Delhi High Court
Baldev Raj vs Presiding Officer And Ors. on 27 August, 2002
Equivalent citations: 2003 (3) SLJ 499 Delhi
Author: M B Lokur
Bench: M B Lokur
JUDGMENT
Madan B. Lokur, J.
1. The petitioner has challenged the correctness of an Award dated 20th July, 1999 passed by Labour Court No. 1 in ID No. 044/84 (old) and ID No. 548/ 91 (new). Learned Counsel has confined his submissions only to the quantum of punishment.
2. The matter has been called out twice but there is no appearance on behalf of the respondents.
3. The petitioner (since deceased) was alleged to have been willfully absent from duty from 15th June, 1979 to 30th June, 1979. It is alleged that he was a habitual absentee.
4. A departmental inquiry was held against the petitioner in which he was found guilty and dismissed from service. The petitioner thereafter raised an industrial dispute. The matter was then referred to the Labour Court on the question whether the dismissal of the petitioner from service is illegal or unjustified. The respondents abstained from participating in the proceedings from 10th January, 1996.
5. A preliminary issue had been framed on 24th April, 1989 whether the departmental inquiry was free and fair. By an interim Award dated 17th March, 1997, it was held that the inquiry was fairly and properly conducted in accordance with the principles of natural justice.
6. On the question of quantum of penalty, the learned Labour Court was of the view that the charges against the petitioner are serious inasmuch as he was a habitual absentee, a work-shirker and had remained continuously absent for more than 15 days without any sanctioned leave. The learned Labour Court was of the view that the conduct of the petitioner showed that he lacked integrity, uprightness and acted to the detriment of public interest.
7. I am unable to see how unauthorized absence by the workman can be described as a lack of integrity or a lack of uprightness on his part. The petitioner was working in a post which required him to repair radiators in the buses of the respondents. There is no allegation that he had tampered with any radiators or he had done anything which in any manner would indicate that he lacked integrity.
8. It appears to me that absence of 15 days from work in a post such as that held by the petitioner was not of such a serious nature that it warranted his dismissal from service. The impugned Award dated 20th July, 1998 does not give any details of the period during which the petitioner is said to have remained unauthorizedly absent other than the period in question, that is, from 15th June, 1979 to 30th June, 1979. Consequently, from the facts of the case, it is not clear that the petitioner was a habitual absentee.
9. I am conscious of the fact that under Article 226 of the Constitution, it is only in a very rare case that the Court should interfere with the punishment that has been awarded by an employer. Learned Counsel for the petitioner has drav/n my attention to SyedZaheer Hussain v. Union of India and Ors., JT 1999(1) SC 319, to contend that the Court can interfere in the quantum of punishment. In that case, the Industrial Tribunal had found the punishment to be disproportionate and yet it did not interfere with the imposition of the punishment. In the facts of that case, the Supreme Court held that the punishment was too harsh and, therefore, reduced the punishment. I am afraid this decision does not advance the case of the petitioner. The principle still remains that the Court should not, except in a very rare case, interfere in the imposition of punishment under Article 226 of the Constitution.
10. However, looking to the facts of the present case, it appears to me that the learned Labour Court misdirected itself in treating the unauthorized absence as being equivalent to lack of integrity or lack of uprightness or detrimental to public interest. The learned Labour Court, therefore, was in manifest error in upholding the punishment of dismissal from service. Unauthorized absence cannot be equated with lack of integrity or lack of uprightness. If the learned Labour Court had kept this in mind, it may perhaps not have upheld the penalty of dismissal.
11. The appropriate course of action to take in such a case is to remand the matter to the learned Labour Court for a decision on the quantum of penally to be imposed on the petitioner. However, the petitioner has since died on 29th January, 2000. He has left behind his widow and two sons. One of the sons is of unsound mind and as noted in the order dated 8th April, 2002, he is incoherent and is unable to give basic answers. The other son is said to be working in a petty job as an apprentice and is not earning very much.
12. Under the circumstances, it will be appropriate if the penalty of dismissal is set aside. It is ordered accordingly. The petitioner will be notionally reinstated in service. As held by the Supreme Court in Syed Zaheer Hussain, the interests of justice will be met if the petitioner is granted only 50% of the back wages from the date of his dismissal till the date of his death, that is, 29th January, 2000. Learned Counsel for the petitioner says that the petitioner would not have reached the age of superannuation even today.
13. Consequent upon the notional reinstatement of the petitioner in service, his legal representatives will be entitled to receive 50% of the back wages, as ordered along with any other benefit that the petitioner may be entitled to.
14. The dues be paid to the legal representatives of the petitioner within a period of six weeks from today.
The writ petition stands disposed of.
