Bombay High Court
Balasaheb Madhukar Bende vs The General Manager And Anr on 21 September, 2016
Bench: R.M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6804 OF 2005
Mr. Balasaheb Madhukar Bende )
Aged about 42 years, Occ - Nil )
At Post & Taluka Mangalwedha )
District Solapur, Maharashtra ) ..Petitioner
Versus
1 The General Manager )
BEST undertakings BEST Bhavan, )
Bombay 400 001 )
2 The State of Maharashtra
ig ) ..Respondents
Mr. Machindra Patil for the Petitioner
Mr. P. M. Palshikar i/b M/s M. V. Kini & Co. for the Respondent No.1
CORAM : R. M. SAVANT, J.
DATE : 21st SEPTEMBER, 2016
ORAL JUDGMENT
1 The Writ Jurisdiction of this Court under Article 227 of the
Constitution of Indian is invoked against the judgment and order dated 1-2-
2005 passed by the Learned President of the Industrial Court, Mumbai by
which order the Appeal filed by the Petitioner being Appeal (IC) No.13 of 2004
came to be dismissed and resultantly the order dated 7-10-2003 passed by the
Learned Judge of the 8th Labour Court Mumbai dismissing the Application
(BIR) No.49 of 2001 came to be confirmed.
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2 The facts giving rise to the above Petition in brief can be stated
thus:- The Petitioner herein was appointed as a bus conductor by the
Respondent No.1 on 5-4-1989. The Petitioner remained absent between 11-10-
1999 to September 2000 for a period of 43 days. It seems that out of the said
43 days, he had applied for sick leave for 25 days for which he has forwarded
medical certificates, he applied for 7 days casual leave and the balance 11 days
of absence was without any permission or application. In view of the said
absence, a charge sheet came to be issued to the Petitioner under the Standing
Orders of the Respondent No.1 i.e. BEST Undertaking and especially clause
20(f) of the said Standing Orders which reads thus:
20 The following acts or omissions on the part
of an employee shall amount to misconduct :-
(a) ......
(b) ......
(c) .......
(d) .......
(e) ......
(f) habitual absence without leave or absence
without leave for more than fifteen consecutive
days or overstaying sanctioned leave without
sufficient grounds or proper or satisfactory
explanation.
Hence the misconduct alleged against the Petitioner was one of
habitual absence, an inquiry was commenced against the Petitioner pursuant
to the said charge sheet. The Petitioner participated in the said inquiry. In the
said inquiry witnesses were examined on behalf of the Respondent No.1. The
inquiry officer on the basis of the leave record of the Petitioner came to a
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conclusion that the charge against the Petitioner was proved. The inquiry
officer observed that there was no sick leave to the credit of the Petitioner as
also no casual leave to his credit and therefore the sick leave to the extent of
25 days and the casual leave of 7 days was not sanctioned by the Respondent
No.1. The inquiry officer held that in so far as the balance remaining 11 days
of absence is concerned, there was absolutely no explanation or application in
that regard. The inquiry officer as indicated above accordingly held that the
charge was proved against the Petitioner. The Discipline Authority who was
also the inquiry officer i.e. Traffic Officer having regard to the past record of
the Petitioner which disclosed that he had been punished on as many as 7
occasions in the past for absence deemed it appropriate to impose the
punishment of dismissal from service upon the Petitioner.
3 The Petitioner aggrieved by the said order of dismissal challenged
the same by way of a departmental First Appeal which came to be dismissed
by the Assistant Traffic Controller. The Petitioner thereafter filed a Second
Appeal which came to be dismissed by the Traffic Manager of the Respondent
No.1 by order dated 7-3-2001. This gave rise to the Petitioner serving a
demand notice on the Respondent No.1 under the provisions of Bombay
Industrial Relations Act now known as Maharashtra Industrial Relations Act,
(for short the said Act) calling upon the Respondent No.1 to reinstate the
Petitioner in service with consequential benefits. Since the said demand notice
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did not evince the expected reply from the Respondent No.1, the Petitioner
filed an application under the said Act being Application No.49 of 2001
challenging the order of dismissal passed by the Respondent No.1. In the said
application, the Petitioner sought to appropriate his absence for 43 days by
appropriating 25 days to sick leave, 7 days to casual leave and therefore
according to the Petitioner what remained was only 11 days of absence. It was
therefore the case of the Petitioner that for the said 11 days of absence the
punishment of dismissal was very harsh. The Petitioner also sought to allude to
his presence in the company in different years in which years according to the
Petitioner he was not absent for more than 1 day. It was also the case of the
Petitioner that the inquiry conducted against him was not fair and proper and
that the inquiry was conducted in a very hasty manner and concluded as such.
