Judgment reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 507 (M/S) of 2009 Uttarakhand Transport Corporation through its Regional Manager, District Dehradun - Petitioner Versus Saleem Ahmad S/o Sri Allah Rakkha - Respondent Mr. Sharad Sharma, Senior Advocate assisted by Ms. Indu Sharma, Advocate for the petitioner. Mr. Pankaj Miglani, Advocate for the respondent. (Hon’ble B.S. Verma, J.) By means of this petition the petitioner has sought a writ in the nature of certiorari quashing the award dated 18-10-2008 passed by the Presiding Officer, Labour Court, Dehradun in Adjudication Case No. 11/2005, (Annexure No. 11 to the writ petition). Briefly stated the facts of the case giving rise to the instant writ petition, according to the petitioner, are that respondent Saleem Ahmad was appointed as a conductor on 28.5.1970 and he initially worked with U.P. Government Roadways, Dehradun. He has been a habitual absentee and used to do his services according to his own whims and fancies. On account of continuous absence of the respondent a report was submitted on 9-4-1988, 18-6-1988 and 27-10- 1988 whereby it was found that the respondent has committed a misconduct under Rule 62(5) (8) (19) and (21) of The U.P. Road Transport Corporation Employees Service Regulation, 1981(hereinafter referred to as ‘Service Regulation 1981’. On the basis of aforesaid misconduct the corporation issued a charge sheet against the respondent for his continuous absence from service. The ground taken in the charge sheet was that the respondent was not working properly, he has absented himself without application and has hampered the functioning of corporation. The allegation of the Corporation is that the respondent remained absent for 254 days with effect from November 1987 to October, 1988. Therefore he 2 committed a misconduct under Rule 61 (Ka) & (Kha) of the ‘Service Regulation 1981’. The respondent was directed to submit his explanation by 4.2.1989. The respondent submitted his explanation on 16.3.1989 and he alleged that he could not attend the services because he was ailing and in support of his contention submitted medical certificates. The second ground was taken that his wife too was ailing and the gravity of ailment was so bad that he could not attend the services and it was admitted by him that no application for leave or intimation was ever sent by him. As the corporation was not satisfied by the explanation submitted by the respondent, hence again he was called upon to submit a better particular and explanation to the charge sheet. The enquiry officer conducted an enquiry and submitted his report on 16.10.1989. In the inquiry report it was found that the explanation given by the respondent was not substantiated nor was proved by the evidence on record. Further during the course of inquiry no proper medical certificate was produced hence the explanation given by the respondent was found to be unsustainable. The inquiry officer also recorded a finding that after the receipt of charge sheet on 18.2.1989 and on being appointed as enquiry officer on 16.3.1989, he fixed 25.4.1989, 12.5.1989, 23.6.1989, 28.6.1989, 19.8.1989 and 19.8.1989 but no explanation to charge sheet was submitted. He sent registered notice dated 4.10.1989 calling upon the respondent to submit his explanation but on the said date also no explanation was given rather some other person had filed an application praying for some other date. The Senior Center Incharge on 5.9.1989 informed that even till date the respondent is absent from his duty. Therefore the inquiry officer recorded a finding that for the last 8 months continuous opportunity was provided to the respondent to submit explanation which he did not do as a result of which the enquiry was culminated against him. After conclusion of enquiry on 30-10-1989, show cause notice along with copy of enquiry report against the proposed punishment was sent to the respondent. On 28.11.1989 the respondent submitted a reply to the show cause dated 30-10-1989, in which the respondent denied the charge levelled against him and asserted that now he is well and is fit to join services and ensured that he will not remain absent in future. The Regional Manager vide 3 order dated 17-01-1990 found the explanation of the respondent unsatisfactory and removed him from the service. The respondent filed departmental appeal before Zonal Manager of the Corporation and the said appeal was also dismissed by the appellate authority by its order dated 31.1.1991. Aggrieved by the aforesaid orders dated 17.1.1990 and 31.1.1991 the respondent on 5.7.1991 represented before the Assistant Labour Commissioner, Garhwal Mandal praying for