K.Raman v. The Central Government Industrial Tribunal cum Labour Court & Ors.

on the same date stating that he was ill and he was not able toappear for enquiry with a request to postpone the enquiry for 15days. e) It is also stated that the petitioner authorized oneViswanathadas to represent him. It is stated that the petitioner’srepresentative Viswanathadas and two others met the Enquiry Officerand requested for adjournment and that was rejected and therepresentative requested the Enquiry Officer to adjourn the mattertill 4.00 p.m. on that day so that the petitioner who was on theway, would appear for the enquiry, but the same was refused and exparte enquiry was made. According to the petitioner, no witnesseswere examined and no documents were marked and after recording thestatement of one Mr.Chandrasekaran, Presenting Officer on24.6.1998, the prosecution side was closed. f) The Presenting Officer’s statement was treated asevidence which according to the petitioner, is opposed to theprinciples of domestic enquiry. It is stated that the EnquiryOfficer did not affirm the statement of the Presenting Officer byputting his signature. It is stated that no document was marked asPE1, but the Enquiry Officer has referred a document PE1 in hisreport and therefore, the decision of the Enquiry Officer isperverse and the Enquiry Officer has imported his personalknowledge and relied upon such document and according to thepetitioner, there was no enquiry conducted in the manner known tolaw and there was no evidence adduced against the petitioner andthe finding of the Enquiry Officer is not based on the materialevidence available in the domestic enquiry. g) It is stated that the disciplinary authority, byaccepting the finding of the Enquiry Officer, issued a second show-cause memo on 30.6.1998, as to why the petitioner should not bedismissed from service and the petitioner submitted his explanationand finally the petitioner was dismissed from service by orderdated 25.7.1998. The appeal filed before the appellate authoritywas also rejected on 5.9.1998. Therefore, the petitioner raisedan industrial dispute under Clause (d) of sub-section (1) and sub-section 2(A) of Section 10 of the Industrial Disputes Act onvarious grounds including that the domestic enquiry conductedagainst the petitioner and the charge memo filed against thepetitioner dated 19.3.1998 are perverse and the enquiry has notbeen conducted in the manner known to law. 3. It was, however, the case of the second respondent beforethe Labour Court that the disciplinary authority passed the orderof dismissal on 25.7.1998, which was modified by the appellateauthority on 5.9.1998 and thereafter, the dispute was raised in theyear 2005, after nearly more than five years without explainingvalid reasons for such long delay. The charge framed against thepetitioner was that the petitioner was absent from duty from6.2.1998 onwards without prior sanction of leave and the petitionerdid not return for duty till date. As per the Standing Order-29, https://hcservices.ecourts.gov.in/hcservices/ during the year 1997 the petitioner was cautioned about hishabitual absence without sanction of leave. Therefore, accordingto the second respondent, the petitioner is in the habit ofremaining absent and overstaying the sanctioned leave and it is amisconduct as per the Standing Orders. Since no explanation wasgiven by the petitioner, a charge memo was issued and domesticenquiry was ordered against the petitioner and enquiry notice wasissued on 13.5.1998, posting the enquiry on 23.5.1998. a) Again it was adjourned to 25.5.1998 and then to6.6.1998 and to 26.6.1998 and enquiry notices were sent to hislocal (Neyveli) address as well as to his native village addressand the enquiry notices sent to his local address were returnedwith endorsement ‘left’ and the notices sent to his native villageaddress were received by the petitioner. Therefore, it is statedthat in spite of adequate opportunity having been given, thepetitioner has not taken any steps to participate in the enquiryand the enquiry was held ex parte on 24.6.1998 and the EnquiryOfficer gave his finding that the charge framed against thepetitioner was proved and on consideration of the enquiry report,the disciplinary authority awarded the punishment of dismissal fromservice and against that order, the petitioner preferred an appealand that was rejected with modification in the punishment into oneof removal from service with effect from 