Punjab-Haryana High Court
Ravinder Singh vs Presiding Officer Industrial Tribunal ... on 4 January, 2024
CWP-19398-2017 -1-
226
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-19398-2017
Date of Decision: 04.01.2024
Ravinder Singh
....Petitioner
Versus
The Presiding Officer, Industrial Tribunal-cum-Labour Court,
Rohtak and another
....Respondents
CORAM: HON'BLE MR. JUSTICE HARSH BUNGER
Present : Mr. Sandeep Singal, Advocate
for the petitioner.
Mr. Parveen Chauhan, Advocate for
Mr. Gagandeep S. Wasu, Advocate
for respondent No.2.
***
HARSH BUNGER, J.
1. Petitioner (Ravinder Singh) has filed the instant Writ Petition
under Articles 226/227 of the Constitution of India seeking issuance of writ
in the nature of Certiorari for quashing impugned award dated 05.06.2017
(Annexure P-11), whereby the reference of industrial dispute raised by the
HIMANI GUPTA petitioner has been answered against him.
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2. Shorn of unnecessary details, the brief facts emanating from the
paperbook are that the petitioner was appointed as Lower Division Clerk
(LDC) with the O/o Superintending Engineer (OP Circle) UHDVN, Rohtak.
The petitioner applied for leave from 23.11.2009 up to 14.12.2009 as his
mother was ill and during this period, petitioner claimed that he received a
call from a member of family of his close friend, who reside in Canada, to
the effect that his friend was seriously ill, accordingly, the petitioner went to
Canada and after coming back to India, he immediately joined his duty on
13.12.2013. The petitioner was chargesheeted on the charge that he had
remained absent from duty from 23.11.2009 and he went to Canada (out of
India) without permission and that he abandoned his job. The petitioner
submitted his reply to the chargesheet and thereafter, the Inquiry Officer was
appointed and inquiry was held and the Inquiry Report was submitted
whereupon, a show-cause notice was issued to the petitioner on 19.01.2015,
to which the petitioner submitted his reply and thereafter, the petitioner was
dismissed from service vide order dated 19.03.2015.
The petitioner challenged his dismissal from service by raising
the industrial dispute on the plea that no proper procedure was followed
while conducting the inquiry and passing of the dismissal order. The
petitioner also claimed that his services have been terminated in violation of
the provisions of Sections 25-F, 25-G and 25-H of the Industrial Disputes
Act, 1947 (hereinafter "1947 Act"). Accordingly, he prayed for reinstatement
with continuity in service and all other consequential benefits.
3. The aforesaid claim of the petitioner was contested by the
respondent-Department on the plea that the petitioner had taken leave on
account of illness of his mother but he left behind his ailing mother and went
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to Canada without informing the Department while leaving the country and
came back after about 4 years to join his duty. It was submitted that the
petitioner was chargesheeted and after conducting a proper inquiry, he was
dismissed from service. It was also stated that the proper procedure under
the Haryana State Electricity Board notification dated 13.09.1990 was
followed and no provision of the Industrial Dispute Act was violated,
accordingly, prayer for dismissal of the claim petition was made.
4. On the basis of pleadings of both the parties, the following
issues were framed:-
"(1) Whether termination of services of workman is
justified and if not, to what relief he is entitled? OPW
(2) Whether the management has conducted a fair and
proper enquiry? OPM
(3) Relief."
5. The parties led their respective evidence in support of their
claim.
6. The Tribunal below vide impugned award dated 07.06.2017
(Annexure P-11) rejected the claim of the petitioner.
7. In the aforementioned circumstances, the petitioner has filed the
instant Writ Petition before this Court.