a reference of dispute under the provisions of Industrial Disputes Act. The State Government by virtue of G.O. No. 6762-66 dated 15- 9-2004 made a reference of the dispute which on receipt by the Labour Court was registered as Adjudication Case No. 11/2005.The question of reference was formulated that- as to whether removal of respondent from the services by order dated 17.1.1990 was just and valid? If not, to what relief the respondent is entitled to receive?. On registration of adjudicate case the workman submitted the representation on 4.7.2005 and alleged that he was served with charge No. 974 dated 20.1.1989 and show cause notice No. 15742 dated 30.10.1989 whose reply was given by him on 16.3.89 and 28.11.89. He further alleged that the enquiry was conducted in his absence. He also alleged that removal from his service is a harsh punishment. The petitioner Corporation also filed written statement before the Labour Court and alleged that the written statement submitted by workman cannot be taken into consideration for the reason that it was not supported by an affidavit which is a mandatory requirement of Sub Rule (5) of Rule 12 of Industrial Dispute Rules, 1957. It was further alleged that since the charges levelled against the workman stand proved and no valid explanation has been extended, hence he has rightly been removed from service. It was further pleaded that the workman did not file affidavit along with the written statement before the tribunal and due to non-compliance of Rule 12(8) of U.P. Industrial Dispute Rules, 1957, the written statement filed by the workman could not be accepted on record and deserved rejection. The petitioner Corporation also filed detailed written statement before the Labour Court The petitioner also filed another written statement on 22.11.2005 bringing additional grounds to the challenge to the claim of workman. 4 The Labour Court after hearing parties and considering the material available on record vide impugned award dated 18.10.2008 allowed the reference and held that the order of removal dated 17.1.1990 was bad and directed the reinstatement of respondent in service. Now feeling aggrieved by the award the Corporation has filed this writ petition. The respondent/workman filed counter affidavit in the writ petition and denied its contents. He alleged that the punishment of dismissal of an employee is a major punishment and the charge levelled against the workman was a absenteeism and if it is proved that the workman was not able to submit reasonable explanation to substantiate his absence, the gravity of charge was not such to call upon major punishment to him. Since the Labour Court has considered all those aspects in the light of law laid down by Hon’ble Apex Court hence the same neither suffers from any illegality nor perversity and as such does not call for interference by this Court, while sitting with the jurisdiction under Article 227 of the Constitution of India. I have heard Mr. Sharad Sharma, Senior Advocate assisted by Ms. Indu Sharma, Advocate for the petitioner and Mr. Pankaj Miglani, Advocate for the respondent. The first submission of learned counsel for the petitioner is that the workman has filed written statement before the Labour Court without verifying its contents by an affidavit, which is against the spirit of Sub Rule (8) of Rule 12 of U.P. Industrial Dispute Rules, 1957, therefore, the learned Tribunal should not have considered the same. Learned counsel appearing on behalf of the workman has vehemently submitted that the petitioner also did not file affidavit along with the written statement filed before the Labour Court. Sub Rule (8) of Rule 12 of U.P. Industrial Dispute Rules, 1957, reads as below- “(8) the written statement filed by the Union or the workman shall state the grounds on which the claim of the concerned workman is based and the written statement shall be 5 accompanied by an affidavit in which the contents of the written statement are sworn to.” It is quite clear that in above Sub Rule (8) procedure has been laid down that the written statement shall be accompanied with an affidavit and it is a mandatory provision. However, looking to the facts that both the parties did not file affidavit along with the written statement and both the parties are in the same boat, as well as the written statement filed by the workman contain the facts which are not disputed and have come in the enquiry report, on which the Tribunal has adjudicated the dispute, therefore, the irregularity committed on this point do not affect adversely the veracity of this particular case. The learned counsel for the petitioner next submitted that the dismissal