2.2.1998 instead ofdismissal from service. b) It is stated that the domestic enquiry was fair andproper and there was no mala fide exercise of power. It is statedthat the petitioner did not report for duty from 7.2.1998 onwardsand no leave application was submitted and memos were issued on11.2.1998 and 17.2.1998 to his residential address and he did notjoin duty. It is stated that even though the petitioner sent twocommunications requesting leave up to 21.2.1998 and 15.3.1998citing illness, the communications were received by therespondent/management on 19.2.1998 and 5.3.1998. It is stated thatthose communications did not contain any medical certificate. c) It is also stated that subsequently, the petitionersent a communications for leave up to 25.3.1998 and then, up to15.4.1998 and up to 5.5.1998 without any medical certificate. Itis stated that those letters did not contain the residentialaddress of the petitioner and only with his undated communicationin which he sought leave up to 30.6.1998, the petitioner enclosedtwo medical certificates purportedly issued by one Dr.S.Loganathan,Assistant Surgeon, Government Royapettah Hospital, Chennai insupport of his leave from 7.2.1998 to 30.4.1998 and from 1.5.1998to 30.6.1998 for a total period of 144 days and the communicationsdid not contain the nature of illness of the petitioner, nor theaddress of the petitioner where he was residing at that time andthe medical certificates did not contain the date of issue and thedetails of clinical condition and the investigation done by thedoctor. However, by that time, the departmental disciplinaryproceedings were initiated by issue of charge memo dated 19.3.1998 https://hcservices.ecourts.gov.in/hcservices/ and therefore, there is no question of sanction of leave at thattime. d) It is stated that the respondent/management itself ishaving a hospital, equipped with 350 beds and specialist doctorsand therefore, it was always open to the petitioner to avail thesaid free treatment in the said hospital. But, in the guise ofgoing to Chennai, he was unauthorisedly absent. It is stated thatthe petitioner is not a Government servant and therefore, Article311(1) of the Constitution of India will not apply and the ordersof the authorities are well within the jurisdiction.4. The Labour Court has raised an issue, as to whether theaction of the management in removing the petitioner from service islegal and justified. Before the Labour Court the petitioner hasexamined himself as WW1 apart from another witness WW2 and markedExs.W1 to W57, while the second respondent management has examinedMW1 apart from marking documents as Exs.M1 to M29.5. The Labour Court has taken note of the point raised by thepetitioner that the action of the second respondent in dismissingthe petitioner which was subsequently modified as removal fromservice is predetermined and the order has been passed withoutfollowing the principles of natural justice and against the rightguaranteed under Article 311(1) of the Constitution of India. a) The Labour Court has also taken note of the contentionraised on the side of the second respondent/ management aboutvarious steps taken for intimating the petitioner of the enquirydates and also the nature of medical certificates produced beforethe management. The Labour Court considered Exs.M2, M3 and M5 andfound that previous warnings were given to the petitioner for hisearlier absence from duty by warning memos date 26.9.1997,5.12.1997, 16.12.1997 and 22.1.1998. The Labour Court alsoconsidered three other memos issued in Exs.M6 to M8. The LabourCourt has come to the conclusion that during the relevant point oftime, the petitioner did not reside at the accommodation allottedby the second respondent management and he did not give his addressfor communication and there was no proper leave application andhence, Ex.M9 charge memo dated 19.3.1998 was issued. b) The Labour Court has also considered various letters,viz., Exs.M7, M10, M11, M12, M13, M20 and M22 addressed by thepetitioner to the second respondent which did not contain even theaddress from where the petitioner sent the communication to thesecond respondent and found that the question of sanction of leavedoes not arise. The Labour Court also considered the certificatesissued by Dr.S.Loganathan which did not even mention the nature ofillness suffered by the petitioner and which did not contain thedate of issue and clinical details and came to the conclusion thatthere is