any reason and, therefore, such a misconduct would not merit any sympathetic consideration nor can the same be classified as a minor misconduct calling for minor punishment or awarding any leniency from the employer.
8. Learned counsel for the petitioner further contended that the subsequent conduct of the workman during the course of inquiry may not be overlooked in any manner, as the subsequent absence and lack of concern with regard to the disciplinary proceedings clearly indicate the mind set and habit of the workman, which clearly indicate that the workman did not deserve any leniency from the management, much less, from the Court of law.
9. Learned counsel for the workman relying upon the following authorities;
(i) in case of Krushanakant B. Parmar Vs. Union Of India And Another, reported in (2012) 3 SCC 178.
(ii) in case of Madhya Pradesh Electricity Board And Others Vs. Maiku Prasad, reported in (2008) 16 SCC 762.
(iii) in case of Mahendrakumar Veerabhai Makwana Vs. State of Gujarat & Anr. decided by this Court in S.C.A. No.2140 of 1986 dated August 31, 1990/September 1, 1990.
(iv) in case of Balachennamma A. (Smt.) Vs. Managing Director, K.S.R.T. Corporation, Banglore and Another, decided by the Karnataka High Court in W.P. No.26419/2005, dated January 2, 2006.
contended that the alleged misconduct was such a misconduct which would not have entailed punishment of economic debt. The punishment imposed was rightly found to be disproportionate and, therefore, when the Court has invoked Section 11(A) of the I.D. Act, this Court in exercise of the jurisdiction under Articles 226 and 227 of the Constitution of India, would not ordinarily interfere therewith.
10. Learned counsel for the workman contended that the misconduct, in the instant case, is not such a large so as to justify the dismissal of the workman on the said ground. The workman has been promoted, as could be seen from the petitioner's own say in the petition, at two times when such a workman who deserve to be promoted could not attend duties on account of ailment of his wife. The same could not have been viewed as so grave misconduct, as to bring about terminating the services of the workman. The Labour Court has clearly invoked Section 11(A) of the I.D. Act and thought it fit to set aside the punishment of dismissal in sizable reduction in the quantum of back wages, then in that view of the matter, this Court in exercise of power under Articles 226 and 227 of the Constitution of India may not interfere with the award and petition be dismissed.
11. The decision cited at the bar mentioned hereinabove also indicate that the absentism in all cases need not result into sphere of more punishment of dismissal in service jurisprudence. The punishment of absentism in the instant case is definitely harsh and disproportionate to the period of absentism which is intermittent absentism and not continuous one. There are cases where the Courts have countenanced continuous absentism from duty for longer period, therefore, in that view of the matter the order and award being just and proper, the same may not be interfered with by this Court.
12. The Court has heard learned counsel appearing for the parties and perused the award in question. It is required to be noted unequivocally that the question involved in this petition is not absentism, which was justified on account of any unavoidable circumstances on the part of the workman. If, the workman was in a position to prove that he was forced to remain absent even intermittently on account of unavoidable circumstances, then those circumstances and establishing of these facts would surely weigh with the Court as an appropriate accentuating circumstance which cannot be overlooked either by management or by the Court when the challenge is made. Unfortunately, in the present case, the workman has chosen not to put his version at all when he was categorically called upon during the inquiry which has followed after issuance of charge sheet. The workman's lack of concern betrays tendency on his part to take things for granted and such an attitude which is evident from the conduct of the workman leads to one and the only conclusion that the workman did not nourish proper regard to the duty nor did he take duty on work to be serious as to make him vigilant. The charge sheet is on intermittent misconduct without taking leave which cannot be viewed only as a factum of absentism alone. The absentism without any reason, much less, justifiable reason, would evince serious misconduct which cannot be countenanced and the result thereof has to be nothing else, but dismissal of the workman from service. The workman's conduct during the employment and during the inquiry has convinced this Court to say that the workman did not make out any case whatsoever for exercising any leniency in his favour for substituting the penalty of dismissal.
13. The Labour Court has time and again in the entire award observed that there was a reason of workman's wife ailment and that reason, unfortunately, he was not pleaded or proved during the entire inquiry in which he was given sufficient opportunity to lead evidence and prove his case. When such a case is coming forward before the Court, then Court cannot overlook these aspects and be guided only on account of lofty principles of leniency. The Court has invoked Section 11(A), which in my view was not justifiably invoked, as there exists no case for invoking Section 11(A), as the punishment cannot be said to be disproportionate to the charge of misconduct, which was willful absentism on various occasions. The decision cited at the bar on behalf of the petitioner indicate that the absentism of such a nature which is capable of betraying the lack for regard to the duty cannot be said to be a minor misconduct so as to warrant jurisdiction of this Court. The disproportionality of the punishment is to be guided by the charge and the evidences and accentuating circumstances, if any. In the instant case, the charge is serious. The same charge is proved and no extenuating circumstance is pleaded or proved on the part of the workman which disqualifies the employer from seeking invocation of Section 11(A) of the I.D. Act.
14. Assuming for the sake of examining, Section 11(A) of the I.D. Act could be invoked in a given case, then also the Court has not thought it fit to impose any punishment at all except the punishment of deduction of wages. In my view, the deduction of wages that is deduction of back wages for the period on which the workman had never worked and workman could not have worked, cannot be said to be a substitution of punishment of dismissal in the given facts and circumstances of the present case. The decision cited at the bar on the part of the workman do not help the workman in any manner, as the Apex Court in case of Balachennamma A. (Smt.) Vs. Managing Director, K.S.R.T. Corporation, Banglore and Another (supra) proceeded on a footing that the willful act is required to be proved and compelling circumstances are also required to be taking into consideration in the facts and circumstances of the case. The employee put up the defence that he was prevented from attending duty and was not allowed to sign attendance register. Now, such a defences made, then the entire controversy would be in the realm of proving of evidence and in that view of the matter, the Court said that the willful absence findings were required to be viewed from that angle. In the instant case, this Court is of the considered view that there was no accentuating circumstances, much less, any justifiable reason came to be proved before any authority which would have warranted its consideration appropriately. Therefore, this decision is of no avail to the workman. The Labour Court in that case was sought to be assailed on account of and past misconduct also and no material was produced before the Court. The Karnataka High Court came to the conclusion that award was not opened to be challenged. In my view these facts are different that the facts of the present case where the punishment order is proceeded on the basis of the misconduct which is alleged and proved and, therefore this judgment is also of no avail to the workman. The case of Mahendrakumar Veerabhai Makwana Vs. State of Gujarat & Anr. (supra) is also in respect of the stigmatic order, wherein the authority invoked summary power of discharged on account of unauthorized absence which was in the realm of stigmatic order which could not have been passed without appropriate opportunity. Those facts are different, then the present case, where the charge is specifically leveled, which is proved and the punishment followed. In view of this, this judgment is also of no avail to the workman. The decision cited the the learned counsel for the workman in case of Madhya Pradesh Electricity Board And Others Vs. Maiku Prasad (supra) is in respect of 50% back wages are paid to be sufficient punishment. In my view, this decision is also of no avail to the workman, as the facts of the present case are so glaring so as to justify the dismissal only.
15. In the result and for the aforesaid reasons, the petition is required to be allowed and is accordingly allowed. The order of Labour Court is hereby quashed and set aside. Rule is made absolute. No costs.
Pankaj (S.R.BRAHMBHATT, J.)