CWP No.10827 of 1994 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.10827 of 1994 (O&M) Date of Decision 07.12.2009 Mr.Rama Kant ...... Petitioner VERSUS Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak and another ...... Respondents Present: Mr.J.N.Gupta, Advocate, for the petitioner. Mr. CORAM:- HON'BLE MR. JUSTICE K.KANNAN ***** K.KANNAN, J(ORAL): 1. The writ petition assails the rejection of the reference whereby the petitioner-workman was terminated from service. The mis-conduct attributed to the workman was that he had over-stayed on his leave without proper authorization and it amounted to misconduct under clause 37(4) of the Standing Order of the Company. It was an admitted fact that the workman had applied for leave from 12.05.1986 to 01.06.1986 for conduct of marriage of his sister. He was reported to have applied for extension of leave from 02.06.1986 to 15.06.1986 through a registered letter purported to have been sent on 10.06.1986. The workman did not report for duty on 16.06.1986 but he reported on duty on 04.07.1986. In the meanwhile a charge-sheet had been sent to the workman on 28.06.1986 by the Management pointing out that the willful absence was a serious misconduct under Clause 39 (4) of the Standing Order of the Company making him liable to strict disciplinary action. The charge-sheet directed the workman to report for duty within 7 days, failing which the disciplinary action shall be taken against him as deemed fit under the Standing Order. Admittedly, the workman had reported on 04.07.1986 but the Management by that time resiled from the original stand and did not allow entry and constituted an inquiry on the charge-sheet already issued to him and placed him on CWP No.10827 of 1994 (O&M) 2 suspension on 23.09.1986. 2. The inquiry prolonged for sometime as the workman allegedly refused to cooperate with the inquiry officer. Ultimately, he was proceeded exparte on 12.05.1987 and by recording a finding that the charge attributed against him was true, an order of dismissal was made on 08.08.1987. The workman raised an industrial dispute before the Labour Court. He examined himself to give evidence of the fact that he had been unwell during the relevant period and sought again to substantiate the same with the copy of the medical certificate. The Labour Court found that the inquiry had been properly conducted and the workman had deliberately availed several opportunities. The Labour Court also found that the copies of the medical certificates have not been proved and they were false, bogus and fake. He also found that the certificates are of different dates i.e. from 02.06.1986 to 15.06.1986 and 16.06.1986 to 03.07.1986 but these certificates were issued on the same date i.e. 30.01.1987. Neither the original book from which the medical certificates and the fitness certificates were issued, was produced nor any doctor was examined to prove the same. The Labour Court, therefore, found that the misconduct had been clearly established and the order of dismissal was not liable for any interference. 3. The learned counsel appearing for the workman contends that the workman had been employed on 23.12.1975 and he had an unblemished service till the inquiry was constituted and ultimately he was dismissed from service. The charge-sheet had contained a condition to the workman to report for duty within a period of 7 days and if he did not, then a disciplinary action would be taken against him. In view of an offer to resume duty by the workman within 7 days as setforth in the charge-sheet, the management was estopped from instituting any inquiry and proceed to find that there was misconduct to justify the dismissal order. When the workman did report for duty within 7 days, the management had not reserved to itself scope for continuing with the inquiry. The inquiry itself under these circumstances was unjustified and the decision to dismiss was, therefore, vitiated. The learned counsel would further submit that even the misconduct had been established, the decision to impose punishment of dismissal for the alleged unauthorized absence of 32 days was grossly disproportionate and would shock a judicial conscience and hence liable for CWP No.10827 of 1994 (O&M) 3 intervention in favour of the workman. 4. Learned counsel for the respondent-Management has countered every contentions made on behalf of the workman. Referring Clause 39 (4) of the Standing Order of the Company, he would state that even apart from the habitual absence, absence without leave for less than 8 days without intimation sanctioning the leave, constituted misconduct. In this case, although the workman had contended that he had appended a medical certificate alongwith his leave letter dated 10.06.1986, no such leave letter was forthcoming. Even the inquiry before the inquiry officer was proper but the workman had deliberately delayed the proceedings and the inquiry officer had also recorded the dilatory tactics adopted by the workman and recommended a partial cut in the subsistence allowance during the conduct of inquiry. Learned counsel for the respondent-Management would also point out to the fact that even before the Labour Court the workman had made some allegations against the entries made in docket relating to the dates of hearing and such a workman was not entitled to any indulgence. Learned counsel would further urge that the Labour Court had considered all the material facts and had upheld the decision of the management and in the absence of perverse character of the findings of disciplinary authority, this Court shall be loathe to intervene under Article 226 of the Constitution. 