no satisfactory explanation for the petitioner for waitingfor a period of five years after the order of dismissal passed. https://hcservices.ecourts.gov.in/hcservices/ c) The Labour Court has also found that when there issufficient medical facility available at NLC, it is not known howthe petitioner has wanted to take treatment at Chennai and nothinghas prevented him to inform the second respondent about thetreatment taken by the petitioner at Chennai. Therefore, theLabour Court has come to the conclusion that the ground raised bythe petitioner that he was sick cannot be accepted. However, inrespect of the contention raised on behalf of the petitioner thatunder section 11A of the Industrial Disputes Act, the Tribunal isempowered to go into the fairness of the enquiry based on variousjudgments, the Labour Court rejected the same on the ground thatthe petitioner has not proved that he is suffering from anysickness. d) The further contention raised by the petitioner thatthe disciplinary authority has no power to dismiss him, but onlythe Chief Engineer has got the power to dismiss him, has beenrejected by the Labour Court by accepting the case of the secondrespondent that such power has been delegated to the disciplinaryauthority. The Labour Court has ultimately found that the medicalcertificate itself is not bona fide and on facts, refused toaccept the same and held that the order of the second respondent,removing the petitioner from service is valid in law.6. The finding of the Labour Court is challenged by thepetitioner/workman on various grounds, including that the LabourCourt ought to have considered as to whether the domestic enquirywas conducted in a fair and proper manner and whether there was nolegal evidence available for the Enquiry Officer to come to theconclusion and the first respondent Labour Court having failed togive its finding about fairness and correctness of the domesticenquiry, has misdirected itself in law and therefore, the impugnedorder is not valid. a) It is also stated that the Labour Court has failed tosee that there was no legal evidence available to prove the chargein the domestic enquiry especially when the second respondentmanagement has not let in any evidence and filed any document toprove the charge and that the Enquiry Officer has relied upon thedocuments which do not form part of the domestic enquiry records.The reliance placed on the document PE1 and the confidential reportof the worker cannot be the basis and the finding given by theEnquiry Officer on the basis of his personal knowledge would makethe entire proceedings perverse, which fact cannot be taken note ofby the Labour Court. b) It is stated that the Labour Court has misdirecteditself to decide the question, whether the claim of the workmanthat he was unwell and taking treatment at Chennai is true or not,whereas the crux of the issue should be as to whether the domesticenquiry conducted by the second respondent is fair and proper,especially when it is the case of the petitioner that he sent seven https://hcservices.ecourts.gov.in/hcservices/ leave letters seeking leave/ extension of leave on medical groundsand out of seven, five letters did not contain medical certificatesand two letters contained medical certificates but they did notcontain the details, for which the petitioner cannot be made liableor responsible. It is stated that when once the medicalcertificates were issued, the presumption was that the petitionerwas ill and the Enquiry Officer cannot come to a conclusion thatthe petitioner was not ill and it is a perverse finding which hasnot been considered by the Labour Court. c) It is also stated that when the petitioner was absentonly for 140 days which is less than 180 days, it cannot beconcluded that the petitioner has left the service voluntarily andtherefore, the finding of the Labour Court that the leave for 144days on medical grounds is more than 90 days and hence, it shouldbe treated as the petitioner voluntarily having left the service isnot proper.7. Mr. R.Rajaram, learned counsel for the petitioner wouldsubmit that the enquiry file would reveal that the enquiry was notconducted in the manner known to law. As per law, in the domesticenquiry, the employer has to let in evidence and prove the case andalso make the witness available for cross-examination by theworkman. Such procedure having not been followed, it must be heldthat the proper procedure has not been followed. He has furthersubmitted