THE GENERAL MANAGER Vs. PREM SINGH

JUDGEMENT

(1.) Challenge in the present writ petition, by the petitioner-Management, is to the award dated 07.08.2008 (Annexure P-10), passed by the Labour Court, Hisar, vide which, the workman has been directed to be reinstated, whose services were terminated on the ground of absence from duty. The benefit of continuity of service along with all other consequential benefits, including 40% back wages, from the date of issuance of the demand notice, i.e., 01.10.1999 till the date of publication of award and full back wages, thereafter, till reinstatement, on the ground that the dismissal order was too harsh and thus, excessive.

(2.) A perusal of the paperbook would go on to show that the workman raised demand notice dated 01.10.1999 (Annexure P-8), under Section 2-A of the Industrial Disputes Act, 1947 (for short, the 'Act') on the ground that he was appointed as Driver in the Haryana Roadways on 01.01.1990, on regular basis, through Service Selection Board, after proper selection. He had fallen ill on 03.01.1995 and joined back on duty on 07.02.1995 and also remained absent on 12.02.1995, due to the illness. A chargesheet was issued to him on the ground of wilful absence and an Enquiry Officer was appointed to conduct departmental enquiry, which was conducted in an arbitrary manner, without following the proper procedure and on the basis of the said enquiry, the services of the workman were terminated on 07.12.1998. The department, in its reply, submitted that the workman's work and conduct was not upto the mark and that he remained absent from duty for the period, as mentioned above and show cause notices were issued to him to come on duty and accordingly, he was chargesheeted on 07.03.1995 and since he failed to reply to the chargesheet, an Enquiry Officer was appointed to look into the allegations. Publication was done to give him personal hearing but he did not turn up and the termination order was passed. On the matter being referred to the Labour Court, the Enquiry Officer's report was taken into consideration. It was noticed that the workman, who appeared as WW1, had deposed that he had fallen sick and that he reported for duty on 12.02.1995 and he also submitted his leave application for the absent period. The deposition of the Enquiry Officer, S.K.Maheshwari, MW2, was taken into account and Labour Court came to the finding that the report was not fair and proper since the Enquiry Officer himself had admitted that he had not recorded the statements of the complainants. It was noticed that once the leave had been applied for and sanctioned by the competent authority and the application also received for the relevant period, it cannot be said that he remained wilfully absent. Accordingly, the termination of the services of the workman were held to be highly disproportionate and excessive, for the said charge and the relief of reinstatement was granted with continuity of service and back wages to the extent of 40%.

(3.) This Court noticed the fact that it would be material to note whether the period of absence of the respondent-workman was treated as leave of kind due and whether he was paid salary for the period of absence, as it would have direct affect on the merits of the case. The affidavit of the Officiating Superintendent was filed wherein it has been deposed that the workman had remained absent from 03.01.1995 to 07.02.1995 and on 12.02.1995. It has further been deposed that the period of unauthorized absence was not converted into sanctioned leave and only the pay for the month of February, 1995 was made, inadvertently, due to clerical mistake and thus, there is admission that the salary was paid for the month of February, 1995. Relevant portion of the affidavit reads as under: