Court No. - 39
Case :- WRIT - C No. - 8300 of 2004 Petitioner :- U.P. State Roadways Transport Corpn.
Respondent :- Munna Lal And Others Counsel for Petitioner :- V.K. Singh,U.S. Singh Visen Counsel for Respondent :- C.S.C.,Ramgee Prasad
Hon'ble B. Amit Sthalekar,J.
Heard Sri U.S. Singh Visen, learned counsel for the petitioner and Sri Ramji Prasad, learned counsel for the respondent no. 1.
The petitioner in the writ petition is seeking quashing of the award dated 25.9.1997 as well as notification dated 8/16.6.1998 whereby the award was published.
Briefly stated, the facts of the case are that a charge-sheet was issued to the respondent no. 1 workman on 09.08.1991, annexure-1 to the writ petition, wherein the allegation is that the respondent no. 1 had absented himself from duty from 29.04.1991 to 13.5.1991 and again from 17.5.1991 to 09.08.1991 unauthorizedly without giving any information to the petitioner employer. Later on the respondent no. 1 submitted an application stating that he had received injuries in his head and that he was suffering from high blood pressure and cough but he did not state as to when he came back on duty. According to the petitioner employer, it sent the respondent no. 1 to appear before a Medical Board and the Medical Board submitted its report and on the basis of the report the respondent no. 1 reported back for duty on 25.11.1991.
The Labour Court has recorded a finding that the enquiry has been held strictly as per the Rules and that the same is not vitiated in any manner. It is stated that the respondent no. 1 had submitted his reply to the charge-sheet as well as to the show cause notice issued to him.
On the facts, the Tribunal has noted that the respondent no. 1 had alleged that he had sent information about his illness through one Moti Lal, Fitter but Moti Lal was neither produced in the departmental inquiry nor before the Labour Court nor has the alleged application submitted by him been produced either in the departmental inquiry or before the Labour Court and the case of the petitioner employer is that no such letter or application was given by the respondent no. 1 through said Moti Lal. The Tribunal has, however, taken the view that if the respondent no. 1 was ill then in such circumstances his services could not have been terminated and his absence from duty could have been adjusted against such leave as may be available during his service.
The fact of the matter, however, remains that during the enquiry several dates were fixed namely, by letter dated 06.01.1992 respondent no. 1 was informed that the case was fixed for 15.1.1992. Again by letter dated 17.1.1992 he was informed that the next date in the inquiry was 28.01.1992. Again by letter dated 29.1.1992 he was informed that the next date was 31.3.1992. But he deliberately did not participate in the inquiry in spite of the fact that he had already joined duty on 25.11.1991.
All these findings have been confirmed by the Labour Court which has held that the inquiry has been held strictly as per the Rules and there is no infirmity or illegality in the same. Having said that, in my opinion, the Labour Court was not correct in taking the view that the services of the respondent no. 1 could not have been terminated because during that period he was ill and that his absence from duty could have been adjusted against leave available. It cannot be disputed that absence from duty unauthorizedly is a misconduct. If the respondent no. 1 was ill there is no medical certificate on record to show that he was confined to bed and that he was not in a position to move at all or that he was so grievously ill that he was not in a position to even send a leave application to the petitioner employer.
Therefore, in such circumstances, in my opinion, the liability cannot be fastened upon the petitioner employer to adjust the absence of duty of the respondent no. 1 against leave admissible. Once it is established that absence from duty authorizedly constitutes a misconduct, then in such circumstances, the conduct of the respondent no. 1 workman would have to be examined in the totality of the circumstances of the case.
The conduct of the petitioner is evident from the fact that he had reported back for duty on 25.11.1991 but he did not participate in the departmental proceedings nor did he make any effort to defend himself nor did he submit any application praying that his absence be adjusted against leave available which only shows his arrogance and such conduct therefore in my opinion did not call for any sympathetic consideration by the employer department.
For the reasons aforesaid, the award of the Labour Court dated 25.9.1997 is absolutely illegal and is accordingly quashed.
The writ petition is allowed.
Order Date :- 26.2.2019 nd