Judgment : 1. THE award dated 26/7/1984 passed in Adjudication case no. 73 of 1981 is under challenge in the present writ petition. The said adjudication ariscs out of an industrial dispute raised by the respondent no. 3 Sri Jagat Pratap Singh on account of his termination from service by a letter dated 26/3/1980, filed as annexure-8 to the writ petition, under clause 27 of the Standing Order applicable to respondent no. 3. The said order of termination was grounded on the reasons thai because the respondent no. 3 absented very often, therefore, no useful purpose would be served by retaining the respondent no. 3 in the employment. The Labour court in its award dated 26/7/1984 had held that the punishment of termination was disproportionate and that the same is a major punishment within the meaning of clause 22 of the Standing Order, necessitating disciplinary proceeding. 2. SRI Tarun Agarwal, learned counsel for the petitioner contends that the services of respondent no. 3 was terminated under clause 27 of the Standing Order on account of the habit of respondent no. 3 of absenting himself very frequently. It was admitted case of the petitioner that before termination no inquiry was held. In the written statement, therefore, it was pleaded that the question can be decided on the basis of documents only and that the petitioner would be proving the same in the course of trial. According to Sri Tarun Agarwal, on production of adequate documents and oral evidence the fact of habitual absenteeism by the respondent no. 3, has been proved and the learned Labour Court had come to a finding that the respondent No. 3 was a habitual absentee. Therefore, according to him the learned labour Court ought not to have interfered with the order of termination. His primary contention was that the termination was not an order of dismissal or removal within the meaning of clause-22 of the Standing Order and it is simply an order of termination under clause 27 of the Standing Order. Alternatively he pleads that by reason of proving the fact that the petitioner is a habitual absentee the Labour Court having come to such a finding, the necessity of holding domestic inquiry has been fulfilled and absence of the domestic inquiry, in the facts and circumstances of the case, would not invalidate the order of termination. Alternatively he pleads that by reason of proving the fact that the petitioner is a habitual absentee the Labour Court having come to such a finding, the necessity of holding domestic inquiry has been fulfilled and absence of the domestic inquiry, in the facts and circumstances of the case, would not invalidate the order of termination. Sri Rakesh Tewari, learned counsel appearing on behalf of respondent no. 3 contends that the order of termination is not an order of termination within the meaning of clause-27 of the Standing Order, since the said order does not give one month's notice nor the same pays one month's salary in lieu of the notice. According to him the order of termination is an order within the meaning of clause-22 of the standing Order and, therefore, can not be sustained without domestic inquiry. According to him in order to attract clause-22 of the Standing Order absence should amount to 'misconduct'. It is not a case of the respondent No. 3 that the respondent no. 3 was absent unauthorisedly. Referring to the fact he contends that nowhere it has been pleaded that the respondent no. 3 was unauthorisedly absent. Inasmuch as according to him all the leaves were subsequently sanctioned and he was declared on 'leave without pay'. Unless the absence is unauthorised the same does not form misconduct. His further contention was that absenteeism is minor miscond. ua for which warning is called for and unless there are three warnings absenteeism would not ripen to a misconduct within the meaning of clause-22 of the Standing Order. Referring to clause-27 Sri Tewari supports his contention that though it has been contended that two warnings were issued but none of these warnings were received by his client. That apart in order to attract clause-22 there must be three warnings. Even according to the petitioner's case, as contended by Sri Tewari there were only two warnings. His further contention was that by reason of sanctioning of leave even if there was any misconduct the same was condoned and could not have been re-opened. 3. SRI Tewari, in the course of his argument pointed out to annexure-3 to the writ petition, wherein list of absence have been specified. It appears that the respondent no. 3 was absent 91 days in the year 1975 out of which 40 days were 'leave without pay'. 3. SRI Tewari, in the course of his argument pointed out to annexure-3 to the writ petition, wherein list of absence have been specified. It appears that the respondent no. 3 was absent 91 days in the year 1975 out of which 40 days were 'leave without pay'. Similarly respective figures in the year 1986 were 115' days and 37' days. Similarly in 1977 the figures are 102' and 51' days respectively, while 91' and 43' days were respective figures in 1978 and in 1979, the figures were 101' and 53' days. Clause-27 of the Standing Order provides as follows: "27- Termination of Service the services of the employee will be liable to be terminated for want of work or if he is found to be mentally or physically unfit for work or for another good or sufficient reason or cause except discharge or dismissal on the ground of misconduct vide clause-22 by giving one month's notice or one month's salary in lieu thereof. Cases of employee detained or convicted on political grounds will be considered and decided on their own merits. " A reference to the above clause indicates that the order