Punjab-Haryana High Court
Suraj Bhan vs M/S Indo Asian Fusegears Ltd on 25 September, 2012
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No. 15304 of 2001
DATE OF DECISION : 25.09.2012
Suraj Bhan
.... PETITIONER
Versus
M/s Indo Asian Fusegears Ltd., Nakodar Road, Jalandhar and another
..... RESPONDENTS
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
Present: Mr. Sukhdeep Parmar, Advocate,
for the petitioner.
Mr. Arun Palli, Senior Advocate, with
Mr. Kanwalbir Singh Kang, Advocate,
for respondent No.1.
***
SATISH KUMAR MITTAL, J.
The workman has filed this writ petition under Articles 226/227 of the Constitution of India with a prayer to quash the award dated 19.4.2000 (Annexure P-1), passed by the Labour Court, Jalandhar, whereby the reference made by the Government was decided against the workman, while holding that the order of termination of services of the workman was rightly passed by the management.
At the time of issuance of notice of motion, learned counsel for the petitioner - workman confined the prayer in this writ petition only with regard to the quantum of punishment.
I have heard learned counsel for the parties and gone through CWP No. 15304 of 2001 -2- the record of the case as well as the impugned award, passed by the Labour Court.
In this case, the petitioner, who was working as Fitter with the respondent company, was charge sheeted for major punishment of dismissal from service on account of his remaining unauthorised absent from duty. The said charge sheet was issued, when in spite of many reminders, the petitioner remained absent from duty. Even in the domestic enquiry, notices were sent to the petitioner - workman, but he did not appear and join the enquiry proceedings. Thereafter, notices were got published in the news paper. Even then, the workman did not appear and ultimately, he was proceeded against ex-parte. In the ex-parte enquiry, the management led evidence to establish the unauthorised absence of the workman from duty. On the basis of the evidence led by the management, the Enquiry Officer found the workman guilty of the alleged misconduct. On the report of the domestic enquiry, a notice was sent to the workman, but he did not respond. Accordingly, after serving the show cause notice of imposing punishment of dismissal, services of the workman were terminated vide order dated 28.6.1994.
Against the said order, the workman served demand notice and the dispute was referred to the Labour Court for adjudication. Before the Labour Court, the workman took the stand that the domestic enquiry conducted by the management was not fair and proper, and he was not CWP No. 15304 of 2001 -3- afforded proper opportunity to defend his case. He was wrongly proceeded against ex-parte in the enquiry, and on the basis of ex-parte enquiry report, his services were illegally terminated. It was further pleaded that even otherwise, termination of the services of the workman for the alleged misconduct was not justified.
The Labour Court, after considering the evidence led by both the parties, came to the conclusion that the domestic enquiry held against the workman was fair and proper; he was rightly proceeded against ex- parte; he was given full opportunity to defend himself in the domestic enquiry; and his unauhorised absence from duty was duly proved by the management on the basis of the documentary evidence in the enquiry. It was also found that the workman was in the habit of filing false complaints and issuing false demand notices upon the management. In these facts and circumstances of the case, termination of the services of the workman was held to be fully justified.
Against the said award, the instant writ petition has been filed by the workman.
Learned counsel for the petitioner argued that in the facts and circumstances of the case, imposition of penalty of dismissal from service is disproportionate and is not commensurate with the gravity of the offence charged, therefore, the Labour Court has acted illegally, while holding that in the facts and circumstances of the case, punishment of dismissal from CWP No. 15304 of 2001 -4- service, awarded to the workman, was justified. According to the learned counsel, the Labour Court, in exercise of its discretion under Section 11A of the Industrial Disputes Act, 1947 (hereinafter referred to as `the Act'), should have interfered with the punishment, which was shockingly disproportionate to the gravity of the misconduct, alleged to have been committed by the workman.
On the other hand, learned counsel for the management argued that in the facts and circumstances of the case, the Labour Court, after coming to the conclusion that in a fair and proper domestic enquiry, the alleged misconduct of the workman for remaining absent from duty was proved, and further that in fact, the workman was habitual of filing false complaints and issuing false demand notices upon the management, has rightly held that termination of the services of the workman was justified.
After considering the submissions made by learned counsel for the parties and the findings recorded by the Labour Court as well as in the facts and circumstances of the case, I do not find any ground to interfere in the impugned order passed by the Labour Court. The quantum of punishment in case of misconduct of absence from duty without leave would depend upon the facts of each case. After insertion of Section 11-A of the Act, the Labour Court has not only the jurisdiction to set aside the order of dismissal of a workman and direct his reinstatement, but it has also the discretion to mould that relief including awarding of lesser punishment in CWP No. 15304 of 2001 -5- lieu of dismissal. The Labour Court has to exercise its discretion while considering the facts and circumstances of each case. The Labour Court can interfere in the order of punishment, where it is found to be shockingly disproportionate to the gravity of the misconduct committed by the delinquent workman. In exercising discretion to award the lesser punishment, the Labour Court has to consider the seriousness and gravity of the charge committed by the delinquent workman; the conduct of the workman; nature of the allegations; and finding of the Enquiry Officer with regard to mis-conduct of the workman. In the present case, in the fair and proper domestic enquiry, misconduct of the workman regarding absence from duty was duly proved. In spite of the notices, the workman did not join the enquiry proceedings. Before the Labour Court, it was established that the workman was duly served. In spite of that, he neither joined the domestic enquiry nor contested the enquiry report. He even did not contest the proposed order of punishment. He did not lead any evidence or gave any explanation for his absence from duty. The unauthorised absence of a workman from duty for a long period is a serious misconduct. If a workman remains absent from his work without permission and without making an application for leave or without any explanation, then such act is a gross misconduct, which creates indiscipline at the work place, and if the same is proved, termination of such a workman is justified. In the present case, the petitioner - workman was found to be habitual of filing false complaints CWP No. 15304 of 2001 -6- and issuing false demand notices upon the management, which amounts to subversive of discipline. In my view, in these facts and circumstances, the Labour Court was fully justified in not interfering in the order of punishment and awarding lesser punishment to the workman. Though the discretion exercised by the Labour Court is amenable to judicial review by this court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India, but in the facts and circumstances of the case, learned counsel for the petitioner could not make out a case for interference in the award passed by the Labour Court holding that in the facts and circumstances of the case, the punishment of termination of service imposed upon the petitioner was fully justified. Thus, I do not find any reason to interfere in the impugned order passed by the Labour Court.
Dismissed.
Sd/-
September 25, 2012 ( SATISH KUMAR MITTAL ) ndj JUDGE