C.W.P. No. 2037 of 2011 [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH C.W.P. No. 2037 of 2011 Date of Decision: Sept. 21,2011 Assistant General Manager, Punjab & Sind Bank, Jalandhar................................. Petitioner Versus Tej Pal Singh Sethi and another ............. Respondents Coram: Hon'ble Ms. Justice Ritu Bahri 1.To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. J.S.Sathi, Advocate for the petitioner. ... RITU BAHRI, J. Challenge is to the award dated 12.11.2010 (Annexure P1) whereby the punishment order of dismissal dated 27.3.1995 passed by the Bank against the workman- respondent No.1 has been set aside. The workman-respondent No.1 joined the service of the Bank as Clerk-cum-Cashier in June 1977. After serving in Agra and Jalandhar he posted at LKC Jalandhar on 1.6.1987. He applied for one day casual leave on 2.7.1993 on the ground that his wife was ill. Thereafter, he did not report back for duty nor sent any information. The workman C.W.P. No. 2037 of 2011 [ 2 ] was asked to report back for duty by 3.7.1993 vide letter dated 7.7.1993 (Annexure P-13). A reminder was sent to him on 15.7.1993. The workman submitted another application dated 12.7.1993 (Annexure P3) seeking leave with effect from 3.7.1993 to 3.8.1993 (Annexure P-3) with the Medical Certificate (Annexure P4) issued by Dr. V.K.Vasudev. The Bank addressed a telegram to the workman on 21.7.1993 (Annexure P-14) asking him to get himself medically examined from CMO, Jalandhar and then submitted a Medical Certificate within three days. This was issued to the petitioner that he was ill and was an after-thought to justify his absence as initially he had sought leave on account of illness of his wife. The workman was charge-sheeted vide Memo dated 16.11.1993 (Annexure P-5) on the following grounds:- a) Willful insubordination or disobedience of any lawful or reasonable order of the management or of superior under clause 19.5(e) of the Bipartite Settlement which amounts to gross misconduct. b) Habitual doing of any act which amounts to minor misconduct, under clause 19.5 (f) of the Bipartite Settlement, amounting to major misconduct. c) Doing any act prejudicial to the interest of the bank or gross negligence involving or likely to C.W.P. No. 2037 of 2011 [ 3 ] involve the bank in serious loss. d) Absence without leave or overstaying sanctioned leave without sufficient grounds. After conducting a departmental inquiry, the Inquiry Officer came to the conclusion that all the charges as per the enquiry report (Annexure P6) were proved against him. A show cause notice was issued to him. Enquiry report was sent for his comments and after considering workman's reply he was asked to appear for personal hearing on 21.3.1995 on the proposed punishment of dismissal from service. On 27.3.1995 the disciplinary authority dismissed him from service. The Appellate Authority dismissed the appeal on 4.12.1996 (Annexure P8). Thereafter, the workman had raised an industrial dispute. After raising an industrial dispute the matter was referred to the Labour Court. A claim statement was filed on 26.3.1999 (Annexure P9). The workman challenged the dismissal order on the ground that the charge-sheet dated 16.11.1993 pertains to minor misconduct as well as major misconduct. The Appellate Authorities for minor and major punishments are separately prescribed by issuing a common charge-sheet for both the misconduct. The Chief Manager has exercised the powers of disciplinary authority with reference to charge No.4 (minor misconduct). This has curtailed the right of C.W.P. No. 2037 of 2011 [ 4 ] appeal of the workman. The Chief Manager could not appoint the Enquiry Officer with reference to charge No.4 i.e. minor misconduct in view of the provisions of Section 3(b) of the Bi-partite Settlement dated 31.10.1979 read with CMD's order dated 16.10.1992. As this order has a combined charge-sheet for minor and major misconduct, it is only the G.M. (Personnel) who can appoint an Enquiry Officer in writing as Disciplinary Authority and/or Appellate Authority. The main charge against the workman was absent from duty without leave and as per clause 19.7(a) it is the minor misconduct for which under Clause 19.8 the following penalties can be imposed:- a) be warned or censured; or b) have an adverse remark entered against him; or c) have his increment stopped for a period not l longer than six months. The charge in relation to gross negligence could not have been framed as it was an off-shoot of main charge of absence from duty. The bank filed its written statement (Annexure P- 10). In the reply, the bank has justified the charge-sheet for minor and major misconduct on the ground that he was guilty of re-occurrence of absence from duty which culminated into a major misconduct. C.W.P. No. 2037 of 2011 [ 5 ] The Labour Court has set aside the order of dismissal on the ground that