8. Learned counsel for the petitioner submits that the Tribunal
below has erred in law and fact in rejecting the claim of the petitioner. It is
submitted that the petitioner was appointed as LDC on 29.03.1987 and
thereafter his services were regularized in the erstwhile Haryana State
Electricity Board, however, the petitioner was terminated vide order dated
19.03.2015. Learned counsel for the petitioner contends that the petitioner
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had rendered regular satisfactory service of about 27 years (including the
period of absence from 14.12.2009 up to 12.12.2013). It is submitted that no
other penalty had ever been imposed upon the petitioner during his service
career and therefore, the punishment of termination is too harsh and
unjustified in the fact and circumstances of the case. Learned counsel for the
petitioner further submits that the inquiry was not conducted as per
procedure laid down in Regulation 7 of the Haryana State Electricity Board
Employees Punishment and Appeal Regulations, 1990. Accordingly, it is
submitted that the impugned award is liable to be set aside and appropriate
direction be issued for reinstating the petitioner with all consequential
benefits.
9. On the other hand, learned counsel for respondent No. 2-
Department has opposed the prayer of the petitioner by submitting that the
Tribunal below has considered the entire material/evidence available on the
record and had passed a well reasoned and justified award which does not
call for any interference by this Court. It is submitted that the petitioner had
remained absent from duty for a long period of almost 4 years and he went
to Canada without seeking any permission from the Competent Authority. It
is further submitted that before terminating the services of the petitioner, due
opportunity of hearing was afforded to him. It is submitted that the petitioner
was duly served with the charge sheet to which petitioner submitted his
reply and thereafter, an Inquiry Officer was appointed who conducted the
inquiry and submitted his Inquiry Report and thereafter, even a show-cause
notice was issued to the petitioner to which the petitioner had submitted his
reply and after carrying out the proceedings, the order of dismissal from
service was passed against the petitioner. It is further submitted that there is
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no illegality or perversity in impugned award, accordingly, prayer for
dismissal of the writ petition has been made.
10. I have heard learned counsel for the parties and perused the
paper book with their able assistance.
11. In State of Punjab v. Dr. P.L. Singla [2008 (8) SCC 469] the
Hon'ble Supreme Court, while dealing with unauthorized absence, has stated
thus: -
"Unauthorised absence (or overstaying leave), is an act
of indiscipline. Whenever there is an unauthorized
absence by an employee, two courses are open to the
employer. The first is to condone the unauthorized
absence by accepting the explanation and sanctioning
leave for the period of the unauthorized absence in which
event the misconduct stood condoned. The second is to
treat the unauthorized absence as a misconduct, hold an
enquiry and impose a punishment for the misconduct."
Again, while dealing with the concept of punishment the Court
ruled as follows: -
"Where the employee who is unauthorisedly absent does
not report back to duty and offer any satisfactory
explanation, or where the explanation offered by the
employee is not satisfactory, the employer will take
recourse to disciplinary action in regard to the
unauthorized absence. Such disciplinary proceedings
may lead to imposition of punishment ranging from a
major penalty like dismissal or removal from service to a
minor penalty like withholding of increments without
cumulative effect. The extent of penalty will depend upon
the nature of service, the position held by the employee,
the period of absence and the cause/explanation for the
absence."
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12. Thus, the unauthorized absence by an employee, as a
misconduct, cannot be put into a straightjacket formula for imposition of
punishment. It will depend upon many a factor as has been laid down in
Dr. P.L. Singla (supra).
13. However, in Tushar D. Bhatt v. State of Gujarat and another
[2009 (11) SCC 678], the appellant therein had remained unauthorisedly
absent for a period of six months and further had also written threatening
letters and conducted some other acts of misconduct. Eventually, the
employee was visited with order of dismissal and the High Court had given
the stamp of approval to the same. Commenting on the conduct of the
appellant the Hon'ble Supreme Court stated that he was not justified in
remaining unauthorisedly absent from official duty for more than six months
because in the interest of discipline of any institution or organization such an
approach and attitude of the employee cannot be countenanced.
14. Further, in Government of India and another v. George Philip,
2007(1) S.C.T. 357, Hon'ble Supreme Court observed as under: -
"In a case involving overstay of leave and absence from
duty, granting six months time to join duty amounts to not
only giving premium to indiscipline but is wholly
subversive of the work culture in the organization. Article
51-A(j) of the Constitution lays down that it shall be the
duty of every citizen to strive towards excellence in all
spheres of individual and collective activity so that the
nation constantly rises to higher levels of endeavour and
achievement. This cannot be achieved unless the
employees maintain discipline and devotion to duty.
