- (1.) THIS writ petition for certiorari and mandamus is directed against the award dated the 12th March, 1979 and certain orders passed by the 9th Industrial Tribunal in case no. 5 of 1975 under section 33a of the Industrial Disputes Act, 1947.
(2.) THE petitioner joined service under the respondent no. 3, the Fertiliser corporation of India Ltd. now renamed as Hindusthan Fertiliser Corporation at durgapur, District Burdwan as a Crane operator in 1968 and was subsequently promoted as Equipment Operator, Grade II or in other words, his duties were those of a truck driver. During the pendency of an industrial dispute between the workmen of the respondent no. 3 and their employer, the management of the employer company issued a charge sheet on 2. 5. 1974 against the petitioner containing the following charges : 1) That the petitioner fraudulently changed the gear box of truck no. WGH 7336; 2) That the petitioner had taken 31/2 days to return from Calcutta with the said truck which was considered abnormal and he had wasted company's money and time deliberately; 3) The petitioner was in the habit of taking unauthorised leave and had been absent without intimation from 22. 4. 1974 onwards as indicated in the allegations accompanying the charge sheet to the effect that the petitioner was absenting from 11. 4. 1974 to 15. 4. 1974 and again with effect from 22. 4. 1974 uptil the date of issue of the charge sheet without any information. An order of suspension was passed against the petitioner on 3. 5. 1974. Petitioner replied to the charge sheet on 4. 5. 1974. The management is said to have appointed an enquiring officer or committee for enquiring into the charges levelled, against the petitioner and the said enquiring authority is said to have submitted a report after enquiry, finding; the petitioner guilty of all the three charges mentioned in the charge sheet. Thereafter, the management is said too have accepted the findings of guilt against the petitioner in the report submitted by the. enquiring authority. An order of dismissal is said to have been passed by the General Manager who is the competent authority against the petitioner which was communicated to him by a memo dated 1729th July, 1975, signed by the Chief Engineer, Mechanical and Chief Personal Officer. In the said memo, it has also been stated that the amount equivalent to loss or destruction of property belonging to the employer caused by the petitioner will be forfeited from the amount payable as gratuity and the company's contribution to the Provident Fund of the petitioner from 1972-1973 onwards up to the date of dismissal would also be forfeited.
(3.) THE petitioner filed a complaint before the Industrial Tribunal under section 33a of the Industrial Disputes Act challenging the aforesaid order of dismissal and forfeiture of gratuity and provident Fund Contribution passed by the management, without prior permission of the Industrial Tribunal during the pendency of the 'industrial dispute'. The company contested the. complaint by filing a written statement. As the records of the domestic enquiry made against the petitioner was mislaid and not available, the employer sought to justify the action taken against the petitioner, by adducing evidence before the tribunal. The Tribunal took evidence produced by the employer as well as the petitioner and after considering such evidence came to the conclusion that the first two charges against the petitioner were not proved and were thus baseless. As regards the first part of the third charge viz. , the charge of taking unauthorised leave habitually, it was abandoned by the learned lawyer for the employer company. The second part of the third charge that the petitioner was absent without, intimation from 22. 4. 1974 onwards till the date of issue of the charge sheet, that is, 2. 5. 1974 was pressed on behalf ox the employer before the tribunal as a misconduct under item (48)of clause (24) of Certified Standing Orders as it amounted to absence for more than 10 days without intimation. The tribunal observed as follows :- "this continued absence for more than 10 days is admitted in the written statement of the workman as well by the workman himself. He, however, says that he was sick from 22. 4. 1974 till he was suspended and he handed over the medical certificate on the date on which he was suspended. This in my opinion is an afterthought. Firstly there is no case in the written statement that he was ailing from 22. 4. 1974. As regards this charge it has been simply averred in the written statement " nor can on may 2, 1974 an absence from April 22, 1974 be called continued absence for more than 10 days unless the mind of. the person calling so is very much biased and prejudiced (vide ground (h) in the written statement ). So the story that he could not intimate the authority due to his sickness cannot be believed. , If he actually handed over the medical certificate to Sri Mukherjee, he would have obtained something in writing from him specially when he was served with a charge sheet and was suspended on the date on which he allegedly handed over the certificate. Even if he was ailing there is nothing to show that his illness was such that it was not possible for him to give intimation to the employer before the expiry of the stipulated time. Therefore it has been proved beyond doubt that the workman remained absent for more than 10 days without any intimation' when the charge sheet was issued. Therefore there was a misconduct under clause 24 (48)of the Standing Orders. It is a discretion of the management to impose any of the major penalties for the misconducts enumerated in the earlier clause. Dismissal is a major penalty. Therefore the Corporation was free to dismiss Sri singh for the continued absence for more than 10 days without permission". The Tribunal further held in connection with the imposition of the punishment of dismissal as follows :- "no doubt there were three charges in the charge sheet and only one was proved but in the dismissal letter (Ext Q) it has been clearly stated that the charges are grave. The punishment was not inflicted as some of the charges only were grave. The absence without information was a grave misconduct specially when the Corporation was anxious to know who was responsible for the change of the gear box. When, the plea of illness has been disbelieved, it must be held that there was no extenuating circumstances. On the other hand there were aggravating circumstances as he appeared only when he was suspended. In view of the above, I am unable to hold that the dismissal for unauthorised absence for more than 10 days continuously is unjustified ". In that view, the Tribunal dismissed the complaint holding that the dismissal in question was justified.;