Borman vs Presiding Officer, Labour Court ...
2002 Latest Caselaw 1393 Del

JUDGMENT

Mukul Mudgal, J.

1. This appeal is directed against the judgment of the learned Single Judge dated 14th January 2000 setting aside the award of the labour court directing the reinstatement of the appellant after recording a finding that the punishment of dismissal was disproportionate to the offence.

2. The facts of the present case are that the appellant was employed with the respondent, ITDC Management at Ashoka Hotel as Masalachi and his services were terminated by the management with effect from 13th June 1984 after an inquiry leading to the dispute referred to the Labour Court. Before the labour court the appellant had admitted impliedly that he remained absent without leave and the relevant portion of the finding of the Labour Court on this issue is as under:

"MW2 Shri M. Andrews has testified that he was working as a head Time Keeper with the management uptil 01.08.90 and he has prepared the record of absence of the workman Sh. Boman from 01.01.83 to December 1983 on the basis of the record maintained in the time office. It is testified by MW 2 Sh. M.

Andrews that workman was absent for 62 days without any prior sanction of leave. The witness has testified that only twice application was given by the workman once on 18.10.83 for the period from 12.10.83 to 16.10.83 and against on 10.08.83 from 31.07.83 to 09.08.93. It is also testified by MW 2 Sh. M. Andrews that both time the leave was not sanctioned to the workman and for other absence, the workman did not submit any application whatsoever. This part of the testimony of MW2 Sh. M. Andrews has not been challenged on behalf of the workman as the workman was cross examined only on the point whether any inquiry to the workman whenever the leave applied for the workman is not sanctioned or refused by the management. Thus the workman has in a way admitted that he has remained absent without any prior sanction. The application was submitted by the workman only twice for about 15 days whereas he has remained absent from his duties for 62 days in the year 1983. Sh. Jag Pal Singh who has testified that he was working as Kit Supervisor in Ashoka Hotel since the year 1980, has also testified that in the case pertaining to other workmen who had remained absent for longer period than the workman Boman, the management had not taken action and allowed those workman to remain in the service of the management....."

3. Though the labour court recorded the above finding about the delinquency of the appellant yet the punishment of dismissal was found by the labour court to be harsh and disproportionate to the allegations levelled against the workman/appellant by the Labour Court. The Labour Court accordingly set aside the termination of the workman's services and ordered the reinstatement Along with full backwages and continuity of service. The learned single Judge by his judgment impugned in this appeal while setting aside the award of the Labour Court has inter alia held that the charge levelled against the workman was serious and since the disciplinary authority while imposing the punishment of dismissal had taken into consideration the past conduct of the workman, the order of dismissal cannot be held to be unjustified and interference in the quantum of punishment by the Labour Court in view of its findings could not be sustained.

4. In challenging the aforesaid judgment, learned counsel for the appellant has submitted that in the impugned judgment of the learned single Judge reliance has been placed on two documents by the leaned Single Judge demonstrating the imposition of stoppage of annual increment and written warning for not attending the duties was given to the appellant in the past. These documents were produced according to the learned counsel for the Appellant for the first time in the writ court and ought not to have been looked at.

5. However the pleadings of the appellant in the present appeal do not counter the contents of the said document as to whether the appellant had been awarded a punishment of stoppage of two increments and was given a written warning for not attending the duties property. Even if we leave aside the earlier record of the appellant sought to be demonstrated by the documents filed only in the writ court by the respondent, we are satisfied de hors the said documents that there are concurrent findings of learned single Judge as well as of Labour Court (which held in favor of the appellant) that out of 62 days of unauthorised leave the appellant had submitted the leave application for only 15 days. Accordingly we are satisfied that the delinquency of the workman involved in the present dispute is such that the learned single Judge cannot be said to have erred in interfering with the Labour Court's judgment. In addition to the cogent reasons given by the learned Single Judge, we also find that even while recording the delinquency of the appellant, the Labour Court had nevertheless granted reinstatement with full back wages. The learned counsel for the appellant has vehemently contended that the exercise by the labour court under Section 11A of the Industrial Disputes Act ought not to be interfered with.

6. On the finding of the Labour Court that the appellant was absent for sixty two days and had submitted leave application only for 15 days, the punishment imposed on the appellant could not be construed to be disproportionate. The award of the labour Court directing reimbursement with full back wages in spite of recording a finding of delinquency as extracted hereinabove amounts to a misreading of provision of Section 11A.

7. Accordingly the appeal warrants dismissal and the same is dismissed with no order as to costs.

8. However, there is another aspect of the matter to which our attention was drawn by the learned counsel for the appellant that on 15th November 1999 application was made under Section 17(b) of the Industrial Disputes Act by the appellant before the learned Single Judge and the appellant was permitted to report for duties and the respondent was directed to make monthly payment to the workman. It is submitted that the said order had not been followed even today in spite of an undertaking to implement this order given by the respondent. For the purpose of the demonstrating the obdurate attitude of the respondent, reliance has been placed on the order of this court dated 5th February 1999 where while admitting the matter the respondent No. 2 was directed to pay litigation expenses. Even these expenses were paid only on 15th July 1999. The application for recalling the Order dated 15th January, 1999 was made by the respondents and on 10th September 1999 the order was passed. The relevant portion of the said Order is as under:

"The payment due under the order 15.1.999 will be made within two weeks from today....."

On 17.9.99 and 1.10.99 time was sought by the learned counsel for the respondent. Eventually on 14.1.2000 the judgment was delivered in favor of the respondent but the order dated 15th January 1999 was not set aside nor were any direction given to the respondent about changing the interim order. Thus the respondents had willfully violated the order of this court in spite of seeking time on several occasions and giving an assurance to the Court that payment will be made. Accordingly we are of the view that the amount ordered by the this Court vide order dated 15.1.99 (which we clarify to mean wages last drawn by the appellant) be paid with effect from 2nd April, 1998, the date of application under Section 17B of the Industrial Disputes Act, to 14th January, 2000 Along with interest quantified at 18% p.a. calculated from 2nd April, 1998 to 14th January, 2000 within 4 weeks from today. This amount is payable until 14th January, 2000 when the learned Single Judge set aside the Labour Court's award. If the amount is not paid within 4 weeks from today, the interest payable on the said amount shall be 24 per cent p.a.

Subject to the above directions the appeal stands dismissed with no orders as to costs.