3 The Respondent No.1 filed its Written Statement. In the said
Written Statement the Respondent No.1 justified that the inquiry was fair and
proper and that the action of dismissal was taken against the Petitioner after
following the principles of natural justice. It was the case of the Respondent
No.1 that in so far as the leave application is concerned, it could not be said
that the said leave applications were rejected in an illegal or wrong manner or
that the Petitioner was entitled to sick leave as he has produced the medical
certificates or that the Petitioner was wrongly marked absent though he had
leave to his credit. The Learned Judge of the Labour Court having regard to
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the pleadings on record framed the following issues :
1 Whether the enquiry is fair and proper
2 Whether the findings are proper
3 Whether the punishment is harsh and
proportionate
4 Whether the applicant is entitled to the reliefs
5 What order
4 The parties did not lead evidence but however relied upon
judgments before the Labour Court. It was sought to be contended on behalf of
the Petitioner that a show cause notice prior to his dismissal was not issued
and therefore the order of dismissal was vitiated on the said ground. The said
contention was rejected by the Learned Judge of the Labour Court by holding
that for acceptance of such a contention, the prejudice that is caused to the
party could have to be shown. In the instant case, the Petitioner has failed to
show any such prejudice. The Labour Court thereafter proceeded to consider
whether the findings recorded by the inquiry officer were proper and whether
the punishment was disproportionate. The Learned Judge of the Labour Court
considered the material which was on record in respect of the leave availed by
the Petitioner. The Labour Court on such consideration held that the Petitioner
would be entitled to 25 days sick leave as the same does not depend on the
contingency of leave being available but can be granted if medical certificates
are produced. Hence according to the Labour Court 25 days absence could be
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accounted for, however, in so far as the balance 18 days are concerned, the
Labour Court held that the charge under Standing Orders 20(f) stands proved
against the Petitioner. The Labour Court thereafter proceeded to consider
whether the punishment of dismissal could be said to be disproportionate. In
the said context, the Labour Court adverted to 7 earlier punishments which
were imposed upon the Petitioner for the same misconduct and which the
Labour Court has tabulated on internal page 13 of the judgment. The same is
reproduced herein under:-
1 Dec 1990-91 Misconduct under 20(f) - Reduction in grade by 1st
step for 9 months.
2 Sept.1992-June Misconduct under 20(f) - Reduction in grade for 2
1993 yrs.
3 Jan-1994-Sept- Misconduct under 20(f) - Reduction in grade by 2
1994 steps permanently.
4 13-5-95 - 29-5-95 Misconduct under 20(f) - Reduction in grade by 1
year
5 Jan.97 - Dec. 97 Misconduct under 20(f) - Reduction in pay
6 12-10-98 - 29-10- Misconduct under 20(f) - 3 months suspension
7 Oct.99 - Sep.2000 Misconduct under 20(f) - Dismissed
The above tabulated statement discloses that various punishments
in the nature of reduction in rank, reduction in grade and suspension etc. were
imposed upon the Petitioner on the said 7 earlier occasions. The Labour Court
having regard to the past record as also having regard to the fact that in the
instant case since there was no justification for the absence of 18 days on the
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part of the Petitioner held that the findings recorded by the inquiry officer
were proper and that the punishment of dismissal was not disproportionate.
The Labour Court accordingly by judgment and order dated 7-10-2003
dismissed the application filed by the Petitioner.
5 The Petitioner aggrieved by the said order dated 7-10-2003 filed
an Appeal being Appeal (BIR) No.13 of 2004. The Industrial Court on a
reappreciation of the material on record in its Appellate jurisdiction confirmed
the findings of the Labour Court, in so far as whether the findings of the
inquiry officer that the charge was proved against the Petitioner was correct,
as also confirmed the finding of the Labour Court on the proportionality of the
punishment. The Industrial Court also adverted to the past record of the
Petitioner as also held that since the misconduct alleged by the Respondent
No.1, in the present inquiry has been held to be proved, the punishment of
dismissal could not be said to be disproportionate. Both the courts below have
also observed that the Respondent No.1 on the earlier occasions had adopted a
reformative approach but the same had no effect as the Petitioner continued
to remain habitually absent. The Industrial Court lastly observed that the
Respondent No.1 is a public undertaking and therefore such type of conduct
on the part of an employee cannot be countenanced as the same has a
cascading effect on the functioning of the Respondent No.1. The Industrial
Court accordingly by judgment and order dated 1-2-2005 dismissed the Appeal
filed by the Petitioner.
