Court No. - 2
Case :- WRIT - C No. - 11102 of 2018 Petitioner :- U.P. State Road Transport Corporation Respondent :- Kesha Devi And 2 Ors.
Counsel for Petitioner :- Mritunjay Mohan Sahai Counsel for Respondent :- C.S.C.,Surendra Nath Dubey
Hon'ble Ram Surat Ram (Maurya),J.
Heard Sri Mritunjay Mohan Sahai for the petitioner , Standing Counsel for State and Sri Surendra Nath Dubey for respondent- 1.
The writ petition has been filed against the award of Labour Court dated 12.10.2017 (as published on 29.11.2017) by which Labour Court held the termination of Late Ramesh Chandra Savita on 28.5.2003 was illegal and his heirs are entitled for entire back wages.
Ramesh Chandra Savita was appointed as Driver in UP State Road Transport Corporation. On 1.5.2002, a charge sheet has been issued to him in the disciplinary proceeding initiated against him showing that he was absent from duty without there being any information from 5.9.2001 to 30.9.2001, from 1.10.2001 to 3.10.2001, from 6.10.2001 to 8.10.2001, from 15.11.2001 to 23.11.2001, from 28.11.2001 to 29.11.2001, from 6.12.2001 to 21.1.2002, from 27.1.2002 to 31.1.2002, from 1.2.2002 to 27.2.2002, from 8.3.2002 to 21.3.2002, from 27.3.2002 to 31.3.2002 and from 1.4.2002 to till the date of service of the charge sheet. By unauthorized absence from duties , Ramesh Chandra Savita has caused damages to UP State Road Transport Corporation , due to which image of corporation for maintaining the service has been affected. On the aforesaid charges, inquiry has been conducted. The Inquiry Officer submitted his report dated 26.3.2003. Thereafter show cause notice has been issued to Ramesh Chandra Savita on which he has submitted reply dated 15.5.2003. The disciplinary authority by the order dated 28.5.2003 had approved the findings of Inquiry Officer and terminated Ramesh Chandra Savita from service withholding his gratuity. On the application of Ramesh Chandra Savita, industrial dispute referred to Labour Court. Before the Labour Court the department filed its written statement and prayed that in case charges in the inquiry and punishment awarded by the disciplinary authority on its basis, is found to be not proved then employer be granted time to adduce evidence to prove the charges against employee. However, Labour Court framed additional issue that as to whether domestic inquiry against Ramesh Chandra Savita was conducted in accordance with principle of natural justice independently or not, if not, what was the effect? While framing this issue , the Labour Court further clarified that this issue has to be decided along with other remaining issues referred for decision of Labour Court simultaneously. Thereafter parties have adduced their evidences without any objection and after taking evidence, the Labour Court by the impugned award dated 12.10.2017 held that domestic inquiry conducted against Ramesh Chandra Savita was conducted properly in accordance with principle of natural justice. However punishment awarded in the domestic inquiry was not proper inasmuch as Ramesh Chandra Savita was absent from duty on 69 days in the year 2001 and on 72 days in the year 2002. For this absence, he would have been granted leave and without considering exigency regarding grant of leave, the termination order was passed. Simultaneously gratuity has also been withheld without there being any embezzlement on the part of Ramesh Chandra Savita. Accordingly termination of Ramesh Chandra Savita from service on 28.5.2013 was illegal. Thus the Labour Court has set aside the punishment awarded to Ramesh Chandra Savita and as in the meantime Ramesh Chandra Savita died on 26.10.2012 as such Labour Court has directed for payment of backwages as well as gratuity of Ramesh Chandra Savita to his heirs. Hence this writ petition has been filed.
I have considered the arguments of the counsel for the parties and examined the records.
The counsel for respondent-1 relied upon the judgment of Supreme Court in Raghubir Singh Vs. General Manager, Haryana Road Ways, 2014 (143) FLR, 469 (SC) in which it has been held that in case employee is entitled for leave then instead of dismissing from service for unauthorized absence, the absence would be treated into leave. The dismissal of service on this ground is violation of Article 21 of the Constitution. In view of the judgment of Supreme Court, the order of Labour Court does not suffer from any illegality.
However the fact remains that as to whether the absence of Late Ramesh Chandra Savita for a period of 69 days during the year 2001 and for a period of 72 days during the year 2002 , he was entitled for salary or not. There is nothing on record to show that leave with payment of the aforesaid period was liable to be granted. In such circumstances, award of salary during the aforesaid period was not proper.
In the results, the writ petition is partly allowed to the extent that salary of Late Ramesh Chandra Savita for a period of 69 days of the year 2001 and for a period 72 days of the year 2002 is hereby withheld and rest of the award is hereby upheld.
Order Date :- 27.3.2018 Rahul /-