Punjab-Haryana High Court
Chandigarh Transport Undertaking vs Gursewak Singh Etc on 1 April, 2025
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2025:PHHC:043539
CWP-13237-2004 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
114 CWP-13237-2004 (O&M)
Date of Decision :01.04.2025
Chandigarh Transport Undertaking (C.T.U.)
Chandigarh ...Petitioner
Versus
Gursewak Singh and another ...Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: None for the petitioner.
Mr. Arvind Galav, Advocate for respondent No.1.
***
Harsimran Singh Sethi, J. (Oral)
CM-4598-CWP-2025
1. Present application has been filed by the applicant-respondent
No.1 for listing the main writ petition on an earlier actual date of hearing.
2. Keeping in view the averments made in the application, which
are duly supported by an affidavit, application is allowed. Main writ petition
is taken up for hearing today itself.
CWP-13237-2004
3. In the present petition, challenge is to award dated 26.03.2004
(Annexure P/3) passed by the Presiding Officer, Labour Court, U.T.
Chandigarh by which, the respondent No.1-workman was ordered to be
reinstated in service with continuity but without back wages. The Labour
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Court further modified the punishment of dismissal from service to that of
stoppage of four increments with cumulative effect and the period for which
the respondent No.1-workman remained absent from duty, the said period
was directed to be treated as leave without pay.
4. The grievance raised in the present petition is that once, it has
been found that the respondent No.1-workman was absent from duty and
his absence from duty was not authorized, still the punishment of dismissal
from service has been modified with that of stoppage of four increments
with cumulative effect by the Labour Court on the ground that the
punishment of dismissal from service was disproportionate to the charges
alleged and proved whereas, once, an employee remains absent from duty
for a period of two and a half years, the punishment of dismissal from
service cannot be treated to be disproportionate.
5. Learned counsel appearing for the respondent No.1-workman
submits that respondent No.1-workman was not well and he had submitted
his leave applications along with medical certificate but he concedes the
fact that said leave applications were never sanctioned by the authorities.
Learned counsel for the respondent No.1-workman further submits that
jurisdiction existed with the Labour Court under Section 11-A of the
Industrial Disputes Act, 1947 (hereinafter referred as '1947 Act') to modify
the punishment and the said discretion has rightly been exercised by the
Labour Court, which needs no interference at the hands of this Court.
6. I have heard learned counsel for the respondent No.1-workman
and have gone through the record with his able assistance.
7. Certain facts have gone unrebutted such as respondent No.1-
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workman remained absent from duty starting from 01.11.1988 onwards till
13.03.1991. Keeping in view the said unauthorized absence from duty, a
departmental proceedings were initiated against the respondent No.1-
workman and the respondent No.1-workman did not participate in the same
despite being informed about the said departmental proceedings. The letters
sent to the respondent No.1-workman were received back with the report
"out of station". After proving the allegations of absence from service for
more than two and a half years, the respondent No.1-workman was given
show cause notice and after going through the reply filed by the respondent
No.1-workman, an order was passed on 15.03.1993 terminating the services
of the respondent No.1-workman.
8. Said order dated 15.03.1993 was challenged by the respondent
No.1-workman before the Labour Court and the Labour Court while passing
the impugned award has recorded a finding in Para-14 that the respondent
No.1-workman did not participate in the enquiry proceedings and in the
exparte departmental proceeding, he was held guilty and the charges were
proved against him and hence, the enquiry conducted against the respondent
No.1-workman was fair and proper. The said finding recorded in para-14 of
the impugned award has not been challenged by the respondent No.1-
workman. Despite recording of the said finding, the punishment imposed
upon the respondent-workman has been modified to that of punishment of
stoppage of four increments with cumulative effect on the ground that the
punishment imposed is disproportionate to the charges alleged and proved
with the further a direction that the period of absence from duty be treated
as leave without pay, which cannot be accepted.
