CWP No. 2861 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 2861 of 2010 Date of decision: 23.02.2010 Gurdial Singh s/o Sh. Moti Ram ...... PETITIONER VERSUS The Presiding Officer, Industrial Tribunal-cum-Labour Court-I, Chandigarh and others ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Ramneek Vausdeva, Advocate, for the petitioner. *** AUGUSTINE GEORGE MASIH, J. The petitioner has challenged the Award dated 03.09.2009 (Annexure P-10) passed by the Industrial Tribunal-cum-Labour Court-I, Chandigarh, vide which the reference has been answered against the workman-petitioner holding him not entitled to any relief as the workman was rightly terminated from service. Counsel for the petitioner contends that the petitioner was appointed as Beldar (Helper) w.e.f. 01.03.1984 in the Bhakra Spillway CWP No. 2861 of 2010 2 Repair Division, Nangal and thereafter transferred to Railway Sub-Division of the Bhakra Mechanical Division, Nangal. He continuously worked with the respondents-Management till 28.03.1993 when he applied for 15 days' earned leave from 29.03.1993 to 12.04.1993 for some urgent work. Thereafter, the petitioner applied for 20 days' extension of leave through a telegram. He again requested for extension of leave up to 31.08.1993 on the ground that he had fallen sick and was not in a position to join duty. A medical certificate of a private Doctor was sent along with application dated 15.08.1993. He could not join duty and his condition worsened day by day. The petitioner did not communicate with the respondent-Management. He contends that the stand of the Management is that various letters were sent to the petitioner for joining duty but the same were not received by him. Thereafter, on 18.10.1994, respondent No. 3 terminated the service of the petitioner for being absent from duty. The petitioner reported for duty on 20.10.1994 but he was informed that his services have already been terminated by the Executive Engineer, Bhakra Mechanical Division, Nangal, District Ropar-respondent No. 3. He submits that the services of the petitioner could not have been terminated without holding a departmental enquiry against him as he was a regular employee of the respondents-Management. No enquiry was conducted, no notice was given nor one month's wages in lieu of notice or retrenchment compensation paid to the petitioner-workman while terminating the services of the petitioner, thus, the order of termination of the services of the petitioner was illegal. He contends that the learned Industrial Tribunal-cum-Labour Court has not taken into consideration the plea of the petitioner that the principles of natural justice have not been complied with while terminating the services of the petitioner, specially when no departmental enquiry was held against CWP No. 2861 of 2010 3 the petitioner despite he being a regular employee of the respondents- Management. In support of his contentions, counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court in the case of D.K.Yadav vs. M/s J.M.A. Industries Ltd., 1993 (3) SCT 537 and the judgments of the Division Bench of this Court in the cases of Amar Nath vs. State of Haryana and others, 2005 (3) RSJ 318, Sita Ram vs. Presiding Officer, Labour Court, Patiala and others, 1997 III L.L.J. (Supp.) 1099. I have heard the counsel for the petitioner and have gone through the records of the case. While exercising jurisdiction under Article 226 of the Constitution of India and that too when an Award passed by the Industrial Tribunal-cum-Labour Court is under challenge, the jurisdiction of this Court is quite restricted. What can be corrected by way of writ is an error of law, which can be regarded as one which is apparent on the face of the record or where it is manifest and clear that the conclusion of law drawn by the Tribunal is based on mis-interpretation of the relevant statutory provisions or in-ignorance or disregard of it and are founded on reasons which are wrong in law. This jurisdiction can be exercised for correcting errors of jurisdiction committed by the Industrial Tribunal or inferior Courts, especially in cases where the orders have been passed without jurisdiction or in excess of it or as a result of failure to exercise jurisdiction. An error of law, which is manifest on the face of the record, can be corrected by a writ but the same would not be true of an error of fact, however, grave it may appear to be. This jurisdiction is to be exercised sparingly and only in appropriate cases where the judicial conscious of the Court dictates it to act lest a gross failure of justice or grave injustice shall occasion. The CWP No. 2861 of 2010 4 jurisdiction of the High Court to issue a writ of certiorari is a supervisory jurisdiction and thus, it should not be lost sight of that the Court is not acting as an Appellate Court. This limitation necessarily means that the finding of fact reached by the Tribunal on appreciation of the evidence led by the parties cannot be reopened or questioned in the writ proceedings. Only in cases where the finding returned