Girish Chandra Gupta, J. - (1.) -This writ petition is directed against an award dated 23rd February, 2000 passed by the 9th Industrial Tribunal, Durgapur. The facts of the case briefly stated are that the unskilled workman in question fell sick on 27th October, 1973. He was admitted as an indoor patient on 31st October, 1973 in the DSP Hospital belonging to the employer itself. He informed about his sickness to the employer by a letter dated 2nd November, 1973. The employer by a letter required the worker to report for duty by 15th November, 1973, in default, he would be deemed to have abandoned the service. He was unfit till 29th November, 1973. On 30th November, 1973 when he went to join his duty he was not allowed to do so and an order dated 21st November, 1973 was served upon him whereby his name had been struck off the rolls of the company for unauthorised absence. By an order dated 9th March, 1992 the Government of West Bengal made a reference to the Industrial Tribunal. The issue, which was referred, reads as follows : "Whether the management is justified in terminating the services of Shri Sastipada Keot (T/No.2345) with effect from 21.11.73 ? To what relief, any, is the workman entitled ?"
(2.) The learned Tribunal has answered the issue in the negative and has directed reinstatement with full back wages from 29th November, 1973. The reasons advanced by the learned Tribunal are as follows : "I have considered the facts and circumstances of this case and the submissions of the Ld. Lawyers of both sides on the case. I have considered the relevant provisions of the I.D. Act, 1947 in this regard. The Ld. Lawyer for the employer had put to much emphasis on the Standing Order 10(x) which provided that the company could presume abandonment of service by the employee in the event of this unauthorised absence of 8 days consecutively. This stipulation in the Standing Order as the presumptive also but this presumption is rebuttable by cogent evidence. It is an admitted fact the company had received the intimation from the employee on 3.11.1973 as regards the reasons of his absence from duty with effect from 27.10.73. He was sick from 27.10.73. This information was sufficiently ahead of expiry of the consecutive absence for 8 days. Therefore, reliance on the stipulation of the terms of the service as regards unauthorised absence giving rise to presumption of the abandonment of service on part of the employee does not hold much water in this case. In other words, the company is not entitled to get the benefit of Section 2(oo) (bb) of the I.D. Act, 1947 in this case. What the company should have done in these facts and circumstances is to initiate a proceeding on the ground of absence without reasons if the medical certificate is disbelieved and after furnishing charge sheet to that effect to the employee and holding enquiry into it he should have been punished had he been found guilty after such enquiry. This procedure has not been followed in the instant case. Therefore, the termination of this employee is bad in law. In the next place I take into consideration the xerox copy of the medical certificate produced by the employee. I take judicial notice of the fact that the xerox machine was not introduced in the year 1973. Therefore, there is every possibility of manufacturing this document. In spite of giving several chances for examining the doctor and producing the original document the employee has failed to do so. These circumstances itself is ground for concluding that the employee has failed to explain his absence satisfactorily for the period from 3.11.73 onwards till 30.11.73. This kind of unauthorised absence has been tried to be explained by oral evidence but how far the oral evidence is true that has to be determined by proper enquiry by an Enquiry Officer in a proper proceeding. This thing has not been done in the instant case nor any Standing Order has been produced to show what sort of misconduct these facts and the circumstances constituted. So, I hold that in the absence of proper Standing Order as to how delinquent could be dealt with this sort of delinquency, nothing could be done against him. Had those misconduct been defined by any Standing Order in that case. This could have been enquired into in a proper disciplinary proceeding and the employee should have been punished if he was found guilty. In this instant case the Employer has not followed any such procedure. Therefore, I hold that the order of termination is bad in law. The issues are therefore disposed of in favour of the petitioner - employee. He is entitled to reinstatement and back wages subject to deduction of the salary for the period from 31.10.73 to 29.11.73 in the event no leave is due to his credit. He is entitled to back wages. Hence, that the reference case is allowed on contest. No costs. The impugned order of termination of service of Sri Sastipada Keet is hereby set aside. The Employer is directed to reinstate him forthwith and to give him the back wages with effect from 20.11.73. The employer is entitled to deduct his salary and allowance if no leave is due to his credit of the Employer for-the period from 27.10.73 to 30.11.73."
(3.) Aggrieved by the order, the employer has come up before this Court in its writ jurisdiction. The workman is the respondent No. 3. The writ petition was filed on 6th April, 2000 whereas the workman concerned died on 2nd February, 2000. At the time of his death his age was 50 years. The award under challenge was passed on 23rd February, 2000. From the records of the Tribunals called for by this Court it appears that evidence was closed on 10th September, 1999. The matter was fixed for 'Argument' on 1st October, 1999. On 1st October, 1999 the matter could not be taken up because the Presiding Officer was not there. For the same reason the matter was adjourned on 3rd November, 1999. Ultimately the arguments were advanced on 16th February, 2000 and 18th February, 2000 and the award was passed on 23rd February, 2000. It does not appear from the records of the Tribunal that death of the workman was brought to its knowledge. The writ petition has indeed, been filed against the dead workman. Heirs of the deceased workman were decided at their own instance by this Court by an order dated 16th November, 2004.;