of termination in annexure-8 to the writ petition can fit in only within the phrase "for any other good or sufficient reason or cause". The present order of termination does not come within the ambit of first clause or in the second clause, found to be mentally or physically unfit. In order to attract the above clause where the reasons given in the order of termination would satisfy the test 'for any other good or sufficient reason or cause. Clause-22 deals with dismissal on account of misconduct which includes in sub-clause (xiv) 'absence without leave for a period of seven consecutive days'. It is not a case of the employer that the respondent no. 3 was absent for seven consecutive days without leave. No such case was made out in the said order. But, however, Sri Tarun Agarwal, contends that in the course of trial such a case was made out and the learned Labour Court had come to a finding that on the basis of record that the test laid down in sub-clause (xiv) of clause-22 of the Standing Order was satisfied. But no such clear finding could be pointed out by Sri Tarun Agarwal, from the impugned award, as translated at the bar. But no such clear finding could be pointed out by Sri Tarun Agarwal, from the impugned award, as translated at the bar. On the other hand sub-clause-B of clause-21 deals with the minor offences which include temporary absenteeism. The said provision provides that the first offence of temporary absenteeism attracts 'warning', while the second one attracts 'fine together with warning' and in the case of third 'warning may be accompanied with a fine or suspension without any pay for not more than three days'. Only in the case of fourth offence sub-clause (xvi) of clause-22 'being guilty of more than three minor offences' would be attracted. According to the said provision the minor offence committed at an interval beyond six months, would be treated as separate and independent offence, for the first time and absence without good or sufficient reasons to the satisfaction of the manager shall be treated as an absentee if he absents for a period of two consecutive days without notice, it shall be treated as one minor offence. In order to appreciate the situation it is necessary to quote sub clause-B of clause-21 of the Standing Order, which runs as under : "b.- MINOR OFFENCES minor offences will include- negligence in work and/or duty temporary absenteeism, late attendance amongst other. Each such act or omission shall constitute an offence: first Offence-Warning second Offence-Warning to be accompanied with a fine. Third Offence-Warning which may be accompanied with a fine or suspension without any pay for not more than three days. Fourth Offence- s per clause 22 (xvi)Should, however, no minor offence be committed by the employee within six months of the last such offence, the next minor offence will be treated as the first one. An employee will be deemed to be late in attendance if he is not at the appointed place of work excepting for good reason to the satisfaction of the manager within five minutes of the Scheduled time of work. Should this delay exceed one hour he may not be permitted to join work until the commencement of the next working period. Anyone who absents himself from work without good and sufficient reason to the satisfaction of the Manager shall be treated as an absentee. If he absents for a period of two consecutive days without notice, it shall be treated as one minor offence. Anyone who absents himself from work without good and sufficient reason to the satisfaction of the Manager shall be treated as an absentee. If he absents for a period of two consecutive days without notice, it shall be treated as one minor offence. " By no stretch of imagination sub-clause (xvi) of clause-22 of the Standing Order can be attracted to the present case, because this order of termination is not an order for "committing three minor offences". The order itself discloses only three warnings namely 24. 2. 1975, 22. 12. 1976 and 8. 11. 1978. Admittedly, these dates are well beyond six months in between themselves. Therefore these three warnings can not be treated to be warning within meaning of sub-clause-B of clause-21 in view of the first condition, that an offence committed beyond six months of the last offence is to be treated as the first one. Therefore, there is only one warning which can not prove to be three warnings so as to attract sub-clause (xvi) of clause-22 on account of fourth offence within the meaning of 'minor offences'. The findings of the learned Labour court does not help the petitioner in that respect even though Sri Tarun Agarwal had laid much stress on the fact that the learned Labour Court has come to a finding that the respondent no. 3 was habitual absentee. Such finding does not help Sri agarwal, despite his submission that he had proved his misconduct in the course of trial though there was no domestic inquiry which the petitioner is entitled to have in view of decision in the case of Shankar Chakravarti v/s. Britannia Biscuit Company Ltd. and another (1979 39 FLR 70 SC), which relied on the decision in the case of Workmen of Motipur Sugar Factory (Pvt.) Ltd. v/s. Motipur Sugar Factory, 1965 11 FLR 112 SC. In the said two cases it was held that even if the employer has failed to make an enquiry 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. 