Bombay High Court
The Depot Mgr., M.S.R.T. Corp vs Shri. Madhukar Sadashiv Bandal on 10 July, 2023
Bench: N. J. Jamadar
2023:BHC-AS:19327
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3628 OF 2020
M.S.R.T. Corporation, The Depot
Manager, MSRTC Bhor Depot, Pune
Division, Pune. ...Petitioner
Versus
Madhukar s/o Sadashiv Bandal
Age : Major, Occu. Nil
Residing at 797, Vetalpeth, Bhor,
Taluka, Bhor, Pune - 412 206 ...Respondent
Mr. Y. P. Deshmukh, for the Petitioner.
Ms. Sonali Kunekar, i/b Vikas Kisan Mahangare, for the
Respondent.
CORAM: N. J. JAMADAR, J.
DATED : 10th JULY, 2023
JUDGMENT:-
1. This petition under Article 227 of the Constitution of India
assails the legality, propriety and correctness of an award dated
30th October, 2017 passed by the learned Presiding Officer,
Labour Court, Pune, in Reference (IDA) No.385 of 2005, whereby
the reference came to be partly allowed directing the petitioner
Maharashtra State Road Transport Corporation ("MSRTC") -
first party, to pay full backwages to the respondent - second
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party from the date of termination of his services till the date of
retirement.
2. The petition arises in the backdrop of the following facts.
(a) The respondent joined MSRTC as a Conductor at
petitioner's Bhor Depot on 7th December, 1977. The petitioner
alleged that the respondent unauthorizedly remained absent
from duty on various dates in between 24th November, 2002 to
15th May, 2003. On account of the said misconduct, the
respondent was served with multiple charge-sheets in
accordance with the Discipline and Appeal procedure of the
petitioner. The explanations of the respondent - employee were
found unsatisfactory. Resultantly, disciplinary proceedings were
instituted.
(b) In Default Case No.48 of 2003, post disciplinary
enquiry, the respondent was found guilty of misconduct and,
eventually, penalty of dismissal from service came to be imposed
and the respondent's services were terminated with effect from
11th August, 2003.
(c) The respondent raised an industrial dispute. As the
conciliation failed, reference was made to the Labour Court for
adjudication of the industrial dispute under Section 10 of the
Industrial Disputes Act, 1947 ("the ID Act, 1947"). The
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respondent - second party filed a Statement of Claim. The
petitioner resisted the Statement of Claim by filing written
statement. The respondent examined himself. The petitioner -
first party also examined Smt. Manisha Gaikwad (CW-1).
(d) After appraisal of the evidence and documents
tendered for the perusal, the Labour Court returned the
findings that the petitioner failed to prove the charge of
misconduct, the respondent was illegally terminated from
service and the punishment imposed by the petitioner on the
respondent was disproportionate. It was, thus, held that the
respondent, having in the meanwhile attained the age of
superannuation, was entitled to full backwages from the date of
termination till the date of retirement.
3. Being aggrieved, the petitioner MSRTC has preferred this
petition.
4. I have heard Mr. Deshmukh, the learned Counsel for the
petitioner, and Ms. Kunekar, the learned Counsel for the
respondent, at some length. With the assistance of the learned
Counsel for the parties, I have also perused the material on
record.
5. Mr. Deshmukh, the learned Counsel for the petitioner,
submitted that the learned Presiding Officer, Labour Court,
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committed a manifest error in arriving at the finding that the
petitioner failed to establish the misconduct. The Labour Court
did not record a finding that the enquiry was not fair or proper.
Having noted the period of absenteeism, the Labour Court went
on to unjustifiably record a finding that there was no
misconduct.
6. Amplifying the submission Mr. Deshmukh would urge that
the mere fact that an employee had leave to his credit and had
submitted applications for leave, even on medical grounds
alongwith medical certificates, by itself was not sufficient. It
was not the case of the respondent that the leave applications
were duly granted. In the absence thereof, the absence was
wholly unauthorized. The learned Presiding Officer, Labour
Court, according to Mr. Deshmukh, was swayed away by the fact
that the respondent had submitted applications for leave before
proceeding on leave, supported by medical certificates. Such
conduct on the part of a workman has been disapproved by this
Court in the case of Amgauda Sidram Hakke vs. Maharashtra
Small Scale Industries Development Corporation Ltd1, urged Mr.
Deshmukh.
7. It was further submitted that the learned Presiding Officer,
Labour Court, was also in error in not giving weight to the facts
1 1995(1) Mh.L.J. 638.
