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2012 DIGILAW 423 (UTT)

Uttarakhand Transport Corporation v. Shamim Ahmed

2012-07-25

V.K.BIST

body2012
Judgment : Present petition has been filed by the petitioners for setting aside the award-dated 16.12.2009 passed by the Presiding Officer, Labour Court, Dehradun, by which the Labour Court directed the petitioners to reinstate the respondent no.1 in service without any back wages, but the period from the date of termination till the reinstatement will be counted for the purpose of calculating pension of respondent no.1. 2. Brief facts of the case, as narrated in the writ petition, are that on 01.05.1988, the respondent no.1 was engaged as a helper with the petitioner department. Thereafter, the respondent no.1 went on leave from 24.02.1997 to 30.03.1997. It is alleged that the respondent no.1 remained absent from the duty after 30.03.1997 and had not joined duty after 30.03.1997. When the respondent no.1 did not join his duty, then on 30.09.1997, the Senior Workshop In-charge, Dehradun submitted his report to the Regional Manager, Uttarakhand Transport Corporation, Dehradun. On the basis of the report-dated 30.09.1997, a letter was sent to the respondent no.1, at his home address by registered A.D. post. By the said letter, the respondent no.1 was asked to appear before the Medical Board, Merrut for his medical examination and after getting the fitness certificate from there, resume duties. But the said letter was returned back by the Postal Department with the endorsement that the addressee was not available at the address. Thereafter, again on 09.09.1997, the department wrote another letter to the respondent no.1, which also returned back with the endorsement that the respondent no.1 was not available in the village and his family members had no idea about his return. Thereafter, on 29.09.1997 the department published a notice in the daily newspaper asking the respondent no.1 to attend the office within two weeks, after getting the fitness certificate from the Medical Board, but the respondent no.1 did not respond to the said publication. Thereafter, on 25.11.1997 a charge sheet was prepared against the respondent no.1 and the respondent no.1 was charged for his illegal absence from the duty from 31.03.1997, without permission, for leaving the place of posting and for not receiving the registered letter sent to him. The charge sheet was sent to the respondent no.1 by registered post, but the respondent no.1 did not give any reply to the said charge sheet. The charge sheet was sent to the respondent no.1 by registered post, but the respondent no.1 did not give any reply to the said charge sheet. On 31.03.1998, the Enquiry Officer sent a letter to the respondent no.1 to appear before him on 11.02.1998 in the disciplinary proceedings, but the said letter was returned back by the Postal Department. Thereafter, the Enquiry Officer again sent a letter to the respondent no.1 fixing 03.03.1998 for the enquiry, but the said letter was also returned back by the Postal Department. On 13.04.1998, the Enquiry Officer submitted his report in which charges leveled against the respondent no.1 was found proved and a show cause notice was sent to the respondent no.1, by registered post, alongwith the copy of Enquiry Report. On 16.05.1998, the disciplinary authority, after going through the entire report of Enquiry Officer, passed the termination order of the respondent no.1. Termination of the respondent no.1 was referred to the Labour Court and same was registered as Adjudication Case No.41 of 2002. The Labour Court, after hearing both the parties and after examining the material, which was produced by the parties, passed the award-dated 16.12.2009, reinstating the respondent no.1 without back wages. It was also directed by the learned Labour Court that the period from the date of termination till reinstatement would be counted for the purpose of pension of the respondent no.1. Feeling aggrieved from the award-dated 16.12.2009 passed by the Presiding Officer, Labour Court, Dehradun, present writ petition has been filed by the petitioners. 