JUDGMENT
1. This Petition under Articles 226 and 227 of the Constitution of India impugns an order of the Industrial Court, Kolhapur, dated September 2, 1987, made in Appeal (IC) No. 16 of 1986 and Appeal (IC) No. 17 of 1986, under the provisions of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as ‘the Act’).
2. The First Respondent is a sugar manufacturing concern covered under the provisions of the Act. The Petitioner was employed as a Clerk in the factory of the First Respondent. He was last drawing a wage of Rs. 792 per month. He was removed from service with effect from November 19, 1982 by an Order dated November 1, 1983, on the ground that he had remained absent unauthorisedly from November 19, 1982 and that a Memo dated December 6, 1982 sent at his residential address had been returned unserved. By the Order dated January 1, 1983, the Petitioner was informed that he had been removed from service with effect from November 19, 1982 from which date he was said to have remained absent from service unauthorisedly.
3. The Petitioner challenged the termination of his service by his Application (LCK) No. 30 of 1983 before the Labour Court, Kolhapur. The Petitioner gave evidence before the Labour Court that, on November 18, 1982, while he was on duty, he became sick and he wanted to go home; that he had tendered application for leave for three days, which he kept in the Sonage Centre in the Muster Roll, and went to his house, that he waited for the Fieldman till 6.30 p.m., but, as the Fieldman did not come, he had to return home without informing the Fieldrnan; that, since he did not recover from sickness within three days, he sent an application extending his leave from November 21, 1982 to December 8, 1982, through the slip boy, Sadashiv Bandu Chogule; that he had again extended his leave from December 9, 1982 to January 8, 1983 and had sent another application extending leave from January 9, 1983 to January 18, 1983; that the application was supported by the doctor’s certificate. But he had received no reply from the First Respondent sanctioning or refusing the leave. The Petitioner also, examined Sadashiv Bandu Chougule, the slip boy, who confirmed that he had carried the application made by the Petitioner and handed it over to Namdeo Nama Kumbhar, the Fieldman, at Sonage Centre. Kumbhar was not examined before the Labour Court, nor was anyone else examined on behalf of the First Respondent. The First Respondent took the stand that no leave application had been received and that, if any application for leave had been actually received, the order passed thereupon would have been definitely communicated to the Petitioner. A report from the Petitioner to the Managing Director of the First Respondent made on January 19, 1983 stating that he was on sick leave from November 19, 1982 to January 18, 1983 and that he had sent applications for extension of leave accompanied by the medical certificate, was also placed on record. That application appears to have been received by the First Respondent. Though the First Respondent disputed having received a medical certificate and the previous application for extension of leave, considering the fact that the Petitioner was employed in service for about 20 years and that it was the first occasion when there was unauthorised absence from duty, the Labour Court took the view that the circumstances did not warrant the harsh decision to terminate his service, though at the most, it could be said that the Petitioner was a little careless about producing his medical certificate in time. The Labour Court held that the termination of his service was a drastic action disproportionate to the fault of the Petitioner and amounted to shockingly disproportionate punishment. In this view of the matter, the Labour Court reinstated the Petitioner without back wages and without continuity of service.
4. Being dissatisfied by the judgment of the Labour Court, both the Petitioner and the First Respondent appealed to the Industrial Court. The Appeal of the Petitioner was numbered as Appeal (IC) No. 17 of 1986 and the Appeal of the First Respondent was numbered as Appeal (IC) No. 16 of 1986. The Industrial Court took the view that there was nothing to hold that the removal from service could be said to be punishment for a misconduct and, therefore, there was no question of holding a domestic inquiry to prove the misconduct; since the removal from service was not an order of punishment, it was not possible to say that there was any grossly disproportionate punishment and, under the Standing Orders, there was no alternative for termination of service in such cases. The Industrial Court also adversely commented on the fact that Dr. Sant, who was treating the Petitioner, had not been examined before the trial Court, nor his certificate produced on record. The Industrial Court took the view that the Petitioner had to show that, during the entire period of his illness, right from November 21, 1982 to January 16, 1983, he was at Kolhapur, by examining some material witness. Since the Petitioner had failed to do so, the Industrial Court felt that there was no alternative but to terminate his service. In this view of the matter, the Industrial Court allowed the Appeal of the First Respondent and dismissed the Appeal of the Petitioner. Being aggrieved, the Petitioner is before this Court.
