- (1.) Prayer made in this Civil Misc. Application is for early hearing of the writ petition. Civil Misc. No. 2855 of 2014 The main case is already at Sr. No. 972 on the regular Board of this Court. With the consent of the parities, the main case is taken up for hearing today itself. The Civil Misc. Application stands disposed of accordingly. CWP No. 1331 of 2005 Challenge in the present writ petition is to the award dated 11.9.2003 (Annexure P/2) whereby the reference was answered against the workman and it was held that dismissal from service was fully justified on account of the fact that he was absent from duty and being a driver of a Public Utility Service his conduct has led to a financial loss. The sole question that arises for consideration is that as to whether the Labour Court was justified in holding that punishment was valid and not exercising its powers under Section 11-A of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") and coming to the conclusion that termination was justified and not giving the benefit of lessor punishment. There is no dispute regarding the fact that the petitioner has rendered 17 years and 8 months services as a driver of the respondent Corporation when his services were terminated on 2.12.1996. The charge against the workman was that he remained absent from 4.12.1995 and did not take interest in his duties and his act was affecting the office discipline. On Enquiry Officer being appointed the workman admitted his guilt regarding his absence and in view of his admission he was held guilty of the charges levelled against him. Accordingly, show cause notice was served upon him proposing penalty of removal from service and personal hearing was given to him on 8.10.1996 and his services were dispensed with on 2.12.1996. Thereafter, the appeal filed by him was dismissed by the Addl. Managing Director on 20.6.1997. The Labour Court noticed that the workman had admitted the charges on the ground that he remained sick and applied for leave and thus, there was no necessity to order enquiry but even then two opportunities were given to him and he was heard at all possible stages. The doctor had not been produced and fact that he remained sick was not proved. It was further noticed that he had already attained the age of superannuation in April, 2003 during the pendency of reference proceedings. Accordingly, order of termination was upheld.
(2.) This Court is thus of the opinion that once the workman had never raised any worthwhile defence, the authorities should have taken into consideration his long period of service which they failed to do so. There is no denying the fact that the petitioner has more than 17 years of service and by virtue of his dismissal order, he has lost out on his retiral benefits. As per the rules of the Department, the workman could have been duly punished by imposing lessor punishment which the Labour Court failed to take into consideration and did not exercise its powers under Section 11-A of the Act merely on the ground that the workman had retired during the period of reference. The misconduct was not that of misappropriation or embezzlement and only on the ground of absence, the long period of service from 1979 should have been taken into account by the Labour Court keeping in view the provisions of Section 11-A of the Act.
(3.) Normally for reconsideration of penalty imposed the matter would be remanded for reconsideration to the department. However, at this stage in view of the fact that the workman has already superannuated in the present case in 2003 and the services were terminated in 1996 it would not be appropriate to remand the matter to the department. Therefore, this Court is of the opinion that this Court can substitute its own view as to the quantum of punishment as the Court is of the opinion that the punishment imposed is shockingly disproportionate. The Hon'ble Apex Court in Ramesh Chand v. Commissioner of Police, Delhi and others, 1999 AIR(SCW) 4911) while noticing that the employee had put in 28 years of service, converted the order of dismissal into one of compulsory retirement after taking into the fact that employer had superannuated. Similarly in B.S. Shirol v. Sri Veerbhadreshwar Education Society and others, 2004 13 SCC 619the Hon'ble Apex Court converted the order of dismissal into compulsory retirement but denied back wages. However, it was held that workman would be entitled for continuity of service for the purpose of calculating pension.;