Delhi District Court
National Seeds Corpn. Ltd. vs . K.V. Rama on 4 May, 2007
IN THE COURT OF SH. O.P. SAINI: PRESIDING OFFICER:
LABOUR COURT NO. VII: DELHI.
I.D. NO. : 86/2003
B E T W E E N
The workman Sh. Malcom Morison
S/o Sh. John Morison
B89, Golmohar Park,
New Delhi 110 049.
A N D
The Management of M/s Statesman Ltd.
Statesman House, Connaught Circus,
New Delhi 110 001.
Ref.: F.24(714)/2003Lab./735559 dated 27.6.2003.
A W A R D
1. Workman Sh. Malcom Morison raised an industrial
dispute against his illegal dismissal from services, which was
: 1 : (RC)
referred to this court for adjudication by the Secretary (Labour),
Government of National Capital Territory of Delhi, in the
following terms of reference :
"Whether the dismissal of Sh. Malcom Morison S/o
Sh. John Morison by the management is illegal and
unjustified and if so, to what relief is he entitled and
what directions are necessary in this respect?"
2. Brief facts of the case as made out from the record are
that workman was working as PTS operator with the management
with effect from 1.3.79. He had good record of service. His last
drawn wages were Rs.4,500/ per month. It is alleged that
management was indulging in antilabour and unfair labour
practices, such as victimization of union minded workmen. The
workman was an active member of the union and used to take
part in its activities. It is alleged that Mr. Wadhwa, Senior
Executive of the management asked him to leave the union
activities and to stop taking up the grievances of other workmen
: 2 : (RC)
but the workman did not leave the union activities and taking up
the grievances of other workmen. This annoyed the management
and they started victimizing him. It is alleged that in order to
victimize him, the workman was served with a concocted charge
sheet dated 16.7.96. The workman replied to the same but his
reply was not considered. It is alleged that in order to give legal
colour to its illegal activities, management constituted an inquiry
and appointed Ms. Rekha Verma, Advocate as inquiry officer.
However, suddenly she was replaced by another advocate Sh.
S.N. Sethi. It is alleged that Sh. S.N. Sethi used to conduct
inquiry against the workmen and used to declare everyone guilty
as per the wishes of the management. Sh. S.N. Sethi conducted
the inquiry in violation of principles of natural justice and the
workman was not given a reasonable opportunity to lead his
evidence. The Inquiry Officer did not record the cross
examination conducted by the workman and the statements of the
workman witnesses truthfully and properly. The evidence and
: 3 : (RC)
documents produced by the workman were disbelieved
unreasonably and without any reason. It is alleged that the report
of the inquiry officer is perverse and has been made at the
instance of the management. It is repeatedly claimed that the
management failed to prove the charges but despite that the
inquiry officer held the charges proved. It is alleged that on the
basis of the inquiry report, workman was terminated illegally
with effect from 4.12.97 without any notice or notice pay.
Thereafter, workman served a demand notice dated 16.10.2002 on
the management asking it to reinstate him with continuity of
service and full back wages but to no use. Thereafter, he raised
an industrial dispute before the conciliation officer which could
not be settled and ultimately came to be referred to this court in
the above terms of reference. It is claimed that the workman is
unemployed. It is prayed that since his dismissal from service is
illegal and unjustified and against the principles of natural
justice, the same may be set aside and the management may be
: 4 : (RC)
directed to reinstate him with all consequential benefits including
continuity of service and full back wages.
3. Management contested the claim and filed its written
statement admitting that the workman was employed with it.
