1. These two petitions have been filed by the employer i.e. S.C.A. No.12535 of 2000 and the work-person i.e. S.C.A. No. 1462 of 2001. In both these petitions the subject matter of challenge is the award dated 19.05.2000, which both the parties have challenged for their respective reasons. In addition thereto, the work-person's petition contain one more challenge to the first part award and order dated 08.10.1999 produced at page no.16 in S.C.A. No.1462 of 2001, whereunder the Court came to the conclusion that the inquiry conducted against the work-person was just, proper and legal.
2. Facts leading to filing these two petitions, as could be culled out from the respective memo of the petitions, deserve to be set out as under.
3. The work-person's services were terminated by passing a punishment order dated 09.10.1991 on account of she remained continuously absent for a period of 73 days without leave and sanction of leave from the concerned authority. The work- person had a record prior to that termination of intermittently remaining absent and other misconducts, which left the employer with no choice, but to impose punishment of dismissal. The work-person raised dispute which was referred to the competent Court whereunder it was numbered as Reference No.131/92. In this reference, the work-person specifically challenged the legality and validity of the inquiry and, therefore, as a preliminary issue the veracity, legality and proprietary of the inquiry culminated into imposing of penalty, was examined and the findings came to be recorded as part one award dated 08.10.1999, holding that the inquiry proceedings were just, proper and legal. The Court thereafter proceeded further and recorded its finding qua disproportional harsh penalty of economic debt, substituted the penalty by imposing complete denial of back wages and granted reinstatement obviously in exercise of power under Section 11-A of the I.D. Act. This order is challenged by the employer in S.C.A. No.12535 of 2000 and as it is stated hereinabove, the work-person has challenged this order qua denial of back wages and the order in finding of preliminary award.
4. The parties will be referred to in this common judgment as their respective status i.e. employer and employee for the sake of brevity.
5. Learned advocate for the employer contended that the absent without authority of law and absent without due sanction and approval from the concerned authority is viewed as misconduct justifying the punishment order of dismissal from service. In the instant case, it was submitted that the misconduct narrated by the Court and continuous absence without leave of 73 days were so grave as to justify the order of punishment, which ought not to have been interfered with by the Court especially when the Court in the first instance held that the charge of absentism was proved and the inquiry was found to be just, proper and legal.
6. Learned advocate for the employer relying upon the decision of this Court (Coram: S.R.Brahmbhatt, J.) in S.C.A. No.5885 of 2008 decided on 25.07.2012 in case of Apollo Tyres Limited Vs. Rajendra Chandulal Panchal, contended that the absentism without due sanction of leave is viewed to be a grave misconduct and hence in the instant case also when the misconduct of absentism of as many as 73 days coupled with the tendency indicated on behalf of the work-person, the Labour Court's exercise of discretion under Section 11-A of the I.D. Act was uncalled for and, therefore, on that ground the order deserves to be quashed and set aside.
7. In answer to the contention raised on behalf of the work-person that the preliminary findings of inquiry proceedings are per se untainable. Learned advocate for the employer submitted that the entire reading of the first part award would show that the Court come to conclusion that there was no lacuna or any infirmity in the inquiry report or inquiry proceedings. The so called allegation of non application of mind is just merely an attempt to divert the Court's attention from the fact that the Court in the first instance, when examining the legality and proprietary of inquiry proceeding, adverted to the contentions raised on behalf of the employer qua other misconducts also. But that would not defocus the attention and as the Court has come to a specific conclusion that the inquiry proceeding was just and proper and it was therefore, held to be legal. When such inquiry proceedings which were held to be legal has resulted into imposition of penalty of dismissal, then it was not open to the Labour Court to unduly exercise power and jurisdiction under Section 11-A of the I.D. Act and substitute the penalty and reduce only to the denial of back wages. The entire conduct of the work-person, as could be seen from the pleadings, would indicate that the lady did not have much interest in continuing her service. The important work of account keeping was entrusted to the lady and on account of her absentism the employer was put to greater hardship which ought to have been appropriately weighed with the Court and there was no scope for invoking provision of Section 11-A of the I.D. Act, as has been done in this case and, therefore, the award is required to be quashed and set aside.
8. Learned advocate for the work-person contended that the preliminary award on the inquiry proceeding suffers from patent non application of mind, as unfortunately the plane reading of the award would be sufficient to indicate that the charge-sheet and inquiry, which in fact resulted into passing of the dismissal order, has not been adverted to by the Court in any manner.