all the three charges for which the workman was awarded the punishment of dismissal from service stemmed from a minor punishment. The Management has made a hill out of a mole. There is nothing on record to show that the service of the workman was not satisfactory. It is not alleged by the Management that the workman was a type of person whose presence was undesirable or was not conducive bank or that the bank has lost confidence in him. The order of dismissal from service was set aside and the workman was reinstated with all consequential benefits. Mr. J.S.Sathi, learned counsel for the petitioner, has argued that the Tribunal has come to this conclusion without recording any evidence. The record of the trial Court has been summoned and perused. A perusal of the record shows that the affidavit of the workman dated March 2001 which he filed before the Labour Court is on record along with all the Annexures. Ex.W1 dated 7.7.1993 is the letter whereby the respondent- workman was asked to report for duty. Ex.W2 dated 15.7.1993 issued by the bank informing him that he has not joined the service and his absence is hampering the bank's business which is prejudicial to the interest of the bank. C.W.P. No. 2037 of 2011 [ 6 ] Ex.W3 dated 16.11.1993 is show cause notice as to why action should not be taken for willful absence and insubordination. Ex.W4 dated 8.1.1994 is the letter written by the workman to the Chief Manager, Punjab & Sind Bank. In this letter he had explained that he had severe pain due to disk syndrome and as per the Medical Certificate he was unable to move and work. Ex.W5 dated 31.8.1994 is a letter from the Bank to the Chief Medical Officer, Civil Hospital, Jalandhar, asking him to get the workman medically examined as he was absent from duty since July 1993. Ex.W6 dated 5.9.1994 is a letter by the Civil Surgeon, Jalandhar, to the Manager, Punjab & Sind Bank (petitioner) that he was admitted to the Orthopaedic Ward of Civil Hospital on 2.9.1994. Ex.W7 dated 9.12.1994 is a letter by the respondent-workman to the Bank informing that he had been medically examined by CMO, Jalandhar, who had given him the necessary certificate. Ex.W8 dated 2.1.1995 is the report of the Enquiry officer. Ex.W9 dated 25.2.1995 is order of the disciplinary authority asking the petitioner to appear on 9.3.1995 for personal hearing on the proposed punishment of dismissal after accepting the inquiry report. Ex.W10 is the reply of the workman to the letter Ex.W9. Ex.W11 dated 27.3.1995 is the order of the disciplinary authority dismissing the respondent-workman from service. Ex.W12 is the appeal filed by the respondent-workman C.W.P. No. 2037 of 2011 [ 7 ] against the order of dismissal from service and Exs.W13 to W16 are the defence set by the Management before the Appellate Authority. As far as the evidence of the Management is concerned, an affidavit of Shri Balkar Singh Khakh, Personnel & Industrial Relation Officer, Jalandhar, dated 27.2.2002 is on record. Written arguments of both the Management and the workman are part of the record. From the record, it transpires that proper opportunity was given to both the parties to lead evidence. The charge-sheet was issued on the ground of absence of the workman which commenced from 2.7.1983. As per the evidence led by the workman, he had gone to get himself medically examined by the CMO, Jalandhar and as per the information sent by the Civil Surgeon, Jalandhar, dated 5.9.1994 (Ex.W6) he had informed the bank that Mr. Tej Pal Singh Sethi has been admitted in the Orthopaedic Ward of Civil Hospital and was getting treatment. All this goes to show that in pursuance to the letter written by the Bank dated 31.8.1994 (Ex.W5) asking the CMO, Civil Hospital, Jalandhar, to medically examine Mr. Tej Pal Singh Sethi has been duly followed. The finding recorded by the Labour Court is that the workman as per clause 19.5(f) was guilty of minor misconduct. Clause 19.5(f) reads as under:- C.W.P. No. 2037 of 2011 [ 8 ] “19.5(f) Habitual doing of an act which amounts to minor misconduct as defined below:- Habitual means course of action taken or persisted in notwithstanding that at least on three previous occasions censure or warning had been administered or adverse remarks has been entered against him.” To constitute a minor misconduct of absence, it must relate to previous three occasions. Continuous absence for every day will not constitute a separate misconduct. The respondent-workman had made an application for sanction of medical leave along with the Certificate issued by a private medical practitioner. Thereafter in pursuance to the direction given by the Bank the petitioner appeared before the CMO, Jalandhar, for treatment on 2.9.1993. This information was sent by the hospital directly to the Bank (Ex.W6). No other point is argued. The writ petition is liable to be dismissed. 21.9.2011 ( RITU BAHRI ) Rupi JUDGE