Punjab-Haryana High Court
Tarsem Singh vs Presiding Officer And Ors on 27 October, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.1297 of 2013
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.1297 of 2013
Date of Decision: 27.10.2014
Tarsem Singh ..... Petitioner
Versus
Presiding Officer, Industrial Tribunal,
Gurdaspur and another ... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. R.S. Ahluwalia, Advocate,
for the petitioner.
Mr. A.P.S. Mann, Addl. AG, Punjab.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
The petitioner joined service as a Driver in the Punjab Roadways in 1983. He started absenting from duty from July 1996 onwards for which reason his services were terminated on February 09, 1998 w.e.f. July 20, 1996. It was his case that he had applied for leave w.e.f. April 11, 1996 to May 10, 1996 before proceeding on leave. Then again from May 11, 1996 to May 25, 1996 which both were sanctioned by the department. Thereafter, he informed the Roadways by a telegram requesting extension of the period of leave from May 26, 1996 to July 19, 1996. These requests according to the petitioner were not responded to by the department. From where the petitioner tries to draw an inference from his telegram sent that leave stood automatically sanctioned.
He raised an industrial dispute for the first time on January 31, MANJU 2014.11.11 10:29 I attest to the accuracy and authenticity of this document Chandigarh CWP No.1297 of 2013 -2- 2004, after nearly six years of absence from the workplace. In paragraph 3 of the petition, he pleads that he filed an appeal against the order of termination of which no notice was taken by the competent authority. In this background a demand for justice was raised with the management with a claim for reinstatement to service. Conciliation proceedings failed to resolve the dispute.
The dispute was referred to the Labour Court, Gurdaspur and was registered as Reference No.131 of 2004. He questioned his termination before the court a quo for the reason that retrospective dismissal was not legally sustainable; the order was illegal as it was passed without holding a fair and proper inquiry etc. The Punjab Roadways contested the reference and pleaded in its preliminary objections in the statement of claim that the reference itself suffers from delay and laches and should be turned down. It was pleaded that the workman sent three telegrams asking for leave covering the period of May to July 1996 but these requests were rejected by the competent authority in writing and he was informed by telegram dated August 08, 1996 of the decision and was asked to resume duties immediately, but he did not avail of this opportunity. He was again warned to join duties by letter dated August 28, 1996 failing which disciplinary action would be initiated against him but the envelope was returned back undelivered by the postal authorities with the remarks that the addressee has gone abroad. Consequently, notice was issued to the workman through publication in various newspapers in December 1996 calling upon him to resume duties within 15 days of the publication of notice but the workman did not return MANJU 2014.11.11 10:29 I attest to the accuracy and authenticity of this document Chandigarh CWP No.1297 of 2013 -3- to resume work. He was then issued notice to show cause why a charge sheet be not served. This was sent at his recorded home address through registered cover which met with no success as he did not live there. He was charge-sheeted for misconduct. Again a registered notice was issued and sent at his village address which was returned back confirming that he is residing in a foreign country as given out by neighbours. His whereabouts not known, an ex parte enquiry was conducted in which the petitioner was found guilty of the charges levelled of absence without leave. A second show cause notice was issued which was also received back unserved. The department resorted to publication in newspapers in August and September 1997 but still the workman did not turn up and failed to reply to the second show-cause notice. Therefore, the department submits that full opportunity was given to the workman to defend himself. That is how the impugned order of termination was passed. It is the case of the department that the petitioner had abandoned his job. In his affidavit by way of evidence Ex.W1 before the Labour Court petitioner deposed that he was transferred from Punjab Roadways, Pathankot to Punjab Roadways, Batala in 1991 but due to compelling circumstances he had to proceed abroad as he perceived threat to his life from extremists and some of his family members were eliminated their hands. His services were struck off the rolls from June 25, 1996 and his name was not carried forward and thus the issuing of charge- sheet and the enquiry were a false start and sham proceedings to which legality could not be attached. When the situation eased, he returned back in 2004 and applied for joining his duty when he came to know that his services already stood terminated. The department countered that terrorism MANJU 2014.11.11 10:29 I attest to the accuracy and authenticity of this document Chandigarh CWP No.1297 of 2013 -4- had abated in Punjab and none existed in 1996 to 1997 and the situation had normalized many years prior to 2004.
