Punjab-Haryana High Court
Verma V.K. vs Hindustan Machine Tools Ltd., Pinjore ... on 8 August, 1998
Equivalent citations: (1999)ILLJ1172P&H, (1998)120PLR669
JUDGMENT K.K. Srivastava, J.
1. Appellant Shri V. K. Verma was working as a Steno 'C' under the respondent Management, the Hindustan Machine Tools Limited, Pinjore. During the course of his employment the appellant workman absented from duty unauthorisedly on January 30, 1985 after launch break without leave/permission. Again on February 13, 1985 he absented from duty without leave or permission between 2.45 P.M. and 3.45 P.M. The next day i.e. on February 14, 1985 he again left office after lunch break without obtaining any permission of his controlling officer or without applying for leave. The Management decided to charge-sheet him as the unauthorised absence from duty from the place of work amounted to misconduct under the Standing Orders. The Management served charge-sheet dated March 6, 1985, a copy of which has been filed as Exhibit M-1. Even in the past, the appellant workman had been warned for being habitual absentee from the place of work without leave or permission in November, 1982, August, 1983 and June 1984. He had been advised for negligence of duty vide letter dated August 18, 1984. The charge-sheet, thus, included four instances including the past instances which amounted to misconduct under clauses 21.106, 21.122 of the Standing Order applicable to the appellant-workman. The appellant was asked to submit his explanation by March 16, 1985 as to why disciplinary action be not taken against him for the said misconduct. The appellant submitted his explanation dated March 16, 1985 but the Management was not satisfied with the explanation and decided to hold departmental inquiry against him. Shri A. S. Kahlon, Personnel Officer (E) was appointed as the Enquiry Officer. Shri G. S. Khandewal, Deputy Controller of Accounts was appointed as the Presenting Officer. The Enquiry Officer after completion of the enquiry submitted his report dated November 19, 1986. According to the report of the Enquiry Officer, all the charges levelled in the charge sheet against the appellant were found proved against him. The competent Authority, Shri T .S. Narayanan, General Manager, Finance (A) after appraisal of the enquiry report was of the view that the workman deserved to be dismissed from service and he ordered accordingly by his order dated February 25, 1987.
Since, some proceedings were pending before the Industrial Tribunal, Haryana, in reference No. 30 of 1986, the Competent Authority ordered that while communicating the order of dismissal, one month's wages i.e. Rs. 1,327.10 ps. as required under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter to be referred as the Act 1947) be tendered to the workman and simultaneously an, application be sent to the Industrial Tribunal for approval of the action taken. He directed Shri G. S. Khandewal, Asstt. General Manager, Accounts (T) to communicate this order and to comply with the formalities. Accordingly, Shri Khandewal intimated the decision of the' Management as aforesaid vide registered A. D. Letter, dated February 28, 1987, addressed to the appellant workman. A copy of which has been filed along with the copy of the order of, the competent Authority as Annexure P-1 with' the writ petition. A pay order No. 699598/25/87, dated February 28, 1987 for Rs. 1327.10 p drawn on United Commercial Bank HMT Pinjore was tendered along with the, letter Annexure PI. The application under Section 33(2)(b) of the Act 1947 was sent by the Management on February 28, 1987 by post to the office of the Industrial Tribunal, Faridabad where it was received on March 2, 1987. The Tribunal entertained the application of the Management and issued notice to the workmen i.e. the appellant who appeared before the Tribunal and filed his reply raising objection, inter alia (i) that he had not been given one, month's wages; (ii) no show cause notice was' given to hun before passing of the order of his' dismissal from service; (iii) Enquiry Officer was not an independent authority in the se" that he was junior in status in comparison with the Presenting Officer; (iv) Principles of natural justice were not observed during the enquiry and (v) he was not given a chance to cross-examine the Presenting Officer.
