Employers in relation to the management of Kustore Area, now Putki Balihari Area of v. 1. Their workmen being represented by Sri K.N. Singh, Vice President, Janta Mazdoor Sangh
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(L) No. 7287 of 2012 Employers in relation to the management of Kustore Area, now Putki Balihari Area of M/s Bharat Coking Coal Limited, P.O.- Putki, P.S.- Putki, District- Dhanbad through Sri Jai Prakash Gupta, General Manager, resident of G.M. Bunglow, P.O.- Putki, P.S.- Putki, District- Petitioner Dhanbad. … … Versus 1. Their workmen being represented by Sri K.N. Singh, Vice President, Janta Mazdoor Sangh, P.O. & P.S.- Dhanbad, District- Dhanbad. 2. Mankuwa Beldarin, Aged about 77 years, wife of Mahendra Chouhan, Resident of Bhuli E Block, Sector 3, Quarter No. 567, P.O. Bhulinagar, P.S. Bhulinagar, District- Dhanbad. … … Respondents CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- : Mr. A.K. Mehta, Advocate : Mr. Suraj Singh, Advocate --- For the Petitioner For the Respondents 19/21.11.2024 1. 2.
Legal Reasoning
Heard the learned counsel appearing on behalf of the parties. This writ petition has been filed for challenging the award dated 13.04.2011 passed by the Central Government Industrial Tribunal No. 2, Dhanbad in Reference No. 222 of 2001 whereby the learned tribunal has held that the action of the management in dismissing the concerned workman namely Mahendra Beldar from service w.e.f. 06.01.1999 is not justified and has passed order of reinstatement with back wages from 06.01.1999. The concerned workman attained the age of superannuation on 02.05.2009. Arguments of the Petitioner 3. The learned counsel for the petitioner while assailing the impugned award dated 13.04.2011 has referred to the terms of reference and has submitted that the concerned workman remained absent from duty w.e.f. 19.02.1997 and he was charged on 13.11.1998 for unauthorized absenteeism for the period from 19.02.1997 to 03.12.1997 and after complying with the principle of natural justice and as per the procedure prescribed he was ultimately dismissed vide 1 order dated 05.01.1999. The industrial dispute was raised and reference was made to the Industrial Tribunal vide order dated 10.08.2001. He has also submitted that the domestic enquiry was held to be fair and proper vide order dated 03.01.2006 and ultimately the matter was to be taken up by the learned tribunal within the concludes of section 11A of Industrial Disputes Act. The learned counsel has submitted that the absenteeism is not in dispute and it was for the workman to duly inform the management regarding the reasons of absence right from the date when he became absent but such information was given by the wife of the workman only vide letter dated 06.08.1997. 4. The learned counsel submits that once domestic enquiry was held to be fair and proper, the action of the management to dismiss the concerned workmen who was absent from 19.02.1997 to 03.12.1997 did not call for any interference. 5. He has further submitted that the petitioner is also aggrieved by the grant of back wages to the concerned workman w.e.f. 06.01.1999 and it was for the workman to plead and prove that he remained unemployed after his order of dismissal. He has further submitted that in the entire award there is no discussion regarding the reason as to why full back wages was being awarded to the concerned workman right from 06.01.1999. 6. The learned counsel has also submitted that the award was passed in the year 2011 and the workman attained the age of superannuation on 02.05.2009 and therefore, there cannot be any back wages for the period beyond 02.05.2009. The learned counsel has relied upon judgment passed by the Hon’ble Supreme Court reported in (2022) 13 SCC 202 to submit that numerous judgments in connection with back wages have been taken into consideration and findings have been recorded in paragraph 35 of the said judgment wherein it has been held that it was for the concerned workmen to plead as to whether he was gainfully employed after the order of dismissal. 2 Arguments of the respondents. 7. The learned counsel appearing on behalf of the respondents while opposing the prayer has submitted that the concerned workman was suffering from mental ailment and therefore, it would be not correct on the part petitioner to say that the concerned workman should have himself informed the petitioner regarding his ailment. He has further submitted that the mental illness of the concerned workman during the period from 19.02.1997 to 03.12.1997 is not in dispute and the concerned workmen had adequate reason for remaining absent from the duty and therefore his absence were not said to be willful unauthorized absent. 