However, a preliminary objection has been taken that the claim is
liable to be dismissed as it has been filed after a long period, that
is, he was terminated on 4.12.97 and he had received his full and
final settlement from the management. It is claimed that the
claim has been filed after a lapse of five years and, as such, is not
maintainable. On merit, it is admitted that the workman was
working with it and was chargesheeted vide chargesheet dated
16.7.96 for remaining unauthorizedly absent with effect from
1.7.96. The workman was asked to explain his absence but no
explanation was received from him and, as such, an inquiry was
instituted against him. Subsequently, the workman submitted his
written explanation to the chargesheet. It is claimed that initially
: 5 : (RC)
Ms. Rakhi Verma, Advocate was appointed as inquiry officer and
later on, on account of her nonavailability, Sh. S.N. Sethi was
appointed as inquiry officer. It is claimed that inquiry was
conducted by the inquiry officer fairly and properly and the
workman duly participated in the inquiry. He was represented by
defence assistant and all the opportunity was granted to him. It is
repeatedly claimed that inquiry was held in accordance with
principles of natural justice in which workman was given full
opportunity to defend himself and in the inquiry he was held
guilty and, thereafter, he was lawfully terminated. It is claimed
that workman is not entitled to any relief. Other allegations
contained in the statement of claim have also been denied. It is
prayed that the claim may be dismissed.
4. On the pleadings of the parties, following issues were
settled for trial vide order dated 30.11.2005 :
I) Whether the inquiry was fair and proper?
: 6 : (RC)
II) As per terms of reference.
III) Relief.
5. In support of his case, workman has placed on record
his own affidavit Ex.WW1/A, along with documents Ex.WW1/1
to 21.
6. On the other hand, management has examined Sh.
Rajesh Kapoor as MW1, who has placed on record his affidavit
Ex.MW1/A, along with documents Ex.MW1/1 to 8.
7. I have heard the arguments at the bar and have
carefully gone through the file.
8. My findings on the issues are as under :
ISSUE NO.1 :
: 7 : (RC)
9. This issue was disposed of by me vide order dated
1.5.2007 with the following observations in paragraphs 11 to 24 :
"11. It is submitted by learned
authorized representative (Ld. AR) for the
workman that inquiry was not conducted
fairly and properly. The management has
changed Ms. Rakhi Verma, Advocate with Sh.
S.N. Sethi, Advocate. It is alleged that Sh. S.
N. Sethi was a man of the management and he
conducted the inquiry as per the wishes of the
management. It is submitted that inquiry
report is perverse as there is no legally
admissible evidence. It is repeatedly claimed
that the workman was absent due to sickness
and had filed his medical certificates but the
same were not considered by the
management. It is prayed that since the
inquiry was conducted in violation of
principles of natural justice and the inquiry
report is perverse, the same may be set aside.
12. On the other hand, Ld. AR for the
management submitted that inquiry was
conducted fairly and properly in which
workman had full opportunity to defend
himself. Workman was given facility of
defence assistant. The inquiry was conducted
fairly and properly in which workman had
full opportunity to defend himself. It is
claimed that the workman was habitual
: 8 : (RC)
absentee and no intimation about his absence
was given by him to the management, which
led to the institution of inquiry against him. It
is submitted that the inquiry was fair and
proper. My attention has been invited to an
authority reported as Management of
National Seeds Corpn. Ltd. Vs. K.V. Rama
Reddy 2006 (11) FLR 819.
13. Both parties have also filed written
submissions, copies of which have been
supplied to each other.
14. The first contention of the Ld. AR
for the workman is that the inquiry was
conducted in violation of principles of natural
justice. However, he has not been able to
point out specifically as to which principle of
natural justice was violated. A mere
allegation of violation of principles of natural
justice is of no avail and the workman must
specify as to which principle was violated and
how its violation adversely impacted upon
him. In this regard, it is instructive to quote
an authority reported as Divisional Manager,
Plantation Division, Andaman & Nicobar
Islands vs. Munnu Barrick and Others,
2005 I LLJ, Supreme Court 557, wherein
Hon'ble Supreme Court while dealing with
violation of principles of natural justice
observed in paragraph 17 as under:
"17. The principles of natural justice
cannot be put in a straitjacket formula. It
: 9 : (RC)
must be viewed with flexibility. In a given
case, where a deviation takes place as
regard compliance of the principles of
natural justice, the Court may insist upon
proof of prejudice before setting aside the
order impugned before it (See Bar Council
of India v. High Court of Kerala, 2004 (6)
SCC 311)"
15. Similarly in a recent authority
reported as State Bank of India Vs. Ramesh
Dinkar Punde 2006 VI AD (SC) 646,
Hon'ble Supreme Court while dealing with the
removal of a workman preceded by a
domestic inquiry dealt with the jurisdiction of
Labour Court/Tribunal in such matters and
observed in paragraphs 6, 15 to 23 as under :
"6. Before we proceed further, we
may observe at this stage that it is unfortunate
that the High Court has acted as an appellate
authority despite the consistent view taken by
this Court that the High Court and the
Tribunal while exercising the judicial review
do not act as an appellate authority. Its
jurisdiction is circumscribed and confined to
correct errors of law or procedural error, if
any, resulting in manifest miscarriage of
justice or violation of principles of natural
justice. Judicial review is not akin to
adjudication on merit by reappreciating the
evidence as an Appellate Authority. (See
Govt. of A.P. And Ors. (appellant) Vs. Mohd.
