This Writ Petition is filed by the petitioner seeking a Writ of Certiorari calling for the records in I.D.No.92 of 1998 dt.29.10.2001 on the file of the 1st respondent Additional Industrial Tribunal-cum- Additional Labour Court, Hyderabad and quash the same and consequently, allow the petition of the petitioner by directing the 2nd respondent management to reinstate the petitioner into service with full back wages, attendant benefits and other consequential reliefs.
2. Brief facts leading to this Writ Petition are that the petitioner was employed with the 2nd respondent company as an electrician on 09.01.1991 and was confirmed vide letter dt.09.01.1992. During the year 1997, a charge sheet was issued to the petitioner alleging that he had remained absent from duty without permission for 63 days during the year 1997. The petitioner submitted a detailed reply on 17.01.1998 explaining the reasons for his absence as the ill-health of his wife and that he had met with an accident. However, the disciplinary authority was not satisfied with the said explanation and therefore it ordered an enquiry and on the basis of the enquiry report holding that the charges against the petitioner are proved, a show-cause notice was issued to the petitioner as to why he should not be removed from service. The petitioner submitted his explanation, but the 2nd respondent was not satisfied with the same and termination order dt.08.03.1998 was passed. Aggrieved by the same, the petitioner raised an industrial dispute before the Industrial Tribunal. The Industrial Tribunal, however, dismissed the said application, against which the present Writ Petition is filed.
3. The grounds raised in this Writ Petition are that the Industrial Tribunal has not taken into account the material evidence available on record, the admission of the management witness that all his leaves were on request treated as on loss of pay, which in itself is an indication of the petitioner having gone on leave with due intimation and therefore his absence cannot be treated as unauthorised. The other ground raised is that the respondents have failed to take into account the illness suffered by the petitioner’s wife during the period in question, which was well within the knowledge of the management.
4. Learned counsel for the petitioner, Sri V. Hari Haran, reiterated the submissions and submitted that a charge sheet was issued for unauthorised leave of 63 days during the year 1997, but the respondents have taken into consideration the unauthorised leave for the earlier years also to award the punishment of removal from service. He submitted that the respondents could not have taken action on the unauthorised leave of earlier years without issuing a charge sheet to the petitioner to that period as well. Further, for the disproportionality of punishment of removable from service for the misconduct of unauthorised absence, he placed reliance upon a decision of the Hon’ble Supreme Court of India in the case of Shri Bhagwan Lal Arya Vs. Commissioner of Police, Delhi and others (2004) 4 SCC 560)and also in the case of Rashtrasant Tukdoji Maharaj Technical Education Sanstha, Nagpur Vs. Prashant Manikrao Kubitkar (AIR 2017 SC 2482). He also placed reliance upon a decision of the Hon’ble Supreme Court in the case of Krushnakant B. Parmar Vs. Union of India and another (2012) 3 SCC 178)for payment of compensation in lieu of back wages.
5. Learned counsel for the 2nd respondent, Sri T. Rajendra Prasad, on the other hand, submitted that the averments in the counter filed by the 2nd respondent may be considered. He submitted that though the petitioner has pleaded that his absence was due to the illness of his wife, he has not produced any evidence before the authorities below. Therefore, the punishment of dismissal from service was justified. He submitted that even in the earlier years, the petitioner remained absent from duty without any authorisation and therefore, the past record of the petitioner has also been taken into consideration before awarding the punishment of removal from service. In support of his contention that for such acts of unauthorised absence, the removal from service is justified, he placed reliance upon a decision of the Hon’ble Supreme Court of India in the case of M/s. Burn and Co. Limited Vs. Their Workmen and others (AIR 1959 SC 529)and also a decision of the Hon’ble Delhi High Court in the case of India Tourism Development Centre Vs. Presiding Officer, Labour Court X and others (2000 (3) L.L.N.269).