that under section 11A of the Act, the Labour Court oughtto have found as to the fairness or otherwise of the enquiry whichfunction has not been properly performed by the Labour Court. a) As far as the finding on delay is concerned, it is hissubmission that law is well settled that the Labour Court can gobeyond the evidence and even if there is delay of five years, thatcannot be a fatal for the employee to raise industrial dispute byrelying upon the judgment in Maharashtra State Road TransportCorporation vs. S.Y.Ubale and others [2009 (2) LLJ 287 (Bom)]. b) He also relied upon the judgment in Ramadhar Tiwarivs. Union of India and others [2003 (1) LLJ 412], to substantiatehis contention that for a workman to raise an industrial dispute,there is no limitation, by relying upon the judgments in AjaibSingh vs. The Sirhind Co-operative Marketing-cum-Processing ServiceSociety Ltd., [AIR 1997 SC 1351] and Gurmail Singh vs. Principal,Government College of Education and Others [2001 (1) LLJ 1080(SC)]. As far as the powers of the Labour Court under section 11Aof the Act, he would rely upon the judgment in Chairman-cum-Managing Director, Coal India Ltd., & Another vs. Mukul KumarChoudhuri & Others [AIR 2010 SC 75].8. On the other hand, it is the contention of Mr.N.A.K.Sharma, learned standing counsel appearing for the secondrespondent/ employer that sufficiency or otherwise of the evidencebefore the domestic enquiry or the Labour Court cannot be decidedby the High Court under Article 226 of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/ He would rely upon the judgment in Chairman & MD V.S.P. & Othersvs. Goparaju Sri Prabhakara Hari Babu [JT 2008 (4) SC 51] apartfrom the judgments in K.B.Lokanathiama and others vs. Management,Ponds India Ltd., Tindivanam and another[(2008) 8 MLJ 168] andN.S.Inbakumar vs. Presiding Officer, II Additional Labour Court,Chennai and others [2008 (8) MLJ 561].9. The charge memo issued against the petitioner dated19.3.1998 is marked as Ex.M9 which is as follows:"Whereas it has come to the notice that Shri K.Raman,(CPF.No.40997) I.W.GR.II Testing Zone/MRT/Thermal StationII has committed the following acts/omissions which aremisconducts falling under standing order 46. Thefollowing charges are framed against him.That Shri K.Raman, I.W.GR.II (CPF.No.40997) TestingZone/MRT, Thermal Station II is absenting himself fromduty from 6.2.98 onwards without prior sanction of leave.The individual was issued Memo under reference 3 and 4above highlighting his absence and its consequences butthe individual did not return for duty till date. Inthis connection it is noticed that the individual wasalready cautioned under standing order 29 during thecalendar year 1997 about his habit of remaining absentand availing Extra-ordinary Leave without prior sanctionas required. In spite of the above the individual is inthe habit of remaining absent or overstay the sanctionedleave. This is an act of misconduct falling under sub-clause(s)i, vii, xii, xxxi, and xxxviii of standing order46 read with standing order 29C, 31 a and b.Shri K.Raman, I.W.GR.II (CPF.No.40997) TestingZone/MRT, Thermal Station II is directed to show-causewithin 3 days of the receipt of this Memo as to whydisciplinary action should not be taken against him. Heshould submit his written explanation through properchannel. He shall indicate in the explanation to theMemo. Whether he wants to be heard orally or in person.If no explanation is received within the prescribed timelimit, it will be presumed that he has no explanation tooffer and orders will be passed on merits."10. A reference to the proceedings of the domestic enquiryheld on 24.6.1998 in the form of notings of Enquiry Officer showsthat in spite of notices, the delinquent failed to appear andtherefore, it was decided to conduct enquiry ex parte. Whiledeciding to record evidence on prosecution side, the statement ofPresenting Officer Mr.R.Chandrasekaran, was recorded. The relevantportion of the same is as follows: "Notings by enquiry officer:The charged employee had been communicated about theenquiry and yet the individual has not present for the https://hcservices.ecourts.gov.in/hcservices/ enquiry. Since the individual has been given threechances and still there is no response from him, theenquiry is held "exparte" and accordingly, the evidenceof prosecution being let in. The statement of ShriR.Chandrasekaran, (Presenting Officer), is enclosed inthree pages."11. The Presenting Officer, whose