by the Tribunal is based on no evidence or where admissible evidence has been erroneously refused and or material evidence had erroneously admitted, can the Court correct the finding of fact through a writ of certiorari. A finding of fact recorded by the Tribunal cannot, however, be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was inadequate or insufficient to sustain the impugned findings. The findings recorded by the Tribunal cannot be interfered with in exercise of the writ jurisdiction on the ground when two constructions or conclusions on the same evidence are plausible and one construction has been adopted by the Tribunal, the same would not necessarily or always be open to correction while exercising the writ jurisdiction. The facts of the case in hand are that the petitioner proceeded on 20 days earned leave w.e.f. 29.03.1993, as per the claim statement, due to the illness of his mother, who was in Delhi. He did not join duty and applied for extension of leave for further 20 days' through a telegram from Delhi. After the expiry of this extended leave when the petitioner did not resume his duties, a letter dated 16.05.1993 was sent to the petitioner by the respondents-Management asking him to resume his duties within three' days of the receipt of the letter. Instead of complying with the directions, the workman requested for extension of leave up to 31.08.1993. Along with this leave application, a medical certificate of a private medical CWP No. 2861 of 2010 5 practitioner from Delhi was attached. On receipt of the same, the petitioner was advised by letter dated 13.09.1993 that the medical certificate from a private practitioner was not acceptable and the certificate should be from a Government hospital in Delhi and the same should be sent to the respondents-Management. On receipt of the said letter, the workman neither submitted the medical certificate from the Government hospital nor informed the Management or joined his duties. The petitioner was again advised from time to time vide registered letters dated 05.11.1993, 24.02.1994, 29.04.1994 and 05.07.1994 to resume the duties but no response was received from the side of the petitioner. After that, one final opportunity was given to the petitioner to join his duties. This letter dated 30.08.1994 was sent to the petitioner but still no response was received. The Management, during this unauthorized absence of the petitioner, enquired into the matter and it came to know that the petitioner had obtained a single entry business visa on 08.03.1993 to visit Japan. The said letter along with the letters, which were sent to the petitioner, was duly exhibited before the Labour Court by the Management and on the basis of these documents, it was contended by the Management that all efforts were made to bring back the petitioner so that he could resume his duties but he did not care to respond to any of the communications nor did he seek any permission for further extension of leave and as a matter of fact, no communication was received from him. It is true that the principle of natural justice mandates that a departmental enquiry should be held, in case a person has a reasonable explanation for not joining the duties despite sending of various communications. Nothing has been brought on record which would suggest that the letters addressed to the petitioner were not received by CWP No. 2861 of 2010 6 him. In any case, since he was an employee and that too a regular employee of the respondents-Management, he cannot be allowed to act irresponsibly and to remain unauthorizedly absent from duty without any explanation for such unauthorized absence. No explanation whatsoever has come forth either by way of oral or documentary evidence, which would indicate or even suggest the reason for non-responding to the communications sent to the petitioner by the Management or giving any reason much-less justifiable for his unauthorized absence from duty. Principle of natural justice especially in the case of a regular Government employee, cannot be stretched to an extent that the principle itself suggests absurdity. There are certain rights conferred on a Government employee but duties and responsibilities are also attached with the same. One cannot always press for ones rights by totally overlooking and ignoring the duties and responsibilities, which are conferred on a Government employee by virtue of holding such post. A stage has now come where not only the rights need to be protected but the responsibilities and duties should also be taken seriously and given effect to. What better case than this would be available to demonstrate the irresponsible and careless attitude of a Government employee, who is pressing for his rights but is totally silent and unconcerned with the responsibilities and duties attached to the post. The judgments, which have been relied upon by the counsel for the petitioner, were passed where no efforts were made to inform the employee about his unauthorized absence from duty and also there were justifiable reasons on the