IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 16761 of 2010 (O&M) Date of Decision: 08.11.2011 Smt. Baljit Kaur ...Petitioner Versus The Labour Court and another ..Respondents. CORAM: HON'BLE MR. JUSTICE SURYA KANT Present : Mr. Vikram Bali, Advocate, for the petitioner. None for Union Territory, Chandigarh. **** SURYA KANT, J.(Oral) The petitioner's husband (Harmail Singh) joined the Chandigarh Transport Undertaking (CTU) as a driver on 12.11.1981. He first time absented from duty w.e.f. 8.4.1994 to 19.06.1994. He again absented from duty from 01.12.1999 to 24.5.2000 and again from 29.04.2001 to 31.12.2001. These three absent periods led to initiation of disciplinary proceedings against him culminating into an order of termination of his services. The husband of the petitioner raised an industrial dispute making a feeble attempt to explain his absence on the plea that due to 'unavoidable sickness' and 'circumstances' he could not attend the duties. The Labour Court has held that he was habitual absentee and the enquiry was held against him in accordance with the principles of natural justice. The reference was accordingly answered against the workman vide award dated 13.10.2009. Soon thereafter the petitioner's husband unfortunately passed away on 26.04.2010. The petitioner now impugns the award passed by the Labour Court. CWP No. 16761 of 2010 (O&M) [2] 2. Notice of motion was issued and on completion of service, it is revealed that a counsel put in appearance on behalf of the management-respondent No.2 but no reply was filed nor the learned counsel appeared later on. Consequently, the Standing Counsel for Union Territory, Chandigarh put in appearance on 11.05.2011 and requested for adjournment. Today again no one has come forward nor the reply has been filed. There is no justification to adjourn the case further for want of any explanation whatsoever. 3. I have heard learned counsel for the petitioner at some length and perused the record. 4. The husband of the petitioner apparently served the Transport Department, Union Territory, Chandigarh as a driver for more than 20 years, though he started absenting from duty in the latter years. Having found to be a habitual absentee, an enquiry was held and services of the husband of the petitioner were terminated. The Labour Court though has found no fault with the enquiry proceedings but it failed to apply its mind within the meaning and discretion of Section 11(A) of the Industrial Disputes Act, 1947, as to why, having regard to the length of service of the employee, a lesser punishment like 'compulsory retirement from service' be not imposed on him?. Suffice it to observe here that there were no allegations of misappropriation, dishonesty or of causing any accident etc. against the deceased husband of the petitioner. While repeated absence from duty by a driver can certainly be termed as a 'major misconduct' disentitling his retention or continuance in service, it is not always necessary to terminate the same forfeiting the benefits of the length CWP No. 16761 of 2010 (O&M) [3] of service rendered by such driver. 5. Taking into consideration the totality of the facts and circumstances, especially when the family is left with no source of survival, I allow this writ petition partly; set-aside the impugned award also in part. However, instead of remanding the case to the Labour Court to re-consider the quantum of punishment within its powers under Section 11-A of the Act, I deem it appropriate to invoke the extra ordinary writ jurisdiction under Article 226 of the Constitution and substitute the punishment awarded to the deceased employee from termination of his services to his 'compulsory retirement of service'. It is directed that the petitioner's husband shall be treated to have retired pre-maturely with effect from the date his services were terminated. This would necessarily follow that the deceased employee is deemed to be entitled to the retiral benefits including pension, if admissible under the Rules/Policy and so would be the entitlement of his wife, namely, the petitioner or other dependent family members in accordance with Rules. The needful shall be done within a period of three months from the date of receipt of a certified copy of this order. Dasti. 08.11.2011 (SURYA KANT) 'ravinder' JUDGE