Road Transport Corp Vs. Rawel Singh  Insc 318 (29 February 2008)
Thakker & D. K. Jain
APPEAL NO. 1664 OF 2008 ARISING OUT OF Special Leave Petition (C) No. 2747 of
2007 C.K. Thakker, J.
This appeal is filed against an award passed by the Presiding Officer of Labour
Court, Jallandhur on January
31, 2006 in Reference
No. 608 of 2000 and confirmed by the High Court of Punjab and Haryana on November 10, 2006 in Civil Writ Petition No.11570 of
Shortly stated the facts of the case are that the respondent-workman was
serving as a Driver with the Pepsu Road Transport Corporation ('the
Corporation' for short). On September 8, 1988,
the respondent sent a leave application from his home-town seeking leave upto September 30, 1988 on medical ground. On expiry of the
leave period, however, he did not join duties. A report was submitted by the
Depot Manager to the Corporation and a notice was issued to the workman on December 5, 1988 seeking his explanation as to absence
from duty. He was also asked to report within ten days. Though the said notice
was duly served, the respondent failed to join duty. A charge sheet was,
therefore, issued against the respondent wherein three allegations were levelled
and intentionally remaining absent without sanction of leave and without
sending leave application,
to take interest in work and
of Rules of Corporation.
reply was filed by the respondent denying allegations levelled against him and
praying for withdrawal of notice. The Corporation was not satisfied with the
explanation. An enquiry was instituted against the workman. Though the
respondent was fully aware and had knowledge of date of hearing, he failed to
appear before the Enquiry Officer and the enquiry was held ex parte. On the
basis of evidence led by management, a finding was recorded by the Enquiry
Officer that the charges levelled against the respondent-workman were proved.
After the receipt of Enquiry Officer's report again show cause notice was
issued to the respondent on June 20, 1989
and he was asked to submit his representation within fifteen days. He was also
asked to remain present, if he wanted personal hearing, but the respondent
failed to remain present.
Considering the reply submitted by the respondent, the Disciplinary Authority
passed an order of termination of services of the workman on July 13, 1989.
Being aggrieved by the order of termination, the respondent instituted a suit
in the Court of Sub-Judge Kapurthala. It was contended by him that the order of
termination was illegal, cryptic, unfair and contrary to the principles of
natural justice and fair play. Though the Corporation filed written statement,
contested the matter and denied all the averments made and allegations levelled
against the Corporation, the trial court, on June 3, 1993 decreed the suit holding that the order was not sustainable
as it was violative of principles of natural justice as also inconsistent with
the provisions of Service Rules of the Corporation. The Court, therefore,
granted reinstatement of the plaintiff-employee granting liberty to the
Corporation to hold fresh enquiry on the same charges. The Corporation
preferred an appeal against the decree passed by the trial court but the
appellate court confirmed the decree. The matter came to an end there; the
workman was reinstated in service and granted all the benefits to which he was
held entitled under the decree.
the light of the observations made and liberty granted by the Court, fresh
enquiry was instituted against the respondent. A show cause notice was issued
which was duly received by the respondent but he did not participate in the
enquiry. Enquiry was, therefore, proceeded ex parte. According to the
Corporation, it was the modus operandi of the workman not to remain present at
the enquiry as he was working with private bus operators and thereafter to
challenge ex parte orders. In the second enquiry also, he did not cooperate. He
contended that he had not received necessary documents. He did not join the
proceedings, remained absent and allowed the enquiry to proceed ex parte.
Finally, he was dismissed from service. Being aggrieved by the said action, he
raised an Industrial Dispute and a reference was made under Section 10 of the
Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). The Labour Court, Jallandhar, as stated above passed
an award in favour of the workman on January 31, 2006 which was confirmed by the High
Court against which the present appeal is filed by the Corporation.
Notice was issued by this Court on February 23, 2007 and ad interim stay was also
granted. The matter was thereafter ordered to be placed for hearing and that is
how the matter is before us.
have heard learned counsel for the parties.
The learned counsel for the appellant -Corporation contended that the Labour Court as well as the High Court have
committed an error of law and of jurisdiction in passing the award in favour of
the respondent-workman. It was submitted that the charges levelled against the
respondent were proved. Though opportunity of hearing had been afforded to the
respondent, he did not avail of such opportunity and it could not be said that
the enquiry was improper or unfair. So far as documents are concerned, it was
submitted that the documents had already been supplied to the respondent and he
had admitted the said fact. According to the report of the Enquiry Officer, all
the three charges levelled against the respondent were proved. If, in the light
of the above report, the respondent was dismissed from service, it could not be
said that no such order could have been passed and it was liable to be set
The Labour Court was wrong in holding that enquiry
was not in consonance with law. It was also wrong to exercise power under
Section 11 A of the Act and to grant reinstatement. Serious grievance was made
by the learned counsel against the direction to pay back wages. It was
submitted that even if the Labour Court
was satisfied that it was a fit case to exercise power under Section 11A of the
Act, on the facts and in circumstances of the case, it could not have awarded
full back wages with interest @ 6%. This is particularly in view the consistent
conduct of the respondent- workman in not cooperating with the disciplinary
proceedings. It was, therefore, submitted that the appeal deserves to be
allowed by setting aside the award passed by the Labour Court and confirmed by the High Court.
