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2013 DIGILAW 439 (HP)

Roop Singh v. Ld. Presiding Judge Labour Court

2013-05-17

DHARAM CHAND CHAUDHARY

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JUDGMENT DHARAM CHAND CHAUDHARY, J. 1. THE challenge herein is to the award Annexure P-1, passed by learned Presiding Judge, Industrial Tribunal- cum-Labour Court, hereinafter referred to as 'the Tribunal' in short, in Reference No.38 of 2005 on 10.7.2009 whereby while answering the reference made to it by the appropriate Government in negative, has held the removal of the petitioner-workman legal and valid. 2. FACTS leading to these proceedings are not in much controversy because the petitioner was admittedly engaged as Accountant by the respondent-Management in its Unit, namely, M/s Durga Wheat Product (Pvt.) Ltd., Trilokpur, Kala-Amb, Tehsil Nahan, District Sirmour in the year 1994. He continued in job till November, 2002 when as per his version he proceeded on leave for three days with effect from 8th to 10th November, 2002 under due intimation to the Managing Director of the respondent-Company. On 11.11.2002 when he reported for duty, not allowed to do so by Shri Rajan Sood, Managing Director and his services were terminated orally. Later on vide letter dated 15.11.2002, which the petitioner allegedly received on 20.11.2002, he was directed to join duty within three days. Consequently, though he reported for duty on 21.11.2002, however, both Shri Rajan Sood and Shri Sanjay Sood, Managing Directors of respondent-Management were not present on that day and the staff on duty did not allow him to join the duty at the pretext that they were directed not to allow him to join duties. Shri Sanjay Sood when contacted on his cell phone told the petitioner to come on 23.11.2002 by which date he had to come back from Shimla. The petitioner, however, not only left his joining report, Annexure P-3 in the office, but also the postal receipt Ex.P-4. On 23.11.2002 when he again visited the office of respondent-Company, he was not allowed to join duty at the pretext that another Accountant was engaged and his services were no longer required. This has led to send a demand notice to respondent-Company and also to the Labour Inspector, concerned. On 15.3.2003 not only the petitioner, but Shri Rajan Sood aforesaid also appeared before the labour Inspector. Said Mr. Sood informed that the Company had already initiated domestic inquiry against the petitioner and requested not to proceed further in the demand notice. This has led to send a demand notice to respondent-Company and also to the Labour Inspector, concerned. On 15.3.2003 not only the petitioner, but Shri Rajan Sood aforesaid also appeared before the labour Inspector. Said Mr. Sood informed that the Company had already initiated domestic inquiry against the petitioner and requested not to proceed further in the demand notice. The petitioner was charge-sheeted and the inquiry officer Shri V.K. Gupta on conclusion of the inquiry held all the charges proved against the petitioner. The inquiry report is Annexure P-5. This has led in filing the claim petition, Annexure P-6. Consequently, a reference was made to learned Tribunal below, which allegedly passed the impugned award mechanically and without application of mind. 3. ON the other hand, the stand of the respondent- Management as disclosed from the reply is that the petitioner was engaged as Accountant at the monthly salary of Rs.3,000/- with yearly increment of Rs.500/- till his salary is raised to Rs.10,000/-. As per further case of the respondent- Management, the petitioner absented from duty willfully and unauthorisedly with effect from 8.11.2002 and did not turn-up. It is denied that he proceeded on three days' leave after seeking permission therefor. When asked as to why disciplinary action should not be taken against him, he blackmailed and threatened the Managing Director of the respondent-Management either to pay him rupees one lac or he would burden the respondent-Management with a sum of rupees two lac. He refused to accept the show cause notice which was received undelivered by respondent No.2. The said respondent, however, did inform the petitioner vide letter dated 19.12.2002 that Shri V.K. Gupta was appointed as Inquiry Officer to enquire into the allegations/charges against him. He was duly charge- sheeted and on conclusion of the inquiry, served with the inquiry report and after taking on record his version, has rightly been removed from service. 4. IF coming to the impugned award, the learned Tribunal below after taking into consideration the own statement of the petitioner as well as the documentary evidence, he produced and also the evidence consisting of oral as well as documentary produced on behalf of respondent-Management, has held that the petitioner has rightly been removed from service after holding inquiry and has thus answered the reference in negative. Having gone through the record and also rival contentions, this Court finds that the only controversy needs adjudication in the present lis is as to whether the present is a case of mis-appreciation and mis-reading of the material available on record and if so, on account of that the findings recorded by learned Tribunal below are perverse and not legally sustainable. 5. THE only allegations against the petitioner are that he willfully absented from duty with effect from 6. 