Nasurullah Khan (respondent) (2006) 2 SCC
: 10 : (RC)
373 at page SCC 379.
15. In the case of Union of India
(appellant) Vs. Sardar Bahadur (Respondent)
(1972) 2 SCR 218 it is held as under :
"A disciplinary proceeding is not a criminal
trial. The standard proof required is that of
preponderance of probability and not proof
beyond reasonable doubt. If the inference that
lender was a person likely to have official
dealings with the respondent was one which
reasonable person would draw from the
proved facts of the case, the High Court
cannot sit as a court of appeal over a decision
based on it. The Letters Patent Bench had the
same power of dealing with all questions,
either of fact or of law arising in the appeal,
as the Single Judge of the High Court. If the
enquiry has been properly held the question of
adequacy or reliability of the evidence cannot
be canvassed before the High Court. A
finding cannot be characterized as perverse or
unsupported by any relevant materials, if it
was a reasonable inference from proved
facts."
16. In Union of India (Appellant) Vs.
Parma Nanda (respondent) (1989) 2 SCC 177
it is held at page SCC 189 as under :
"27. We must unequivocally state that
the jurisdiction of the Tribunal to interfere
with the disciplinary matters or punishment
: 11 : (RC)
cannot be equated with an appellate
jurisdiction. The Tribunal cannot interfere
with the findings of the Inquiry Officer or
competent authority where they are not
arbitrary or utterly perverse. It is appropriate
to remember that the power to impose penalty
on a delinquent officer is conferred on the
competent authority either by an Act of
legislature or rules made under the proviso to
Article 309 of the Constitution. If there has
been an enquiry consistent with the rules and
in accordance with principles of natural
justice what punishment would meet the ends
of justice is a matter exclusively within the
jurisdiction of the competent authority. If the
penalty can lawfully be imposed and is
imposed on the proved misconduct, the
Tribunal has no power to substitute its own
discretion for that of the authority. The
adequacy of penalty unless it is malafide is
certainly not a matter for the Tribunal to
concern itself with. The Tribunal also cannot
interfere with the penalty if the conclusion of
the Inquiry Officer or the competent authority
is based on evidence even if some of it is
found to be irrelevant or extraneous to the
matter.
17. In Union Bank of India (Appellant)
Vs. Vishwa Mohan (Respondent) (1998) 4
SCC 310, this Court held at page SCC 315
para 12 as under :
12. After hearing the rival contentions,
: 12 : (RC)
we are of the firm view that all the four
charge sheets which were inquired into relate
to serious misconduct. The respondent was
unable to demonstrate before us how
prejudice was caused to him due to non
supply of the enquiry authority's
report/findings in the present case. It needs to
be emphasised that in the banking bustness
absolute devotion, diligence, integrity and
honesty needs to be preserved by every bank
employee and in particular the bank officer.
If this is not observed, the confidence of the
public/depositors would be impaired. It is for
this reason, we are of the opinion that the
High Court had committed an error while
setting aside the order of dismissal of the
respondent on the ground of prejudice on
account of nonfurnishing of the inquiry
report/findings to him."
18. In Chairman and Managing
Director, United Commercial Bank & Ors.
