RAVI R.TRIPATHI, J. -
(1.) THE petitioner - Gujarat Guardian Limited is before this Court being aggrieved by judgment and award dated 14.06.2006 passed by the Labour Court, Bharuch in Reference (LCB) No.137 of 1998, a copy of which is produced at Annexure 'A'. The learned Judge of the Labour Court is pleased to allow the Reference partly and ordered reinstatement of the workman on his original post with 30% back wages from 01.10.1999. The learned Judge of the Labour Court was pleased to direct that the award be implemented within 30 days from the publication of award.
(2.) THE learned senior advocate for the petitioner invited attention of the Court to the facts of the case which are set out in paras 2.1, 2.2, 2.3, 2.4, 2.5 and 2.6 of the petition, which are set out for ready perusal hereunder:
"2.1 The petitioner is a company incorporated under the provisions of Companies Act, 1956. It is engaged in manufacturing of glass. The respondent herein was working as operator in the factory of the petitioner. H was habitually remaining absent without leave. In the past, the respondent was absent from duty without leave or any intimation from 23.6.1996 to 28.6.1996, from 12.7.1996 to 13.7.1996, from 28.7.1996 to 29.7.1996 and from 23.2.1997 to 27.2.1997.
2.2 The petitioner further states that the respondent without obtaining leave or intimation continuously remained absent from 10.3.1997. He was therefore issued show cause notice (charge sheet) dated 27.3.1997 calling for his explanation in writing within 48 hours as to why his name should not be struck off from the muster roll in terms of certified Standing Order No.10(xi) (a) and 21(6) which provides that employee remaining absent for more than 8 consecutive days without any information or taking prior sanction of leave will be deemed to have left the service on his own accord and his name is liable to be struck off from the company's muster roll without any notice. Annexed hereto and marked as Annexure -B is a copy of the said show cause notice dated 27.03.1997.
2.3 Pursuant to that notice the respondent sent reply dated 2.4.1997 and marked as Annexure -C informing the petitioner that he was suffering form chest and back pain and was unable to perform duties. He further submitted that he will submit his medical certificate by next date I.e. 3.4.1997.
2.4 The respondent however did not submit any medical certificate. The petitioner therefore by its letter dated 7.4.1997 and marked as Annexure -D advised the respondent to present himself for the medical examination by the company's doctor, Dr.Saraiya on 17.4.1997. The respondent however by his communication dated 17.4.1997 and marked as Annexure -E informed the petitioner that he cannot go for medial examination on 17.4.1997 due to unavoidable circumstances and that he will not be able to go for medial examination by company's doctor till 20.4.1997 and required for fixing appointment for medical examination on any day after 20.4.197. On the request of the respondent he was advised to present himself for medical examination by the company's doctor on 21.4.1997 vide communication dated 18.4.1997 and marked as Annexure -F. Again the respondent did not present himself for medical examination by company's doctor on 21.4.1997. The petitioner therefore by its letter dated 3.5.1997 and marked as Annexure -G advised the respondent to present himself for medical examination by company's doctor on 7.5.97 as a last chance. The respondent however did not report for medical examination. The company's doctor, Dr.Saraiya by his communication dated 13.8.1997 informed the company that the respondent had not reported for medical examination at his clinic.
2.5 As the respondent was continuously absent without leave from 10.3.1997 and the explanation given by him in his reply dated 2.4.1997 (pursuant to the show cause notice dated 27.3.1997) of alleged ill health as ground for not reporting for duty was an excuse evident from his conduct of not submitting medical certificate as stated in his explanation dated 2.4.1997 and his failure to appear for medical examination by company's doctor on 17.4.97, 21.4.97 and 7.5.97, it was decided to hold departmental inquiry against the respondent. Accordingly the respondent was informed by letter dated 13.5.1997 that it has been decided to hold domestic inquiry against him for his action of remaining absent without leave continuously from 10.3.1997.
2.6 The petitioner states that in the departmental inquiry the respondent did not remain present in spite of intimation served on him. The inquiry was adjourned five times to enable the respondent to remain present in the inquiry. The petitioner states that in the inquiry proceedings held on 27.5.97, 3.6.97, 17.6.97, 25.6.97 and 30.6.97, the respondent did not remain present for inquiry. Since the respondent did not remain present in inquiry, inquiry was conducted ex parte and concluded on 30.6.97. On conclusion of inquiry, the inquiry officer submitted report, which is annexed hereto and marked as Annexure -H. The respondent was then called to show cause against proposed penalty of dismissal and eventually came to be dismissed from service by the order dated 20.10.1997."