The Labour Court correctly held that retrospective termination or dismissal from service is not legally sustainable but that would not impact the order of termination which can always be brought in tune with the law by a declaration that it would take effect prospectively. But the argument will cut no ice with respect to the legality and validity of the ex parte enquiry held in the circumstances presented by the workman himself by his continued absence without approval of the competent authority. The Labour Court relied on two rulings of the Division Bench of this Court in Amardeep Chopra vs. State of Punjab and others, 2004(4) SCT 188 and Shiv Kumar Ratti vs. State of Punjab, 2003(3) SCT 259 to hold that retrospective dismissal is legally bad but that would not lead to the inevitable conclusion that the dismissal order is not sustainable prospectively as the order can be broken into two parts one of which is good and the other bad. Accordingly, the Labour Court has held the petitioner to be entitled to consequential benefits such as remuneration up to February 09, 1998 and to that extent, the reference had been partly answered in his favour by modifying the impugned order to be read prospectively. Though the issue was raised by the respondent department that the reference was belated but the Labour has not specifically answered the question when it should have since it was required to answer all the issues raised in defence. If it is settled that retrospective dismissal is bad it is equally well settled in Nedungadi Bank Ltd. vs. K.P. Madhavankutty, (2000) 2 SCC 455, Assistant Executive Engineer, Kamataka vs. Shivalinga, (2002) 10 SCC MANJU 2014.11.11 10:29 I attest to the accuracy and authenticity of this document Chandigarh CWP No.1297 of 2013 -5- 167, State of Karnataka and another vs. Ravi Kumar, (2009) 13 SCC 746 that delay in raising a dispute may also be fatal to the action. From this, two arguments emerge, one; that a belated claim should not be entertained by the Labour Court which would be well within its rights to reject the reference and restrain itself from granting relief of any kind whatsoever and two; that the present was a clear case of abandonment of service and, therefore, the workman would not be entitled to any consequential benefits on this score as well. Though the law appears to be embedded as above stated but in absence of challenge to the award dated April 02, 2012 by the Punjab Roadways the direction issued by the Labour Court modifying the impugned order and granting remuneration up to the date of the passing of the termination order is left untouched.
Notice of motion in this case was issued on January 23, 2013 on the contention of the learned counsel for the petitioner that the workman had put in 15 years of service with the Punjab Roadways and due credit deserves to be given to that period from making pension available to him by adding on the period prior to dismissal from service. It is however a contention raised for the first time in the present writ proceedings at the time of motion hearing and presently that the dismissal order was disproportionate to the misconduct and the workman's case ought to have been considered from any lesser punishment by the Court a quo by resort to Section 11-A of the Industrial Disputes Act, 1947 (for short "the Act"). It was this limited issue which was pressed in the petition together with grant of indulgence for securing pension to the petitioner.
I have heard Mr. R.S. Ahluwalia, learned counsel appearing for MANJU 2014.11.11 10:29 I attest to the accuracy and authenticity of this document Chandigarh CWP No.1297 of 2013 -6- the petitioner and Mr. A.P.S. Mann, Addl. AG, Punjab for the Punjab Roadways on all issues including the one outlined in the motion order and further urged on October 27, 2014 when the matter was heard for final disposal, that the dismissal order may be converted to one of compulsory retirement in order to include the unserved period towards qualifying service for pension by according a deeming fiction.
I have given my thoughtful consideration to the question of treating the period of absence towards qualifying period for pension but remain unimpressed with the submission as any such direction would put a premium on misconduct. In any case, the issue arising from degrees of misconduct ought not to be entertained for the first time in writ proceedings when not pressed before the Labour Court under Section 11-A of the Act.
There are no mitigating circumstances found in this case as to reasonable cause shown for remaining absent and in a foreign country where he proceeded quite evidently to change the track of his career for personal gain. There is also no explanation of what the workman did during the period of absence from 1996 till 2004 when he returned to claim reinstatement to service unsuccessfully. The Punjab Roadways followed strictly the procedure laid down in cases of absence from duty which has resulted in unnecessary expenditure incurred on publications in newspapers which money is lost to the Punjab Roadways only by reason of following due process as prescribed by law. This is most certainly not a fit case for exercise of equitable jurisdiction in favour of the workman and to accept his argument that his dismissal should be converted into compulsory retirement by bridging the period of absence covered by the punishment order or that MANJU 2014.11.11 10:29 I attest to the accuracy and authenticity of this document Chandigarh CWP No.1297 of 2013 -7- he be given the benefit of pension. Besides, I would dismiss this petition for reason of delay in raising the dispute. Eight years is sufficiently long to dispel any doubt on this score. The department must have in the meanwhile filled the post abondoned by the petitioner leaving him none to return to even if it were ever contemplated. After all one is dealing with public posts.
For the above reasons, I do not find any merit in this petition which is accordingly dismissed.
(RAJIV NARAIN RAINA) 27.10.2014 JUDGE manju MANJU 2014.11.11 10:29 I attest to the accuracy and authenticity of this document Chandigarh