IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 19691 of 2008. Date of Decision : March 23, 2009. The Director, Food and Supplies, Haryana, Chandigarh, and another. ...... Petitioners. Versus. Shri Kulbir Singh and another. ..... Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. D.S. Nalwa, Additional Advocate General, Haryana, for the petitioner. Mr. Jatinder Nara, Advocate, for the respondent. AUGUSTINE GEORGE MASIH, J. (ORAL). In the present writ petition, the challenge is to the award dated 18.03.2008 (Annexure-P-5), passed by the Industrial Tribunal-cum-Labour Court, Rohtak, vide which the reference has been answered against the respondent-workman wherein the order of dismissal has been modified to punishment of stoppage of two increments and the respondent-workman has been held entitled to be reinstated on his previous post with continuity of service and 50 per cent back wages from the date of demand notice i.e. 03.07.2001. Counsel for the petitioner-management has contended that the respondent-workman was appointed on daily wage basis as a Chowkidar at D.C. rates with effect from 05.05.1993. The respondent-workman applied for leave from 09.06.1997 to 10.06.1997, which was sanctioned, thereafter, C.W.P. No. 19691 of 2008. the respondent-workman did not apply for any leave and willfully remained absent without any information with effect from 11.06.1997. The respondent-workman, thereafter, appeared in person before the District Food and Supplies Officer on 15.09.1997, where he has stated that he had fallen ill and therefore, could not attend to his duties but no proof of his illness was submitted by the respondent-workman before the Officer. On the basis of he being absent, the order of his termination was passed. He submits that the Labour Court has proceeded to decide the claim of the respondent-workman, treating him to be a regular employee of the petitioner-management. He contends that neither the respondent-workman could have been reinstated in the service in the light of the findings recorded by the Labour Court that the absence of the respondent-workman was very much there and also in the light of the fact that the respondent-workman had not submitted medical certificate justifying his absence to the authorities. He further contends that as the appointment of the respondent-workman was in violation of the statutory rules governing the service and not in consonance with the scheme of Articles 14 and 16 which govern the appointment to the public post, reinstatement could not have been ordered by the Labour Court. He further contends that the Labour Court has while exercising its power under Section 11-A of the Industrial Disputes Act modified the termination order being too harsh to a punishment of stoppage of two increments and in addition, the respondent-workman would be entitled to back wages from the date of his dismissal till the demand notice. This clearly indicates that the Labour Court has proceeded on the assumption that the respondent-workman was a regular employee which is factully incorrect and therefore, the award passed by the Labour Court, cannot be sustained. -2- C.W.P. No. 19691 of 2008. On the other hand, counsel for the respondent-workman contends that it has all through been the stand of the respondent-workman and even in demand notice as well that the medical certificate which was produced before the Labour Court, was also produced before the District Food and Supplies Authority when he appeared in person on 15.09.1997, but the same was not taken into consideration by the District Food and Supplies Officer. There was full justification for his absence from duty because of his illness and this is also not in dispute that initially from 09.06.1997 to 10.06.1997, leave was sanctioned to the respondent-workman on his application. He, therefore, contends that the power exercised by the Labour Court under Section 11-A of the Industrial Disputes Act are fully justified as the order of termination was too harsh for the absence period for which he had reasons for being absent i.e. medical grounds, however, he is unable to justify the punishment imposed by the Labour Court while exercising its powers under Section 11-A. I have heard counsel for the parties and have gone through the records of the case as well as impugned award. The findings as recorded by the Labour Court are unequivocal on one aspect that the respondent-workman was unable to produce his medical certificate justifying his absence to the authorities. It further states that the respondent-workman continued in service with the petitioner- management. Period of absence also has been held to be admitted by the respondent-workman as he is putting in justification for his absence on the ground of illness. Having admitted the position that he was absent from duty although for a justifiable reason according to him, the Labour Court could not have interfered with the order of termination which has been found -3- C.W.P. No. 19691 of 2008. to be on the basis of absence from duty. Further, the punishment which has been granted by the Labour Court while exercising its power under Section 11-A of the Industrial Disputes Act are wholly unacceptable for the reason that no increments are granted to the daily wagers and therefore, there was no question of stoppage of two increments of the respondent-workman. This clearly shows non application of mind by the Labour Court while exercising its powers under Section 11-A of the Industrial Disputes Act. That being so, the award passed by the Labour Court, cannot be sustained. The writ petition is allowed, the impugned order dated 18.03.2008 (Annexure-P-5), passed by the Industrial Tribunal-cum-Labour Court, Rohtak, is hereby set aside. (AUGUSTINE GEORGE MASIH) JUDGE March 23, 2009. sjks. -4-