CASE NO.: Appeal (civil) 1664 of 2008 PETITIONER: PEPSU ROAD TRANSPORT CORP RESPONDENT: RAWEL SINGH DATE OF JUDGMENT: 29/02/2008 BENCH: C.K. THAKKER & D. K. JAIN JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 1664 OF 2008
ARISING OUT OF Special Leave Petition (C) No. 2747 of 2007
C.K. Thakker, J.
1. Leave granted.
2. This appeal is filed against an
award passed by the Presiding Officer of Labour
Court, Jallandhur on January 31, 2006 in
Reference No. 608 of 2000 and confirmed by the
High Court of Punjab and Haryana on November
10, 2006 in Civil Writ Petition No.11570 of
2006.
3. Shortly stated the facts of the case
are that the respondent-workman was serving as
a Driver with the Pepsu Road Transport
Corporation (‘the Corporation’ for short). On
September 8, 1988, the respondent sent a leave
application from his home-town seeking leave
upto September 30, 1988 on medical ground. On
expiry of the leave period, however, he did not
join duties. A report was submitted by the
Depot Manager to the Corporation and a notice
was issued to the workman on December 5, 1988
seeking his explanation as to absence from
duty. He was also asked to report within ten
days. Though the said notice was duly served,
the respondent failed to join duty. A charge
sheet was, therefore, issued against the
respondent wherein three allegations were
levelled against him (i) knowingly and
intentionally remaining absent without sanction
of leave and without sending leave application,
(ii) failure to take interest in work and (iii)
disobedience of Rules of Corporation.
4. A reply was filed by the respondent
denying allegations levelled against him and
praying for withdrawal of notice. The
Corporation was not satisfied with the
explanation. An enquiry was instituted against
the workman. Though the respondent was fully
aware and had knowledge of date of hearing, he
failed to appear before the Enquiry Officer and
the enquiry was held ex parte. On the basis of
evidence led by management, a finding was
recorded by the Enquiry Officer that the
charges levelled against the respondent-workman
were proved. After the receipt of Enquiry
Officer’s report again show cause notice was
issued to the respondent on June 20, 1989 and
he was asked to submit his representation
within fifteen days. He was also asked to
remain present, if he wanted personal hearing,
but the respondent failed to remain present.
5. Considering the reply submitted by the
respondent, the Disciplinary Authority passed
an order of termination of services of the
workman on July 13, 1989.
6. Being aggrieved by the order of
termination, the respondent instituted a suit
in the Court of Sub-Judge Kapurthala. It was
contended by him that the order of termination
was illegal, cryptic, unfair and contrary to
the principles of natural justice and fair
play. Though the Corporation filed written
statement, contested the matter and denied all
the averments made and allegations levelled
against the Corporation, the trial court, on
June 3, 1993 decreed the suit holding that the
order was not sustainable as it was violative
of principles of natural justice as also
inconsistent with the provisions of Service
Rules of the Corporation. The Court, therefore,
granted reinstatement of the plaintiff-employee
granting liberty to the Corporation to hold
fresh enquiry on the same charges. The
Corporation preferred an appeal against the
decree passed by the trial court but the
appellate court confirmed the decree. The
matter came to an end there; the workman was
reinstated in service and granted all the
benefits to which he was held entitled under
the decree.
7. In the light of the observations made
and liberty granted by the Court, fresh enquiry
was instituted against the respondent. A show
cause notice was issued which was duly received
by the respondent but he did not participate in
the enquiry. Enquiry was, therefore, proceeded
ex parte. According to the Corporation, it was
the modus operandi of the workman not to remain
present at the enquiry as he was working with
private bus operators and thereafter to
challenge ex parte orders. In the second
enquiry also, he did not cooperate. He
contended that he had not received necessary
documents. He did not join the proceedings,
remained absent and allowed the enquiry to
proceed ex parte. Finally, he was dismissed
from service. Being aggrieved by the said
action, he raised an Industrial Dispute and a
reference was made under Section 10 of the
Industrial Disputes Act, 1947 (hereinafter
referred to as ‘the Act’). The Labour Court,
Jallandhar, as stated above passed an award in
favour of the workman on January 31, 2006 which
was confirmed by the High Court against which
the present appeal is filed by the Corporation.
