C.W.P No.13769 of 2000 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No.13769 of 2000 (O&M) Date of Decision: 03.08.2009 Sahab Singh .....Petitioner Versus Presiding Officer, Labour Court, Panipat and others ....Respondents Present: Mr. Girish Agnihotri, Sr. Advocate with Mr. Vijay Pal, Advocate for the petitioner. Mr. D.S. Nalwa, Addl. A.G., Haryana. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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. The award challenges the order of termination of service for unauthorized absence between the period 24.01.1990 to 25.12.1991. An enquiry had been constituted which found that the explanation given by the workman that he had been suffering from Jaundice and that he was taking Unani treatment had not been established. To the show cause notice issued to the workman, in his explanation for the findings of the Enquiry Officer, the workman again reiterated his prolonged illness and he pleaded that in view of the long years of service over 15 years, he shall not be punished. The Disciplinary Authority, however, directed his dismissal from service. 2. Before the Labour Court, the management gave evidence to C.W.P No.13769 of 2000 (O&M) -2- support its decision, while the workman did not let in any evidence. The Labour Court, under such circumstances, observed that since the findings of the Enquiry Officer had been properly rendered and the enquiry was fair and proper, there was no justification for setting aside the findings of the Enquiry Officer or interfere with punishment. 3. Before me, it is contended strenuously by the learned counsel appearing for the workman that he had been working for more than 15 years as a Driver and there had been no incidence of any misconduct. Even in the charge-sheet, which had been sent to him, he had responded giving the same explanation that he had been ill and there was no reason for him to be staying away from employment when he had a protected service and when he had worked for over 15 years. Learned counsel appearing for the Transport Corporation, Sh. Nalwa refers to a decision of the Hon'ble Supreme Court in North Eastern Karnataka R.T. Corpn. Vs. Ashappa and another 2006 (3) SCT 102 where the Hon'ble Supreme Court held in a case of a Conductor of a Corporation who remained absent for a period of three years thus: “....Remaining absent for a long time, in our opinion, cannot be said to be a minor misconduct. The appellant runs a fleet of buses. It is a statutory organization. It has to provide public utility services. For running the buses, the service of the conductor is imperative. No employer running a fleet of buses can allow an employee to remain absent for a long time. The respondent had been given opportunities to resume his duties. Despite such notices, he remained absent C.W.P No.13769 of 2000 (O&M) -3- for a period of more than three years, his leave records were seen and it was found that he remained unauthorizedly absent on several occasions. In this view of the matter, it cannot be said that the misconduct committed by the respondent herein has to be treated lightly.” 4. Learned counsel for the management would, therefore, submit that conduct of a workman in a public utility service remaining absent was a gross misconduct and there would be no justification for interference in the order of dismissal from service. In that case, the Court had the benefit of looking into the service records as well and it found that the workman had through several notices given opportunities to resume his duties but he did not join duty. His leave records were seen and it was found that he had remained unauthorizedly absent on several occasions. In the present case, the fact that the workman had been working as Driver for 15 years and during his service, there had been no allegation of misconduct against him is an admitted fact. The powers of the Labour Court under Section 11-A that enables the Court to examine whether the punishment could be awarded is a power that tempers the harshness of punishment to what is appropriate and just in the given circumstances. The service of the workman for 15 years as a Driver without blemish and his absence from duty for nearly 11 months due to what he said to have arisen out of illness ought to have been taken as a circumstance to inflict a lesser punishment. The punishment of removal, under such circumstances, in my view was too harsh and that had not been taken note of by the Labour Court. C.W.P No.13769 of 2000 (O&M) -4- 5. Under the circumstances, I set aside the award of the Labour Court in so far as it confirms the order of dismissal from service. The workman shall be deemed to have been continued in service till date without any back wages. This shall enable the workman to obtain the retiral benefits as per rules. 6. The writ petition is allowed in the above terms. (K. KANNAN) JUDGE August 03, 2009 Pankaj*