of the respondent/workman was based on report of enquiry officer. The respondent/workman remained unauthorizedly absent from duty. He also remained unauthorisedly absent on several occasions. Therefore, misconduct committed cannot be treated as minor and the punishment of dismissal was not disproportionate and the learned Labour Court has committed a manifest error by reinstating the respondent in service. In support of his contention learned counsel has cited before me the case of North Eastern Karnataka R.T. Corpn. V. Ashappa & Anr. reported in AIR 2006 Supreme Court 2164. Learned Senior Advocate appearing on behalf of petitioner further submitted that the Tribunal has ordinarily no power to interfere with punishment awarded by competent authority in departmental proceedings on ground of the penalty being excessive or disproportionate to the misconduct proved, if the punishment is based on evidence and is not arbitrary, mala fide or perverse. In support of his contention learned counsel has cited before me the case of Union of India Vs. Parma Nanda, reported in (1989) 2 Supreme Court Cases 177, and the case of Mavji C. Lakum Vs. Central Bank of India, reported in (2008) 12 Supreme Court Cases 726. On the other hand learned counsel appearing on behalf of the respondent has vehemently refuted the above contentions and submitted that the misconduct committed by the respondent cannot 6 be termed as grave misconduct and the punishment of dismissal from service passed by the Corporation is disproportionate and the learned Labour Court has rightly reinstated the respondent in service. In context of rival contentions of counsel for parties, I have perused the record. The allegation of the Corporation is that the Workman often used to remain absent from his duty without prior permission. The department served charge sheet against the workman on the ground that he was not working properly, he has absented without application for 254 days during November 1987 to October, 1988 and has hampered the functioning of corporation. The further assertion of the Corporation is that the workman was afforded eight opportunities to submit his reply by the enquiry officer but he failed to do so, as a result of which the enquiry was concluded against him. On receipt of inquiry report the workman was issued show cause notice and he submitted his reply to show cause on 30-10-1989 and asserted that now he is well and is fit to join services and ensured that he will not remain absent in future. The workman also alleged in the reply that he is ill from a long period and the doctor has issued medical certificate for the illness. The allegation of the Corporation that the workman did not send reply to the charge sheet is belied by Annexure No.2 filed with the petition which is carbon copy of reply submitted by the workman to the Assistant Regional Manager against the charge sheet. In the said reply the workman has submitted that he is ill from a long period in proof of which he has filed medical certificate. He belongs to Saharanpur and when he was transferred to Rishikesh from Saharanpur his wife also felt ill. He also mentioned in the reply that some of the leave out of the detail of absence given to him, by Senior Station Incharge Rishikesh, have been duly sanctioned. The Corporation has not specifically denied this fact that the workman was not sanctioned some of the leave. This fact is also not specifically denied that the workman after returning to his duty had submitted medical certificate regarding his illness. The Corporation also alleged that the workman remained absent on several other occasions without prior permission/sanction, but neither such a charge was framed in the charge sheet nor the same has been proved by filing 7 evidence in this regard. Therefore, the period on which the workman remained absent is 254 days, regarding which the workman has asserted that some of the leave has already been sanctioned to him. It is therefore clear that the Corporation has been successful in establishing the misconduct of remaining absent from duty against the workman only once, and that too when the respondent had gone to his home where he had fallen ill, in proof of which he had submitted medical certificate. Therefore, in the above facts and circumstances of the case, the absence of the respondent/workman cannot be termed as grave misconduct and the punishment of dismissal from service was certainly arbitrary and disproportionate. The Punishing Authority has not dealt with this aspect in his order whether the workman was actually sanctioned some of the leave, whereas the said plea had been taken by him in reply to charge sheet submitted