2. Apart from it, he cited instances of mala fide on the part of the Management and took a plea of double jeopardy in asmuchas his wages for absence from duty were deducted by the Management and for the same action he has been punished with the dismissal from service. While quoting the instances of mala fide against the Management the appellant alleged that he, along with other workers had filed a Civil writ. Petition No. 5086 of 1986 in the High Court Chandigarh for scrapping E.S.I. Scheme Since the Management did not implement the order passed by the High Court in the said writ petition, a contempt petition was filed against the Management in the High Court. The petitioner along with other workmen filed another C.W.P. No. 1065 of 1987 in the High Court for the grant of special casual leave for June 21, 1986 i.e, Haryana Bandh and the Court had issued notice of motion to the respondent - HMT Limited and others, on February 27, 1987. These actions be the petitioner and other workmen prompted the Management of HMT, Pinjore to act hastily and to victimize the workman for petty charges which even on proof did not warrant dismissal from service. He further alleged that this is an example(where utter disregard of principles of natural justice had been shown by the Management an(it is also an act of unfair labour practice.
3. On the pleadings of the parties, the Labour Court framed the following issues :-
1. Whether the permission sought by the management should be granted ? OPM
2. Whether the enquiry is vitiated for the reasons stated in the reply ? OPW
3. Relief.
4. Issues No. 1 and 2 were taken together and decided in favour of the Management. The various objections raised by the workman were repelled. Consequently the Labour Court vide order dated March 23, 1992 allowed the application moved by the Management for approval of the order of dismissal from service of the workman.
5. The workman - appellant Shri V. K. Verma challenged the order of the Labour Court by filing C.W.P. No. 7213 of 1992. The impugned order passed by the Labour court was challenged on the grounds, inter alia, (a) Delay of about five years in deciding the application of the Management moved under Section 33(2)(b) of the Act, 1947; (b) the order of dismissal from service amounted to double jeopardy in asmuchas the wages for the period of his absence from duty by the Management were not paid and he has been punished for the aforesaid act of absenting himself, (c) Copy of the enquiry report was not furnished to him; (d), the Enquiry Officer was junior in rank than the' Presenting Officer; (e) the Punishment is arbitrary and not commensurate with the misconduct alleged against him, and lastly (f) The past record of the petitioner has been taken into consideration which could not be legally done.
6. The learned single Judge held that the delay in disposal of the application of the Management under Section 33(2)(b) of the Act, by the Labour Court was due to various reasons and the Management was not responsible for the delay. He held that the impugned order could not be held vitiated especially when delay was not caused either by the Management or. the Authority itself. While repelling the plea of double jeopardy the learned single Judge held that the Standing Orders governing the employees of the Hindustan Machine Tools Limited entitled the Management to deduct, wages of an employee for his absence from duty in accordance with the Payment of Wages Act and the same is not done as a measure of penalty. Clause 8.5 of the Standing Orders deals with the unauthorised absence of. workman from duty during duty hours from place of work and provides as under :-
b 1"8.5 Any workman who after registering his attendance in the manner prescribed is found absent from his proper place or places of work during working hours without permission, shall be treated as absent for the time of his absence and his wages shall be subject to deduction in accordance with the provisions of the Payment of Wages Act 1936, as amended from time to time".
7. This clause does not deal with punishments which are separately dealt with in clauses 20 and 21 of the Standing Orders. Accordingly, the deduction of wages of the workman is not a punishment. The learned Judge further held that the provision basically provides that the wages shall be payable when, an employee works and when he is absent, his wages shall be deducted. Since this was not as a measure of penalty and punishment under the Standing Orders, the impugned order of dismissal from service for misconduct on the, part of the appellant petitioner did not amount to double jeopardy. The learned single Judge also rejected the plea of the petitioner that the copy of the enquiry report was not given to him and held that there is no provision in the Standing Orders which may require the Management to supply the copy of the enquiry report to the delinquent employee. He dealt with the decision of the Supreme Court in Union of India and others v. Mohd. Ramzan Khan (1991-I-LLJ-29). The decision was held to be prospective in its operation by the Lordships of the Supreme Court in the said case and as such, the objection raised by the petitioner-workman of being prejudiced for, want of supply of enquiry report had no merit. The learned single Judge also rejected the plea of the petitioner that the Enquiry Officer was junior in rank to the Presenting Officer on the ground that it was nowhere alleged that the, Enquiry Officer was biased. He further mentioned that there was no suggestion that the Enquiry Officer was under any pressure or that he acted on account of an extraneous consideration. The learned single Judge held, that the plea of the petitioner that the punishment awarded to him was arbitrary and not commensurate with the misconduct committed by him lacked merit and he held that absence from duty admittedly amounted to misconduct. The petitioner was found to be absent more than once and virtually he was a habitual absentee and no fault could be found with the action of the Management. He also held that imposition of penalty is primarily a matter for appropriate Authority to consider and it is not a matter to he decided by the High Court. The employer having held that the petitioner deserved to be dismissed and its action having been approved by the Tribunal, it was held by the learned single Judge, it would not be proper to interfere with the order in exercise of the powers under Article 226 of the Constitution. The last plea of the petitioner regarding the impugned order being visited because the past record of the service of the petitioner could not have been taken into 1! consideration, was also turned down. The learned single Judge held that the Standing Orders specifically provided that "in awarding punishment", the employer/Manager shall take into account the gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or aggravating circumstances that may exist". The validity of the said provision of the Standing Order had not been challenged. The action of the authority was in conformity with the provision. Writ petition was, in the result, dismissed without any order as to costs.