Learned counsel for the respondent, on the other hand, supported the orders. It
was contended that the Labour
Court, recorded a
finding of fact that principles of natural justice had not been observed and
hence enquiry could not be said to be fair and in consonance with law. The Labour Court was also right in exercising power
under Section 11A of the Act and no fault can be found against such action.
High Court in exercise of supervisory jurisdiction did not think it proper to
interfere with the award and this Court may not exercise discretionary and
equitable jurisdiction under Article 136 of the Constitution. The counsel,
therefore, submitted that the appeal may be dismissed.
Having heard the learned counsel for the parties and considering the facts and
circumstances in their entirety, in our opinion, the appeal deserves to be
partly allowed. As already observed by us, even at an earlier occasion, when
allegations were levelled against the respondent-workman, notice was issued and
enquiry was instituted, he did not make himself available and the Enquiry
Officer was constrained to proceed with the enquiry ex parte and an order of
termination of services was passed. True it is that the respondent-workman
approached Civil Court and the suit filed by him came to
be allowed and the decree was confirmed in appeal. But it is equally true that
liberty was granted to the Corporation to initiate proceedings afresh on the
same charges and hence initiation of proceedings could not be said to be
illegal or contrary to law. From the record, it is clear that notice was issued
to the respondent and it was received by him, he filed his reply, he also
appeared before the Enquiry Officer but subsequently he did not remain present
and absented himself. If, in the light of the above facts, Enquiry Officer was
obliged to proceed with the enquiry ex parte, it could not be said that by
doing so, the Enquiry Officer had committed an error either of fact or of law
and the enquiry proceedings were liable to be quashed.
With regard to supply of documents, record reveals that the documents had been
supplied to the workman and the said fact had been admitted by him. His case,
however, was that due to heavy rain, all the documents were destroyed which
necessitated supply of fresh documents. But as observed by the Enquiry Officer,
the workman was asked as to whether he required any document but the workman
replied in the negative. In our opinion, he could have continued to appear
before the Enquiry Officer, got the documents, if he wanted, and participated
in the enquiry. He, however, deliberately did not do so. It is alleged by the
Corporation that the respondent intentionally remained absent as he was working
with private bus operators and wanted to take a chance if enquiry proceedings
are quashed and set aside on the plea of violation of principles of natural
justice. We are not entering into correctness or otherwise of the allegations
of the Corporation. One thing, however, is certain that in spite of service of
show cause notice, the respondent failed to appear at the enquiry and the
Enquiry Officer had to proceed with the enquiry in absence of the respondent.
Apart from that it is also clear from the record that so far as the charge as
to unauthorized absence of the respondent is concerned, the same is duly
established from the record. The Enquiry Officer, in our opinion, rightly
observed that charges (ii) and (iii) were consequential in nature and based on
hence all the charges can be said to have been proved against the respondent.
In our judgment, the Labour
Court was wholly
wrong in holding that enquiry was not fair. To us, it is not a case of not
extending an opportunity to the employee but not availing of opportunity by the
the finding recorded by the Labour Court
that the enquiry was vitiated being violative of natural justice and fair play
is based on 'no evidence' and must be set aside.
But as far as the second question is concerned, the Labour Court exercised power under Section 11A
of the Act. Taking allegations of the appellant Corporation on face value, it
is clear that the respondent- workman remained absent for few days unauthorisedly
without his leave being sanctioned. Charges (ii) and (iii) were consequential
even according to the finding recorded by the Enquiry Officer to the effect
that he failed to take interest in work and he did not obey the Rules framed by
the Corporation. In the light of the above 'misconduct', the Labour Court thought that it was a fit case to
invoke Section 11A of the Act. The High Court also, in exercise of supervisory
jurisdiction did not interfere with that part of the order. In our considered
opinion, submission of the learned counsel for the respondent-workman is
well-founded that this Court while exercising power under Article 136 of the
Constitution may not interfere with that part of the order. The dismissal of
workman on the ground of absence for few days, according to the Labour Court, was grossly disproportionate and
excessively high. In our judgment, the Labour Court had not committed error of law in recording such finding.
granted to the respondent- workman, therefore, needs no interference.
The question then remains with regard to consequential benefits and payment of
back wages. Once we hold, and we have already held, that the enquiry could not
be said to be contrary to law or in violation of principles of natural justice
and fair play, it was the duty of the respondent-workman to cooperate with such
enquiry and participate in disciplinary proceedings. The workman failed to do
so. In the circumstances, in our opinion, Corporation should not be asked to
pay back wags to the workman. Had the respondent remained present at the
enquiry proceedings, an appropriate order could have been passed by Enquiry
Officer after considering his case and after hearing him. There was thus
default and failure on the part of the workman himself which resulted in the
situation which has arisen. In view of this, in our view, the Labour Court was not right in awarding back
wages with interest thereon. To that extent, therefore, the order could not be
said to be in consonance with law. The High Court, in upholding the said award
and confirming the direction, committed the same error. That part of the
direction, therefore, is required to be set aside.
For the foregoing reasons, the appeal is partly allowed. The award passed by
the Labour Court and confirmed by the High Court so
far as reinstatement of the respondent-workman is concerned, is not disturbed.
But the direction issued by the Labour Court to the appellant- Corporation to pay back wages to the
respondent workman with interest thereon as confirmed by the High Court is
hereby set aside. The respondent-workman will be treated in continuous service.
He will also be entitled to consequential benefits on setting aside of
dismissal order but he is held not entitled to back wages for the period for
which he has not worked.