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that the respondent was served with multiple charge-sheet for
the various periods of absenteeism, during the period 24 th
January, 2022 to 25th May, 2003, and the past conduct of the
respondent was also not clean. The respondent was punished
in the year 1984, 1986, 1994 and the said factor was also
erroneously downplayed by the learned learned Presiding
Officer. At any rate, a direction for payment of full backwages
cannot be sustained, submitted Mr. Deshmukh.
8. Per contra, Ms. Kunekar, the learned Counsel for the
respondent, supported the impugned order. It was submitted
that there was no unauthorised absence, as alleged. On
account of genuine health issues, the respondent had availed
leave by submitting proper applications accompanied by
medical certificates. The Enquiry Officer had not given due
weight to the fact that the respondent was unwell and the
daughter of the respondent was suffering from mental illness.
Therefore, the learned Presiding Officer, Labour Court, was
within her rights in answering the reference in the affirmative as
the penalty of dismissal from service in the context of the charge
of misconduct was wholly disproportionate.
9. At the outset, it is necessary to note that Mr. Deshmukh
fairly submitted that the order of dismissal from service came to
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be passed in Default Case No.48 of 2003 only and no order was
passed in Default Case No.116 of 2003 and Default Case No.77
of 2003. The Labour Court also proceeded to adjudicate and
answer the reference in the context of Default Case No.48 of
2003 for the alleged unauthorized absence from 1 st January,
2003 to 31st January, 2003, only.
10. In the aforesaid context, the learned Presiding Officer
found that each of the periods of absence was preceded or
accompanied by an application for grant of leave alongwith a
medical certificate. Indisputably, the daughter of the respondent
was suffering from mental ailment and Disability Certificate
(Exhibit-55) came to be placed on record to substantiate the
said fact. The moot question that arises for consideration is,
whether the absenteeism was unauthorized?
11. Mr. Deshmukh, urged with tenacity that the facts that
leave was available to the credit of the respondent's account and
applications for leave were forwarded by themselves do not
dilute the misconduct. In the case of Amgauda Hakke (supra),
on which reliance was placed by Mr Deshmukh, it was, inter
alia, observed as under:
"8. ......Even assuming that this was a case of misconduct
of an employee for which his service has been terminated by
not holding a domestic inquiry, I am not inclined to interfere
with the finding recorded by the Labour Court, for the
reason that I am not satisfied that the Petitioner's case of
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sickness was true. From the facts as on record it appears to
me that the excuse of sickness was put forth repeatedly in
order to exhaust all the accumulated privilege leave - never
mind the consequences to the employer. It is unfortunate
that, even when entitled to privilege leave, workmen assume
that they have the right to go on leave, at the drop of a hat,
forgetting it that leave is to be sanctioned at the discretion of
the employer. This position is evident from the provision of
Regulation 68(i) about general conditions regarding leave,
which provides:
"68. General Conditions regarding leave. - (i)
Leave shall be granted by the Management having
regard to the exigencies of services and it shall be
the discretion of the Management to refuse,
postpone or revoke leave of any kind to any
employee, subject to the provisions of any law for
the time being in force."
Notwithstanding this provision, if the employee chooses to
remain away from work, shoot off innumerable telegrams to
the employer for extension of leave on vague excuses, and
then finds himself in hot water, he does so at his peril. The
argument of Miss Buch that the employer is guilty of breach
of service rules by not holding an inquiry, leaves me
unimpressed. It does not lie in the mouth of the petitioner,
who is equally guilty of transgressing the rule, to thus
contend."
12. Evidently, in the facts of the aforesaid case, this Court
came to the conclusion that the case of the petitioner in the said
case of sickness was not true and, in that backdrop, observed
that if the employee chooses to remain away from work and
sends requests for grant of leave on vague excuses, he does so at
his own peril. If the Court finds that the reasons for being away
from duty were not true and bona fide, the mere availability of
leave to the credit of the employee can in no case be an answer
to the charge of the misconduct.
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13. The facts of the instant case are quite distinct. It is not
the case of the employer that the respondent had remained
away from duty on the false pretext. It is not disputed that the
respondent had submitted the applications for leave. Nor it
appears to be the case of the petitioner that no leave was
available to the credit of the account of the respondent. That
leaves the questions of justifiability of absence from duty.
14. A useful reference, in this context, can be made to a
decision of the Supreme Court in the case of Krushnakant B.
Parmar vs. Union of India and another2. The charge of
misconduct with reference to unauthorized absence in the
context of Rule 3(1)(ii) and 3(i)(iii) of the Central Civil Services
(Conduct) Rules, 1964 was under consideration in the said case.