8. The Petitioner workman has now come, up in appeal and challenged the correctness of the decision of the learned single Judge.
9. We have heard the learned counsel for the appellant and learned counsel for the Management/respondent. We have also carefully perused the judgment of the learned single Judge and the order of the Labour Court as also the order of dismissal passed by the Competent Authority/Management.
10. The learned counsel for the appellant submitted arguments on almost the same points which were addressed before the learned single Judge. Before proceeding to examine the impugned orders we deem it proper to refer to 4 the scope of Section 33(2)(b) of the Act and the various decisions of the Apex Court cited before us by both the sides. The Labour Court while considering the application of the Management made reference to the decision in the case of The Lord Krishna Textile Mills v. Its Workmen (1961-I-LLJ-211) (SC). The Apex Court held that "in view of the limited nature and extent of the enquiry permissible under Section 33(2)(b) all that the authority can do in dealing with an employer's application is to consider whether a prima facie case for according approval is made out by him or not. If before dismissing an employee, the employer has held a proper domestic enquiry and has I proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is to enquire whether the condition prescribed by Sec. 33(2)(b) and the proviso are satisfied or not. Do the Standing Orders justify the order of dismissal ? Has an enquiry been held as provided by the Standing Order ? Have the wages for the month been paid as required by the proviso ? and has an application been made as prescribed by the proviso ?
11. In the case of P. H. Kalyani v. M/s. Air France, Calcutta, (1963-I-LLJ-679) the Apex Court held that at p. 683 :
"If the inquiry is not defective, the Labour Court has to see whether there was a prima facie case for dismissal, and whether the employer had come to the bona fide conclusion that the employee was guilty of misconduct. Thereafter on coining to the) conclusion that the employer had bona fide come to the conclusion that the employee was guilty i.e. there was no unfair labour practice and no victimisation, the Labour Court would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If the inquiry is defective for any reason, the Labour Court would also have to consider for itself on the evidence 0 adduced before it whether the dismissal was justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made".
12. In the case of M/s. Punjab Beverage, Pvt. Ltd., Chandigarh v. Suresh Chand and Anr. (1978-II-LLJ-1) (SC) at page 6 the supreme Court held as under :-
"It will be seen that the only scope of the injury before the Tribunal exercising jurisdiction under Sec. 33 is to decide whether the ban imposed on the employer by this Section should be lifted or maintained by granting or refusing the permission or approval asked for by the employer. If the permission or approval is refused by the Tribunal, the employer would be precluded from discharging or punishing the workman by way of dismissal and the action of discharge or dismissal already taken would be void. But the reverse is not true for even if the permission or approval is granted that would not validate the action of discharge or punishment by way of dismissal taken by the employer. The permission or approval would merely remove the ban so as to enable the employer to make an order of discharge of dismissal and thus avoid incurring the penalty under Sec. 31(1), but the validity of the order or discharge or dismissal would still be liable to be tested in a reference at the instance of the workman under Sec. 10."
