UTTARAKHAND TRANSPORT CORPORATION Vs. SHAMIM AHMED
LAWS(UTN)-2012-7-48
HIGH COURT OF UTTARAKHAND
Decided on July 25,2012

Uttarakhand Transport Corporation and Another Appellant
VERSUS
Shamim Ahmed and Another Respondents

JUDGEMENT

V.K. Bist, J. - (1.) PRESENT petition has been filed by the petitioners for setting aside the award -dated 16.12.2009 passed by the Presiding Officer, Labour Court, Dehradun, by which the Labour Court directed the petitioners to reinstate the respondent No. 1 in service without any back wages, but the period from the date of termination till the reinstatement will be counted for the purpose of calculating pension of respondent No. 1. Brief facts of the case, as narrated in the writ petition, are that on 01.05.1988, the respondent No. 1 was engaged as a helper with the petitioner department. Thereafter, the respondent No. 1 went on leave from 24.02.1997 to 30.03.1997. It is alleged that the respondent No. 1 remained absent from the duty after 30.03.1997 and had not joined duty after 30.03.1997. When the respondent No. 1 did not join his duty, then on 30.09.1997, the Senior Workshop In -charge, Dehradun submitted his report to the Regional Manager, Uttarakhand Transport Corporation, Dehradun. On the basis of the report -dated 30.09.1997, a letter was sent to the respondent No. 1, at his home address by registered A.D. post. By the said letter, the respondent No. 1 was asked to appear before the Medical Board, Meerut for his medical examination and after getting the fitness certificate from there, resume duties. But the said letter was returned back by the Postal Department with the endorsement that the addressee was not available at the address. Thereafter, again on 09.09.1997, the department wrote another letter to the respondent No. 1, which also returned back with the endorsement that the respondent No. 1 was not available in the village and his family members had no idea about his return. Thereafter, on 29.09.1997 the department published a notice in the daily newspaper asking the respondent No. 1 to attend the office within two weeks, after getting the fitness certificate from the Medical Board, but the respondent No. 1 did not respond to the said publication. Thereafter, on 25.11.1997 a charge sheet was prepared against the respondent No. 1 and the respondent No. 1 was charged for his illegal absence from the duty from 31.03.1997, without permission, for leaving the place of posting and for not receiving the registered letter sent to him. The charge sheet was sent to the respondent No. 1 by registered post, but the respondent No. 1 did not give any reply to the said charge sheet. On 31.03.1998, the Enquiry Officer sent a letter to the respondent No. 1 to appear before him on 11.02.1998 in the disciplinary proceedings, but the said letter was returned back by the Postal Department. Thereafter, the Enquiry Officer again sent a letter to the respondent No. 1 fixing 03.03.1998 for the enquiry, but the said letter was also returned back by the Postal Department. On 13.04.1998, the Enquiry Officer submitted his report in which charges leveled against the respondent No. 1 was found proved and a show cause Notice was sent to the respondent No. 1, by registered post, alongwith the copy of Enquiry Report. On 16.05.1998, the disciplinary authority, after going through the entire report of Enquiry Officer, passed the termination order of the respondent No. 1. Termination of the respondent No. 1 was referred to the Labour Court and same was registered as Adjudication Case No. 41 of 2002. The Labour Court, after hearing both the parties and after examining the material, which was produced by the parties, passed the award -dated 16.12.2009, reinstating the respondent No. 1 without back wages. It was also directed by the learned Labour Court that the period from the date of termination till -reinstatement would be counted for the purpose of pension of the respondent No. 1. Feeling aggrieved from the award -dated 16.12.2009 passed by the Presiding Officer, Labour Court, Dehradun, present writ petition has been filed by the petitioners.
(2.) LEARNED counsel for the petitioners submitted that the Labour Court, in its award dated 16.12.2009, gave specific finding that the respondent No. 1 was given full opportunity of hearing and he had full knowledge about the disciplinary proceedings initiated against him. The Labour Court observed that respondent No. 1 had deliberately not participated in the enquiry proceedings and reached to the conclusion that absence of respondent No. 1 is illegal and is against the departmental rules. He contended that once the Labour Court held that that respondent No. 1 deliberately not attended the enquiry, despite the fact that he had full knowledge about the initiation of the enquiry proceeding, the Labour Court erred in holding that the punishment awarded to the respondent No. 1 is not commensurate with the charges. He submitted that the Labour Court illegally and wrongly decided the issue No. 2 against the petitioners and has given wrong finding that the punishment awarded to the respondent No. is not commensurate with the charges leveled against him. He submitted that illegal absence from the duty is a serious charge and the services of the respondent No. 1 had legally and rightly been terminated. In support of his arguments, the teamed counsel for the petitioners relied upon on the judgments of Hon'ble Supreme Court reported in : (2009) 9 SCC 462 -Regional Manager, Bank of Baroda Vs. Anita Nandrajoy, : (2000) 5 SCC 65 -Syndicate Bank Vs. General Secretary, Syndicate Bank Staff Association & another and : (2001) 1 SCC 214 -Punjab & Sind Bank & others Vs. Sakattar Singh. The respondent No. 1 filed counter affidavit. In the counter affidavit, it is stated that respondent No. 1 fell ill for which doctor advised him for treatment. Due to this reason, the respondent No. 1 went on leave w.e.f. 24.02.1997 to 30.03.1997 for which he also moved application for leave, which was duly accepted by the petitioners -employer. The also mentioned in the counter affidavit that the respondent No. 1 was suffering from the disease, namely, Anxiety Neurosis and Chronic Bronchitis, for which his treatment continued w.e.f. 24.02.1997 to 01.02.2000. On 02.02.2000, the respondent No. 1 went to join his duties and moved an application alongwith Medical Certificate and fitness certificate and prayed for his joining, then he came to know that his services had already been terminated in the month of May, 1998. Thereafter he raised industrial dispute under Section 4K of the U.P. Industrial Disputes Act, 1947, which was referred to the Labour Court, Uttarakhand, Dehradun and was registered as Adjudication Case No. 41 of 2002. The learned Labour Court invited oral and documentary evidence from the parties and heard the matter. The Labour Court, after hearing the parties and after examining the material, which was produced by the parties, came to the conclusion that the punishment awarded to the respondent No. 1, is excessive and disproportionate to the charges. Learned counsel for the respondent No. 1, Shri Gopal Narain submitted that the Labour Court categorically recorded a finding that the punishment awarded to the respondent No. 1 was harsh one and excessive and therefore, the Labour Court rightly set aside the termination order and directed for reinstatement of respondent No. 1 in service, but without back wages. It is contended that the award rendered by the Labour -Court is perfectly justified. Learned counsel for the respondent No. 1 further submitted that the award rendered by the Labour Court is based on the finding of fact and that cannot be interfered in a proceeding under Article 227 of the Constitution of India. In support of his submission, the learned counsel for the respondent No. 1 relied upon the judgment reported in : (2009) 15 SCC 620 -Chairman cum Managing Director, Coal India Limited & another Vs. Mukul Kumar Choudhuri and others. It is also argued that the services of the respondent No. 1 were terminated only on the ground of his absence from duty, which was due to his illness and as per law laid down by the Hon'ble Supreme Court in the case of Rajasthan Tourism Department Corporation Limited & another Vs. Jai Raj Singh Chauhan : (2011) 13 SCC 541, at the most, the matter can be remanded to the disciplinary authority to award minor punishment.
(3.) I have considered the arguments advanced by the learned counsel for the parties and have perused the order passed by the Labour Court as well as the papers annexed with the writ petition.;


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