(Appellant) Vs. P.C. Kakar (respondent)
(2003) 4 SCC 364, this Court held at page
SCC 376 para 14 as under :
"14. A Bank officer is required to
exercise higher standards of honesty and
integrity. He deals with money of the
depositors and the customers. Every officer/
employee of the Bank is required to take all
possible steps to protect the interests of the
Bank and to discharge his duties with utmost
integrity, honesty, devotion and diligence and
: 13 : (RC)
to do nothing which is unbecoming of a Bank
Officer. Good conduct and discipline are
inseparable from the functioning of every
officer/employee of the Bank. As was
observed by this Court in Disciplinary
AuthoritycumRegional Manager Vs.
Nikunja Bihari Patnaik (1996) 9 SCC 69, it is
no defence available to say that there was no
loss or profit resulted in case, when the
officer/employee acted without authority.
The very discipline of an organization more
particularly a Bank is dependent upon each of
its officers and officers acting and operating
within their allotted sphere. Acting beyond
one's authority is by itself a breach of
discipline and is a misconduct. The charges
against the employee were not casual in
nature and were serious. These aspects do not
appear to have been kept in view by the High
Court.
19. In Regional Manager, U.P. SRTC
Etawah & Ors. (appellants) Vs. Hoti Lal &
Anr. (respondents) (2003) 3 SCC 605, it was
pointed out as under :
"If the charged employee holds a position of
trust where honesty and integrity are inbuilt
requirements of functioning, it would not be
proper to deal with the mater leniently.
Misconduct in such cases has to be dealt with
iron hands. Where the person deals with
public money or is engaged in financial
transactions or acts in a fiduciary capacity,
: 14 : (RC)
highest degree of integrity and trustworthiness
is a must and unexceptionable."
20. In Cholan Roadways Ltd.
(appellant) Vs. G. Thirugnanasambandam
(respondent) (2005) 3 SCC 241 this Court at
page SCC 247 held :
"It is not a swellsettled principle of law that
the principles of the Evidence Act have no
application in a domestic inquiry".
21. Confronted with the facts and the
position of law, learned counsel for the
respondent submitted that leniency may be
shown to the respondent having regard to
long years of service rendered by the
respondent to the Bank. We are unable to
countenance with such submission. As
already said, the respondent being a bank
officer holds a position of trust where honesty
and integrity are inbuilt requirements of
functioning and it would not be proper to deal
with the matter leniently. The respondent was
a manager of the Bank and it needs to be
emphasised that in the banking business
absolute devotion, diligence, integrity and
honesty needs to be preserved by every bank
employee and in particular the bank officer so
that the confidence of the public/depositors is
not impaired. It is for this reason that when a
bank officer commits misconduct, as in the
present case, for his personal ends and against
the interest of the bank and the depositors, he
: 15 : (RC)
must be dealt with iron hands and he does not
deserve to be dealt with leniently.
22. In the case of T.N.C.S. Corpn. Ltd.
Ors. (appellants) Vs. K. Meerbai (respondent)
(2006) 2 SCC 255 such plea had been rejected
by this Court. It was pointed out at page SCC
267 para 29 as under :
"29. Mr. Francis also submitted that a
sum of Rs.34,436.85 being 5% of the total
loss of Rs.6,88,735/ is sought to be recovered
from the respondent and that the present
departmental proceedings is the only known
allegations against the respondent and there
was no such allegation earlier and, therefore,
a lenient view should be taken by this Court
and relief prayed for by both the parties can
be suitably moulded by this Court. We are
unable to agree with the above submission
which, in our opinion, has no force. The scope
of judicial review is very limited. Sympathy
or generosity as a factor is impermissible. In
our view, loss of confidence is the primary
factor and not the amount of money
misappropriated. In the instant case,
respondent employee is found guilty of mis
appropriating the Corporation funds. There is
nothing wrong in the Corporation losing
confidence or faith in such an employee and
awarding punishment of dismissal. In such
cases, there is no place for generosity or
misplaced sympathy on the part of the judicial
forums and interfering therefor with the
: 16 : (RC)
quantum of punishment awarded by the
disciplinary and Appellate Authority."
23. In the view that we have taken,
this appeal deserves to be allowed. The
impugned judgment and order of the High
Court dated 2.8.2002 is, hereby, set aside. the
orders of the Disciplinary Authority and that
of the Appellate Authority are restored. The
Writ Petition filed by the respondent stands
dismissed."
