IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.16741 of 2000
Date of decision:05.09.2009
Harnek Singh ...Petitioner
versus
State of Haryana and others ...Respondents
CORAM: HON'BLE MR. JUSTICE K.KANNAN
Present: Mr. Gurcharan Dass, Advocate, for the petitioner.
Ms. Monica Chhibbar Sharma, Deputy Advocate General,
Punjab.
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1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
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K.Kannan, J.(Oral)
1. The award under challenge is only as regards the
modification of punishment that was made by the Labour Court. The
workman had been served with an order of termination of service for
absence from duty from 14.09.1984 to 20.12.1984 unauthorizedly. The
Labour Court found the punishment to be excessive and by applying the
powers under Section 11-A of the Industrial Disputes Act modified the
punishment to one of withdrawal of three increments with cumulative
effect.
2. The award was passed by the Labour Court on 29.02.1996
and the challenge was made in the writ petition by filing the case
on 29.11.2000. The contention of the learned counsel was that the
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punishment which was substituted by the Labour Court itself was grossly
excessive. He would point out that the absence from duty from
14.09.1984 to 20.12.1984 when the order of termination was issued was
on account of the fact that he was not permitted to join the duty and it
was not merely a case of unauthorized absence. Before the Labour
Court, evidence was tendered to the effect that he joined duty after leave
from 11.07.1984 to 31.08.1984 on 01.09.1984. He continued in duty
upto 13.09.1984 after which he remained absent. The workman sought
to file documents in Court showing that he had sent letters offering to
resume duty when the workman had prevented from joining. The Labour
Court considered the copies of the letter to have been procured for the
purpose of the case and did not believe the genuineness of the
documents. It found, therefore, the misconduct attributed to him to had
been established.
3. The learned counsel appearing for the workman would
contend again that the change of address had been informed to the
management and all the communications which had been sent were
directed only from his changed address and the finding of the Labour
Court that the documents were not true, was not justified. The finding of
the Labour Court on the genuineness of the documents had been made on
the basis of the fact that the workman filed the same after substantially a
long period and the demand notice itself had been issued fairly after a
long period and found also that the documents could not be true. I do not
feel inclined to interfere with a question of fact and the inference
made by the Labour Court after setting out its reasons. If the proof of
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misconduct was thus established, the Labour Court had given a finding
that the punishment of dismissal was excessive and modified in the
manner referred to above. The further interference as regards the
punishment and provide for a still lesser punishment seems to be out of
place before this Court. The jurisdiction and the breadth of discretion
under Article 226 is not unbridled. It conforms to well established legal
norms and parameters. The interference in the matter of punishment
shall be only in cases where the punishment is either capricious or
grossly disproportionate. I do not think it shall be proper to interfere
with the punishment already imposed.
4. The learned counsel for the workman sought to contend that
even the punishment of stoppage of increments with cumulative effect
was not provided under the Punjab Civil Services (Punishment and
Appeal) Rules. He refers to Rule 5 of the penalties that prescribes in sub-
clause (iv) a provision for withholding of increments of pay. There is no
reference according to him for withholding of pay with cumulative
effect. A decision of the Division Bench of this Court in relation to Rule
5(iv) was made in Sham Lal Versus District and Sessions Judge,
Ferozepur-1994(3) SCT 829. The Division Bench was dealing with the
case of the extent of minor penalties which the rules provided for. The
Court found on examination of records that the management was
thinking of applying only a punishment as a minor penalty and it had
specifically referred in paragraph 8 “To arrive at this conclusion, we had
to peruse the nature of the charges levelled against the delinquent
officials and the report of the Inquiry Officers. The petitions can be
Civil Writ Petition No.16741 of 2000 -4-
disposed of appropriately with a direction of punishment to be
simpliciter withholding of increment for the period specified in the
orders impugned before us without having cumulative effect.” This
modification was made in the context of how the Court perceived even
the management to have seen the misconduct and that the penalty that
was contemplated was only a minor penalty. In this case, the
unauthorized absence beyond the sanctioned leave for three months
constituted major misconduct. The major penalty provided for included
the action for termination of service. It was not a case where the
misconduct was not established. The misconduct was found established
but still the punishment of termination was found to be excessive and,
therefore, the modification was made. The major penalty includes a
provision for stoppage of increments and putting him even on lower
scale. The stoppage of three increments with cumulative effect was,
therefore, a punishment which is not against any rule, but if the conduct
is taken to be a major misconduct, a punishment of such a nature was
perfectly justified. The Court will be loathe to interfere in matters of the
quantum of punishment if it is a case where the power of the Court to
inflict such punishment is also seen as not in contravention of any rule.
5. The writ petition itself was a belated attempt on the part of
the workman to seek a modification as regards the punishment. The
award of the Labour Court as I have already indicated was in February,
1996 and the writ petition was filed in November 2000, that was close
to five years, after the impugned award. The writ petition would
require a rejection without more on the ground of laches itself but I have
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undertaken the exercise of examining the case on merits lest the
workman is ever left with a belief that his grievance was not fully
addressed.
6. The award, under the circumstances, is fully justified and the
challenge to the writ petition fails and accordingly dismissed.
(K.KANNAN)
JUDGE
05.09.2009
sanjeev