13. In another case Lalla Ram v. Management of D. C. A. Chemical Works Ltd. and another, (1978-I-LLJ-507) the Supreme Court reiterated the scope of Section 33(2)(b) of the Act as under at p. 513 :
"In proceedings under Sec. 33(2)(b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (ii) Whether prima facie case for dismissal based on legal evidence adduced before the domestic Tribunal is made out; (iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatdee, Coal Co. v. Ram Probesh Singh, (1963-I-LLJ-291), Titaghur Paper Mills Co. Ltd. v. Ram Naresh Kumar (1961-I-LLJ-511) (SC); Hind Construction & Engineering Co. Ltd. v. Their Workmen, (1965-I-LLJ-462), Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. v. Management, (1973-I-LLJ-278) (SC) and Eastern Electric and Trading Co. v. Baldev Lal, (1975-II-LLJ-367) (SC) that though generally speaking, the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of mala Aides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment; (iv) whether the employer has paid or offered to pay wages for one month to the employee and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him. If these conditions are satisfied, the Industiral Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If however, the domestic enquiry suffers from any defect or infirmity, the labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him."
14. The Labour Court has proceeded to consider the application of the Management within the scope of Section 33(2)(b) of the Act as settled by the Supreme Court and while examining the application of the Management, the Labour Court considered the order of dismissal after the conduct of the disciplinary enquiry and found that the charge made against the workmen were inquired into in the domestic enquiry in accordance with the procedure prescribed in Clause 21.2 of the Standing Orders. Clause 21.2 of the Standing Orders reads as under :-
"No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him. The approval of the Manager of the establishment or where there is no Manager the employer is required in every case of dismissal and when circumstances so warrant it, the Manager of the employer may institute independent enquiries before - dealing with the charges against workman. Provided that in case of a workman to whom Clause 2 of Article 311 of the Constitution of India apply, the provisions of that Article shall be complied with."
15. The Labour Court after dealing with the report of the Enquiry Officer, the order of dismissal and the relevant clause of the Standing Order held that the enquiry was fairly and independently conducted and the case of misconduct was, prima facie, found proved against the workmen who failed to show that the act of the Management was malafide or based on unfair labour practice. It is relevant to note that the writ petition and the contempt petition, referred by the workman appellant, were ultimately dismissed by the High Court, as has been mentioned in para 22 of the order of the Labour Court.
16. The learned counsel for the appellant laid great stress on the delay of five years in deciding the application of the Management moved under Section 33(2)(b) of the Act. See. 33, sub-section (5) of the Act provides that where an employer makes an application to a Labour Court/ Tribunal/National Tribunal under the proviso to sub-section (2) for approval of the action taken by him the Authority concerned shall, withoutdelay, hear such application and pass within a period of three months from the date of receipt of such application, such order in relation thereto as it deems fit. The proviso provides that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing extend such period by such further period as it may think fit. Further proviso lays down that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being completed. This proviso itself shows that the proceedings shall not be allowed to lapse merely on the ground that the period specified in the sub-section had expired without such proceedings being completed. Moreover, it is noteworthy that the Tribunal, at the relevant time to whom the application had been sent for approval, was located at Faridabad as has been noted by the learned single, Judge. The application was sent promptly the same day on February 25, 1987 when the petitioner was informed about the dismissal order vide letter sent by Shri G. S. Khandewal along with pay order carrying a sum of Rs. 1327.10 ps. representing one month's pay/wages. Subsequently, a new Tribunal was constituted at Ambala and the application was transferred to the newly established Tribunal at Ambala. Apart from this, the petitioner-workman himself sought adjournments on eight occasions. The case had to be adjourned four times on account of strike by the Bar. Other adjournments had taken place due to the reasons beyond I the control of the Management. A detail of the adjournments taken on account of which delay occur in the disposal of the application has been furnished in the written statement filed by the Management; in the writ petition vide para 5. These details are as under :
1. Adjournments sought by the petitioner. 8 Nos.
2. Adjournments due to strike by Bar. 4 Nos.
3. Adjournments due to Holiday 2 Nos.
4. Presiding Officer transferred 1 Nos.
5. Steno of Presiding Officer over burdened 3 Nos.
6. Presiding Officer on leave/official 4 Nos.
tour/busy Total adjournments 22 Nos.