statement was recorded wasonly authorized to present the case of employer before the EnquiryOfficer, who is to perform quasi-judicial function of conductingenquiry, however, without being entangled with the complicatedprocedures. The statement of the Presenting Officer, who wasauthorized to present the case of the management before the EnquiryOfficer cannot be taken as evidence on the side of the managementfor the purpose of proving the charge. The Presenting Officer whois expected to present the case of the management to the EnquiryOfficer through witnesses has introduced some documents, PE1 andPE2 which are stated to have related to the leave earlier availedby the petitioner unauthorisedly. In fact, the PresentingOfficer’s statement which has been recorded by the Enquiry Officeris as follows:"1. That Sri K.Raman joined as I.W.Gr.II (Trainee) inNLC on 1.10.96 and was regularised on 1.4.98 as I.W.Gr.IIand that he was in the habit of remaining absentfrequently and availing EOL without prior permission oroverstaying the sanctioned leave.2. Several letters of warning, advise, cautionnotices were issued to him to correct the individual.3. He was also cautioned during the calendar year1997 itself about the habit of remaining absent andavailing EOL without prior sanction or sufficient causeand he availed EOL for 87 – ½ days during the calendaryear 1997.4. The above habit of his remaining absent hasalready been entered in his self appraisal report andalso communicated to him. Copy of the communication wasfiled as exhibit.5. Seven caution letters which have been sent to himwere filed as exhibits.6. The details of EOL availed by him during the year1997 were also filed as exhibit PE2.7. The individual did not show any improvement butremained absent from 6.2.98 to till date.8. According to Standing order 31 A and B, if anemployee is absent continuously for more than 10 days orif he overstays the sanctioned leave for more than 8days, he will be deemed to have voluntarily abandoned hisemployment and his name will be removed from the rolls ofthe Corporation. https://hcservices.ecourts.gov.in/hcservices/

9. Further an employee under Standing order 29 isnot eligible for EOL for more than 90 days in any year ofservices if he has put in less than 3 years of service.10. Sri K.Raman, I.W.Gr.II is remaining absent formore than 10 days and had overstayed the sanctioned leavefor more than 8 days thus violating standing order 31 Aand B. He has also availed EOL for more than 90 daystill 6.5.98 and is continuously absenting himself forduty till date and as such violating the provisions ofstanding order 29 also.11. He has been habitually absent without leave orwithout sufficient cause and seven memos were issued tohim on the above charges. He applied for leave from3.2.98 to 5.2.98 and thereafter remained absent tilldate. It stands to establish that the second charge ofcontinuos absence for more than 10 days without leave orwithout sufficient cause.12. Therefore he has committed acts of misconductsfalling under sub-clause i, vii, xxxi, xxxviii ofstanding order 46 read with standing order 29, 31A and B.Since the charged employee was not present for theenquiry, there was no defence witness or defencestatement recorded in the enquiry and the enquiry wasconcluded ex-parte."12. It is, based on the statement of the Presenting Officer,the Enquiry Officer has given the finding which is as follows:"From the above statement deposed by the PresentingOfficer in the enquiry and the exhibits and details filedby the Presenting Officer, the following are theconclusions of the enquiry:1. From the list of documents filed in the enquiryby the Presenting Officer as PE.1 stands to establishthat various memos, caution notices have already beenissued to Sri K.Raman and all possible steps have beentaken to correct the individual as stated by thePresenting Officer in the enquiry.2. It is also found that the adverse remarks abouthis remaining absent has been entered in the confidentialreport and the same has been communicated to theindividual. The above stands to establish that allpossible steps have been taken to correct the individualas stated by the Presenting Officer.3. The Presenting Officer has also brought out thatmisconducts committed by him falls under sub-clause (i),vii, xii, xxxi and xxxviii of the standing order 46 readwith standing order 29 C and 31 A and B.Since there is no defence statement or witnesses inthis enquiry and being an