The General Manager, SCC LTD v. The Chairman, IT-II, Hyderabad

Order

This Writ Petition is filed challenging the award dated 30.9.1999 in I.D.No.28 of 1998 of the Industrial Tribunal-II, Hyderabad and to quash the same. On a reference made at the instance of the Andhra Pradesh Colliery Mazdoor Sangh (AITUC), Godavarikhani under Section 10 (2) (A) and Section 10(1) (d) of the Industrial Disputes Act, 1947 ( for short “the Act”), the Ministry of Labour by order dated 1-3-1998

referred to the first respondent-Tribunal for adjudication of the following dispute. “ Whether the action of the General Manager, M/s. SCCL., RG.I., Div. Godavarikhani in dismissing Sri Rendla Laxman, Badli Filler, Gdk.1 incline w.e.f. 5.11.1995 is justified or not ? And whether he is entitled reinstatement with backwages and other consequential benefits ? If not, to what relief he is entitled ?” Sri. Rendla Laxman, Badili Filler, GDK-I incline, (hereinafter referred to as “workman”) was appointed as Badili Filler in the Singareni Collieries Company Limited, Ramagundam-I, Godavarikhani ( hereinafter referred to as “the management”) in the month of January, 1991 and was performing his duties. It is alleged that in the year 1994 he fell sick and he attended the duties for only 51 days. He was issued a charge sheet dated 16-6-1996 by the Management alleging unauthorized absence without sufficient cause. He submitted his explanation to the charge sheet and enquiry was conducted and finally the management dismissed the workman from service with effect from 5-11-1996 by proceedings dated 31-10-1996. On the ground that the said dismissal order is ex-facie illegal, unjust and arbitrary, the workman raised conciliation proceedings before the Assistant Commissioner (Central), Mancherial, which ended in failure. Thereafter, the matter was referred by the Government of India to the 2nd respondent to consider the above reference. It was contended on behalf of the workman that he fell sick on account of Jaundice disease and took treatment from the Area Hospital from January, 1994, that it was normal practice for the Area Hospital to send the information to the concerned authorities regarding sickness and treatment being given to a worker and that the management of the Area Hospital failed to do this. It was contended that the Enquiry Officer was not right in holding that the workman had remained absent from duty without information to the management. In view of the fact that the workman was suffering from Jaundice during the relevant period, the workman had sufficient cause for his absence from the duty. It was also contended that the enquiry officer failed to consider this aspect and committed errors which are not based on available evidence. It was pleaded that absence of workman could have been regularized according to the rules and regulations and passing of dismissal order was not warranted as his absence was not wanton or deliberate but only on account of his ill health. Per contra, the management contended that the workman was habitually absent from duty, that the muster shows that in the year 1992 he attended for 175 days, in the year 1993 for 121 days, in the year 1994 for 51 days only and in the year 1995 only 17 days and this clearly shows that the workman was not diligent in discharge of his duties. It was contended that because of his frequent absenteeism a charge sheet bearing no.Gdk/1/6- G/95/1218 dated 16-5-1996 was issued under Standing Order No.25(25), that the workman submitted his explanation, which was not found satisfactory, that the management ordered an enquiry in which the workman participated, that the enquiry officer submitted his report holding that the charge framed against the workman is proved and thereafter the impugned order terminating the services of the workman with effect from 5-11-1996 came to be passed. It was also contended that the workman had actually admitted his misconduct in his reply ExM3 wherein he stated that he did not attend for duty since he was suffering with jaundice and reiterated the same during the enquiry. The management also contended that the workman did not produce any medical or other documentary evidence to support that he fell ill, that the workman did not report to the Area Hospitals in respect of his alleged ill health even though the management had fledged company hospital at Ramagundam(which is meant for company employees) and that the workman had also not produced any proof that he underwent medical treatment of any kind. It was contended that if the workman had gone to Company Hospital for treatment during the year 1994, the hospital authorities would have informed the same to the management and therefore the explanation of the workman that he suffered from Jaundice is not supported by any evidence and thus the misconduct of the workman was proved beyond reasonable doubt and punishment of dismissal from service imposed on the workman is valid. The first respondent Tribunal by its award 13-7-1999 held that the domestic enquiry conducted against the workman was valid, that the finding of the enquiry officer that the charge leveled against the workman is proved is correct and noted that no interference is warranted by the Tribunal; but it held that the punishment imposed on the workman is too harsh as the misconduct on the part of the workman is not of a serious nature. It therefore came to the conclusion that a lenient view has to be taken with regard to the punishment and ordered that the workman be reinstated into service with continuity of service but without backwages. Challenging the said award of the first respondent- Tribunal, the management has filed this writ petition contending that the Tribunal erred in interfering with the punishment imposed on the workman, the Tribunal had not properly exercised jurisdiction vested in it under Section 11-A of the Act and the workman being a habitual absentee he could not have been granted any relief by the Tribunal. Heard the learned counsel for the petitioner and Sri T. Prabhakar, learned counsel for the 2nd respondent. The 1st respondent , in the impugned award , had held that the charge leveled against the workman i.e that he had put in only 51 days of attendance during the year 1994 is proved. In his reply Ex.M3 to the charge sheet Ex.M1, the workman had admitted that he did not attend to duty for the above period and pleaded that he was suffering from Jaundice , that he would be careful in future in attending to his duties and that he may be excused for his lapse. He also admitted in the enquiry that he had not reported his sickness to the Company Hospital and he took treatment from a private doctor. The workman had not produced any evidence before the enquiry officer to show that he took treatment for Jaundice at a private hospital during that period. In this view of the matter, the enquiry officer and the Tribunal, in my view, rightly held that the workman was not able to prove that he was suffering from Jaundice and there was sufficient cause for his absence, and therefore they were justified in holding that the workman was guilty of the charge of habitual absence. No doubt the Industrial Tribunal or the Labour Court is conferred u/s.11-A of the Act, the power to interfere with the quantum of punishment in the event it came to the conclusion that the punishment imposed by the management on a workman is disproportionate to the misconduct. But the question is, whether on the facts of this case, such discretion has been properly exercised by it. On the facts of the present case, where the workman had attended to his duty only for 51 days in an entire year (1994) thereby exhibiting callousness towards discharge of his duties and was unable to prove that he had reasonable cause (such as illness) for being absent for such a long period, he has to be treated as a habitual absentee. The Supreme Court of India in Harjit Singh vs. State of Punjab [1] had held following the decisions in State of Punjab vs. Sukhwinder Singh [2] and Maan Singh v. Union of [3] India that in case of habitual absence, a punishment of dismissal from service is just. Therefore such habitual absence on the part of the workman as is held proved in this case, warrants punishment of dismissal from service. In my view, the Tribunal erred in taking the view that the misconduct is not a serious one and that a lesser punishment is warranted. It cannot be said that the said punishment imposed by the management is disproportionate to the misconduct or that the misconduct is not a serious one. In view of the above, the Award dated 30-9-1999 passed in I.D.No.28 of 1998 by the first respondent-Tribunal is quashed and punishment of dismissal imposed by the Management on the workman is upheld. The writ petition is accordingly allowed. No costs. JUSTICE M.S. RAMACHANDA RAO Kk/17-8-2012 THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO WP No.3801 of 2000 Dated : 17-8-2012 [1] 2007) 9 SCC 582 [2] (1999) SCC (L & S) 1234 [3] (2003) 3 SCC 464