8. Notice was issued by this Court on
February 23, 2007 and ad interim stay was also
granted. The matter was thereafter ordered to
be placed for hearing and that is how the
matter is before us.
9. We have heard learned counsel for the
parties.
10. The learned counsel for the appellant
-Corporation contended that the Labour Court as
well as the High Court have committed an error
of law and of jurisdiction in passing the award
in favour of the respondent-workman. It was
submitted that the charges levelled against the
respondent were proved. Though opportunity of
hearing had been afforded to the respondent, he
did not avail of such opportunity and it could
not be said that the enquiry was improper or
unfair. So far as documents are concerned, it
was submitted that the documents had already
been supplied to the respondent and he had
admitted the said fact. According to the
report of the Enquiry Officer, all the three
charges levelled against the respondent were
proved. If, in the light of the above report,
the respondent was dismissed from service, it
could not be said that no such order could have
been passed and it was liable to be set aside.
The Labour Court was wrong in holding that
enquiry was not in consonance with law. It was
also wrong to exercise power under Section 11 A
of the Act and to grant reinstatement. Serious
grievance was made by the learned counsel
against the direction to pay back wages. It was
submitted that even if the Labour Court was
satisfied that it was a fit case to exercise
power under Section 11A of the Act, on the
facts and in circumstances of the case, it
could not have awarded full back wages with
interest @ 6%. This is particularly in view
the consistent conduct of the respondent-
workman in not cooperating with the
disciplinary proceedings. It was, therefore,
submitted that the appeal deserves to be
allowed by setting aside the award passed by
the Labour Court and confirmed by the High
Court.
11. Learned counsel for the respondent, on
the other hand, supported the orders. It was
contended that the Labour Court, recorded a
finding of fact that principles of natural
justice had not been observed and hence enquiry
could not be said to be fair and in consonance
with law. The Labour Court was also right in
exercising power under Section 11A of the Act
and no fault can be found against such action.
The High Court in exercise of supervisory
jurisdiction did not think it proper to
interfere with the award and this Court may not
exercise discretionary and equitable
jurisdiction under Article 136 of the
Constitution. The counsel, therefore, submitted
that the appeal may be dismissed.
12. Having heard the learned counsel for
the parties and considering the facts and
circumstances in their entirety, in our
opinion, the appeal deserves to be partly
allowed. As already observed by us, even at an
earlier occasion, when allegations were
levelled against the respondent-workman, notice
was issued and enquiry was instituted, he did
not make himself available and the Enquiry
Officer was constrained to proceed with the
enquiry ex parte and an order of termination of
services was passed. True it is that the
respondent-workman approached Civil Court and
the suit filed by him came to be allowed and
the decree was confirmed in appeal. But it is
equally true that liberty was granted to the
Corporation to initiate proceedings afresh on
the same charges and hence initiation of
proceedings could not be said to be illegal or
contrary to law. From the record, it is clear
that notice was issued to the respondent and it
was received by him, he filed his reply, he
also appeared before the Enquiry Officer but
subsequently he did not remain present and
absented himself. If, in the light of the
above facts, Enquiry Officer was obliged to
proceed with the enquiry ex parte, it could not
be said that by doing so, the Enquiry Officer
had committed an error either of fact or of law
and the enquiry proceedings were liable to be
quashed.