5. The charge-sheet did not itself rule out a prospect of a workman to resume duty within 7 days and it was also an admitted fact that the workman did report for duty within 7 days. If the workman failed to report for the duty, he was liable to strict disciplinary action. The charge-sheet did not state that reporting for duty was a liberty granted to the workman, without prejudice to the management from taking disciplinary action, for what it perceived to be willful absence of the workman. All this is not to state that the reference was not proper nor to suggest that the Management could not have taken an action for the misconduct. It is only to point out that the management itself had held out an olive branch, offering to the workman an opportunity to resume duty but later it chose to withdraw the same and persisted with the inquiry. The workman had not established the justification for his absence even before the Labour Court and the Labour Court itself has observed that the medical certificate which was produced was not of the original and even if it were to be assumed that secondary CWP No.10827 of 1994 (O&M) 4 evidence was possible for any of the justifiable circumstances, the doctor had not been examined to prove the illness and what was more, the medical certificate itself had not been issued contemporarily at the time of resuming duty on 04.07.1986. It had been issued in January, 1987. It cannot be denied that the workman was guilty of misconduct and he had not properly explained his absence beyond the sanctioned leave by adducing any acceptable evidence. 6. For a Labour Court to interfere with any of the findings either in relation to proof of misconduct or with punishment, it is no longer necessary that the Court should find the findings to be perverse. This aspect has been dealt with by the Hon'ble Supreme Court in Workman vs. Fire Tyre & Rubber Co. of India (P) Ltd. reported in AIR 1973 SC 1227. In para Nos.32 and 37 of the said judgment, the Hon'ble Supreme Court has dealt with a new disposition that Section 11-A of the I.D.Act brought out and how even in the absence of a finding of the perversity of the inquiry officer, the Court shall examine whether the inquiry and finding had been fair and proper and whether any lesser punishment in lieu of discharge and dismissal could be awarded. In this case, in my view, the labour Court had not examined the actual tenor of the charge-sheet that had been issued to the workman as observed above. The management was prepare to let the workman recuse duty within a period of 7 days but lateron it had resiled and persisted with the inquiry. Although, the order of dismissal refers to the examination of past conduct of the workman, there is nothing on record to suggest that the past conduct had been bad. The workman had admittedly worked for nearly 11 years at the time when action for misconduct was taken against him to show the door to such a workman. The punishment in my view was grossly disproportionate such as to shock the judicial conscience. The issue of proportionality of punishment has been the subject a large body of case laws and the judicial intervention is contemplated only in exceptional circumstances. The exceptional circumstance in this Case, according to me, is that a month of absence from service, who had no adverse report against him and the nature of charge sheet that had been offered to him an opportunity to resume duty are circumstances justifying the imposition of lesser punishment. The verdict is being rendered more than two decades of the incident and in the case where proof of misconduct CWP No.10827 of 1994 (O&M) 5 was also available, there is hardly a justification for directing any re- instatement. The dismissal shall be modified as one of removal from service and the workman shall be granted such terminal benefits as admissible for the numbers of years of service that he had. The terminal benefits shall be worked out for the numbers of years of service that he had from 23.12.1976 to August 08.08.1987 and given to the workman within a period of 8 weeks from the date of this order, failing which the amount shall attract liable interest @ 9% per annum. The petition is allowed with the modification of the award in the aforesaid terms. (K.KANNAN) JUDGE 06.12.2009 mamta-II