part of the employee for not being present on duty. But in the present case, all efforts were made by the Management and various opportunities were given to the petitioner to respond to the call of his duties and to resume the same which the petitioner did not care to CWP No. 2861 of 2010 7 respond to. No reason whatsoever has come on the record for his unauthorized absence. The explanation, if any, even if stretched to the extent of accepting all the contentions of the petitioner, would mean that his unauthorized absence could be explained till 31.08.1993 but thereafter, till the date of his termination i.e. 18.10.1994, no reasons, what to say of justifiable reasons, have come forth either in the oral assertions or the documents, which have been produced by the petitioner before the Labour Court in evidence. In the case of D.K. Yadav (supra), Hon'ble the Supreme Court, while considering the position with regard to the termination of services on the ground of absence from duty has in paras-9 and 10 held as follows :- “9. The law must therefore be now taken to be well-settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Art. 14 and the procedure prescribed by a statute or statutory rule or rules or orders effecting the civil rights or result in civil consequences would have to answer the requirement of Art. 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both. 10. Therefore fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Art. 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence Art. 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by CWP No. 2861 of 2010 8 this Court that the principles of natural justice are part of Art. 14 and the procedure prescribed by law must be just, fair and reasonable.” A perusal of the above would show that Hon'ble the Supreme Court has laid down the law that the principles of natural justice need to be complied with and any law made or action taken by the employer must be fair, just and reasonable. A perusal of the above leaves no manner of doubt that the requirement of any law made or action taken by the employer, if it fulfils the principles of natural justice would be just and fair and not illegal. The tests, thus, laid down by Hon'ble the Supreme Court has been fully satisfied in the case in hand. It is now well settled that the Labour Court can even, where it holds that no inquiry has been held or the inquiry, if held, is not in accordance with law, can still proceed to decide on the basis of the pleadings and evidence led by the parties as to whether the Order of termination of the Workman is justified or not. Merely because no inquiry has been held, as mandated under the statutory Rules governing the service, or that inquiry held was not in accordance with law, does not preclude the Labour Court from going into the merits with regard to the justification of the passing of the Order of termination. Section 11-A of the Industrial Disputes Act gives ample powers to the Labour Court to enquire into and satisfy itself whether the Order of discharge or dismissal was justified or not. In the cases, where no domestic inquiry is held against the Workman, the employer has right to adduce evidence before the Labour Court to justify its action. Reference at this stage can be made to the judgments of Hon'ble the Supreme Court in the case of Workmen of Motipur Sugar Factory (Private) Limited Versus Motipur Sugar Factory, CWP No. 2861 of 2010 9 1965 (3) SCR 588, where it was held as follows :- “It is now well-settled by a number of decisions of this Court that where an employer has failed to make an inquiry before dismissing or discharging a workman it is open to him to justify the action before the Tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic inquiries have been held.The entire matter would be open before the Tribunal which will have jurisdiction not only to go into the limited questions open to a Tribunal where domestic inquiry has been properly held (see Indian Iron and Steel Co. vs. Their Workmen 1958 SCR 667) but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. We may in this connection refer to M/s Sasa Musa Sugar Works (P) Limited vs. Shobrati Khan, 1959 Supp. SCR 836, Phulbari Tea Estate vs. Its Workmen, 1960 (1) SCR 32, and The Punjab National Bank Limited vs. Its Workmen, 1960 (1) SCR 806. These three cases were further considered by this Court in Bharat Sugar Mills Limited vs. Shri Jai Singh, 1962 (3) SCR 684,and reference was also made to the decision of the Labour Appellate Tribunal in Shri Ram Swarath Sinha vs. BelaundSugar Co., 1954 LAC 697. It was pointed out that “the import effect of commission to hold an enquiry was merely this : that the Tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made.” It is true that three of these cases, except Phulbari Tea Estate's case, were on applications under Section 33 of the Industrial Disputes Act,1947. But in principle, we see no difference whether the matter comes before the Tribunal for approval under Section 33 or on a reference under Section 10 of the Industrial Disputes