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, but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. Such an opportunity to the employer is available only when he asks for such an opportunity, though, however, Sri Tewari had contended that no such request was made by the employer. Even if contention of sri Tewari is over-ruled relying on the statement made in paragraphs 24 and 25 of the written statement, even though on the basis of material produced or oral evidence led no such case was made out that the discharge was made either under sub-clause (xvi) or sub clause (xi) of clause-22. However, on the facts as revealed from the findings of the learned Labour Court sub-clause (xvi) of clause-22 can not be attracted. There is no statement by the witnesses on behalf of the employer that the petitioner was absent for seven consecutive days without leave. On the other hand, as rightly pointed out by Sri Tewari, it is apparent that leaves were sanctioned though without pay, subsequently, therefore, it can not be said that the termination can fit in under sub-clause (xiv) of clause-22 of the Standing order. 4. THEREFORE, Sri Tarun Agarwal has to confine himself within clause-27 of the standing Order. Sri Tewari contends that even then clause-27 has not been complied with. Inasmuch as clause-27 implies a month's notice or pay in lieu thereof. He has rightly pointed out that the letter was dated 26/3/1980 while the service was terminated with effect from 16/4/1980. Therefore, admittedly the notice was less than of a month. Sri Tewari further contends that no payment in lieu of notice was ever made. The impugned notice does not indicate that payment in lieu of notice is being made. Though, however, in para 11 of the writ petition Sri Tarun Agarwal pointed out that a statement had been made that payment in lieu of notice has been given to the respondent no. 3 and that the said para has not been replied in the counter affidavit. Though, however, in para 11 of the writ petition Sri Tarun Agarwal pointed out that a statement had been made that payment in lieu of notice has been given to the respondent no. 3 and that the said para has not been replied in the counter affidavit. Sri Tewari, on the other hand contends that the said fact was omitted inadvertently and, therefore, a supplementary counter affidavit was filed, and a copy whereof was served upon Sri Tarun Agarwal. In the said supplementary counter affidavit the respondent no. 3 had denied to have received any notice pay in lieu of notice. This is a disputed question of fact to which this court is very slow to enter into. There is no sufficient material placed before this court to arrive at a correct finding. At the same time no rejoinder affidavit has been filed against the supplementary counter affidavit. It was incumbent upon Sri Agarwal to show before this Hon'ble Court adequate proof regarding payment of notice pay in lieu of notice and in absence of such proof it is very difficult to accept the contention of Sri agarwal. The other contention that has been raised by Sri Agarwal is that as soon the Tribunal had found that the petitioner was guilty of absence even if it is minor offence the Tribunal ought to have passed some order of punishment or should have given liberty to pass any such order by the employer. It is contended by Sri Agarwal that by reason of reaching the age of superannuation the respondent no. 3 has already retired from service. Therefore, the said question would only be academic. By reason of the interim order passed in the present writ petition the petitioner had been paying respondent no. 3 the current wages at the rate of wages the respondent no. 3 was receiving on the date of termination, till the date of superannuation. Even then if it is minor offence in that event punishment is in the form of warning, fine and suspension for a period not exceeding three days. The present case not being the case within the meaning of sub-clause (xvi) of clause-22 of the Standing Order there was no scope for awarding any other punishment on account of commission of three minor offences. The present case not being the case within the meaning of sub-clause (xvi) of clause-22 of the Standing Order there was no scope for awarding any other punishment on account of commission of three minor offences. At the same time no case having been made out within the meaning of sub-clause (xiv) of clause-22 and nothing has been proved to that extent it is not possible to award any lesser punishment on account thereof. Thus the argument of sri Agarwal is counter productive inasmuch as he can not, but in the facts and circumstances of the case, confine the case under clause-27 and can not avail of any alternative case. Even then on that score as well by reason of the conditions contained in clause-27 in absence of one month's notice or notice pay in lieu of notice the said order also can not be sustained. In view of the above finding this court is not called upon to decide the question whether the reasons disclosed in the order of termination satisfies the test 'for any other good or sufficient reason or cause', which would only be academic in the present facts and circumstances of the case. In that view of the matter I am unable to agree with the contention of Sri agarwal. Consequently, I am not inclined to interfere with the impugned order though. altogether on different reasons, as has been held by the learned Labour court. 5. IN the facts and circumstances of the case and in view of my above observation it is not necessary to refer to the other contentions raised by the learned counsel, as indicated herein- before. The observations made above appears to have dealt with the merit of the case and the other contentions raised are neither necessary for the purpose of this case nor does it help either of the parties, though vehemently argued by Sri Tarun Agarwal and Sri Rakesh Tewari, for considerably longtime. 6. IN the result the writ petition fails and is hereby dismissed. There will be, however, no order as to costs. Petition Dismissed.