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9. As per the settled principle of law settled by the Hon'ble
Supreme Court of India in Civil Appeal No.219-2023 titled as, Union of
India and others vs. Const. Sunil Kumar, decided on 19.01.2023, a
punishment can only be modified by the Court in case, the same is
shockingly disproportionate to the charges alleged and proved. Relevant
paragraphs of the judgment are as under:-
6.2 Even otherwise, the Division Bench of the High Court
has materially erred in interfering with the order of penalty
of dismissal passed on proved charges and misconduct of
indiscipline and insubordination and giving threats to the
superior of dire consequences on the ground that the same is
disproportionate to the gravity of the wrong. In the case of
Surinder Kumar (supra) while considering the power
of judicial review of the High Court in interfering with the
punishment of dismissal, it is observed and held by this
Court after considering the earlier decision in the case
of Union of India Vs. R.K. Sharma; (2001) 9 SCC 592 that
in exercise of powers of judicial review interfering with the
punishment of dismissal on the ground that it was
disproportionate, the punishment should not be merely
disproportionate but should be strikingly disproportionate.
As observed and held that only in an extreme case, where on
the face of it there is perversity or irrationality, there can be
judicial review under Article 226 or 227 or under Article
32 of the Constitution.
6.3 Applying the law laid down by this Court in the
aforesaid decision(s) to the facts of the case on hand, it
cannot be said that the punishment of dismissal can be said
to be strikingly disproportionate warranting the interference
of the High Court in exercise of powers under Article 226 of
the Constitution of India. In the facts and circumstances of
the case and on the charges and misconduct of indiscipline
and insubordination proved, the CRPF being a disciplined
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force, the order of penalty of dismissal was justified and it
cannot be said to be disproportionate and/or strikingly
disproportionate to the gravity of the wrong. Under the
circumstances also, the Division Bench of the High Court
has committed a very serious error in interfering with the
order of penalty of dismissal imposed and ordering
reinstatement of the respondent.
6.4 At this stage, it is required to be observed that even
while holding that the punishment/penalty of dismissal
disproportionate to the gravity of the wrong, thereafter, no
further punishment/penalty is imposed by the Division
Bench of the High Court except denial of back wages. As
per the settled position of law, even in a case where the
punishment is found to be disproportionate to the
misconduct committed and proved the matter is to be
remitted to the disciplinary authority for imposing
appropriate punishment/penalty which as such is the
prerogative of the disciplinary authority. On this ground
also, the impugned judgment and order passed by the
Division Bench of the High Court is unsustainable."
10. In the present case, once, the respondent No.1-workman
remained absent from duty for more than two and a half years and that too
without any valid justification, it cannot be said that the punishment of
terminating the service of such employee is disproportionate. Even one
day's unauthorized absence has been treated to be a major misconduct. The
conduct of an employee, who remains absent from duty for a period of more
than two and a half year, has to be treated as a major misconduct.
11. Further, the termination of the service of an employee, who
remained absent from duty for a period of two and a half years cannot be
treated as a shockingly disproportionate to the charges alleged and proved.
The discretion exercised by the Tribunal is contrary to the settled principle
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of law noticed hereinbefore.
12. It may be noticed that while issuing notice of motion, operation
of the award was stayed.
13. Keeping in view the totality of the facts and circumstances
recorded hereinbefore, as the impugned award dated 26.03.2004 (Annexure
P/3) passed by the Presiding Officer, Labour Court, U.T. is perverse to the
facts as well as to the settled principle of law cannot be sustained in the eyes
of law and is accordingly set aside.
14. It may be noticed that whatever amount the respondent No.1-
workman has already been paid under Section 17-B of the Industrial
Dispute Act, 1947 will not be recovered from him.
15. Present petition is allowed in above terms.
16. Civil miscellaneous application pending if any is also disposed
of.
April 01, 2025 (HARSIMRAN SINGH SETHI)
aarti JUDGE
Whether speaking/reasoned : Yes
Whether reportable : No
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