Act, 1947. In either case if the enquiry is defective or if no enquiry has been held as required by Standing Orders, the entire case would be open before the Tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper. Phulbari Tea Estate's case was on a reference under Section 10, and the same principle was applied there also, the only difference being that in that case, there was an enquiry though it was defective. A defective enquiry in our opinion stands on the same footing as no eqnuiry and in either case the Tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the Tribunal that on facts the order of dismissal or discharge was proper.” Hon'ble the Supreme Court in case of Workmen of M/s Firestone Tyre and Rubber Company of India (P) Limited Versus The CWP No. 2861 of 2010 10 Management and others, 1973 (3), SCR, 587, has laid down ten broad principles by exhaustively referring to various decisions of Hon'ble the Supreme Court, which gave a clear picture of the principles governing the jurisdiction of the Tribunal, when adjudicating upon disputes relating to dismissal or discharge under the Industrial Disputes Act, 1947. The relevant principles 1, 4, 5, 6, 7 and 9 read as follow :- “(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified. (2) xxx xxx xxx xxx xxx (3) xxx xxx xxx xxx xxx (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, The Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action ; and it is open to the employee to adduce evidence contra. (5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry. (6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry is found to be defective. (7) It has never been recognised that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. CWP No. 2861 of 2010 11 (8) xxx xxx xxx xxx xxx . (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) xxx xxx xxx xxx xxx” If that be the powers of the Labour Court, as has been provided under Section 11-A of the Industrial Disputes Act, 1947, and as interpreted by Hon'ble the Supreme Court, the Order of termination merely because no inquiry was held or the said inquiry was not in accordance with the statutory Rules, would not ipso facto entitle the Workman to be reinstated in service with all consequential benefits unless the evidence led by the Management is not enough to justify the Order of termination of the Workman. On the basis of the evidence led by the parties, the Labour Court has come to a conclusion that the stand of the petitioner is shaky for the reason that in the statement of claim and in the affidavit, which has been filed by the petitioner in support of his claim, he has narrated the cause of absence as illness of his mother initially, but when he applied for the extension of leave, he submitted a medical certificate of his own illness and that too, from a private practitioner. Despite sending of communication by the respondents-Management for submission of a medical certificate from a Government hospital, no response was received from the petitioner. There are contradictory statements, which were given by the petitioner-workman and, therefore, no reliance could be placed on the said statements. Communications after communications were sent to the petitioner to resume his duties but he had not responded to the same. A perusal of the records indicates that seven letters were addressed to the petitioner but he chose neither to join duties nor respond thereto. CWP No. 2861 of 2010 12 That apart, the Management has been able to prove by producing the documents that the workman never intended to join duties as he had obtained a business visa to go to Japan. When the petitioner- workman was confronted with the communication received by the Management from the Embassy of Japan, the petitioner in his cross- examination, had admitted the factum of having obtained a passport and the business visa, which was given to him on submission of his application to the Japanese Embassy. When asked to produce the passport, which was issued to him from the Chandigarh office, the petitioner stated that the same was missing. He further stated that he had not lodged any FIR regarding the loss of his passport. Non-production of the passport and then taking the plea of the same being missing and no FIR having been lodged in this regard, the conclusion drawn by the Labour Court that the workman had left the country and visited Japan during the period of unauthorized absence without permission prescribed under the Rules, is fully justified. Under these circumstances, it cannot be said that no opportunity was given to the workman to explain his conduct. It would not be out of way to mention that as per the contention of the petitioner-workman, he could not return to his duties till 20.10.1994 when he came to know that his services were terminated on 18.10.1994 but still no efforts were made by him either to file an appeal before the competent authority as per the statutory Rules nor has he made any representation in this regard with the respondents-Management. Not only this, the demand notice was preferred