3. Learned counsel for the petitioners submitted that the Labour Court, in its award dated 16.12.2009, gave specific finding that the respondent no.1 was given full opportunity of hearing and he had full knowledge about the disciplinary proceedings initiated against him. The Labour Court observed that respondent no.1 had deliberately not participated in the enquiry proceedings and reached to the conclusion that absence of respondent no.1 is illegal and is against the departmental rules. He contended that once the Labour Court held that that respondent no.1 deliberately not attended the enquiry, despite the fact that he had full knowledge about the initiation of the enquiry proceeding, the Labour Court erred in holding that the punishment awarded to the respondent no.1 is not commensurate with the charges. He contended that once the Labour Court held that that respondent no.1 deliberately not attended the enquiry, despite the fact that he had full knowledge about the initiation of the enquiry proceeding, the Labour Court erred in holding that the punishment awarded to the respondent no.1 is not commensurate with the charges. He submitted that the Labour Court illegally and wrongly decided the issue no.2 against the petitioners and has given wrong finding that the punishment awarded to the respondent no.1 is not commensurate with the charges leveled against him. He submitted that illegal absence from the duty is a serious charge and the services of the respondent no.1 had legally and rightly been terminated. In support of his arguments, the learned counsel for the petitioners relied upon on the judgments of Hon’ble Supreme Court reported in (2009) 9 SCC 462 -Regional Manager, Bank of Baroda Vs. Anita Nandrajoy, (2000) 5 SCC 65 -Syndicate Bank Vs. General Secretary, Syndicate Bank Staff Association & another and (2001) 1 SCC 214 -Punjab & Sind Bank & others Vs. Sakattar Singh. 4. The respondent no.1 filed counter affidavit. In the counter affidavit, it is stated that respondent no.1 fell ill for which doctor advised him for treatment. Due to this reason, the respondent no.1 went on leave w.e.f. 24.02.1997 to 30.03.1997 for which he also moved application for leave, which was duly accepted by the petitioners-employer. It is also mentioned in the counter affidavit that the respondent no.1 was suffering from the disease, namely, Anxiety Neurosis and Chronic Bronchitis, for which his treatment continued w.e.f. 24.02.1997 to 01.02.2000. On 02.02.2000, the respondent no.1 went to join his duties and moved an application alongwith Medical Certificate and fitness certificate and prayed for his joining, then he came to know that his services had already been terminated in the month of May, 1998. Thereafter, he raised industrial dispute under Section 4 K of the U.P. Industrial Disputes Act, 1947, which was referred to the Labour Court, Uttarakhand, Dehradun and was registered as Adjudication Case No.41 of 2002. The learned Labour Court invited oral and documentary evidence from the parties and heard the matter. The Labour Court, after hearing the parties and after examining the material, which was produced by the parties, came to the conclusion that the punishment awarded to the respondent no.1, is excessive and disproportionate to the charges. The learned Labour Court invited oral and documentary evidence from the parties and heard the matter. The Labour Court, after hearing the parties and after examining the material, which was produced by the parties, came to the conclusion that the punishment awarded to the respondent no.1, is excessive and disproportionate to the charges. Learned counsel for the respondent no.1, Shri Gopal Narain submitted that the Labour Court categorically recorded a finding that the punishment awarded to the respondent no.1 was harsh one and excessive and therefore, the Labour Court rightly set aside the termination order and directed for reinstatement of respondent no.1 in service, but without back wages. It is contended that the award rendered by the Labour Court is perfectly justified. Learned counsel for the respondent no.1 further submitted that the award rendered by the Labour Court is based on the finding of fact and that cannot be interfered in a proceeding under Article 227 of the Constitution of India. In support of his submission, the learned counsel for the respondent no.1 relied upon the judgment reported in (2009) 15 SCC 620 -Chairman cum Managing Director, Coal India Limited & another Vs. Mukul Kumar Choudhuri and others. It is also argued that the services of the respondent no.1 were terminated only on the ground of his absence from duty, which was due to his illness and as per law laid down by the Hon’ble Supreme Court in the case of Rajasthan Tourism Department Corporation Limited & another Vs. Jai Raj Singh Chauhan (2011) 13 SCC 541, at the most, the matter can be remanded to the disciplinary authority to award minor punishment. 5. I have considered the arguments advanced by the learned counsel for the parties and have perused the order passed by the Labour Court as well as the papers annexed with the writ petition. 