16. In the instant case, it is instructive
to extract relevant part of crossexamination
of the workman which reads as under :
"My appointment letter is Ex.WW1/M1. It is
signed by me at point A. It is correct that I
have received the chargesheet dt. 16.7.96
Ex.WW1/M2. Its registration receipt is
Ex.WW1/M3 and acknowledgment is
Ex.WW1/M4 which is signed by me at point
A. My explanation to the chargesheet is
Ex.WW1/M5. I had also received letter
Ex.WW1/M6 which is signed by me at point
A. I had also received letter Ex.WW1/M7
which is signed by me at point A regarding
holding of enquiry. It is correct that the
enquiry was conducted by Sh. S.N. Sethi.
Copies of the enquiry proceedings running
from page 1 to 108, are Ex.WW1/M8. It is
signed by me at each pages. I have also
received copies of daytoday proceedings.
During the enquiry I was represented by my
coworker Sh. A.B. Joshi. It is incorrect to
: 17 : (RC)
suggest that Sh. A.B. Joshi was union official
at the time of enquiry. Enquiry proceedings
were also signed by Sh. A.B. Joshi. I had also
received a copy of the enquiry report
Ex.WW1/M9 submitted by Sh. S.N. Sethi.
Copy of the standing orders are also exhibited
during my examinationin
chief..................................................................
..........................................................................
..............................................................."
17. A bare perusal of the cross examination of the workman would reveal that he had received copy of the chargesheet. He had also assistance of Sh. A.B. Joshi, who was his defence assistant in the course of inquiry. It is also revealed that he received copy of documents and the entire proceedings bear his signatures. He had also received copy of day to day proceedings. He also admits that inquiry proceedings are also signed by Sh. A.B. Joshi. He also admits that copy of standing orders was also exhibited in the course of his examination. As such, a bare perusal of the crossexamination of the workman reveals that the inquiry officer had followed the due procedure during the inquiry in which workman was given full opportunity to defend himself.
18. It has also been submitted by the workman that he has been victimized and harassed by the management as he was an active member of the union and the : 18 : (RC) management was indulging in unfair labour practices. It is also submitted by him that the entire genesis of the incident is the fact that he was an active member of the union. However, the workman has not placed any document on record that he was an union member much less an active union member. Mere allegations regarding unfair labour practices being practiced by the management are of no use. There must be some evidence to that effect and in this regard, it is instructive to quote an authority reported as M/s Bharat Iron works Vs. Bhagubhai Balubhai Patel and others, 1976 LAB I.C. 4, wherein Hon'ble Supreme Court while dealing with the question of victimization and unfair labour practices observed in paragraph 10 as under : "The onus of establishing a plea of victimization will be upon the person pleading it. Since a charge of victimization is a serious matter reflecting, to a degree, upon the subjective attitude of the employer evidenced by acts and conduct, these have to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced."
19. It is next contended that the : 19 : (RC) inquiry report is perverse as there is no legally admissible evidence against the workman. I have carefully perused the entire inquiry proceedings and find that the workman was chargesheeted vide charge sheet dated 16th July, 1996 for his willful and unauthorized absence. It is alleged that he was a habitual absentee. I find that management had examined two witnesses, that is, MW1 Sh. Surender Nath and MW2 Sh. Rajesh Kapoor. Both witnesses have testified that the workman was absent during the relevant period and no intimation was received regarding his sickness. Not only this, his own witnesses Sh. Raj Kumar Sonkar and Sh Banjil Flex had also admitted that they do not know if any intimation was received regarding his absence in July, 1996. As such, I find that there is enough incriminating evidence against the workman in the inquiry proceedings.
