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2017 DIGILAW 2270 (ALL)

U. P. S. R. T. C. v. Brij Pal Singh

2017-10-03

SANGEETA CHANDRA

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JUDGMENT : SANGEETA CHANDRA, J. 1. I have heard the learned counsel for the petitioner, Sri Jag Ram Singh and the counsel for the respondent - workman, Sri Sudhanshu Narain and I have perused the Award impugned dated 10.1.2011 in Adjudication Case No. 11 of 2006. From the finding recorded by the Presiding Officer, it is evident that two charge sheets were given to the petitioner, Charge Sheet No. 309 dated 4.6.2002 and Charge Sheet No. 497 dated 31.1.2003. Charge Sheet No. 309 related to absence of the workman respondent No. 1 w.e.f. 27.2.2001 to 2.4.2001, without prior permission besides several other periods of absence which have been detailed in the enquiry report filed as Annexure 2 to the writ petition. These periods of absence have been mentioned right from July 1992 to April 2001, most of these periods of absence are of only one or two days, the longest period of absence is from 27.2.2001 to 2.4.2001 only. 2. In the Award impugned, the Presiding Officer has found that proper notice of dates fixed by the enquiry officer were not given to the respondent - workman as he had sold out his house, and had also filed an affidavit in this regard in 2003 itself that he was currently living in Jyoti Bihar Colony, Saharanpur and the said address to be treated as new permanent address and all correspondence be undertaken on the said address. All notices that were sent to the petitioner was on his address mentioned in the earlier service record and not on his current address. 3. With regard to Charge Sheet No. 497 dated 31.1.2003 relating to absence w.e.f. 29.9.2002 onwards till the date of issuance of the said charge sheet and monetary loss of Rs. 2,99,884/- to the Corporation due to payment being made to contractual employees during the periods of absence of the petitioner, it was also not served upon the respondent - workman. The Presiding Officer has found that if the contention of the Corporation was to be accepted that the petitioner was a habitual absentee and continued to remain absent intermittently all through the ten years of his service period, then show cause notice/memo should have been issued to the respondent -workman earlier also, which could not be brought on record. 4. The Presiding Officer has found that if the contention of the Corporation was to be accepted that the petitioner was a habitual absentee and continued to remain absent intermittently all through the ten years of his service period, then show cause notice/memo should have been issued to the respondent -workman earlier also, which could not be brought on record. 4. In the Award impugned, the Labour Court has found that even the Medical Board's report, which has been relied upon by the Enquiry Officer to show that the petitioner was only malingering and not actually sick was not brought on record. The Labour Court has found that the respondent - workman had valid explanations for long periods of absence. Firstly, the long period of absence w.e.f. 7.12.2001 to 26.12.2001 had been explained as one caused due to sickness of his wife and the second long period of absence w.e.f. September 2002 to January 2003 has been caused due to petitioner's own sickness. 5. The Labour Court has found that the Enquiry Officer without examining all evidence placed by the respondent - workman before him had come to a conclusion that the petitioner was absent unauthorisedly and without any cogent reason. The Labour Court has also come to the conclusion that the respondent - workman has been punished with dismissal from service, which punishment is disproportionate to the misconduct alleged on the part of the delinquent employee. Having found the enquiry to be conducted against the respondent - workman to be vitiated and also the punishment of dismissal being disproportionate, the Labour Court has set aside the punishment order and directed for reinstatement although without back wages. 6. Sri Sudhanshu Narain appearing for the respondent - workman has pointed out that this Court on 11.8.2011 had directed for reinstatement of the workman in service and for payment of current wages to him month to month during the pendency of the writ petition and since 2011, the respondent No. 1 has been working without any complaint till date, and therefore, this Court should not interfere in the Award impugned at this late stage. 7. 7. Learned counsel for the respondents has also relied upon a judgment of this Court in Writ-C No. 26821 of 2016 dated 5.7.2016, wherein this Court had refused to interfere in the Award of the Labour Court, where the respondent - workman had been directed to be reinstated and dismissal order had been set aside as the absence of the respondent -workman had been only of two and the half months. 8. I have gone through the judgment relied upon by the learned counsel for the respondent No. 1, namely U.P.S.R.T.C. v. Rajendra Singh and Another. The Coordinate Bench has relied upon a judgment of the Hon'ble Supreme Court in the case of Chairman-cum-Managing Director v. Mukul Kumar Chaudhuri AIR 2010 SC 75 : (2009) 15 SCC 620 : LNIND 2009 SC 2748 : 2009-IV-LLJ-672 with regard to the proportionality of punishment. The Supreme Court had set aside the dismissal order in case of absence of six months with an observation that the demand of justice would be met if the respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorised absence for six months, but had directed for his reinstatement. 9. Learned counsel for the respondent No. 1 has prayed that since this Court had already granted reinstatement on 11.8.2011, while admitting the writ petition for hearing making its subject to final decision in the writ petition, and the respondent No. 1 has been working for almost seven years now without any complaint, this Court may not interfere in the Award impugned. 10. Learned counsel for the petitioner -U.P.S.R.T.C. has tried to point out from the enquiry report that unauthorised absence has been proved and even though there may be some procedural irregularity in the enquiry conducted regarding service of notice on the respondent No. 1, the fact remains that from the service book itself it is evident that the respondent No. 1 had remained absent on the particular dates. In such cases of absence which is proved from record, directing for a fresh enquiry and interfering with the order of dismissal would be futile exercise. He has relied upon the judgment in the Supreme Court in the case of Aligarh Muslim University v. Mansoor Ali Khan AIR 2000 SCC 2783: (2000) 7 SCC 529 : LNIND 2000 SC 1156. 11. He has relied upon the judgment in the Supreme Court in the case of Aligarh Muslim University v. Mansoor Ali Khan AIR 2000 SCC 2783: (2000) 7 SCC 529 : LNIND 2000 SC 1156. 11. This Court is aware that there may be some procedural irregularity in the enquiry conducted against the respondent - workman, but the fact remains that the respondent -workman had remained absence on the various dates mentioned in the enquiry reports therefore no fruitful purpose would be served in setting aside the Award of the Labour Court and remanding the matter back to the Corporation. 12. This Court in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, taking guidance from the judgment rendered by the Hon'ble Supreme Court in the case of Chairman-cum-Managing Director v. Mukul Kumar Chaudhuri (supra) finds it fit not to interfere in the Award passed by the Labour Court in so far as reinstatement without back wages is concerned. The writ petitioner is dismissed. No order as to costs.