Unauthorized absence due to illness can be justified under compelling circumstances, affecting the severity of disciplinary action imposed.

JUDGMENT

Gaurang Kanth, J.

1. The present petition has been filed under Article 226 of the Constitution of India for setting aside the award dated 06.05.2004 passed by the Central Government Industrial Tribunal-cum-Labour Court, New Delhi in I.D. No. 35/95 titled as "Shri Bhupindra Kumar Versus The General Manager" ("Impugned Award"). Vide the Impugned Award, the learned Labour Court quashed the order passed by the Petitioner/Management whereby the Petitioner imposed the punishment of `removal from service' on the Respondent/Workman and gave a direction for reinstatement with full back wages and continuity in service.

2. The Respondent herein, joined the services of the Petitioner as a Clerk on 28.04.1987. Later, while working as a Senior Clerk under the Petitioner, he was posted at the Stores Office at Tilak Bridge, New Delhi. While being posted there, the Respondent was sanctioned casual leave for two days i.e., 11.01.1990 & 12.01.1990 (suffixing 13.01.1990 & 14.01.1990 as Saturday and Sunday). The Respondent had to resume duties on 15.01.1990 after the expiry of the sanctioned casual leave.

3. However, the Respondent did not resume duties. Later, on 24.01.1990, a registered letter was sent by the Respondent to the Petitioner requesting for extension of leave on medical grounds. No decision was taken by the Petitioner qua the said letter dated 24.01.1990. It is the case of the Petitioner that the Respondent remained unauthorisedly absent from duty for a period of more than one year i.e., from 15.01.1990 to 15.02.1991. He resumed his duties on 18.02.1991.

4. Thereafter, departmental proceedings were initiated against the Respondent for unauthorized absence and chargesheet dated 02.08.1991 was issued to him. An inquiry was conducted after due opportunity having been given to the Respondent to submit his defence and the Disciplinary Authority, after considering the inquiry report, imposed a penalty of `removal from service' on the Respondent vide Order dated 08.01.1992.

5. Hence, the services of the Respondent were terminated with effect from 09.01.1992. Thereafter, the Respondent filed an appeal dated 24.02.1992 against the said penalty order. The said appeal was dismissed by the Appellate Authority vide order dated 24.06.1992.

6. The Respondent initiated the industrial dispute by filing complaint before the Assistant Labour Commissioner. Upon failure of the conciliation proceedings, the Ministry of Labour, vide their order dated 21.02.1995 made the following reference to the learned Labour Court:

"Whether the action of the management of Northern Railway in removing the Services of Sh. Bhupender Kumar, Senior Clerk (Store) w.e.f. 2.1.92 is justified? If not, to what relief the concerned workman is entitled?"

7. The Respondent filed the Statement of Claim before the learned Labour Court stating that due to his illness he could not join back on duties, and he informed the Petitioner about his illness. Further, he produced the medical certificate. He was forced to defend his case without the assistance of any defence assistant. It is the case of the Respondent that the Petitioner had not conducted the enquiry in accordance with the rules in this regard and prays for setting aside of the order of the Disciplinary Authority and Appellate Authority.

8. The Petitioner filed their Written Statement stating that the Respondent took two days. leave and joined back on duty after a year. The Re