20. In view of the testimonies of MW1 Sh. Surender Nath and MW2 Sh. Rajesh Kapoor, it is clear that there is enough incriminating evidence against the workman and it is not possible to conclude that there is no incriminating evidence against the workman and the inquiry report is perverse. In this regard, I may add that if there is some evidence against the workman regarding his misconduct, that is, enough and sufficiency or insufficiency of the same cannot be disputed. In this regard, it is instructive to quote a : 20 : (RC) recent authority reported as Sher Bahadur Vs. Union of India and others (2002) 7 SCC 142, wherein Hon'ble Supreme Court observed in paragraph 7 as under : "It may be observed that the expression "sufficiency of evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence, however voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in the law ................................................................... ........................................................................"
21. Similarly, in another authority reported as Lalit Popli Vs. Canara Bank and others 2003 II AD (SC) 509, Hon'ble Supreme Court observed in paragraphs 18 and 19 as under: "18. In B.C. Chaturvedi Vs. Union of India and Ors. (1995 (6) SCC 749) the scope of judicial review was indicated by stating that review by the Court is of decision making process and where the findings of the disciplinary authority are based on some evidence, the Court or the Tribunal cannot re appreciate the evidence and substitute its own finding.
19. As observed in R.S. Saini Vs. State : 21 : (RC) of Punjab and Ors. (1999 (8) SCC 90) in paragraphs 16 and 17 the scope of interference is rather limited and has to be exercised within the circumscribed limits. It was noted as follows:
"16. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non application of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiry authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy of reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.
17. A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions. In our opinion, have been taken in a reasonable : 22 : (RC) manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any nonapplication of mind on the part of the inquiring authority. Likewise the High Court has looked into the material based on which the enquiry officer has come to the conclusion, within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard."
22. In view of the above discussion, I find that the inquiry was conducted fairly and properly and the workman has failed to show that it was conducted in violation of principles of natural justice or that he was denied a fair opportunity to defend himself. In these circumstances, the court cannot sit in appeal over the inquiry officer. In this regard, I am fortified by an authority reported as Workmen of M/s Firestone Tyre and Rubber Company of India Ltd. Vs. The Management AIR 1973 SC 1227, wherein Hon'ble Supreme Court observed in paragraph 32 (3) as under : "When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence adduced at the said enquiry, the tribunal has no jurisdiction to sit in judgment over the decision of the employer as an : 23 : (RC) appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide"
23. In view of the above discussion, I am satisfied that the inquiry has been conducted fairly and properly in accordance with the principles of natural justice in which workman had full opportunity to defend himself and I find that the workman has failed to prove : A) That he is a victim of victimization;
B) That the inquiry was conducted in violation of principles of natural justice;
C) That the report of the inquiry officer is perverse; and D) That the management is guilty of commission of unfair labour practices.
24. In these circumstances, I do not find that the inquiry has been conducted illegally or unjustifiably in violation of principles of natural justice. The inquiry has been held in accordance with the principles of natural justice in which workman was granted : 24 : (RC) full opportunity to defend himself. The issue is accordingly decided in favour of the management and against the workman."
ISSUE NO.2:
10. It is submitted by Ld. AR for workman that workman was absent for a short period, that is, about fifteen days and for that also there were valid reasons. The workman was sick and he had duly conveyed the fact of his sickness to the management. It is submitted that a lenient view may kindly be taken and some other punishment, in place of dismissal, may be awarded. My attention has been invited to an authority reported as Bharat Iron Works vs. Bhagubhai Balubhai Patel and others AIR 1976 SC 98.
11. On the other hand, Ld. AR for management submitted that workman was a habitual absentee. He remained absent without any reason. The absence was unauthorized and : 25 : (RC) uncalled for. It is submitted that workman does not deserve any leniency and the punishment of dismissal awarded to the workman is lawful and justified in the facts and circumstances of the case. My attention has been invited to an authority reported as Life Insurance Corporation of India Vs. R. Dhandapani, 2006 1 LLJ SC 329.
12. Section 11A of the Industrial Disputes Act provides as under : "Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct : 26 : (RC) reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:
Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be , shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter."
