JUDGMENT
H.K. Rathod, J.
1. Heard the learned advocate Mr. Nagarkar on behalf
of the petitioner and learned advocate Mr. R.V.Desai
appearing on behalf of the respondent.
2. In the present petition, petitioner has
challenged the award passed by Labour Court, Ahmedabad in
Reference No.1722/84 dated 30th September, 1992, wherein
Labour Court has set aside the dismissal order and
granted the reinstatement with contitunity of service
with 25% backwages of interim period. Initially this
Court has issued Rule on 5th February 1993 not granting
the stay against the reinstatement but the stay has been
granted against the backwages of interim period with
continuation that if ultimately petitioner loose in this
matter then they should have to pay the amount of 25%
backwages with 12% interest of interim period.
3. Learned Advocate Mr. Nagarkar, vehemently
submitted that Labour Court has committed gross error in
granting the reinstatement with 25% backwages. He
submitted that constant and continues absence atleast
about 12 occasions from June 1982 to May 1983 which goes
to 196 days remaining absent without prior permission of
the authority. This being a serious misconduct having
cumulative effect and, therefore, punishment of dismissal
is just and proper and Labour Court should not have to be
interfered while exercising the power under Section 11(A) of the I.D. Act, 1947. He further submitted that
workmen has not given any explanation that why he
remained absent for such a long period of 196 days. He
also submitted that he remained absent even in the
departmental inquiry. He also submitted that Labour
Court in one occasion came to the conclusion that it is a
gross misconduct and next moment came to the conclusion
that punishment of dismissal is harsh, therefore, in such
a contradictory finding Labour Court has committed basic
error that requires interference of this Court. He
submitted that workmen should have to be careful while
working in the corporate body, so if he wants to go for
leave then he should ask in prior point of time with the
authority for a permission then he should go on leave.
Otherwise the work of the public body will unnecessary
suffer. He also submitted that there is no challenge to
the inquiry by the workmen and, therefore, the Labour
Court has committed gross error in set asiding the
punishment while exercising the power under Section 11(A)
of the I.D. Act, 1947. He read over before this Court
para 10,11,12 and 13 and emphasized that normally in
India this foreign concept is not accepted to keep the
body and soul together by the workmen. Unemployment is
known to everybody and in case of dismissal this is the
only result and, therefore, no sympathy can be shown by
the Court for such a gross misconduct case. He also
emphasized that punishment of dismissal is not such a
shock and disproportionate which affect the judicial
conscious of the Court. He relied upon one decision in
support of his submission of the Apex Court reported in
AIR 2003 Supreme Court page 1800. He submitted that in
identical case on remaining absent by one Police Officer
the Apex Court has come to the conclusion that such
absence continues having cumulative effect the punishment
of dismissal is proper. Therefore, he submitted that in
this case also the punishment imposed by the disciplinary
authority is legal and valid and interfered by the Labour
Court while committing the error and, therefore,
interference by this Court is necessary.
4. Learned Advocate Mr. R.V. Desai, appearing on
behalf of the respondent workmen submitted that at the
time of issuing Rule no stay has been granted, therefore,
workmen has been reinstated in service. Now only
question is about 25% backwages. He also submitted that
if ultimately this Court dismisses the petition then
workmen is not claiming the benefit of 12% interest as
condition imposed by this Court while staying the
backwages of interim period. He also submitted that the
workmen has put number of years service with the
Transport Service and he was dismissed from service on
8th March 1984 for remaining absent from June 1982 to May
1983 for a period of 196 days. Therefore, Labour Court
has passed an award just in a reformative measure
granting the reinstatement with 25% backwages for that
Labour Court has not committed any error which require
interference by this Court. He also submitted that there
is no past bad records of the workmen. That fact has
been mentioned by the workmen in the claim not
controverted by the Transport Service and, therefore, the
Labour Court has rightly set aside the dismissal order.
He also submitted that decision which has been relied by
learned advocate by Mr. Nagarkar is not applicable to the
facts of this case on the ground that here Labour Court
having the power under I.D. Act that in case the Labour
Court is satisfied that punishment is disproportionate
then Labour Court can set aside such punishment and to
pass appropriate orders think fit. Therefore, according
to Mr. Desai Labour Court has rightly passed just and
proper order and in interim period gainful employment is
not proved by the Transport Service, therefore, 25%
backwages has been granted and 75% has been denied by way
of punishment and that is sufficient punishment to the
workmen who remained out of job for a period from 84 to
92 about 8 years. Therefore, he submitted that Labour
Court rightly has powers and no interference is necessary
from this Court while exercising the power under Article
227 of the Constitution of India.
