ASOPA, J. - (1.) BY the instant writ petition, the petitioner has challenged the award dated 25/8/1993 passed by the Labour Court, Bharatpur whereby the reference has been answered in negative.
(2.) THE State Government referred the following dispute to the Labour Court for adjudication, which is as follows:- Briefly stated the relevant facts of the case are that the petitioner was appointed as Mines Guard on 2/1/1973. The petitioner has continusouly worked as such till 4/3/1986 when his services were terminated after giving notice on the ground that he remained absent on 16/5/1985 & 17/5/1985 without giving any prior application and further notice of remaining absent without sanction of leave for which he was punished on earlier occasions, thus, he was habitual of availing leave without sanction. On receipt of notice, the petitioner gave his explanation that when he was on duty, he received a message from the passenger of the Bus going towards Sawai Madhopur that his daughter is seriously ill and he had been called to the village, therefore, without giving any application he went to his village for treatment of his daughter. Further case of the petitioner is that he also fell ill, of which medical certificates were submitted on 18/5/1985 on joining the duties. The said facts have been taken by the department as contradictory facts and his earlier absence has also been taken in consideration and he has been removed under Rule 27 (6) of the Mines and Geology Department work Charged Employees (Service Conditions) Order, 1974 (hereinafter to be referred as 'the Order of 1974' ). The petitioner has raised the dispute before the Conciliation Officer. On submission of failure report, ultimately, his case was referred to the Labour Court, Bharatpur where it was registered as LCR 1/88. The Labour Court, Bharatpur heavily relied on the Order of 1974 and held that services have been rightly terminated under Rule 26 (e) read with Rule 27 (6) after following procedure prescribed under Rule 28 with the further finding that the reasons given by the appellant for sanction of leave on account of illness of his daughter does not inspire confidence as the petitioner himself has thereafter given the certificate of his illness and considering past conduct of absence without getting leave sanctioned for which he was punished also, he is guilty of misconduct of habitual absence. The Labour Court, further held that the procedure followed for punishment of removal is in accordance with law. In this particular case, in the order of termination dated 4/3/1986, in the last it has been mentioned that the petitioner is habitual of remaining on leave without getting sanction for which he had been punished on earlier occasions, but his said misconduct had not reduced and the same had inreased. The Labour Court has also considered the earlier misconduct and gave a finding that he is habitual in remaining absent without sanction of leave. The Labour Court in para 3 & 4 of the its award dated 25/8/1993 referred the action taken by the Management in accordance with the procedure prescribed under Rule 28 for the misconduct under Rule 26 (e) and passing of the order under Rule 27 (6) of the Order of 197, and in the end of the said para, the Labour Court has given the finding that thus, in its opinion, the notice was given to the petitioner according to the said service rules and opportunity of hearing was also given, therefore, the order passed is in accordance with relevant service rules. Further in para 4, the Labour Court has held that the reason of leave given by the worker is contradictory and his services have been terminated after following the procedure in accordance with the law, which is valid. The Labour Court has further given the finding that the workman is guilty of misconduct. The another important aspect ignored by the Labour Court is that the petitioner was appointed on 2/1/1973 and his services were terminated on 4/3/1986, thus, he was having more than 13 years of service to his credit and the present punishment order is the result of the initiation of explanation notice of explaining his absence on 16/5/1985 & 17/5/1985. The para No. 3 & 4 of the award dated 25/8/1993 are as follows:- ...[VERNACULAR TEXT OMMITED]... The respondents have not filed any reply and further contested the writ petition orally by supporting the judgment of the Labour Court and placing reliance on the Order of 1974.
(3.) THE submission of counsel for the petitioner is that services of the petitioner have been terminated on the ground of habitual absentee, which is a misconduct and further casts stigma, therefore, the regular domestic enquiry was necessary, but without giving any charge sheet, taking reply to charge sheet, without appointing any enquiry officer and further without allowing him to produce evidence in defence etc. , the said order of termination has been passed. THE further submission of counsel for the petitioner is that the Order of 1974 has not been framed while exercising any statutory power nor the same has been passed in accordance with the Industrial Employment (Standing Order) Act, 1946, therefore, the same is nothing, but administrative in nature. THE procedure prescribed for imposing penalty under Rule 28 without conducting enquiry is violative of basic principle of imposing of the punishment after disciplinary action which could have only been in accordance with the principle of natural justice as well as principle of reasonable, just and fair procedure. He further submits that in case of punishment on the ground of misconduct, which casts stigma, the principle of natural justice was required to be followed by giving the reasonable opportunity to defend in a domestic enquiry. He also submits that principle of natural justice are inbuilt in Article 14 of the Constitution of India which prohibits the respondents from acting in a arbitrary manner. THE alternate submission of the counsel for the petitioner is that in case the present case is not taken as a case of misconduct then the same is the case of retrenchment and removal is violative of Section 25-F of the Industrial Disputes Act, 1947. Counsel for the respondents have drawn my attention to Rule 26 (e), 27 (6) & 28 of the Order of 1974, according to which, only explanation is necessary and no enquiry is required to be conducted, but the counsel for the respondents has not been able to point out under which provision the aforesaid Order of 1974 has been promulgated. Further, he has placed reliance on the covering page of the Order of 1974 wherein also there is no mention of any source of statutory power for enactment of the same or preparing the same under the standing order prescribed under the Industrial Employment (Standing Orders) Act, 1946. I have gone through the record of the case and Order of 1974 produced by the counsel for the respondents and further considered the rival submissions of the parties. ;