11.2002 and did not turn-up for duty thereafter. Also that when told by Shri Rajan Sood, Managing Director of the respondent-Management as to why disciplinary proceedings should not be initiated against him, he demanded rupees one lac, failing which to compel the respondent- Management to pay him a sum of rupees two lac and thereby allegedly not only tried to blackmail said Shri Rajan Sood, but also threatened him being the Managing Director of respondent-Management. The response of the petitioner to such allegations, in a nut-shell, is that on 7.11.2002 after informing the Managing Director of respondent No.2, he proceeded on three days leave on account of marriage of someone in his relation and when reported back for duty on 11.11.2002 and also on 21.11.2002, he was not allowed to resume his duty. No doubt, while in the witness box as PW-1, it is stated that he proceeded on two days sanctioned leave. Since he failed to produce any application, he made to the respondent-Management for sanction of leave coupled with the factum of the respondent-Management has denied the leave having been sanctioned in his favour or that he proceeded on leave after informing the Managing Director of the respondent-Management, the present seems to be a case of absence from duty without getting the leave sanctioned, however, there is nothing to infer that his absence from duty was willful. This Court is also not in agreement with learned Tribunal below that the petitioner absented from duty willfully. This Court is also not in agreement with learned Tribunal below that the petitioner absented from duty willfully. There is even no iota of evidence suggesting that he did not report for duty after 8.11.2002 for the reason that immediately thereafter, i.e. within 1 1/2 months, the petitioner raised the dispute vide demand notice dated 29.12.2002, Ex.R-D. Although he failed to produce his joining report dated 21.11.2002 (Annexure P-3 to the petition) while in the witness box as PW-1, however, the possibility of he having reported for duty on receipt of notice dated 15.11.2002, Ex.R-A on 21.11.2002, i.e. on the receipt thereof, cannot be ruled out. No one even can shut eyes on his version to the effect that on 21.11.2002 though he reported for duty, however, not allowed to work. He even has come forward with the version that on 23.11.2002 also he was not permitted to join duty. 8. No doubt, Shri Rajan Sood, Managing Director of respondent-Management while in the witness box as RW-1 has denied that the petitioner was not allowed to resume duties on 11.11.2002 and 21.11.2002, he however, admit that the petitioner asked for a sum of rupees one lac, failing which to face consequences in the Court and that on this he told the petitioner to come to him on 23.11.2002. Meaning thereby that the petitioner and respondent-Management were in touch with each other. Therefore, it does not lie in the mouth of respondent-Management to say that the petitioner did not report for duty. The present at the most can be said to be a case where the petitioner proceeded on leave without getting the same sanctioned, hence, a simple case of absence from duty which in legal parlance cannot be termed to be willful absence no doubt the absence of the petitioner at the most can be said to be unauthorised. Similarly, even if it is believed to be true that the words "either pay rupees one lac or he will make the Company to pay rupees two lac/face consequences in the Court" cannot be said to be blackmailing of RW-1 or a threatening in any manner whatsoever. This Court, however, feels that the petitioner, who wanted to join duty after his three days absence should have not made such utterances. This Court, however, feels that the petitioner, who wanted to join duty after his three days absence should have not made such utterances. Had there been no intention of the petitioner to report back for duty, the question of blackmailing or that of any kind of settlement with the respondent-Management should have arisen in that eventuality alone. The petitioner, however, never intended to abstain from work as had it been so, he would have not responded to the notice Ex.R-A nor made the demand notice, Ex.R-D to the Managing Director of the respondent-Company and with a copy thereof to Labour Inspector-cum-Conciliation Officer (Labour Inspector), Nahan Circle, District Sirmour in a short period of 1 1/2 months from the date of his so called willful absence from duty. True it is that the petitioner has failed to point out from record any glaring discrepancy qua the manner in which RW-2 Shri V.K. Gupta has conducted inquiry into the charges framed against him so as to form an opinion that on account of such discrepancies, the proceedings before the inquiry officer had vitiated and the report he submitted is not legally and factually sustainable. The conclusion that the petitioner has willfully absented from duty and also that he not only blackmailed the respondent-Management, but threatened also, are not factually sustainable for the reason that it is not a case of willful absence and rather a simple case of unauthorised absence from duty. There is also no question of blackmailing or threatening given to respondent-Management and the so called utterances even if believed to be true, at the most lead to the only conclusion that the petitioner was interested to settle the matter in a sum of rupees one lac in lump sum with the respondent-Management and on its failure to make it to pay a sum of rupees two lac in the Court under due process of law. Such utterances in all fairness and also in the ends of justice cannot be treated as threatening or blackmailing of the respondent-Management warranting the extreme penalty of removal from service. The present rather seems to be a case simpliciter where the respondent-Management being vindictive to the petitioner wanted to get rid of him and it is for this reason not allowed him to resume duty and rather proceeded to initiate inquiry against him on the allegations highlighted hereinabove in this judgment. The present rather seems to be a case simpliciter where the respondent-Management being vindictive to the petitioner wanted to get rid of him and it is for this reason not allowed him to resume duty and rather proceeded to initiate inquiry against him on the allegations highlighted hereinabove in this judgment. Not only this, but extreme penalty of removal from service has been imposed upon him which keeping in view the nature of the allegations against him was not warranted and rather is disproportionate vis-a-vis the alleged mis-conduct. 