IMPORTANT POINT
The Labour Court's interference with the dismissal of an employee was unjustified as the dismissal was proportionate to the misconduct, despite the leave balance.

JUDGMENT :

M. K. Thakker, J.

1. The present petition is filed under Article 227 of the Constitution of India challenging the judgment and award passed by the learned Labour Court, Bharuch in reference LCB No.376 of 1998 dated 26.04.2005 whereby, petitioner has been directed to reinstate the respondent no.2 with 20% back wages.

2. The facts needed to be discussed for the disposal of the case is that:

2.1. The petitioner company is engaged in the business of manufacturing and in the sale of various chemicals and pesticides etc. The respondent no.2 who is the workman came to be engaged by the petitioner company in December 1989. Previously, respondent no.2 was working in company namely Ficom Organics Ltd. from where he resigned as he was caught in theft and subsequently, raised industrial dispute on the allegation of dismissal of service. While filling up the form of personal detail with the petitioner company at the time of appointment, that fact has not been disclosed by the respondent no.2. On joining with the present petitioner as Wireman, his work was found unsatisfactory and he was in habit of frequently remaining absent without prior leave or intimation. For such unauthorized leave, charge-sheet came to be issued on 21.06.1994 and thereafter, departmental inquiry was initiated and on conclusion of the inquiry, with a view to provide opportunity of improvement, the Company decided to take a lenient approach and petitioner Company imposed punishment of 1 day suspension. Unfortunately, thereafter also, he continued to remain absent frequently without leave. Again, the charge-sheet came to be issued on 25.12.1996 for remaining absent for the period from April, 1994 to November 1996 for almost 141 days and thereafter, departmental inquiry was initiated with effect from 06.01.1997. On providing reasonable and sufficient opportunity to defend his case, the report was submitted by the Inquiry Officer holding that on the basis of evidence obtained during the inquiry, charge was proved. Thereafter, show cause notice came to be issued on 19.12.1997 calling for explanation of respondent no.2 regarding the proposed punishment. Vide communication dated 25.12.1997, ten days time was sought to give explanation regarding proposed penalty and thereafter, on 12.01.1998 reply was filed through the advocate of respondent no.2. As respondent had not submitted any explanation or response to the second show cause notice, again vide communication dated 19.01.1998, response was asked regarding second show cause notice.

2.2. Thereafter, vide communication dated 27.01.1998 respondent no.2 tendered his reply-cum-explanation. The petitioner company vide order dated 07.04.1998 has dismissed the service of respondent no.2 and communication was forwarded to that effect on the same day with the cheque of Rs.19,251/- towards full and final settlement of his legal payable dues. Being aggrieved by the action of the petitioner company the dispute was raised before the Conciliation Officer which was resulted in the failure and thereafter appropriate government order of reference on 14.09.1998 referring the dispute for adjudication to the learned Labour Court. Labour Court, after considering the averments made in the statement of claim and written statement as well as on appreciation of evidence, has passed the judgment and award on 26.04.2005 directing the petitioner Company to reinstate the respondent no. 2 with effect from 01.10.2001 with 20% back wages which is the subject matter of challenge before this Court.

3. Heard learned advocate Ms.Nancy Soni for M/s Trivedi & Gupta and though appearance of the respondents were filed, no one has remained present and the time of hearing. Learned advocate Ms.Nancy Soni submits that the legality and validity of the departmental proceedings were not disputed by the learned Labour Court however, the learned labour Court has held that petitioner though remained on unauthorized leave but as there were leave in his account, theref