exparte enquiry from the https://hcservices.ecourts.gov.in/hcservices/ evidences, materials filed in the enquiry, it isestablished beyond doubt that Sri K.Raman, I.W.Gr.II hascommitted the acts and omissions which constitutesmisconduct falling under sub-clause i, vii, xii, xxxi andxxxviii of standing order 46 read with standing order 29C, 31 A and B. Therefore, I hold him guilty of all the abovecharges.Submitted for further action."13. In the petition filed by the petitioner before theConciliation Officer under section 2A(1) of the Industrial DisputesAct, the petitioner has raised the following specific issues:"(d) The Enquiry conducted while the petitioner wason sick leave, the refusal to give one last chance ofadjournment, refusal to hold the enquiry few hours late,haste in t\which the enquiry had been completed exparteare indications of malafide attitude of the DisciplinaryAuthority.(e) The petitioner also requested for a freshenquiry into the charges to prove his sincerity to facethe enquiry. But the Disciplinary Authority ignored therequest."14. It has been the consistent stand of the workman that theEnquiry Officer has not conducted enquiry in the manner known tolaw. On the other hand, a reference to the impugned award of theLabour Court shows that the Labour Court has nowhere chosen to givefinding as to whether the domestic enquiry conducted by the EnquiryOfficer is fair and proper. The Labour Court, instead of giving afinding which is the prerogative right under section 11A of theIndustrial Disputes Act, has chosen to probe more on the point oflaches in order to find fault with the petitioner. Having foundthat the concept of limitation is not applicable in the cases whereworkmen raised industrial disputes, the Labour Court came to theconclusion that the petitioner approached the Court after fiveyears from the date of removal from service. In my consideredview, the Labour Court ought to have considered, by exercising itspowers under Section 11A of the Industrial Disputes Act, on thefacts of the present case, as to whether it was proper for theEnquiry Officer to have submitted his report solely based on thestatement made by the Presenting Officer, who is expected topresent the case of management and to lead evidence through properwitnesses to prove the charges.15. In Roop Singh Negi vs. Punjab National Bank and others[(2009) 2 SCC 570], it was held that the departmental proceedingsbeing the quasi-judicial proceedings, the Enquiry Officer has aduty to arrive at a finding upon materials which are placed by wayof examination of witnesses and marking of documents. Considering https://hcservices.ecourts.gov.in/hcservices/ the situation where the management witnesses so tendered anddocuments marked were relied upon by the Enquiry Officer withoutbeing testified through cross examination by the delinquent, it washeld as follows:"14. Indisputably, a departmental proceeding is aquasi-judicial proceeding. The enquiry officer performsa quasi-judicial function. The charges levelled againstthe delinquent officer must be found to have been proved.The enquiry officer has a duty to arrive at a findingupon taking into consideration the materials brought onrecord by the parties. The purported evidence collectedduring investigation by the investigating officer againstall the accused by itself could not be treated to beevidence in the disciplinary proceeding. No witness wasexamined to prove the said documents. The managementwitnesses merely tendered the documents and did not provethe contents thereof. Reliance, inter alia, was placedby the enquiry officer on the FIR which could not havebeen treated as evidence."16. Unfortunately, in the present case, there is no witnessexamined on the side of the management and the Presenting Officer,who is expected to present the case of management, himself hasgiven a statement, which cannot be taken as evidence substantiatingthe case of the employer. That aspect has not been considered bythe Labour Court at all. The Labour Court has proceeded to receivevarious documents including the Enquiry Officer’s report marked asEx.M-19 dated 29.6.1998 apart from copy of minutes of theproceedings of the Enquiry Officer marked as Ex.M-18, a referenceto which very clearly reveals the fact that the witnesses on theside of management have not been examined and the case of themanagement has not been presented through witnesses, but the caseof the management has been presented through the PresentingOfficer. 