- (1.) This L.P.A. arises out of the order passed by the learned Single Judge in W.P. (L) No. 2964 of 2009 dated 28.06.2012 by which the learned Single Judge has confirmed the award passed by the Labour Court, setting aside the dismissal order and directing the Management to pay 50% of the back wages to the legal heirs of the workman who died when the matter was pending before the Tribunal. For unauthorized absence of the workman, the workman was charge-sheeted and in the domestic enquiry in spite of several notices, the workman did not turn up and the domestic enquiry proceeded ex parte. The Enquiry Officer found the charges proved and order of dismissal was passed on that basis. Challenging the order of dismissal the workman filed a case before the Industrial Tribunal being Reference Case No. 7 of 1999. The Tribunal by the award dated 4.9.2008 set aside the order of dismissal and directed the Management to pay 50% back wages on the ground that in the enquiry, the Presiding Officer was made a witness by the Enquiry Officer, The past record of the workman was taken into account by the disciplinary authority but for that no material was placed before the enquiry officer and no findings are recorded by the Enquiry Officer in the enquiry report regarding past record of the workman. Being aggrieved by the order of setting aside of the dismissal order and also direction to pay 50% back wages, the Management filed the writ petition being W.P. (L) No. 2964 of 2009. Holding that the Industrial Tribunal has discussed the facts, evidence and the circumstances in detail and also scrutinized the same in the light of the provisions of law, the learned Single Judge confirmed the award passed by the Industrial Tribunal and directed the Management to pay 50% back wages to the legal heirs of the deceased-employee. Being aggrieved by the dismissal of the writ petition, the Management has preferred this L.P.A.
(2.) Learned counsel for the appellant-Management, Mr. Ananda Sen, submitted that earlier on number of occasions in the year 1986-89, the deceased-workman absented himself and for those unauthorized absence domestic enquiry was held against, the workman. Learned counsel further submitted that for the alleged continued absence, charges were framed against the workman and even in the enquiry the workman did not turn up and based on the recorded findings of the Enquiry Officer and taking into account the past record of the workman, the disciplinary authority rightly imposed the punishment of dismissal from service. Learned counsel further submitted that the punishment imposed was based on the earlier findings of the Enquiry Officer and Tribunal was not justified in re-analyzing the evidence and without taking into consideration, the past record of the workman, the Tribunal was not justified in setting aside the punishment of dismissal from service. Learned counsel further submitted that even if there was a lack of evidence for the past record, the Management adduced evidence in the Tribunal and the same was not appreciated by the Tribunal and this salient aspect was kept untouched while confirming the award by the learned Single judge. Learned counsel further submitted that for the unauthorized absence of the workman, if the order of payment of 50% back wages is not set aside, it will amount to conferring the premium upon the workman who unauthorizedly absented himself and tins would affect the morale of the entire workmen. Without prejudice to the above contention, learned counsel prayed for reduction of the back wages.
(3.) We have considered the submissions of learned counsel for the appellant-Management.;