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CASE NO.: Appeal (civil)  1664 of 2008

PETITIONER: PEPSU ROAD TRANSPORT CORP

RESPONDENT: RAWEL SINGH

DATE OF JUDGMENT: 29/02/2008

BENCH: C.K. THAKKER & D. K. JAIN

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.  1664     OF 2008 ARISING OUT OF  Special Leave Petition (C) No. 2747 of 2007

C.K. Thakker, J.          1.              Leave granted.

       2.              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  2006. 3.              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 against him (i) knowingly and  intentionally remaining absent without sanction  of leave and without sending leave application,  (ii) failure to take interest in work and (iii)  disobedience of Rules of Corporation. 4.              A 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

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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.   5.              Considering the reply submitted by the  respondent, the Disciplinary Authority passed  an order of termination of services of the  workman on July 13, 1989. 6.              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. 7.              In 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. 8.              Notice was issued by this Court on  February 23, 2007 and ad interim stay was also  granted.  The matter was thereafter ordered to

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be placed for hearing and that is how the  matter is before us. 9.              We have heard learned counsel for the  parties. 10.             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 aside.   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. 11.             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.  The 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.   12.             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

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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. 13.             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. 14.             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  charge (i) and 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

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not availing of opportunity by the employee.   Therefore, 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. 15.             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.   Reinstatement granted to the respondent- workman, therefore, needs no interference. 16.             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. 17.             For the foregoing reasons, the appeal  is partly allowed. The award passed by the  Labour Court and confirmed by the High Court so

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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. 18.             Ordered accordingly.