5. I have considered the submission made by both the
learned advocates. The workmen was working in the post
of cleaner cum labourer in Transport Service. He
remained absent from June 1982 to May 1983 about 196
days. Charge sheet was served to the workmen dated 23rd
June 1983. He remained absent in the departmental
inquiry and no explanation has been given by the workmen
during the course of inquiry. On 8th November 1983
second show cause notice was served to the workmen and
thereafter on 8th March, 1984 dismissal order was passed
and that dismissal order was challenged by the workmen
before the Labour Court under the machinery of I.D. Act.
Exh.5 the statement claim has been filed by the workmen
wherein it is mentioned that his past record is clean.
Against the statement of claim written statement has been
filed by the Transport Service vide Exh.6. Then Labour
Court has stated that whether the workmen is entitled to
be reinstated in service or not. The workmen was
examined before the Labour Court vide Exh.16 and vide
Exh.10. Workmen has filed purshis wherein legality and
validity of departmental inquiry was not challenged by
the workmen. Transport Service has produced the
documentary evidence vide Exh.8 and because of the
purshis filed by the workmen vide Exh.10 no oral evidence
is led by the Transport Service. Thereafter Labour Court
has heard both the learned advocates and ultimately
Labour Court has discussed and gave reasons in paragraph
11 and 12 as under.
11. Now I have discussed above that the
misconduct of the workman namely
overstaying, habitual absentism without
leave application is duly proved and the
workman has not even tried to explain the
cause of regularly remaining absent but
the misconduct proved is not gross, hence
the punishment of dismissal is too harsh
and requires to be set aside under
section 11(A) of the I.D. Act and the Court
has also to consider that there is wide
spread unemployment in our country and it
is difficult to secure a job to earn
enough to keep body and soul together
unlike in developed countries. Further
more the State does not provide social
benefits like unemployment allowance to
unemployed persons to maintain themselves
upto some extent as is being done in the
developed countries. In an disciplinary
procedure, for an alleged fault of an
employee, the punishment is imposed not
in order to seek retribution or to tive
vent to feeling of wrath. The main
purpose of punishment is to correct the
fault of the employee concerned, by
making him more alert in the future and
to hold out a warning to other employees
to be careful in discharging their duties
so that they do not expose themselves to
similar punishment and the approach to be
made is the approach, parents make
towards their erring or misguided child.
12. In the present case all the above stated
facts which are realities, have to be
considered, the workman dismissed has to
struggle for existence along with his
family members and in that event also the
court should and must utilize its powers
under section 11-A of the I.D. Act which
empowers the court to set aside the order
of discharge or dismissal and direct
reinstatement of the workman on such
terms and conditions if any as it thinks
fit or give such other reliefs to the
workman including the award of any leaser
punishment in lieu of discharge or
dismissal as to the circumstances of the
case may require and in this case
considering all the above stated
reasoning, the order of dismissal is
required to be set aside is set aside and
the workman should be reinstated with 25%
back wages from the date of termination
till the date of reinstatement and the
point no.1 is replied accordingly and I
pass the following order in reply to
point no.2.
6. Looking to the reasons given by the Labour Court
that punishment is found disproportionate by the Labour
Court, when workmen remained absent from June 1982 for a
16 days, July 1982 for 15 days similarly each month
number of days absent is there. For each month workmen
remained absent, no steps have been taken by the
Transport Service against the workmen. Not only that the
power of issuing the charge sheet while considering the
enblock absentism for 12 months period no memo has been
issued to the workmen that you are repeatedly remaining
absent without any cause and without prior permission.
