The modifying of employment termination to retirement under Section 11A is justified when personal circumstances are considered, even with unauthorized absence.

JUDGMENT

Rekha Palli, J. (Oral)

1. The petitioner/Delhi Transport Corporation has approached this Court assailing the award dated 04.07.2016 passed by the learned Labour Court. Vide the impugned award, the learned Labour Court, after agreeing with the petitioner/management that the respondent was guilty of remaining unauthorisedly absent from duty, has, by exercising its power under Section 11A of the Industrial Disputes Act, 1947 (the Act), modified the penalty of termination of his services as imposed on him, vide order dated 20.05.2009, to that of retirement. The learned Labour Court had accordingly, directed the petitioner to release the retiral and all other consequential benefits including pension to the respondent within a period of one month from the date of the order, failing which, the same were directed to be paid with interest @ 9% per annum.

2. This Court, while issuing notice in the present petition, had stayed the operation of the impugned award subject to deposit of 50% of the arrears payable under the impugned award. Consequently, the petitioner had deposited a sum of Rs. 3,09,808/- towards the arrears payable to the respondent for the period between 21.05.2009 to 30.09.2017.

3. The brief factual matrix as emerging from the record shows that the respondent had joined the services of the petitioner in the year 1984. In September 2007, when the respondent went to his native village, Kami, P.O. Tharu Udlepur, District Sonipat, Haryana on account of demise of his mother, he did not return back to join duty and continued to remain on leave till 03.09.2008.

4. It is the case of the petitioner that this period of respondent's leave was unauthorised as neither any leave application in the prescribed format had been received from him nor had any leave been sanctioned to him by the petitioner. On the other hand, it is the respondent's case that he had no other option but to stay back in his village, not only to take care of his ailing wife but also to take care of the minor children of his younger brother whose wife was also, at that time, ailing and had ultimately succumbed to her illness in December, 2007. It is the further case of the respondent that he had duly submitted leave applications along with medical certificates from private doctors of the village who were treating his wife but since the same were not in accordance with the prescribed guidelines, they were not taken into account by the petitioner/management. Consequently, he was issued a chargesheet on 11.08.2009 on the ground of him having remained on unauthorised leave for the period between 20.09.2007 to 03.09.2008.

5. Before the Enquiry Officer, the respondent, while declining to take the assistance of any co-workman, admitted that he had not submitted any leave application in the prescribed format. It was, however, his case that on account of the peculiar circumstances of his family, he was not in a position to forward his leave application from the village in the prescribed format. Treating this as an admission on the part of the respondent as having remained on unauthorized leave, the Enquiry Officer gave a report holding him guilty of the charges levelled against him. Based on this report, the respondent's services came to be terminated by the petitioner vide its order dated 20.05.2019.

6. Being aggrieved, the respondent raised an industrial dispute before the learned Labour Court. Vide the impugned award, the learned Labour Court, while agreeing with the petitioner that there was no infirmity in the departmental enquiry as also qua the finding against the respondent of having remained on unauthorized