IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.3006 of 2001 Date of decision: 11.09.2009 Jaswant Singh ...Petitioner versus Presiding Officer, Industrial Tribunal-cum-Labour Court, Gurgaon and others. ...Respondents CORAM: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Ashwani Bakshi, Advocate, for the petitioner. Mr. Sunil Nehra, Assistant Advocate General, Haryana. ---- 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. A Conductor in Haryana Roadways overstayed on his leave from 16.12.1988 and joined back only on 01.02.1989. The workman was served with a charge-sheet for his absence from duty from 16.12.1988 to 31.01.1989. Reply had been given by the workman explaining that he had a spinal injury and he was under treatment and that he had also applied for extension of his leave on 16.12.1988 and 17.01.1989 along with the medical certificates. The reply was found to be unsatisfactory and an enquiry was constituted. Before the Enquiry Officer, the fact of absence of the workman from 16.12.1988 to 31.01.1989 was elicited through management witness. The Enquiry Officer held that the Civil Writ Petition No.3006 of 2001 - 2 - workman had only examined himself and he offered no evidence of his illness or the alleged fact that he had sent letters for extension of leave along with the medical certificates. The Enquiry Officer had given his report on 08.06.1990 based on which after a show cause notice, the management terminated his services with immediate effect by an order dated 26.07.1990. 2. Before the Labour Court, the contention of the workman was that the enquiry had not been fair and proper and that he had not been given adequate opportunity to tender evidence of the reasons for his absence. The Labour Court rejected the contention, found that the enquiry was fair and proper and upheld the report finding that there was unauthorized absence and the punishment of dismissal was appropriate under the circumstances. 3. The workman challenges the award of the Labour Court pointing out among other grounds that the management had not considered the reply to the charge-sheet and Enquiry Officer proceeded on a wrong assumption that the reply had not been given to the charge at all. He pointed out to the discrepancy that when the General Manager, Haryana Roadways had in his communication dated 03.10.1989 (Annexure P-1) stated that the reply furnished by the official was found to be unsatisfactory, the Enquiry Officer proceeded on the basis in his report that reply had not been given at all. The learned counsel also points out to the fact that the enquiry report, which was made on 08.06.1990, contained a reference to an alleged opportunity given to the workman to produce his witness on 22.05.1990. This statement, Civil Writ Petition No.3006 of 2001 - 3 - according to the learned counsel appearing for the workman,was not correct, but on the other hand, a communication had been sent to him on 10.07.1990 by the Enquiry Officer ordering the workman to produce his witness on 23.07.1990 at 9 A.M. This letter dated 10.07.1990, which was produced along with the writ petition (Annexure P-3) had also been referred to in the writ petition to urge that proper opportunity had not been given. The management had not met this point urged in the writ petition, at all. If the witness had been asked to produce evidence only on 23.07.1990, it is inconceivable as to how the Enquiry Officer concluded the report on 08.06.1990 itself. With such discrepant evidence, I would fell inclined to remit the matter before the Labour Court for fresh consideration, but having regarding to the fact that the termination was taken place more than 20 years back, there shall be no point for re-opening the whole case. One thing becomes clear that the workman had absented himself without sanction of leave from 16.12.1988 to 31.01.1989. Even the copies of the so-called letters of extension of leave with medical certificates had not been produced by the workman. On the management side, the Enquiry Officer was wrong in assuming that there was no reply to the charge-sheet and the Enquiry Officer had concluded the enquiry and had also issued a notice subsequently directing him to produce evidence. The finding of the Enquiry Officer and the misconduct of the workman are both suspect. For the misconduct of the workman remaining on leave without sanction, in a case where there had been no allegation of misconduct of the workman at any earlier occasion and also having due regard to the fact Civil Writ Petition No.3006 of 2001 -4 - that the workman was an ex-serviceman, the punishment of dismissal from service would require to be modified. In my view, the dismissal from service could be treated as compulsory retirement effective from the date when his services were terminated and the workman shall be entitled to all terminal benefits arising out of such retirement. 4. The award of the Labour Court is modified to convert the punishment alone from one of dismissal from service to compulsory retirement with entitlement to all terminal benefits. 5. The writ petition is ordered accordingly. No costs. (K.KANNAN) JUDGE 11.09.2009 sanjeev