13. In Life Insurance Corporation (Supra), Hon'ble Supreme Court dealt with powers of court under section 11A of the Act and observed in paragraphs 8 to 10 as under: "8. It is not necessary to go into in detail regarding the power exercisable under Section 11A of the Act. The power under said Section 11A has to be exercised judiciously and the Industrial Tribunal or the Labour Court, as the case may be, is expected to interfere with the decision of a management under Section 11A of the Act only when it is satisfied that punishment imposed by the management is wholly and : 27 : (RC) shockingly disproportionate to the degree of guilt of the workman concerned. To support its conclusion the Industrial Tribunal or the Labour Court, as the case may be, has to give reasons in support of its decision. The power has to be exercised judiciously and mere use of the words 'disproportionate' or 'grossly disproportionate' by itself will not be sufficient.
9. In recent times, there is an increasing evidence of this, perhaps well meant but wholly unsustainable, tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the Courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability.
: 28 : (RC)
10. Though under Section 11A, the Tribunal has the power to reduce the quantum of punishment it has to be done within the parameters of law. Possession of power is itself not sufficient; it has to be exercised in accordance with law."
14. In the instant case, workman was absent with effect from 1.7.96. There is also record of his previous absence. I find merit in the submission of Ld. AR for the management that workman was a habitual absentee. Unexpected and frequent absence of an employee causes disruption in the smooth functioning of an organization.
15. Unauthorized absence from the duty for a long period without any reason is a serious misconduct and furnishes a good ground for termination of service of a workman, more so when the absence is unduly long and without any reason. In this regard I am fortified by an authority reported as Delhi Transport Corporation Vs. Sardar Singh, AIR 2004 SC 4161, wherein : 29 : (RC) Hon'ble Supreme Court dealt with a case of unauthorized absence of an employee from duty and observed in paragraphs 9 to 11 as under: "9. When an employee absents himself from duty, even without sanctioned leave for very long period, it prima facie shows lack of interest in work. Para 19(h) of the Standing Order as quoted above relates to habitual negligence of duties and lack of interest in the Authority's work. When an employee absents himself from duty without sanctioned leave the Authority can, on the basis of the record, come to a conclusion about the employee being habitually negligent in duties and an exhibited lack of interest in the employer's work. Ample material was produced before the Tribunal in each case to show as to how the concerned employees were remaining absent for long periods which affect the work of the employer and the concerned employee was required at least to bring some material on record to show as to how his absence was on the basis of sanctioned leave and as to how there was no negligence. Habitual absence is a factor which establishes lack of interest in work. There cannot be any sweeping generalization. But at the same time some telltale features can be noticed and pressed into service to arrive at conclusions in the departmental proceedings.
: 30 : (RC)
10. Great emphasis was laid by learned counsel for the respondentemployee on the absence being treated as leave without pay. As was observed by this Court in State of Madhya Pradesh V. Harihar Gopal (1969) (3) SLR 274) by a threejudge Bench of this Court, even when an order is passed for treating absence as leave without pay after passing an order of termination that is for the purpose of maintaining correct record of service. The charge in that case was, as in the present case, absence without obtaining leave in advance. The conduct of the employees in this case is nothing but irresponsible in extreme and can hardly be justified. The charge in this case was misconduct by absence. In view of the Governing Standing Orders unauthorized leave can be treated as misconduct.
11. Conclusions regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly, when same is unauthorized. Burden is on the employee who claims that there was no negligence and/or lack of interest to establish it by placing relevant materials. Clause (ii) of Para 4 of the Standing Order shows the seriousness attached to habitual absence. In clause (i) thereof, there is requirement of prior permission. Only exception made is in case of sudden illness. There also conditions are : 31 : (RC) stipulated, nonobservance of which renders the absence unauthorized".
16. Considering the fact that workman was absent from his place of duty and he did not convey the fact of his absence to the management and there is record of his previous absence also, I do not find any reason to interfere with the punishment awarded to the workman. I find that the dismissal of the workman is lawful and justified and does not call for any interference by the court. The workman is not entitled to any relief. The issue is accordingly decided in favour of the management and against the workman.
17. The reference is answered in the above terms and award is passed accordingly. Six copies of the award be sent to the appropriate government. File be consigned to record room.
Dated : 4.5.2007 (O.P. SAINI)
PRESIDING OFFICER, LABOUR
COURT NO. VII, DELHI.
: 32 : (RC)
: 33 : (RC)