In that context, the Supreme Court observed as under:
"16. In the case of the appellant referring to unauthorized
absence the disciplinary authority alleged that he failed to
maintain devotion to duty and his behaviour was
unbecoming of a government servant. The question whether
"unauthorized absence from duty" amounts to failure of
devotion to duty or behaviour unbecoming of a government
servant cannot be decided without deciding the question
whether absence is wilful or because of compelling
circumstances.
17. If the absence if the result of compelling circumstances
under which it was not possible to report or perform duty,
such absence cannot be held to be wilful. Absence from duty
without any application or prior permission may amount to
unauthorized absence, but it does not always mean wilful.
There may be different eventualities due to which an
employee may abstain form duty, including compelling
circumstances beyond his control like illness, accident,
2(2012) 3 Supreme Court Cases 178.
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hospitalization, etc., but in such case the employee cannot be
held guilty of failure of devotion to duty or behaviour
unbecoming of a government servant.
18. In a departmental proceeding, if allegation of
unauthorized absence from duty is made, the disciplinary
authority is required to prove that the absence is willful, in
the absence of such finding, the absence will not amount to
misconduct.
19. In the present case the inquiry officer on appreciation
of evidence though held that the appellant was
unauthorizedly absent from duty but failed to hold that the
absence was wilful; the disciplinary authority as also the
appellant authority, failed to appreciate the same and
wrongly held the appellant guilty."
(emphasis supplied)
15. The Supreme Court enunciated that misconduct with
reference to unauthorized absence would hinge upon the
answer to the question as to whether absence is willful or on
account of compelling circumstances. Absence from duty
without any application or prior permission may amount to
unauthorized absence but it does not always mean willful. In a
disciplinary proceedings, where allegation of unauthorized
absence from duty is made the department is required to prove
that the absence was willful and in the absence of such finding
the absence would not amount to misconduct.
16. Undoubtedly, the misconduct of unauthorized absence
depends on the nature of the organization, the nature of the
duty, the requirements of the services of the employee, in the
given circumstances, the exigency of situation and attendant
circumstances. No straight jacket formula can be laid down
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that if the absence is preceded by an application for leave, it
would not amount to misconduct in any case. Yet, the element
of absenteeism without a justifiable cause, ordinarily, needs to
be established.
17. Re-adverting to the facts of the case at hand, as noted
above, the periods of absence were preceded or accompanied by
applications for leave. They were duly supported by the medical
certificates. The fact that the daughter of the applicant was
suffering from acute mental illness and disability certificate was
pressed into service to justify the absence for the said cause, in
itself, militates against willful absence from duty. Cumulatively
the circumstances had an element of compulsion to prevent the
respondent from attending the duty. I do not find that the
learned Presiding Officer, Labour Court, committed any error in
appraising the material to draw an inference that the period of
absenteeism did not constitute misconduct.
18. The past conduct attributed to the respondent also does
not sustain the charge of a continuous course of absenteeism.
The periods of absenteeism were during the years 1984, 1986
and 1994. The learned Presiding Officer, Labour Court, was
within her rights in not giving much weight to the minor
penalties of Rs.25/- and Rs.50/- and stoppage of increment for
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six months for the aforesaid misconduct, which were at a
distant past. In any event, it cannot be urged that there was a
continuous course of absenteeism.
19. It is true that the learned Presiding Officer, Labour Court,
after holding that the petitioner failed to establish misconduct
also went on to delve into the aspect of the proportionality of the
punishment and return a finding that penalty of dismissal from
service was grossly disproportionate to the gravity of the charge.
Having found that misconduct itself was not proved, the Labour
Court was not required to delve into the aspect of
proportionality of punishment. However, that does not detract
materially from the principal finding that the petitioner failed to
establish the misconduct.
20. On the aspect of the relief, since the respondent had
rendered 26 years of service, and superannuated during the
pendency of the reference, the direction for payment of full
backwages from the date of termination till superannuation
cannot be faulted at. The Labour Court noted that the
respondent had asserted that he could not secure alternate
employment despite efforts and the petitioner failed to establish
that the respondent was gainfully employed. The services of the
respondent were terminated after he rendered 26 years of
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service. In the absence of any material to indicate that the
respondent was gainfully employed, this Court may not be
justified in interfering with the order for grant of backwages in
exercise of writ jurisdiction.
21. The conspectus of aforesaid consideration is that the
petition fails. Hence, the following order.
:ORDER:
(i) The petition stands dismissed.
(ii) Rule discharged.
(iii) No order as to costs.
[N. J. JAMADAR, J.]