9. Learned advocate for the work-person thereafter contended that the entire portion of the preliminary award has occupied the earlier misconducts which were not subject matter for consideration at all and the absentism for five days on account of illness of the delinquent's child is elaborately delved upon, whereas the said incident was not subject matter of inquiry as the inquiry and result of the inquiry in respect of the so called absentism for 73 days which has not been adverted to at all nor has there been any discussion with regard to the inquiry proceedings, wherein one employee called Arvind was examined and the certificate was produced by the delinquent. The entire reading of the preliminary award would indicate that there was mistake on the part of the Court in not adverting to the inquiry which was called upon to examine and hence such a conclusion which has been relied upon by the Court in holding that the inquiry was proper and limiting the relief qua reinstatement and justifying denial of back wages would also be vitiated and, therefore, the back wages could not have been denied to the work-person at all.
10. Learned advocate for the work-person relying upon the decision in case of Karnataka State Road Transport Corporation Vs. Lakshmidevamma
of leading evidence was not requested in the initial stage nor was it ever thought or being prayed for are subsequent also. The first part of the award is pronounced in the year 1999 and the final order and award is passed in the year 2000. The time lag between two gave sufficient time to the employer to assess the tenability of the same and if the employer has chosen not to avail any opportunity, even by way of alternative plea, then the employer cannot be permitted to now make out a ground for remanding the matter, as it is contended on behalf of the employer.
11. Learned advocate for the work-person has contended that non granting of complete back wages is on account of Labour Court's findings qua charge being proved and committing misconduct of absentism of 73 days. Now, when the inquiry itself was not adverted to and the said inquiry was declared to be just and proper and when the inquiry was shown to be defective, as could be seen from recording of the inquiry officer, the order denying back wages could not have been passed.
12. This Court has heard learned advocate appearing for the parties and perused the award and preliminary award in question. The following indisputable facts emerging there from deserve proper mentioning as under;
(i) The proceedings before the Court unequivocally indicate that the inquiry was pursuant to charge of remaining absent without any sanction of leave for 73 days continuously.
(ii) The defence and the reinstatement contain reference to other misconducts and other absentism also. But the fact which remained undisputed is that the charge and the resultant inquiry and order were in respect of misconduct of continuous absent for 73 days only.
(iii) The Inquiry Officer has recorded that the delinquent denied the charges and put up version that on account of the accident on 24.06.1991 and the resultant effect she was unable to attend her duties and she had sent at least four communications on different dates. Those communications and its acceptance have not been denied or controverted in any manner.
(iv) The charge impugned do not indicate that those communications were termed to be got up or baseless, in fact the charge do not refer to any communications received from the delinquent.
(v) The Inquiry Officer conducted inquiry wherein the factum of accident was not disputed by anyone or rather as it is submitted by advocate for the work-person that the factum of accident occurring has been proved.
(vi) The factum of sending of letters and intimation and non approval of leave was also adverted to by the Inquiry Officer.
(vii) The Inquiry Officer concluded that the Medical Certificate was to be produced by the delinquent which was produced and taken on record. The inquiry was treated to be concluded.
(viii) Now, in the report, however, the Inquiry Officer had gone on recording without affording an opportunity to the delinquent about her non producing the certificate when she firstly resumed duty and delinquent not proving the case of accident, though the occurrence of accident has not been questioned by the management. The certificate i.e. Medical Certificate which was produced, is not even challenged by the management in any manner. The inquiry officer cannot be assumed orally asking either the presenting officer or the management for doubting the certificate. In other words the production of Medical Certificate, accounting for the absent period, cannot be simply brushed aside by the Inquiry Officer in exercise of examining it and finding that it is got up, when the Management did not question it by way of putting any question to the delinquent. Admittedly, in the instant case the Medical Certificate is accepted and no question is raised, even the Inquiry Officer during the course of inquiry did not put up any question to the delinquent. It is possible for the Medical Officer to express his findings qua the veracity of the document which is evident from either the language or the dates and other manner. But certificate's veracity, as such, cannot be doubted unless it is challenged and the challenge is put to the delinquent. In the instant case, fact remains that the delinquent deposed in her testimony that she would be producing the certificate and it was recorded that after producing the certificate the inquiry proceeding will be held to be concluded and accordingly held to be concluded. When the inquiry proceedings were held to be concluded without any opportunity to the delinquent to reflect upon any plausible question that may occur while examining it by the examining officer would amount to denial of opportunity.