This being enblock absentism considered to be one
misconduct and for that charge sheet has been issued. If
the Transport Service is vigilant and really interested
in the discipline then why the steps have not been taken
in a point of time against the workmen. Each month
remaining absent without prior permission is being a
separate misconduct for that no steps have been taken and
clubbing the entire 12 months absentism. The case of the
Transport Service is that a workman remained 196 days
continues absent without prior permission but if the
facts have been considered in a different angle that why
upto 11 months Transport Service has condoned the absent
and not taken any steps against the workman though
Transport Service was entitled to it. Meaning thereby
that upto 11 months the absent of the workmen has been
condoned and that lapse have not been taken seriously by
the Transport Service and on the last occasion in May
1983 it was decided to issue charge sheet for a enblock
period of 12 months against the workmen. Therefore,
considering this fact the workmen who is a cleaner and
labourer not working in Class I post in Transport Service
naturally the standard to take care is of Class I officer
that standard may not be expected from Class IV employee.
This is the difference between Class I and Class IV
employee. Therefore, no doubt, that he remained absent
without prior permission but question is that no
effective steps have been taken in time and created a
circumstance to be showed as serious against the workmen
and to dismiss the workmen from service when upto 11
months no action has been taken by the Transport Service.
This is not the case of dishonesty and misappropriation
which require an extreme penalty of dismissal. Absentism
having some compelling circumstances in the family or
some other factors for which workmen remained absent. It
is not the case of the Transport Service that workmen
remained absent that is how the work of cleaner have been
suffered and put inconvenience to the Transport Service.
The workmen working in a Class IV post and not in a
sensitive post therefore, looking to the charge of
absentism enblock period of 12 months absence the
punishment of dismissal by the Labour Court has rightly
interfered while exercising the powers under Section 11(A) of the I.D. Act, 1947 while keeping in mind that no
bad past records has been produced by the Transport
Service and statement made in statement of claim that his
past record is clean not controverted by the Transport
Service and no other misconduct have been pointed out,
therefore, if in entire service this being a misconduct
committed by the workmen is not proper to impose an
extreme penalty of dismissal. The Labour Court having
vide power with discretion that in case if ultimately
looking to the material on record if Labour Court is
satisfied that punishment of dismissal is harsh, unjust
and unreasonable then Labour Court having power to
interfere with such punishment. For that Labour Court
has given reason in support of its conclusion. Workmen
has admitted the legality and validity of inquiry and
even finding is not disturbed by the Labour Court that
charge is proved even though in such circumstances also
the Labour Court having the power to interfere with the
punishment. Such powers have been exercised while
keeping in mind two object one is that punishment is
disproportionate and another object is to have
reformative measure in favour of the workmen so atleast
his family may not be put in starvish. This reformative
measure are necessary in light of the unemployment
prevailing in this country and, therefore, Labour Court
has discussed this aspect and pass appropriate orders
granting reinstatement with 25% backwages and denied the
75% backwages by way of punishment. The submission of
Mr. Nagarkar that it is a gross misconduct but then
accumulation of the absent period and cumulative effect
had been created by the Transport Service otherwise this
accumulation of absent period and cumulative effect may
not arise if every month the step have been taken by the
Transport Service against the workmen for that Transport
Service is competent and entitled to it. Therefore, now
merely 12 months absence pointed out the seriousness the
Court is not impressed by such submission and, therefore
such submission cannot be accepted.
7. To deny 75% backwages for a period of 8 years to
the workmen is considered to be punishment. In reported
case AIR 1984 Supreme Court page 976, the relevant
paragraph 3 is quoted as under:
“Wide discretion is vested in the Tribunal under
this provision and in a given case on the facts
established the Tribunal can vacate the order of
dismissal or discharge and give suitable
directions. it is a well settled principle of
law that when an order of termination of service
is found to be bad and reinstatement is directed,
the wronged workman is ordinarily entitled to
full back wages unless for any particular reason
the whole or a part of it is asked to be
withheld. The Tribunal while directing
reinstatement and keeping the delinquency in view
could withhold payment of a part or the whole of
the back wages. In our opinion, the High Court
was right in taking the view that when payment of
back wages either in full or part is withheld it
amounts to a penalty. Withholding of back wages
to the extent of half in the facts of the case
was, therefore, by way of penalty refereable to
proved misconduct and that situation could not
have been answered by the High Court by saying
that the relief of reinstatement was being
granted on terms of withholding of half of the
back wages and, therefore, did not constitute
penalty.
8. A decision which has been relied by Mr. Nagarkar
is not under the provision of I.D.ACt, 1947. The second
distinguish is that it relate to the Police Officer means
discipline force, therefore, in Police Service such
absence cannot be tolerated but same may not be
applicable in case of cleaner/labourer who was working in
transport service in Class IV post. Therefore, the
decision which was relied by Mr. Nagarkar reported in AIR
2003 Supreme Court page 1800 is not applicable to the
facts of this case.
