BATLIBOI AND COMPANY Vs. MOHMADHANIF ISMAIL MANSURI

JUDGEMENT

(1.) Heard learned advocate Mr.Gandhi for the petitioner and Mr. Pathak for the respondent workman. In this petition,the petitioner has challenged the award made by the labour court, Surat in Reference No. 171 of 1998 dated 30th July, 2001 wherein the labour court has granted reinstatement with continuity of service, with 60 per cent of the back wages for the intervening period.

(2.) Learned advocate Mr. Gandhi appearing for the petitioner has submitted that the petitioner was the habitual offender remaining absent in each year from1991 to 1996 almost in each year, his absence was more than 25 days and in some years, it was about 100 days and more than 50 and 131 days and, therefore, according to him, considering his past conduct he was served with the charge sheet dated 15.2.1998 wherein he remained absent in all for 124 days between January, 1997 to December, 1997 and therefore, he was asked to submit explanation by the petitioner and, thereafter, departmental inquiry was initiated against him wherein he admitted the charge and requested for pardoning him was made and ultimately he was dismissed by the petitioner on 20th April, 1998. Before dismissing him from service, he was served with a second show cause notice. Said order of dismissal was challenged by the respondent before the labour court Surat wherein the labour court granted reinstatement with other reliefs as stated earlier. It was submitted by him that the labour court has committed error in granting reinstatement to the respondent workman. He also submitted that before the labour court, written statement to the statement of claim was filed by the petitioner at Exh.11 and the necessary documents in support of the written statement were also produced by the petitioner vide Exh. 12 and the workman has also produced the document at Exh. 13. He also submitted that in view of the evidence produced by the petitioner before the labour court, the labour court ought not to have granted any relief in favour of the petitioner. He also submitted that in view of the evidence on record before the labour court, the labour court has committed error in recording the finding that the order of punishment is harsh and unjustified. According to him, labour court ought not to have granted any relief in favour of such habitual offender. According to him, grant of back wages to the extent of 60 per cent for the intervening period was a premium given by the labour court to the habitual offender and, therefore, the award of reinstatement is required to be quashed and set aside. He has submitted that the award of reinstatement with 60 per cent of the back wages for the intervening period is not proper and therefore, that part of the award is required to be set aside. Except these submissions, no other submissions were made by the learned advocate for the petitioner.

(3.) As against that, it was submitted by the learned advocate Mr. Pathak on behalf of the respondent workman that for his remaining absent for the period as stated earlier, the workman has requested for pardoning him as he has admitted the misconduct and it was his prayer before the petitioner to condone the lapses committed by him. He also submitted that the workman had undertaken before the authority at the relevant time that he will not repeat the same type of misconduct in future and, therefore, in such circumstances, considering the explanation and the prayer made by the workman, the petitioner was not justified in dismissing the respondent workman from service. According to him, there was arbitrariness on the part of the petitioner in dismissing the petitioner from service and no reasons were given for not considering his explanation and not giving him chance for improvement. According to him, to remain absent without prior permission of the employer has been considered to be the serious misconduct but various High Courts and the Hon'ble Supreme Court have time and again considered this aspect and has always held that the punishment of dismissal for such misconduct is harsh and unjustified and, therefore, considering the misconduct committed by the workman and also considering the explanation and the request for condoning the lapses on his part, the labour court was right in granting the reinstatement by exercising the discretion vested in it and, therefore, it was his submission that the award of reinstatement made by the labour court does not call for any interference of this court. As regards back wages for the intervening period, it was submitted by him that he is leaving this aspect at the discretion of this court and the court may pass appropriate order modifying the award in respect of the back wages only with a view to put an end to this litigation.