(ix) The Labour Court in its first part award has though discussed all the aspects, unfortunately not even adverted to the inquiry which was pursuant to the notice for 73 days absent without leave. Therefore, learned advocate for the work-person is justified in submitting that the award, that is first part award is not tenable in eye of law, as the entire focus is on the five days absentism which has never subject matter of inquiry at all. The Court is, therefore, of the considered view that this fact would not even be disputed by the employer, as the cursory mentioning of the 73 days absent without clear advertence to the proceedings, would raise serious doubt with regard to examination of that aspect at the end of the Court.
(x) The Court in its final order has passed reinstatement order only on account of disproportionate penalty, but has held that the charge is said to have been proved. When the charges are proved naturally some punishment is required to be imposed. But the aspect of charges being proved is only on the basis of the preliminary award which in my view was not tenable, as could be seen from the narration thereunder.
13. In light of the aforesaid indisputable aspects, the question emerges as to whether, at this stage, would it be proper to remand the matter to the Trial Court for examining things afresh. The answer would be emphatically 'no', as this Court is satisfied qua the glaring lacuna in the inquiry. The Inquiry Officer has not put the questions, which he perceived, which were capable of persuading him for holding that the certificate was got up. It is not the case where the Inquiry Officer has come to the conclusion that the signature of Doctor was forged or the contents were incorrect or that the ailment was not there at all. If non production of certificate at the first instance was to be viewed as capable of casting serious doubt about the veracity, then it was for the management to raise these questions, and management could have requested for opportunity to examine the delinquent on this aspect. The factum of acceptance of certificate, as part of the inquiry without any questioning from the management, in my view, is sufficient to say that the certificate was required to be accepted. Assuming for the sake of examining without holding that the certificate gave away some impression of it not being genuine, then also the fact of four communications issued by the delinquent to the management and the earlier facts which have remained undisputed, namely that delinquent was constrained to file recovery applications for releasing two increments, which was stopped, would indicate that there was a strong case for considering accentuating circumstances which would have been required to be appropriately appreciated by the Inquiry Officer. It was not the case of wholly abandoning of duty on the part of the delinquent. The delinquent put up her case, which was sought to be reviewed only by one question that it is a got up story. The fact of accident occurring on the very same day i.e. on 24.06.1991 is not even challenged. When all these circumstances were existing, then nothing prevented the management to consider the circumstances from the view point as to whether there were extenuating circumstances and non application of mind to this also has resulted into serious prejudice to the work-person.
14. The Court even if consider it to be a fit case for remand, it would not serve any purpose of interest, as the incident is that of year 1991 and the subsequent development and the passage of time would militate against the prayer for remanding the matter. It is, therefore, required to be noted that the order, which was not tenable in eye of law and which was not challenged by the management could not now be made basis for seeking remand or granting remand. Therefore, when there were extenuating circumstances existing, this Court is of the view that the Court should have considered these facts and, therefore, in the instant case, the Court is of the view that the interest of justice would be served if a part of back wages is ordered instead of 100% back wages and, therefore, the award is modified and now it is ordered that 75% of back wages be paid to the employee, as otherwise there is no justification for denying complete back wages.
15. The judgment cited at the bar in respect of Apollo Tyres Limited Vs. Rajendra Chandulal Panchal (supra), is of no avail to the employer, as there it was clearly held by the Court that the absence was intermittent, deliberate and abandonment of work without any regard to the duty, as no explanation whatsoever in the namesake came forward from the delinquent. In respect of the present case the lady has completed occurrence of accident which resulted into her being unconscious and her requirement to be taken to the hospital and treated her for other ailment, and medical certificate thereof distinguishing all these features, have made this case distinct with the earlier one. Hence, the observation of this Court in that case will be of no avail.
16. In light of these, the petition i.e. S.C.A. 12535 of 2000 filed by the employer is rejected. Rules is discharged. Interim relief, if any, shall stand vacated. The petition i.e. S.C.A. No. 1462 of 2001 filed by the employee is partly allowed. The award stood modified to the aforesaid extent. Rule is made absolute to the aforesaid extent. No cost.
17. It goes without saying that the back wages of 75% would govern in respect of the period till the date of the award, as the award is being modified. After the award becomes capable of being implemented, it goes without saying that the complete wages at the prevalent would be admissible to the workman.
Pankaj
(S.R.BRAHMBHATT, J.)