In cases where the termination of a daily-wage worker is found to be illegal due to a procedural defect, reinstatement with back wages is not automatic and the workman should be given monetary compensation instead.

ORDER :

PUSHPENDRA SINGH BHATI, J.

1. The petitioner has preferred this writ petition claiming following reliefs:-

"(i) The impugned award dated 25.08.2010 passed by respondent No. 1 may kindly be directed to be quashed and set aside and removal of petitioner by respondent No. 2 and 3 be declared as illegal and improper.

(ii) That by appropriate order, direction or writ the petitioner may be ordered to be reinstated with back wages.

(iii) Any other relief which the Hon’ble Court deems fit in the facts and circumstances of the case may kindly be granted with cost."

2. The brief facts of the case are that the petitioner became a regular employee of the respondent in August, 1982. The petitioner became a permanent employee on 01.04.1984 and was promoted as Catering Assistant on 1.7.1987. The petitioner is aggrieved of a charge-sheet dated 11.9.1989. The charge-sheet is reproduced as follows:-

"CHARGE SHEET

This has reference to your explanations dated 6th July 1989 and 22nd July 1989 in reply to our Show Cause Notices dated 4th July 1989 and 19th July 1989 respectively for remaining absent unauthorisedly from duty on the dates as mentioned in our said Show Cause Notices. We have noted the contents of your above referred explanations and have found the same unsatisfactory. Your explanations are not only vague but also irrelevant. In fact, in the past years also your attendance record has been erratic. We are giving below the details of your such unauthorized absence in the calendar year 1988:-

1. 7.5.88 to 8.5.1988 - Two days

2. 28.8.88 to 31.8.1988 - Four days

3. 30.9.88 - One day

4. 6.11.88 to 7.11.1988 - Two days

5. 11.11.88 to 16.11.1988 - Six days

Even prior to year 1988 also your attendance record has been erratic and unsatisfactory-We have decided to conduct a domestic enquiry into the following charges:-

(1) You have developed a habit of remaining absent from duty as and when it suites you without information of the Management or sanctioned leave. The record of you habitual absence from duty in the recent past in the calendar your 1989 is mentioned in our Show Cause Notice dated 4th July 1989 and the record of the year 1988 is shown above.

(2) That you have remained absent from duty unauthorisedly from 23rd June to 4th July 1989, on 12th July 1989 and from 14th July to 18th July 1989. Mr. D.N. Sharma, Advocate, has been appointed as an enquiry officer who will conduct the enquiry into the above mentioned charges on the date, place and time as may be notified to you directly by him. You may submit your written explanation regarding your absenteeism in the your 1988 and 1989 in the meanwhile, if you desire so. You shall be given full opportunity to defend yourself in the enquiry. You may also note that in case, you will not appear before the Enquiry Officer and participate in the enquiry, the Enquiry Officer shall be at liberty to proceed ex-parte against you.

This charge sheet supersedes the charge sheet dated 7th August 1989. Please note that Mr. D.N. Sharma, Advocate will now conduct the enquiry on this Charge Sheet of 11th September 1989.

For Rambagh Palace.

Sd/-

VIKRAM SINGH

AREA GENERAL MANAGER."

3. The Counsel for the petitioner makes a limited submission that the total charge framed is absence of 2 days in one time, 4 days in another, one day, two days in another, and lastly 6 days. Counsel for the petitioner submits that even if the enquiry was believed to be correct, then also the learned labour Court and learned authority ought to have appreciated that the petitioner order was bit too harsh upon the present petitioner. The Counsel for the petitioner Shri M.C. Taylor further submits that the past conduct which has been taken into consideration, cannot be taken into consideration as the same is not part of the charges framed and any kind of previous conduct cannot become a cause for specific charges mentioned in the charge-sheet dated 11.09.1989. Thus, the arguments of petitioner's Counsel were restricted to disproportionate punishment.

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