17. On the other hand, as I have stated earlier, the LabourCourt has been pondering over the so called delay on the part ofthe workman in challenging the order of removal by raisingindustrial dispute under section 2A(1) of the Industrial DisputesAct, ignoring the fact that the delay cannot be treated as vitalto the case of delinquent, since the delinquent is entitled forfair treatment.18. In Ajaib Singh vs. The Sirhind Co-operative Marketing-cum-Processing Service Society Ltd., [AIR 1999 SC 1351], it was heldby the Supreme Court that the mere technicalities cannot deprive aworkman of his right and he cannot be thrown out on the ground ofdelay. That was a case where there was 7 years delay inapproaching the Labour Court and in the absence of employer himselfin raising the said issue, the Labour Court took up the matter to https://hcservices.ecourts.gov.in/hcservices/ throw away the workman. In those circumstances, the Supreme Courtobserved as follows:"11. In the instant case, the respondent-managementis not shown to have taken any plea regarding delay as isevident from the issues framed by the Labour Court. Theonly plea raised in defence was that the Labour Court hadno jurisdiction to adjudicate the reference and thetermination of the services of the workman was justified.Had this plea been raised, the workman would have been ina position to show the circumstances preventing him inapproaching the Court at an earlier stage or even tosatisfy the Court that such a plea was not sustainableafter the reference was made by the Government. Thelearned Judges of the High Court, therefore, were notjustified in holding that the workman had not given anyexplanation as to why the demand notice had been issuedafter a long period. The findings of facts returned bythe High Court in writ proceedings, even withoutpleadings were therefore, unjustified. The High Courtwas also not justified in holding that the Courts werebound to render an even handed justice by keeping balancebetween the two different parties. Such an approachtotally ignores the aims and object and the social objectsought to be achieved by the Act. Even after noticingthat "it is true that a fight between the workman and themanagement is not a just between equals," the Court wasnot justified to make them equals while returning thefindings, which if allowed to prevail, would result infrustration of the purpose of the enactment. The workmanappears to be justified in complaining that in theabsence of any plea on behalf of the management and anyevidence, regarding delay, he could not be deprived ofthe benefits under the Act merely on technicalities oflaw. The High Court appears to have substituted itsopinion for the opinion of the Labour Court which was notpermissible in proceedings under Articles 226/227 of theConstitution."19. That has been constantly followed in various cases as itis seen in Gurmail Singh vs. Principal, Government College ofEducation and others [2000 (1) LLJ 1080 (SC)], wherein the SupremeCourt held that at the most the delay can be taken into account forthe purpose of moulding relief in respect of denial of backwages.The Supreme Court in that case, held as follows:"3. Having heard learned counsel for the parties wefind that the Labour Court having held in case of theappellant whose services were terminated on September30,1981 that Section 25-F of the Industrial Disputes Actwas violated, was in error in dismissing the reference onthe ground of delay as the termination was of 1981 and https://hcservices.ecourts.gov.in/hcservices/ the dispute was raised in 1989. Similarly, the HighCourt in the impugned judgment committed the same errorin confirming the said decision. The reason is obvious.As laid down by this Court in the case of Ajaib Singh vs.Sirhind Co.operative Marketing – cum- Processing ServiceSociety Ltd., and another [1999 (1) LLJ 1260 (SC)], ifthe order of dismissal is challenged belatedly, thedispute would still continue for adjudication, the onlyquestion would be to deprive back wages for the period ofdelay in raising such a dispute if on merits it is tosucceed. Following, the said decision, therefore, theappeal is allowed. The judgment and order of the HighCourt as well as the Labour Court are set aside. Thetermination of the appellant on September 30, 1981 isheld to be bad and set aside. The appellant is orderedto be reinstated in service as Junior Lecturer Assistantwith continuity of service. But so far as the back wagesare