THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No. 7273 of 2001 O R D E R: Heard Ms. V.Uma Devi, learned counsel for the petitioner and Sri Y.R. Babu, learned counsel for the 1st respondent workman. This Writ Petition has been preferred by the public sector undertaking, the Singareni Collieries Company Limited, against the Award, dated 2nd May 2000 in I.D.No. C4 of 1997 raised by the 1st respondent workman herein. The 1st respondent workman was appointed as a coal filler. At the relevant point of time, he was working as Mazdoor Category-I. On the plea that he was absent from duty unauthorizedly for a total period of 166 days, during the year 1990-91, he was subjected to disciplinary action. He was inflicted with the punishment of deferring of an annual increment, by an order passed on 21.02.1991. While he was rendering services to the Singareni Collieries Company Limited, an order was affixed on the notice board on 20.07.1991, imposing the punishment of dismissal from service for his unauthorized absence. Since he has already been punished for the very same misconduct by way of deferring his increment, the 1st respondent workman has called in question the orders of subsequent punishment of dismissal from service. One of the main planks of contention raised before the Industrial Tribunal-cum-Labour Court by the management of the writ petitioner organization was that the industrial dispute itself has been raised with enormous years of delay, thus reflecting lack of bona fides on the part of the workman and/or indicative of the fact that he was usefully and gainfully employed elsewhere. The contention that a punishment having already been inflicted for the very same conduct, the workman could not have been dismissed from service, was sought to be neutralized by pointing out that a sum of Rs.78/- representing the deferred increment of the respondent-workman was, in fact, sent to him by money order and hence, the subsequent punishment imposed is valid and justified. On behalf of the management, M.W.1 was examined and 15 documents Exs.M1 to M15 were got marked. The punishment of deferring his annual grade increment was imposed subsequent to 2nd February 1991, the date on which the charge sheet has been issued to the petitioner. M.W.1, during the course of cross-examination, has categorically admitted that a mistake was committed in their office that without noticing the fact of imposing of the punishment of deferment of increment, the subsequent action has been taken. In fact, it is further stated that the domestic enquiry file is found missing. In view of these vital statements made by M.W.1 himself, the Industrial Tribunal-cum- Labour Court has no hesitation to come to the conclusion that the respondent-workman has been imposed the punishment of deferment of increment for the very same misconduct. Therefore, he could not have been penalized a second time for the very same misconduct. It is a settled principle of law that no person shall be subjected to the process of penalty two times all over for the very same misconduct. Therefore, the Labour Court has set aside the subsequent punishment imposed against the respondent-workman and held that he is entitled to be re-instated duly setting aside the order of dismissal dated 20th July 1991. The order of punishment of stoppage of one increment was restored. Having noticed that the industrial dispute itself has been raised more than 5 ½ years later on, notwithstanding the availability of the provision, under Section 2-A(2) of the Industrial Disputes Act, 1947, for a workman to straight away approach the Industrial Tribunal- cum-Labour Court, the Labour Court ordered for payment of 50% of the back wages for the period from the date of dismissal till 26.02.1997, the date on which the dispute has been raised. For the subsequent period till the petitioner is reinstated, he was awarded full back wages. It is this portion, which is required to be considered as to how far it is sustainable. It is not in dispute that the respondent-workmen has absented himself unauthorizedly for as many as 166 days during the year 1990- 91. He could not come up with any justifiable reason or cause for such unauthorized absence. Unauthorized absence of workman not merely dislocates the working arrangements, but also is a potentially contagious breeding ground. Therefore, disciplinary measures are required to be put in place, all the more so, when the industry is intensely and intrinsically depending upon large manual work force. Therefore, there was no justification whatsoever to take a lighter view of the misconduct exhibited by the workman, but at the same time, a reasonable punishment that meets the quantum of guilt, as held established, must be imposed. The petitioner company has already imposed the punishment of deferment of one increment. Whether that meets the ends of justice or not, particularly when the quantum of misconduct is fairly very high is a debatable issue, over which, I do not wish to express any opinion in view of the peculiar fact situation prevailing in this case. The legal principle that is settled by now is that no workman should be penalized for the same misconduct twice all over. In view of the punishment imposed earlier in point of time by way of deferment of increment, the writ petitioner company could not have dismissed or removed or terminated the services of the respondent workman. Therefore, there is no difficulty in setting aside such an order and ordering for reinstatement of the workman back into service. Payment of back wages is not an automatic affair to follow upon reinstatement of every workman. Various factors including the efforts made by the workman to get re-employed during the interregnum period must be taken into consideration. The nature of work and duties performed by the workman is a General Mazdoor. It, therefore, should have occurred to the Labour Court that getting employed in the open market as a Man Mazdoor is not an impossible feature. It, therefore, ought to have occurred to the Industrial Tribunal-cum-Labour Court to award not more than 50% of the back wages after the reinstatement is ordered. In the instant case, the Industrial Tribunal has awarded 50% of the back wages for the period in between the order of dismissal and the date of raising the Industrial Dispute and for the post period of raising the Industrial Dispute, full back wages were ordered to be paid. On both these counts, the Industrial Tribunal has not properly exercised the discretion and jurisdiction vested in it. Reasons are missing as to why this order has been passed. Notwithstanding the availability of a provision, like Section 2- A(2) of the 1947 Act, if a workman has not raised Industrial Dispute with reasonable expedition and prefers to sleep over his own rights, for such period, he should not have been rewarded by awarding back wages, even if it is 50% only. There should have been evidence collected as to the steps and measures taken by the workman to get employed, during the said period. For the failure to do so, awarding 50% of the back wages up to the date of raising the Industrial Dispute, as awarded by the Industrial Tribunal-cum-Labour Court, is clearly unsustainable. Similarly, awarding 100% back wages for the post period of raising the Industrial Dispute, is also unsustainable. The respondent-workman ought to have demonstrated as to the steps and measures taken by him to get re-employed and as to how his efforts have failed in that regard. The interests of both sides require to be properly balanced. I, therefore, consider it appropriate to award 50% of the back wages for the post period of raising the industrial dispute. If the 1st respondent workman has not been reinstated so far by the petitioner company, it shall do so within the next 30 days and also settle the payment of 50% of back wages awarded for the post period of raising the industrial dispute within a further period of three months thereafter. In terms of this order, the Writ Petition stands disposed of, but however, without costs. ---------------------------------- (NOOTY RAMAMOHANA RAO, J) 16th November 2009 ksld