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6 The Learned Counsel for the Petitioner Mr. Patil would seek to
reurge the contentions which were urged on behalf of the Petitioner before
the courts below. It was the submission of the Learned Counsel that
considering the absence being ultimately of 11 days the punishment of
dismissal was harsh. The Learned Counsel would contend that an employee
could be charged under Standing Order 20(f) if he remains absent for more
than 15 consecutive days. In the instant case, according to the Learned
Counsel the absence was intermittent and not consecutive and therefore the
Petitioner could not be charged under Standing Order 20(f). It was also the
submission of the Learned Counsel that in facts which were worst than the
present case, the employees have been reinstated.
7 Per contra, the Learned Counsel appearing for the Respondent
No.1 Mr. Palshikar would support the impugned orders and would contend
that having regard to the findings of fact recorded by the courts below, no
interference is necessary with the impugned orders in the Writ Jurisdiction of
this Court under Article 227 of the Constitution of India. It was the submission
of the Learned Counsel that the Petitioner has been charged with habitual
absence which is covered by the first part of Standing Order 20(f). The
Learned Counsel sought to draw this courts attention to the past record of the
Petitioner wherein the Petitioner has been punished on as many as 7 occasions
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in the past. It was therefore the submission of the Learned Counsel that this is
a case where even though a reformative approach was adopted by the
Respondent No.1, the Petitioner still continued to remain absent without leave.
8 Having heard the Learned Counsel for the parties, I have
bestowed my anxious consideration to the rival contentions. The question that
is posed in the instant case is as to whether the findings recorded by the
inquiry officer that the charge of habitual absenteeism was proved against the
Petitioner requires interference and whether the punishment imposed upon
the Petitioner can be said to be harsh and disproportionate. As stated in the
earlier part of this judgment, the Petitioner has remained absent intermittently
from 11-10-1999 to September 2000 which absence was for 43 days. It has
come on record that the Petitioner did not have any sick leave nor any casual
leave to his credit. Hence the inquiry officer has held that in the absence of
any such leave being balance to the credit of the Petitioner, the said absence
could not be justified. The courts below i.e. the Labour Court and the
Industrial Court have held that 25 days absence could be appropriated towards
sick leave which according to the courts below can be granted in an emergent
situation arising if medical certificates are produced. However, the fact
remains that even if 25 days are to be appropriated towards sick leave there
still remains 18 days of absence which is unjustified in the absence of any
casual leave or any other leave remaining balance to the credit of the
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Petitioner. The aforesaid fact coupled with the past record of the Petitioner
therefore compounds the matter for the Petitioner. As indicated above, the
charge has been held to be proved by the inquiry officer and coupled with the
past record of the Petitioner, the inquiry officer deemed it appropriate to
impose the punishment of dismissal. Both the courts below have also endorsed
the punishment imposed by the inquiry officer by holding that the finding of
the inquiry officer that the charge is proved is proper. In so far as the
punishment is concerned, the inquiry officer as well as the Courts below have
held that the said punishment is not disproportionate having regard to the
charge of habitual absenteeism being proved as also having regard to the past
record of the Petitioner. Hence apart from the inquiry officer both the Labour
Court and the Industrial Court have concurrently held on the said two aspects
against the Petitioner. In so far as the contention of the Learned Counsel for
the Petitioner that a show cause notice was not issued to the Petitioner prior to
the imposition of the punishment of dismissal. It is trite by the judgments of
the Apex Court that the party who alleges such an infirmity has to demonstrate
as to what prejudice has been caused to it on account of non issuance of the
show cause notice. In the instant case as held by the Labour Court no such
prejudice was demonstrated by the Petitioner. This is a case of habitual
absenteeism and considering the fact that the Respondent No.1 is a public
utility catering to the residents of Mumbai, the absence of an employee
obviously has obviously some effect on its functioning and the same cannot be
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brushed away by contending that other employees are available.
9 In that view of the matter, there is no error of jurisdiction on the
part of the courts below, neither there is any illegality or infirmity for this
Court to exercise its Writ Jurisdiction under Article 227 of the Constitution of
India. The Writ Petition is accordingly dismissed. Rule discharged, with parties
to bear their respective costs.
[R.M.SAVANT, J]
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