17. It will be seen that the Management was not at all responsible for the delay that occurred in the disposal of the application. That being so, we find no merit in the contention of the learned Counsel for the appellant that for this delay, the Management-respondent was in any way responsible. Apart from it the mere delay will not be sufficient to vitiate the proceedings regarding according of the approval to the action of the Management in dismissing the services of the petitioner workman.
18. The learned counsel for the appellant further contended that the appellant workman was not paid his wages during the period the application of the Management remained pending before the Tribunal Labour Court and in support of his arguments, he placed reliance on a 'judgment of the Apex Court in Fakirbhai Fulabhai Solanki v. Presiding Officer and another, (1986-II-LLJ-124). It may be pointed out that the aforesaid decision of the Apex Court relates to the case of a "Protected workman" who was suspended from service during pendency of the application without payment of allowance. The permission in that case was granted about six years after the application. It was held that non-payment of allowance resulted in denial of opportunity to workman to defend himself and the order of dismissal violated the principle of natural justice. In the case before us, the petitioner is not a "protected workman" and he was not placed under suspension during the pendency of the application before the Tribunal/Labour Court. Explanation to Section 33, sub-section (3) lays down, for the purposes of this sub-section, a "protected workman", in relation to an establishment means a workman who being a member of the executive or other office bearer of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf. There are no averments made to the effect that the appellant petitioner was i 'protected workman'.
19. Under the provisions of Section 33(2)(b) of the Act 1947, the Management while sending a copy of the order of dismissal from service of the petitioner workman enclose therewith a pay order for a sum of Rs. 1327.10ps being one month's wages and others, complied with the requirements of the aforesaid Section. It is not disputed before us that the said payment was made by the Management to the workmen. The submission has thus, no merit.
20. As regards the next submission of the learned counsel for the appellant about the domestic enquiry being not conducted fairly on the ground that the rank of the Enquiry Officer was inferior to the rank of the)Presenting Officer. The same also lacks in merit. The appellant could not show any bias on the part of the Enquiry Officer towards it. There is nothing on record to show that the Enquiry Officer was in any way prejudiced 5or influenced against the workman. Apart from it, the Enquiry Officer gave reasonable opportunities to the workman. A perusal of the award of the Labour Court will go to show that respondent workman was nor co-operative with the domestic enquiry. He had often absented himself intentionally inspite of being served with the notice of the date of hearing. The Enquiry Officer had granted adjournments on a number of; occasions on his request. Sufficient and effective opportunities had been given to him to produce his evidence. The Labour Court has made these observations regarding the conduct of the workmen before the Enquiry Officer.
"Domestic enquiry proceedings and the report of the enquiry officer reveal that the respondent workman was not co-operating Often he had absented intentionally even after being served with notice of date of hearing. Several times enquiry proceedings were adjourned on his request. Sufficient and effective opportunities were given to him to produce his evidence. Respondent workman's behaviour during domestic enquiry proceedings remained obstreperous. He has no face to say that domestic enquiry was unfair. It did not matter if the Presenting Officer was higher in rank than that of the enquiry proceedings remained obstreperous. He has no face to say that domestic enquiry officer for the reasons that proof of all the charges depends upon the documentary evidence which existed prior to the initiation of disciplinary proceedings against him."
21. The learned single Judge has also repelled this argument of the appellant petitioner, and in our opinion rightly so, in the absence of any material to show that the Enquiry Officer was in any way prejudiced or influenced by the rank of the Presenting Officer, it is difficult to agree with the contention of the appellant that the enquiry was not fair and reasonable.
22. Learned counsel for the respondent placed reliance on the decision of this Court in the case of J. P. Pathak v. The H. M. T Limited and others 1990 (1) S.L.R. 724 wherein this Court followed the decision of the Kerala High Court in the case of M. O. Farancis v. Bank of Cochin and another 1987 71 F.J.R. 436. In the case of M. O Francis, it was observed that :
"Domestic inquiry is a managerial function and the Inquiry Officer more often is a man of establishment and if the inquiry had been fair and the delinquent employee had reasonable opportunity for access to the records, to cross examine the witnesses and to defend himself, it cannot be said that the inquiry was vitiated for the reason that it was held by an officer of the establishment. The contentions of the workman that the Law Officer, who conducted a domestic inquiry was an officer lower in rank than the Personnel Officer, who was the Presenting Officer, and that the workman was not afforded the help of a lawyer to defend himself were not sufficient to vitiate the inquiry."
23. The learned counsel for the appellant cited the decision of the Apex Court in the case of Union of India v. Mohd. Ramzan Khan (supra) to support his contention that the. principles of natural justice require that the copy of the enquiry report should have been furnished to him and since the same has not been furnished, the principles of natural justice had been violated. It may be mentioned that the enquiry was conducted under the Standing Orders applicable to the petitioner workman. The Standing Orders did not provide for the furnishing of the copy of the enquiry report as has been noted and held by the learned Single Judge. Besides, the Apex Court while deciding the case of Mohd. Ramzan Khan (supra) observed in para 17 as under :
............. the judgment shall have prospective application and no punishment shall he imposed upon to challenge on this ground."
24. The application of the law as laid down in Ramzan Khan's case (supra) is, thus, prospective in nature. The case, a aforesaid, was decided by the Apex Court on November 20, 1990 i.e. much later than the impugned order c)f dismissal passed by the Management in the .case of the petitioner-appellant. Therefore, we do not find any substance in the argument of the learned counsel for the appellant.
25. So far as the past record of the petitioner having been taken into consideration in the charge-sheet a reference to the Standing Orders may be made, which enables the management to peruse the previous record. Para 21.4 of the Standing Orders provides as under :
"In awarding punishment under these Standing Orders the employers/manager shall take into account the gravity of the Misconduct, the previous record, if any of the workman and any other extenuating of aggravating circumstances that may exist. A copy of the order passed by the Employer/Manager shall be supplied to the workman concerned."
26. In view of this specific provision in the Standing Orders governing conditions of, he appellant-workman, no fault can be found, with the Management considering the previous .record of the appellant-workman. We find no merit in the arguments advanced in this regard by the learned counsel for the appellant.
27. Lastly it was argued by the learned counsel for the appellant that the punishment imposed on the appellant-workman, is wholly arbitrary and not commensurate with the misconduct alleged against him. The petitioner-workman was working as a Stenographer. It cannot be denied that the presence of the Stenographer at the place of work during the duty hours is quite important In and essential. The Officer, with whom the Stenographer is attached, may require the services of the Stenographer for giving dictation of any urgent or important matter The petitioner was found absent habitually and constantly on two dates i.e. February 13, 1985 and February 14, 1985 after the lunch break and that too, without obtaining any leave or, permission. The conduct of the petitioner' amounted to misconduct and consequently, the management lost confidence in him. In somewhat similar circumstances, the Delhi High Court held in the case of D. D. Tripathi, v. Indian Airlines Corporation, 1987' (70) F.J.R. 372 that the Supreme Court clearly laid down that an employer would be justified in asserting loss of confidence in an employee when the employee absents himself without any leave, or makes application for leave on false' pretext. In the case before the High Court the employee had given false explanations and had persisted in justifying his false explanation. The employer was held justified in taking a serious view and terminating his services. The learned single Judge held that the punishment imposed on the employee was not shockingly disproportionate when the employer had lost confidence in him.
28. In the case of C. T. Kumbhar v. The Chairman Agriculture Produce Market Committee and others, 1989 (58) F.L.R. 793 a Division Bench of the Bombay High Court held :
"The record unmistakably establishes that the petitioner is chronic defaulter and was twice removed from service earlier, but on humanitarian consideration was taken back. The petitioner has not given up his habits of attending office at his convenience and then behaving in arrogant fashion. The order of the Minister cannot be faulted because the time has come that when it is necessary to observe some discipline and some norms of good behaviour in the Government and semi-Government offices. In our judgment, the punishment of removal on the facts and circumstances of the case cannot be faulted with."
29. We are also of the considered view that in the totality of the facts and circumstances of the case, the punishment awarded to the petitioner workman cannot be termed as arbitrary and shockingly disproportionate particularly, when the Management lost confidence in him.
30. In view of the foregoing discussion, we do not find any merit in the appeal. The appeal is dismissed.