Courts should not pass such orders which instead of
achieving the underlying spirit and objects of Part IV-A
of the Constitution have the tendency to negate or destroy
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the same."
15. Keeping in view the aforesaid legal judicial pronouncements, it
is evident that absence from duty without permission is a misconduct and the
employees must maintain discipline and devotion to duty.
16. In the instant case, the Tribunal below has returned the
following finding:-
"12. After hearing both the sides and appreciating the
entire evidence adduced in the case, I am of the
considered opinion that the present petition deserves to
be dismissed. The petitioner had admittedly, got
sanctioned his leave from 23.11.2009 to 14.12.2009 on
account of illness of his mother. However, he left behind
his ailing mother and went to Canada. As per own
deposition of the petitioner, he had gone to Canada in
November 2009 and come back on 4.12.2012 but he
joined duty on 13.12.2012. Pertinently, the petitioner had
got sanctioned his leave with effect from 23.11.2009 and
as per his own deposition, he had gone to Canada in
November 2009 itself. Thus, in other words, he never
intended to attend to his ailing mother, for which, he had
taken leave and he straightway went to Canada. As per
his own admission, the petitioner returned on 4.12.2012
and thereafter, he joined his duty on 13.12.2013 i.e. after
about a year of his allegedly coming back from Canada.
No name of the friend who was ill in Canada, has been
disclosed by the petitioner. The record pertaining to Visa
papers, as to when they were started to be processed has
been produced by the petitioner. Thus, the respondent
issued the charge sheet and conducted enquiry and
eventually dismissed him from service. As per own
admission of the petitioner in his cross examination, he
was issued the charge sheet to which, he had submitted
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his reply and then, after conducting an enquiry, he was
held guilty and then, he was issued a show cause notice
and he had submitted his reply thereto and then, after
giving personal hearing, he was removed from service.
The charges leveled against the petitioner in the charge
sheet were inter alia that he had left the country and gone
to Canada without seeking prior permission and that he
had remained absent from duty upto 12.12.2013 and the
same have not been refuted by him. Thus, the enquiry
report is found to be legal and valid and principles of
natural justice were duly ahered to. It is so far well
settled that this court cannot sit in appeal over the
enquiry report and come to a different conclusion on
appreciation of evidence led before the enquiry officer.
There is no dispute with regard to the propositions of law
laid down in the authorities relied upon by the learned
AR for the petitioner but the same are not applicable to
the peculiar facts of this case.
13. As a sequel to what has been discussed above, it is
held that the impugned order dated 19.3.2015 dismissing
the petitioner from service, legal and valid and the
petitioner is, thus, not entitled to any relief. It is further
held that a fair and proper enquiry has been conducted
by the respondent as per law. Accordingly, both these
issues are decided against the petitioner and in favour of
the respondent."
17. A perusal of the above extracted findings returned by the
Tribunal below could manifest that the petitioner had remained absent from
duty without permission for a long period of 4 years and rather he has gone
abroad to Canada. It has come on record that the petitioner had returned to
India in the year 2012 however he joined the duty only on 13.12.2013 i.e
after about 1 year of his coming back from Canada. In the aforestated
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circumstances, I am of the considered view that the petitioner's absence
from duty without permission and going abroad, amounts to misconduct and
the punishment of dismissal from service awarded to the petitioner by the
competent authority after holding departmental proceedings/inquiry against
the petitioner cannot in any manner be categorised as shockingly
disproportionate to the misconduct of the petitioner.
18. Keeping in view the above discussion; there is no scope for any
interference in the findings returned by the Tribunal below vide impugned
award dated 05.06.2017 (Annexure P-11), resultantly, the instant petition
fails and the same is dismissed.
19. All pending applications (if any) shall stand closed.
04.01.2024 (HARSH BUNGER)
Himani JUDGE
1. Whether speaking/reasoned : Yes/No
2. Whether reportable : Yes/No
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