6. Having regard to the rival contentions and the material on record, this Court funds that the charge sheet has been issued to the petitioner only for unauthorised absence of 63 days during the year 1997. However, during the course of enquiry and thereafter, the unauthorised absence in the earlier years also has been considered. It is not evident from the record before this Court as to whether the petitioner had given any explanation with regard to his absence in the earlier years. However, as rightly pointed out by him, unless a charge sheet was issued mentioning his unauthorised absence in the earlier years for which action is proposed to be taken, the same cannot be taken into consideration as a reason for awarding punishment of removal from service.
7. Further, the Hon’ble Supreme Court in the case of Shri Bhagwan Lal Arya Vs. Commissioner of Police, Delhi and others (1 supra), has held that unauthorised absence of 2 months on medical grounds with sanction of leave cannot be regarded as a grave misconduct or continued misconduct rendering him completely unfit for police service and dismissal on the ground of alleged misconduct of such absence from duty was held to be excessive and disproportionate punishment. In the said case also, the petitioner had made an application for leave for some of the period, which was granted. The balance of period, which was not granted, was treated as unauthorised absence and the Hon’ble Supreme Court has held that unauthorised absence was not a grave misconduct to be awarding punishment of removal from service.
8. In the decision relied upon by the learned counsel for the 2nd respondent, i.e., the case of M/s. Burn and Co. Limited Vs. Their Workmen and others (4 supra), the petitioner therein was the Secretary of a Union and had claimed immunity from punishment for breaking discipline and after taking into consideration the actions of misconduct by the Union Secretary, Hon’ble Supreme Court has held that he cannot claim immunity from punishment and absence of the workman without permission and without any application for leave amounts to gross violation of discipline entailing a dismissal from service. This Court finds that the facts of the above case are distinguishable from the facts of the case before this Court.
9. Another decision relied upon the 2nd respondent is the case of India Tourism Development Centre Vs. Presiding Officer, Labour Court X and others (5 supra), wherein the Hon’ble High Court of Delhi held that the past record of the workman can be considered before awarding the punishment. However, in the said case, on the earlier occasions, the punishment of stoppage of two annual increments was awarded and in spite of the same, the petitioner therein had remained absent for 62 days and therefore, the Court was of the view that awarding of punishment of removal from service was justified. This case is also distinguishable on facts from the facts of the case before this Court.
10.Therefore, this Court holds that only the unauthorised absence of the petitioner for a period of 63 days in the year 1997 can be considered as misconduct for which disciplinary proceedings were initiated. The findings of the enquiry officer are that the petitioner has not submitted any evidence in support of his explanation that his wife was not well or that he had met with an accident. The petitioner has not filed any evidence to rebut this finding of the enquiry officer. Therefore, this Court finds no reason to interfere with the findings of the authorities on this issue.
11. The next question that would arise is the proportionality or otherwise of the punishment awarded. The Hon’ble Supreme Court in the case of Shri Bhagwan Lal Arya Vs. Commissioner of Police, Delhi and others (1 supra) has held that the punishment of removal from service for the misconduct of unauthorised absence is excessive and harsh. Respectfully following the same, this Court holds that the punishment awarded to the petitioner is excessive and disproportionate to the misconduct alleged by the 2nd respondent. Therefore, the punishment of removal from service is set aside.
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However, it is noticed that the petitioner might have reached the age of superannuation. Therefore, by directing reinstatement at this stage, no purpose would be served and after a lapse of nearly 20 years, it cannot also be remanded to the authorities for reconsideration of the issue. Therefore, by following the decision of the Hon’ble Supreme Court in Shri Bhagwan Lal Arya Vs. Commissioner of Police, Delhi and others (1 supra), this Court directs the petitioner to be notionally reinstated into service with attendant benefits but without back wages. The petitioner shall be entitled to a compensation of Rs.1,00,000/- in lieu of ‘reinstatement without back wages’ and the same shall be paid to the petitioner within a period of six (6) weeks from the date of receipt of this order. 12. The Writ Petition is accordingly allowed. No order as to costs. 13. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.