6. The Labour Court gave a categorical finding that the petitioners gave full opportunity to the respondent no.1 for putting his case in the departmental proceedings. The Labour Court also gave a finding that after completion of the departmental proceedings, the respondent no.1 was given further opportunity to place his case. The respondent no.1, knowing all these facts, neither joined his duty nor participated in the departmental proceedings. The Labour Court also gave a finding that after completion of the departmental proceedings, the respondent no.1 was given further opportunity to place his case. The respondent no.1, knowing all these facts, neither joined his duty nor participated in the departmental proceedings. The Labour Court, in its award-dated 16.12.2009, gave specific finding that the petitioners provided full opportunity of hearing to the respondent no.1 and have followed the principles of natural justice. The Labour Court also observed in its order that respondent no.1 came to know about the removal order in the year 1998, but he did not approach to the department till the year 2000. The respondent no.1 has not produced such medical certificate, which shows the seriousness of the disease. After giving such finding, the only course open before the Labour Court was to reject the claim petition of the petitioners. In my view, the Labour Court erred in issuing direction to the petitioners to reinstate the respondent no.1. The case law cited by the respondent no.1 (2009) 15 SCC 620 does not help the respondent no.1 in any manner, as in that case, the absence of the delinquent was for about six months, but in the present case, the respondent no.1 went on leave from 24.02.1997 to 30.03.1997, but after 30.03.1997, he never joined duties in the department. The petitioners sent a letter dated 30.09.1997 to the respondent no.1 at his home address through registered A.D. post, asking him to appear before the Medical Board, Merrut for examination and after getting the fitness certificate from there, resume his duties. The said letter was returned back by the Postal Department with the endorsement that the addressee was not available at the address. Again a letter was written to him on 09.09.1997, which was also returned back with the remark that the respondent no.1 is not available in the village. When these two letters were not received by the respondent no.1, the petitioners got a notice published on 29.09.1997 in the daily newspaper ‘Amar Ujala’. Inspite of these facts, the respondent no.1 did not join his duties. Thereafter, charge sheet was prepared against the respondent no.1. On 31.03.1998, the Enquiry Officer sent a letter to the respondent no.1 to appear before him on 11.02.1998 in the disciplinary proceedings, but the said letter was also returned back by the Postal Department. Subsequent letters were also returned back. Thereafter, charge sheet was prepared against the respondent no.1. On 31.03.1998, the Enquiry Officer sent a letter to the respondent no.1 to appear before him on 11.02.1998 in the disciplinary proceedings, but the said letter was also returned back by the Postal Department. Subsequent letters were also returned back. Thereafter, charge sheet was filed and punishment was given. I find that the respondent no.1 remained absent from 24.02.1997 and did not come for joining till his services were terminated. He avoided service of notice. Only after termination of his services, the respondent no.1 approached the State Government for referring the matter to the Labour Court. In the present case, the respondent no.1 remained absent from 24.02.1997 till 16.05.1998 when his services were terminated. His absence was also without any notice to the department. It can safely be said that he was absconding. 7. In the present case, the conduct of the respondent no.1 shows that he never cared to inform the department about his illness. He never sent the leave application and medical certificate to the department. He did not care to appear in the departmental proceedings. His conduct does not entitle him for any leniency and no direction can be issued for giving him lesser punishment. If lenient view is taken in such type of matter, then such leniency will encourage indiscipline in the department. No establishment can function properly if it allows its employees to behave in such a manner. Learned counsel for the respondent no.1 by relying upon the judgment reported in (2011) 13 SCC 541 submitted that in the facts and circumstances of the case, the matter can be remitted back to the disciplinary authority to award minor punishment. I am not satisfied with this contention, as in the present case full opportunity of hearing was provided to the respondent no.1. The Labour Court has also given a categorical finding that the respondent no.1 was given sufficient opportunity to place his case and there is no violation of principle of natural justice. 8. In view of the above discussion, the writ petition is allowed. Award dated 16.12.2009 passed by the Presiding Officer, Labour Court, Dehradun in Adjudication Case No.41 of 2002 is quashed. 9. No order as to costs.