13. With regard to supply of documents,
record reveals that the documents had been
supplied to the workman and the said fact had
been admitted by him. His case, however, was
that due to heavy rain, all the documents were
destroyed which necessitated supply of fresh
documents. But as observed by the Enquiry
Officer, the workman was asked as to whether he
required any document but the workman replied
in the negative. In our opinion, he could have
continued to appear before the Enquiry Officer,
got the documents, if he wanted, and
participated in the enquiry. He, however,
deliberately did not do so. It is alleged by
the Corporation that the respondent
intentionally remained absent as he was working
with private bus operators and wanted to take a
chance if enquiry proceedings are quashed and
set aside on the plea of violation of
principles of natural justice. We are not
entering into correctness or otherwise of the
allegations of the Corporation. One thing,
however, is certain that in spite of service of
show cause notice, the respondent failed to
appear at the enquiry and the Enquiry Officer
had to proceed with the enquiry in absence of
the respondent.
14. Apart from that it is also clear from
the record that so far as the charge as to
unauthorized absence of the respondent is
concerned, the same is duly established from
the record. The Enquiry Officer, in our
opinion, rightly observed that charges (ii) and
(iii) were consequential in nature and based on
charge (i) and hence all the charges can be
said to have been proved against the
respondent. In our judgment, the Labour Court
was wholly wrong in holding that enquiry was
not fair. To us, it is not a case of not
extending an opportunity to the employee but
not availing of opportunity by the employee.
Therefore, the finding recorded by the Labour
Court that the enquiry was vitiated being
violative of natural justice and fair play is
based on ‘no evidence’ and must be set aside.
15. But as far as the second question is
concerned, the Labour Court exercised power
under Section 11A of the Act. Taking
allegations of the appellant Corporation on
face value, it is clear that the respondent-
workman remained absent for few days
unauthorisedly without his leave being
sanctioned. Charges (ii) and (iii) were
consequential even according to the finding
recorded by the Enquiry Officer to the effect
that he failed to take interest in work and he
did not obey the Rules framed by the
Corporation. In the light of the above
‘misconduct’, the Labour Court thought that it
was a fit case to invoke Section 11A of the
Act. The High Court also, in exercise of
supervisory jurisdiction did not interfere with
that part of the order. In our considered
opinion, submission of the learned counsel for
the respondent-workman is well-founded that
this Court while exercising power under Article
136 of the Constitution may not interfere with
that part of the order. The dismissal of
workman on the ground of absence for few days,
according to the Labour Court, was grossly
disproportionate and excessively high. In our
judgment, the Labour Court had not committed
error of law in recording such finding.
Reinstatement granted to the respondent-
workman, therefore, needs no interference.
16. The question then remains with regard
to consequential benefits and payment of back
wages. Once we hold, and we have already held,
that the enquiry could not be said to be
contrary to law or in violation of principles
of natural justice and fair play, it was the
duty of the respondent-workman to cooperate
with such enquiry and participate in
disciplinary proceedings. The workman failed
to do so. In the circumstances, in our
opinion, Corporation should not be asked to pay
back wags to the workman. Had the respondent
remained present at the enquiry proceedings, an
appropriate order could have been passed by
Enquiry Officer after considering his case and
after hearing him. There was thus default and
failure on the part of the workman himself
which resulted in the situation which has
arisen. In view of this, in our view, the
Labour Court was not right in awarding back
wages with interest thereon. To that extent,
therefore, the order could not be said to be in
consonance with law. The High Court, in
upholding the said award and confirming the
direction, committed the same error. That part
of the direction, therefore, is required to be
set aside.
17. For the foregoing reasons, the appeal
is partly allowed. The award passed by the
Labour Court and confirmed by the High Court so
far as reinstatement of the respondent-workman
is concerned, is not disturbed. But the
direction issued by the Labour Court to the
appellant- Corporation to pay back wages to the
respondent workman with interest thereon as
confirmed by the High Court is hereby set
aside. The respondent-workman will be treated
in continuous service. He will also be entitled
to consequential benefits on setting aside of
dismissal order but he is held not entitled to
back wages for the period for which he has not
worked.
18. Ordered accordingly.