IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.16992 of 1989 Date of decision:04.09.2009 Gurmail Singh ...Petitioner versus The State of Punjab and another ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Vikas Singh, Advocate, for the petitioner. Ms.Monica Chhibbar Sharma, Deputy Advocate General, Punjab. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J.(Oral) 1. The award in challenge is the rejection of the plea of the workman that he had been illegally terminated from service. The two grounds on which departmental action had taken against the workman, who was a Conductor in the Punjab Roadways, was that he had absented from 15.06.1978 to 29.06.1978 without previous sanction and that he had again availed of leave on 25.12.1978 without sanction. At the enquiry, he had demanded some reports to be given to him and he complained that the report ultimately made by the Enquiry Officer had not really considered all the relevant facts and had found the charges to be proved. Before the Labour Court, the attempt by the workman to show prejudice before the enquiry by non-furnishing all the relevant documents was Civil Writ Petition No.16992 of 1989 - 2 - repulsed by the Court by observing that the charge-sheet had itself indicated the details found in the report and hence, no prejudice was shown. 2. Before the Labour Court, it was also the attempt of the workman as he did in his reply to the charge-sheet before the Enquiry Officer, that he had actually obtained sanction for leave for the period from 15.06.1978 to 29.06.1978 from the General Manager at Ludhiana and when he was transferred from Ludhiana to Muktsar, he assumed the sanction to avail at Muktsar as well, but he had in any event given a fresh application for leave on 15.06.1978. The management had neither rejected nor approved and the workman contended that he therefore believed bona fide that his leave had been sanctioned. The second charge that he had been unauthorizedly absent on 25.12.1978, he contended that he had done duty continuously earning to him three days of leave and he therefore availed of leave on 23, 24 and 25.12.1978. The response of the management was that only two days leave had been sanctioned and although the workman knew that for the third day the leave was not sanctioned, but he deliberately remained absent. 3. The Labour Court did not allow the workman to open on the merits by the only fact that he found that the enquiry was fair and proper and therefore the findings could not be assailed. The Labour Court, in my view, erred in not accepting the explanation which the workman had given for the first charge. None of the facts which he had set forth in defence for the first charge was ever in dispute. It was a fact borne out of records that the General Manager at Ludhiana had sanctioned the Civil Writ Petition No.16992 of 1989 - 3 - leave. The only lapse was the order sanctioning the leave had not been transmitted to the place of posting after transfer at Muktsar. Again it was not disputed fact that his application for leave on 15.06.1978 had not been rejected. The explanation of the workman that he was under the bona fide impression that it was approved, having regarding to the fact that the express sanction had been already granted by the General Manager, Ludhiana, seems credible enough. 4. Only as regards the second charge, the records showed clearly that the workman had been denied leave on 25.12.1978 and his absence was without prior sanction. In the ultimate analysis, it should be seen that the Conductor was being shown the door for a day's absence without sanction. The Labour Court must have only seen that even on the proof of charge, the punishment of dismissal from service was too harsh and grossly disproportionate to the nature of misconduct. The learned counsel for the petitioner submits that if he had been in service, he would have been superannuated, the workman had not also worked and therefore, he had not earned the wages. By the order of dismissal, he has been completely deprived of even all the terminal benefits. The appropriate relief commensurate with the misconduct is the loss of wages that has already entailed. The workman shall be deemed to have been retired only on the date of his superannuation and the punishment shall only be loss of wages for all the period from the date of his termination to the date of superannuation if he had served. The order of dismissal, under the circumstances, is set aside and it shall be taken that he is superannuated on the date when he would have been superannuated Civil Writ Petition No.16992 of 1989 - 4 - without any back wages. Consequently, the workman shall be entitled to all the terminal benefits. 5. The award of the Labour Court is modified with reference to the finding relating to charge No.1 for unauthorized absence from 15.06.1978 to 29.06.1978 and the order of dismissal is also set aside but the workman shall not be entitled to back wages. He shall, however, be entitled to all the consequential terminal benefits. 6. The writ petition is allowed in the above terms. No costs. (K.KANNAN) JUDGE 04.09.2009 sanjeev