9. In this background when punishment has been
imposed by the punishing authority to any employee it is
the duty of such punishing authority to impose a
punishment while keeping in mind certain relevant factors
one is socio-economic background of the workmen, second
is the family background of the workmen, third is length
of service, fourth is past record and fifth is compelling
circumstances to commit misconduct. These are the
relevant factors which must have to keep in mind by the
authority at the time of imposing the punishment which is
not done by the Transport Service but it has been rightly
set aside by the Labour Court granting the reinstatement
with contitunity service with 25% backwages.
10. In case of Scooter India Ltd, Lucknow, Vs. Labur
Curt, Lucknow and Ors. reported in AIR 1989 Supreme
Court page 149, Apex Court has observed that when
disciplinary inquiry found to be fair and lawful and
these findings were not vitiated in any manner that
itself would not be ground for non interference with the
order of termination of service by Labour Court. The
direction of the Labour Court for the facts, for
reinstatement with 75% backwages, on the ground that
erring workman should be given opportunity to reform
himself and prove to be loyal and disciplined employee of
the Company that Courts is not illegal and arbitrary.
The relevant discussions in paragraph 7 and 9 are quoted
as under:
“7. The High Court has considered at length
the nature of the powers conferred on the
Labour Court by Section 6(2A) of the Act
for setting aside an order of discharge
or dismissal of a workman and
substituting it with an order of lesser
punishment and as such it cannot be said
that the High Court has failed to
consider the facts in their entirety. As
regards the third contention, we may only
state that the Labour Court was not
unaware of the nature of the charges
framed against the respondent or the
findings rendered by the Inquiry Officer
and the acceptance of those findings by
the Disciplinary Authority. The Labour
Court has observed as follows:
” The workman has unfortunately to blame
himself for much of the bad blood which
has developed between him and the
management and therefore his conduct,
motivated by ideals which are not
relevant has been far from satisfactory.
In so far as it was rough, bordering on
rudeness and with highly exaggerated
sense of his duties. In these
circumstances it will meet the ends of
justice if back wages to the extent of
75% are allowed to the workman. I would
make my award accordingly but there shall
be no order as to costs.”
It cannot therefore be said that the
Labour Court had exercised its powers
under Section 6(2A) of the Act in an
arbitrary manner and not in a judicial
manner. The Labour Court has taken the
view that justice must be tempered with
mercy and that the erring workman should
be given an opportunity to reform himself
and prove to be a loyal and disciplined
employee of the petitioner Company. It
cannot therefore be said that merely
because the Labour Court had found the
enquiry to be fair and lawful and the
findings not to be vitiated in any
manner, it ought not to have interfered
with the order of termination of service
passed against the respondent in exercise
of its powers under Section 6(2A) of the
Act.
9. Before parting with the matter, we would
however like to observe that we hope and
trust that the respondent will conduct
himself in future in such a manner as to
prove himself to be a dedicated and
worthy employee of a public sector
concern. It will not only be in the
interests of the respondent but in the
interests of all the workers as well as
the petitioner company if the respondent
and all the workers like him perform
their duties in such a manner as to
promote the interests and welfare of a
public sector concern like the petitioner
company.”
11. In the fact of this case the view taken by the
Labour Court is almost at the side of giving a
reformative steps in favour of the workmen so erring
workmen can improve himself and become a discipline
employee because of the fact that it was of one
misconduct committed by the workmen in the entire
service. Therefore, considering the entire facts and
circumstances of the case and submissions made by
Mr.Nagarkar is not accepted by this Court.
12. For the reasons stated above according to my
opinion, the view taken by the Labour Court is perfectly
alright, just and fair. No error has been committed by
the Labour Court while passing an award, no irregularity
is committed by the Labour Court and require no
interference by this Court while exercising the power
under Article 227 of the Constitution of India.
Therefore, there is no substance in the present petition
and present petition is dismissed. Rule discharged, ad
interim releif stands vacated. It is made clear that
condition which has been incorporated by this Court while
granting the stay that petitioner has to pay 25%
backwages with 12% interest that condition has also been
deleted by this Court and, therefore, now the petitioner
has to pay only 25% backwages of interim period without
any interest to the workmen.