5. In my view, the only question which needs to be considered is : Whether the story of sickness put forward by the Petitioner is genuine or not ? If it is, he is entitled to some consideration. The Petitioner relied on a certificate dated November 8, 1983 issued by one Dr. Udayprakash D. Sant certifying that the Petitioner was suffering from “Enteric Fever with General Debility”, that he was under his treatment and further that he was advised rest for two months from November 19, 1982 to January 18, 1983. The learned Advocate of the Petitioner has shown to this Court a xerox copy of the said certificate and maintained that the original was already forwarded to the First Respondent, though the First Respondent has disputed the said fact. In my view, it is not possible to say that the certificate of Dr. Udayprakash D. Sant is a fabricated document or that there was no basis whatsoever in the story of sickness put forward by the Petitioner. It is significant that the sickness certified by the doctor is Enteric fever, which is the generic name given to Typhoid. It is common knowledge that such fever requires extended course of treatment before the patient becomes fit to “resume his normal activities”. In these circumstances, the story of the Petitioner that he was genuinely sick and that the nature of sickness was such that it required abstention from duty for an extended period of about two months, rings true. I am inclined to agree with the assessment of the Labour Court that it was negligence on the part of the Petitioner not to have meticulously submitted the leave application and the medical certificate in time. I am also inclined to agree with the assessment of the Labour Court that an employee, who worked for 20 years, could not have been jettisoned for this solitary lapse on his part. Deprivation of backwages and continuity of service was in itself a sufficiently stinging punishment for the employee and, in my view, it is not necessary to deprive him of his job also. I am of the view that the approach of the Industrial Court was too technical in appraising the matter and needs to be interfered with, in the interest of justice.
6. I am of the view that the Petition needs to be allowed, Rule made absolute and the impugned order of the Industrial Court, Kolhapur, dated September 2, 1987 should be quashed and set aside and the order of the Labour Court dated September 29, 1986 made in Application (LCK) No. 30 of 1983 be restored.
7. Though the legal consequence of restoration of the order of the Labour Court would be payment of wages from the date of the Labour Court’s order, it is pointed out by Mr. Patil, learned Advocate for the First Respondent, that as far back as December 1, 1986, the First Respondent had addressed a letter to the Petitioner to come back to duty, as directed by the Labour Court. A xerox copy of the said letter, together with the xerox copy of the postal acknowledgment, is shown to me. The learned Advocate for the Petitioner is not in a position to give any satisfactory explanation as to why, despite the unqualified offer to take him back in service in 1986, the Petitioner did not rejoin duty. In these circumstances, I do not think that the Petitioner would be justified in claiming wages from the date of the Labour Court’s order till today.
8. In the result, Petition is partly allowed and Rule partly made absolute in that the impugned order of the Industrial Court is quashed and set aside and the Order dated September 29, 1983 made by the Labour Court in Application (LCK) No. 30 of 1983 is restored, provided, however, that the Petitioner shall not be entitled to claim back wages from December 1, 1986.
9. If at all the Petitioner is interested in joining service on the terms indicated in the order of the Labour Court, Kolhapur, dated September 29, 1986 made in the Application (LCK) No. 30 of 1983, he shall do so not later than January 1, 1995, failing which he shall have no right for re-employment. It is made clear that he shall be entitled to wages only from the date he joins duty.
10. Rule made absolute in the aforesaid terms. No order as to costs.
11. Certified copy expedited.