concerned, he will not be entitled to any back wagesfrom September,30 1981 till February 27, 1989 as he hadnot raised any dispute during that time. Thereafter,from March 1, 1989 till the date of reinstatement of theappellant, on the facts and circumstances of the presentcase, the respondents are directed to pay 50 per cent ofthe back wages towards full and final satisfaction ofappellant's claim, regarding backwages. This amountshall be calculated and paid to the appellant by therespondents within eight weeks from today. He shall bereinstated with continuity in service also within thattime. The appeal is allowed to the aforesaid extent withno order as to costs."20. There is one other issue relating to the proportionalityof punishment. It was held by the Hon’ble Apex Court in Chairman-cum-Managing Director, Coal India Ltd., vs. Mukul Kumar Choudhuri &Others [AIR 2010 SC 75], by recognizing the principle ofproportionality as a concept of judicial review in ourjurisprudence, which is as follows:"26. The doctrine of proportionality is, thus, wellrecognised concept of judicial review in ourjurisprudence. What is otherwise within thediscretionary domain and sole power of the decisionmaker to quantify punishment once the charge ofmisconduct stands proved, such discretionary power isexposed to judicial intervention if exercised in amanner which is out of proportion to the fault. Awardof punishment which is grossly in access to theallegations cannot claim immunity and remains open forinterference under limited scope of judicial review. Oneof the tests to be applied while dealing with thequestion of quantum of punishment would be: would any https://hcservices.ecourts.gov.in/hcservices/ reasonable employer have imposed such punishment in likecircumstances? Obviously, a reasonable employer isexpected to take into consideration measure, magnitudeand degree of misconduct and all other relevantcircumstances and exclude irrelevant matters beforeimposing punishment. In a case like the present onewhere the misconduct of the delinquent was unauthorisedabsence from duty for six months but upon being chargedof such misconduct, he fairly admitted his guilt andexplained the reasons for his absence by stating that hedid not have any intention nor desired to disobey theorder of higher authority or violative any of theCompany's Rules and Regulations but the reason waspurely personal and beyond his control and, as a matterof fact, he sent his resignation which was not accepted,the order of removal cannot be held to be justified,since in our judgment, no reasonable employer would haveimposed extreme punishment of removal in likecircumstances. The punishment is not only unduly harshbut grossly in excess to the allegations. Ordinarily,we would have sent the matter back to the appropriateauthority for reconsideration on the question ofpunishment but in the facts and circumstances of thepresent case, this exercise may not be proper. In ourview, the demand of justice would be met if theRespondent No.1 is denied back wages for the entireperiod by way of punishment for the proved misconduct ofunauthorised absence for six months."21. In such circumstances, the contention of Mr.N.A.K.Sharma,learned standing counsel for the second respondent that thepetitioner has been in the habit of taking unauthorized leave andtherefore, it should be taken serious note of, has no meaningespecially when the Labour Court has not given a finding about thefairness of the domestic enquiry. In such view of the matter, Ihave no hesitation to hold that the award of the Labour Courtcannot be confirmed and the matter has to be remanded back to theLabour Court for a decision in an appropriate manner. Accordingly,the writ petition stands allowed and the award of the Labour Courtis set aside and the matter is remanded back to the Labour Courtand the first respondent Labour Court shall decide the fairness ofthe domestic enquiry conducted. While considering the same, theLabour Court shall also take into consideration the theory ofproportionality of punishment in the light of the judgment referredto above and pass orders accordingly. https://hcservices.ecourts.gov.in/hcservices/ The writ petition stands allowed accordingly. No costs. KhSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo The Presiding OfficerThe Central Government IndustrialTribunal cum Labour CourtChennai 600 006.+ 1 cc to Mr.R. Rajaram, Advocate SR No.28532JRG(CO)SR/26.4.2011Order in W.P.No.28299 of 2007