against him. Therefore, the punishment order is arbitrary. I have also gone through the ruling cited by learned counsel for petitioner North Eastern Karnataka R.T. Corpn. V. Ashappa & Anr. reported in AIR 2006 Supreme Court 2164. In this cited case the Corporation had established not only that the delinquent workmen remained unauthorisedly absent for a period of more than three years but also remained unauthorisedly absent on several occasions and that was the reason that Hon’ble Apex Court has held that the punishment of dismissal was not disproportionate and cannot be substituted with reinstatement. Therefore, the facts of the above cited case do not apply to the case in hand. So far as the second limb of submission of learned Senior Advocate appearing for the petitioner on the point of Tribunal’s power not to interfere with punishment awarded by competent authority in departmental proceedings is concerned, I do not find any force in it. As has been held above by this court, that the punishment of dismissal of the workman was arbitrary, therefore, the Tribunal had power to interfere with it. The Hon’ble Apex Court in the above cited case of Union of India Vs. Parma Nanda, reported in (1989) 2 Supreme Court Cases 177, has held that Tribunal has ordinarily no power to interfere with punishment awarded by competent authority in departmental proceedings on ground of the penalty being excessive 8 or disproportionate to the misconduct proved, if the punishment is based on evidence and is not arbitrary, mala fide or perverse. But the Tribunal can interfere with the apparently unreasonable punishment where it is imposed on the basis of conviction by criminal court dispensing with departmental enquiry under second proviso (a) to Article 311 (2), Articles 311(2), 14 and 136 of the Constitution of India. In the another above cited case of Mavji C. Lakum Vs. Central Bank of India, reported in (2008) 12 Supreme Court Cases 726, has dealt with the scope of Industrial Tribunal’s power U/S 11-A of Industrial Disputes Act, 1947 and has held that power U/S 11-A is to be exercised judiciously and interference is permissible only when the Tribunal is not satisfied with the findings of domestic enquiry and punishment imposed is disproportionate. The Hon’ble Apex Court has further held in the cited case that absence of certain days and being of argumentative nature, the Industrial Tribunal rightly reduced punishment from discharge to stoppage of one increment. Provisions of Section 11-A of Central Act have been made under Sub Section 2(A) of Section 6 of U.P. Industrial Act, 1947, therefore, the Labour Court has power of interference when the Tribunal is not satisfied with the findings of domestic enquiry and punishment is disproportionate. In the case in hand the learned Labour Court has recorded a categorical finding that the punishment awarded to the workman was disproportionate. The inquiry officer as well as the punishing authority did not consider the reply submitted by the workman against the charge sheet. Therefore, the punishment was certainly arbitrary and disproportionate and the learned Tribunal was justified in interfering with it. Therefore, in the above circumstances the punishment of dismissal was certainly arbitrary and the learned Labour Court had power to interfere with the punishment awarded by the Corporation in departmental proceedings. The learned Labour Court has also recorded a categorical finding that U.P. State Road Transport Corporation has framed The U.P. Road Transport Corporation Employees Service Regulation, 1981 and Sub- Rule (7) of Rule 62, brings the absence without leave or over-staying the sanctioned leave without sufficient grounds 9 or proper or satisfactory explanation, in the category of misconduct, but it has not been defined therein which punishment should be given to such a misconduct, although there is provision of minor and major penalties in Rule 63. So far as the payment of back-wages is concerned, the learned Labour Court did not award back wages to the workman. The Hon’ble Apex Court in the case of Depot Manager, A.P.S.R.T.C. and another Vs. V. Surender, reported in [2008(118) FLR 825] has held that the workman is not entitled for any back wages for unauthorized absence from duty. In this particular case also the workman remained unauthorized absent for about 354 days, therefore, he has rightly been held not entitled to any back wages by the learned Labour Court. For the reasons recorded above, I do not find any illegality and perversity in the impugned award passed by the Labour Court. The writ petition being devoid of any force is dismissed. Dated: 13-5-2011 ( B.S. Verma, J.) ISB