7. IN Shri Bhagwan Lal Arya Versus Commissioner of Police, Delhi and others, (2004) 4 SCC 560 , a case where a police constable remained absent from duty for a period of more than two months on medical ground, the apex Court has held that dismissal on ground of alleged mis-conduct of absence from duty was excessive and disproportionate, hence, not legally permissible. The present case is on better footing as compared to the one that before apex Court for the reasons that here absence from duty is only for three days. 8. SIMILAR is again the ratio of apex Court in Jagdish Singh Versus Punjab Engineering College and others, (2009) 7 SCC 301 . Similar is the view of the matter again taken by the apex Court in Krushnakant B. Parmar Versus Union of India and another, 2012(3) SCC 178 and in Rajesh Kumar Tripathi Versus State of U.P., 1993(3) SCT, 274. 9. IN Shanker Lal Sharma v. State of Rajasthan and others, 1996 Lab. I.C. 2118, the High Court of Rajasthan has also concluded in the similar manner. 10. THE judgment cited on behalf of the respondent- Management delivered by a Co-ordinate Bench of this Court in H.P.S.I.D.C. Versus Pawan Kumar, 2007(1) Shim. L.C. 232 is not applicable to the facts of this case and thus is of no help to the respondent-Management. The cumulative effect of the reappraisal of evidence available on record and also the facts of this case would therefore be that the petitioner no doubt remained on leave with effect from 8.11.2002 to 10.11.2002 unauthorisedly, however, reported back for duty, who was not allowed to work by the respondent-Management for the reasons best known to it. The petitioner is still interested to resume his duty being in need of job. The petitioner is still interested to resume his duty being in need of job. The order of removal from service which keeping in view the nature of the allegations is disproportionate vis-a-vis the alleged misconduct, casts stigma on the petitioner and as such, his entire career has been ruined. The impugned order of penalty Ex.P-18, dated 25.6.2003 is therefore, not sustainable in the eyes of law and deserves to be quashed and set aside. 11. THE inquiry report Annexure P-5 to the extent that the petitioner has willfully absented from duty and also blackmailed/threatened the respondent-Management, cannot be said to be legally sustainable for the reason that it is a case of unauthorised absence from duty and not that of willful absence. The utterances, even if proved to be true, cannot be termed having been made to blackmail or threaten the respondent-Management. Therefore, on such a report, the imposition of penalty of removal from service is not at all legally justified. 12. THIS Court after setting aside the impugned order would have directed the disciplinary authority to reconsider the matter qua imposition of penalty afresh, however, in that event, the same is likely to be delayed further and in such a situation the parties may have the other round of litigation. When this Court is satisfied that the penalty imposed upon the petitioner is disproportionate vis-a-vis the alleged misconduct, therefore, after setting aside the impugned order of dismissal from service, a direction to the respondent-Management to re-engage the petitioner with continuity and seniority, however, without any wages for the period with effect from 8.11.2002 till his re-engagement pursuant to this judgment would serve the ends of justice. While arriving at such a conclusion, this Court takes the support from the judgment of the apex Court in Shri Bhagwan Lal Arya's case (supra), which reads as follows:- "14. Thus, the present one is a case wherein we are satisfied that the punishment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily we would have set aside the punishment and sent the matter back to the disciplinary authority for passing the order of punishment afresh in accordance with law and consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. Ordinarily we would have set aside the punishment and sent the matter back to the disciplinary authority for passing the order of punishment afresh in accordance with law and consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. In view of the time already lost, we deem it proper to set aside the punishment of removal from service and instead direct the appellant to be reinstated in service subject to the condition that the period during which the appellant remained absent from duty and the period calculated upto the date on which the appellant reports back to duty pursuant to this judgment shall not be counted as a period spent on duty. The appellant shall not be entitled to any service benefits for this period. Looking at the nature of partial relief allowed hereby to the appellant, it is now not necessary to pass any order of punishment in the departmental proceedings in lieu of the punishment of removal from service which has been set aside." For all the reasons hereinabove, the present writ petition succeeds and the same is accordingly allowed. Consequently, the impugned award, Annexure P-1 being perverse is quashed and set aside. There shall be a direction to the respondent-Management to re-engage the petitioner within six weeks from the date of production of a copy of this judgment by him before the Managing Director of 2nd respondent (respondent-Management), of course, with continuity and seniority, but without back wages. The petition stands accordingly disposed of. Pending application(s), if any, also shall stand disposed of. No order as to costs.