Learned senior advocate Mr.K.M. Patel for the petitioner submitted that the learned Judge of the Labour Court, after setting out the case of both the sides and making a special note of the fact that legality and validity of the inquiry (departmental inquiry) is not challenged but only findings are challenged, has also recorded that the workman has admitted that he had remained absent, but about his absence no medical certificate is produced till last (till the matter concluded and the learned Judge of the Labour Court proceeded with the judgment). The learned senior advocate for the petitioner submitted that though the learned Judge of the Labour Court has recorded that it is clear in this case that the respondent workman remained absent and there is an inquiry held about the same and though sufficient opportunity was granted in the inquiry the workman has chosen not to remain present. After giving repeated opportunities, inquiry was required to be proceeded further. The learned Judge of the Labour Court has then recorded that on the basis of evidence which has come on record of this case it is clear that the workman has remained absent during the inquiry and despite repeated opportunities he has remained absent till last, and though he stated that he will be producing medical certificate in the company, he did not produce the same. The learned Judge of the Labour Court has also recorded that the company has conducted inquiry according to the principles of natural justice.
The learned senior advocate for the petitioner submitted that after recording the aforesaid facts the learned Judge of the Labour Court has then referred to the position of law by saying that in the matter of absenteeism there are judgments of the Hon'ble the Apex Court and various High Courts, wherein even when the workman has remained absent orders of reinstatement are passed. The learned Judge of the Labour Court has then recorded that neither side has produced any 'citation', but then the learned Judge of the Labour Court has deemed it proper to refer to a decision of this High Court in the matter of Sardarsingh Devisingh Vs. The District Superintendent of Police, Sabarkantha District & others, 1985 2 GLR 1368and has observed that, "when a workman is dismissed from service on account of absenteeism, it amounts to economic death of that person and not only that this punishment is required to be undergone even by the family members of the workman." The learned Judge of the Labour Court has proceeded to record that to see that the workman and family members are not required to undergo punishment, section 11A of the Industrial Disputes Act, 1947 is providing that the Court may interfere in such punishment and can make it lighter. The learned senior advocate for the petitioner in this regard invited attention of the Court to various judgments in support of his submission that when it is a case of repeated instances of absenteeism the employer is justified in imposing suitable punishment after holding an inquiry. The learned senior advocate for the petitioner submitted that in the present case what is important is that the workman was appointed in the year 1993 and from 1996 he started remaining absent, which fact is recorded even by the learned Judge of the Labour Court in the judgement and award. The instances are of 23.6.1996 to 28.6.1996, from 12.7.1996 to 13.7.1996, from 28.7.1996 to 29.7.1996 and from 23.2.1997 to 27.2.1997, the respondent workman had remained absent without getting leave sanctioned in advance. The learned senior advocate submitted that when the respondent workman was served with communication dated 27.03.1997 intimating him that,
"You are absenting yourself from your duties with effect from 10.3.1997 without any information or taking prior sanction of leave. As per Company's certified Standing Order No.10(xi) (a) and 21(6) an employee who remains absent for more than 8 consecutive days without any information or taking prior sanction of leave will be deemed to have left the Company services on his own accord and such employee's name is liable to be struck off from the company's muster roll without any notice. We are giving you an opportunity to submit your explanation in writing within 48 hours of receipt of this letter as to why you name should not be struck off from the muster roll. In case we do not received any explanation from you, we shall presume that you have no explanation to offer and we shall proceed against you as deemed necessary."
(3.) THE learned senior advocate for the petitioner submitted that this communication was replied by the respondent workman vide letter dated 02.04.1997, wherein he undertook to produce medical certificate on 03.04.1997. It is this certificate which is referred to by the learned Judge of the Labour Court, which is not produced till last. The learned senior advocate invited attention of the Court to various communications whereby the respondent workman was asked to appear before doctor of the Company on 17.04.1997, but he did not appear on that day and stated in the communication dated 17.04.1997 that he will not be able to appear before 20.04.1997. The respondent workman was asked to appear before the doctor on 21.04.1997. Even on that day he did not appear. Therefore, the Company, as last chance, asked him to appear before the Company's doctor on 07.05.1997, but on that day also he did not appear before the doctor. Therefore, departmental proceedings were undertaken.;