8. The learned counsel has submitted that the learned tribunal has rightly held that the dismissal was too harsh and disproportionate to the prove misconduct and has given back wages and has reinstated the workman w.e.f 06.01.1999 and back wages has been given only w.e.f 06.01.1999 and nothing has been given with respect for the period of absence. 9. However, it is not in dispute during the course of argument that there was no pleading much less any evidence oral or documentary in connection with the fact as to whether the workman was employed or unemployed after the order of dismissal dated 06.01.1999. Findings of this court. 10. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that it is not in dispute that the concerned workman remained mentally sick and was under treatment of the doctor dealing with mental health during the period from 22.02.1997 to 03.12.1997. A doctor’s certificate to that effect was also produced. 11. The fact remains that it is further not in dispute that the workman remained absent from 19.02.1997 but he did not give any intimation to the petitioner with regard to his reasons for absence and such intimation was given by his wife only in the Month of August, 1997. 3 12. This Court is of the considered view that the concerned workman was undergoing treatment on account of mental ailment that by itself was sufficient reason for not giving any intimation to the management as he was admittedly in not in right mental health. 13. In the judgment passed by the Hon’ble Supreme Court reported in (2012) 3 SCC 178 it is has been held in paragraph 18 that in a departmental proceeding, if the allegation of unauthorized absence form duty is made, the disciplinary authority is required to prove that the absence is willful and in the absence of such finding, the absence will not amount to misconduct. Paragraph 17 and 18 of the said judgment are quoted as under: “17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant. 18. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.” 14. The learned tribunal also found that the domestic enquiry was fair and proper and has examined the case within the conclude of Section 11 A of the Industrial Disputes Act and has rightly held that though the absence was proved but the dismissal of the concerned workman was too harsh and disproportionate to the prove misconduct. The findings of the learned tribunal to the aforesaid effect is well- reasoned and the absence by any stretch of imagination cannot be said to be willful and therefore, the impugned award to that extent does not called for any interference. 4 15. The findings of the learned tribunal reveal that the absence of the concerned workman was not willful and he was suffering from mental ailment. So far as question of back wages is concerned, the concerned workman was dismissed from service w.e.f 06.01.1999 and the impugned award has been passed in the year 2011. Admittedly, at least post 06.01.1999, the workman was mentally fit to perform duties and at the same time before the learned tribunal there was no pleading much less any oral and documentary evidence with regard to the fact that the workman remained unemployed during the period from 06.01.1999 onwards. This Court also finds that in the entire award there is no discussion in connection with grant of back wages and in the operative portion of the award the learned tribunal has granted full wages w.e.f. 06.1.1999. 16. Considering the totality of the facts and circumstance, this Court finds that the grant of full back wages as award by the learned tribunal cannot be justified and it suffers from perversity inasmuch as there is no discussion with regard to the grant of full back wages. This Court is of the considered view that considering the totality of facts and circumstances 50% of back wages would serve the ends of justice. 17. Accordingly, the award is modified to the extent of grant of 50% back wages from 06.01.1999 till the workman attained the age of
Decision
superannuation i.e. 02.05.2009. This writ petition is disposed of with the aforesaid modification in the grant of back wages. 18. The petitioner is directed to calculate the back wages as per this order and offer it to the legal representative of the concerned workman after due identification within a period of 3 months from today. If this order is not complied, it will be open to the concerned workman to proceed in accordance with law in terms of provisions of Industrial Disputes Act,1947. 19. This writ petition is disposed of in aforesaid terms. Rakesh/- (Anubha Rawat Choudhary, J.) 5