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Judgment
Rameshwar Singh Malik, J.—The present writ petition is directed against the impugned award dated 11.2.2013 (Annexure P-6) passed by the learned Labour Court, thereby deciding the reference against the petitioner-workman. The brief facts of the case, which are necessary for disposal of the instant writ petition, can be put into narrow compass. The petitioner was appointed as driver by the respondent-management on 3.6.1988. He absented from duty from 23.2.2002 to 28.2.2004. Domestic enquiry was conducted. Petitioner did not respond to the notices issued and did not participate in the enquiry proceedings. Misconduct was duly proved. After following the due procedure, services of the petitioner were terminated on the basis of misconduct. He raised the industrial dispute. Conciliation proceedings failed and the industrial dispute was referred to the learned Labour Court for its adjudication. Parties led their respective evidence. After hearing both the parties and going through the record of the case, the learned Labour Court decided the reference against the petitioner. Hence, this writ petition.
Learned counsel for the petitioner submits that petitioner was not feeling well during the period of his absence from duty. He further submits that since the petitioner had rendered a long service of about 14 years, the punishment of termination of his services could have been substituted by way of compulsory retirement. He next contended that the learned Labour Court misdirected itself, while not following the law laid down by this Court in Baljit Kaur v. The Labour Court and another 2012 (1) Slr 229, which was fully applicable to the facts of the present case. Finally, he prays for setting aside the impugned award, by allowing the present writ petition.
Having heard the learned counsel for the petitioner at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that the present one is not a fit case, warranting interference at the hands of this Court, while exercising its writ jurisdiction under Articles 226/227 of the Constitution of India. To say so, reasons are more than one, which are being recorded hereinafter.
Admittedly, long absence of about two years is not in dispute. The plea of sickness could not be substantiated in the absence of any cogent evidence. Petitioner neither responded to the numerous notices issued to him by the respondent-department nor he attended the enquiry proceedings without disclosing any reason. The petitioner was working as driver. His absence for two years was a serious misconduct on his part. Since these facts were not in dispute, the learned Labour Court proceeded on factually correct and legally justified approach, while passing the impugned award. Having said that, this Court feels no hesitation to conclude that the learned Labour Court committed no error of law, while passing the impugned award and the same deserves to be upheld.
So far as the judgment relied upon by the learned counsel for the petitioner is concerned, the same is not applicable in the present case, being clearly distinguishable on facts. In that case, husband of the petitioner was a driver. Because of unavoidable circumstances, he could not attend the duties. Thereafter, he passed away and his wife came to the Court. Considering that peculiar fact situation, this Court interfered in favour of the widow. The present case is based on totally different set of facts and circumstances.
Further, it is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judge made law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon''ble Supreme Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others,
By now, it is also the settled proposition of law that the misplaced sympathy causes more harm. The Hon''ble Supreme Court in Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh and Others, made the relevant observations, which can be gainfully followed in the present case and the same read as under:-
We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extra-ordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order, which would be in contravention of a statutory provision.
As early as in 1911, Farewell L.J. in Latham v. Richard Johson & Nephew Ltd., (1911-13 AER reprint p. 117) observed:
We must be very careful not to allow our sympathy to affect our judgment with the infant plaintiff. Sentiment is a dangerous will O'' the wisp to take as a guide in the search for legal principles.
(See also Ashok Saha v. State of West Bengal & Ors., CLT (1999) 2 H.C. 1).
In Sairindhri Dolui v. State of West Bengal, 2000 (2) S.C.T. 441 : 2000 (1) SLR 803, a Division Bench of the Calcutta High Court wherein (one of us Sinha, J. was a Member), followed the aforementioned dicta.
This Court also in C.B.S.E. and Another Vs. P. Sunil Kumar and Others, rejecting a contention that great injustice would perpetrate as the students having been permitted to appear at the examination and having been successful and certificates had been issued in their favour, held:
... We are conscious of the fact that our order setting aside the impugned directions of the High Court would cause injustice to these students. But to permit students of an unaffiliated institution to appear at the examination conducted by the Board under orders of the Court and then to compel the Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this Court will not be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of the students...
Recapitulating the facts of the present case and respectfully following the law laid down by the Hon''ble Supreme Court, this Court is of the view that the petitioner has no case. He did not even make an attempt to bring on record any evidence, so as to prove his innocence on account of his alleged illness. His long absence remained totally unexplained. Further, he did not participate even in the enquiry proceedings. He had not been found to be a willing worker.
The respondent-management ensured meticulous compliance of the procedure before passing the termination order against the petitioner. At every relevant point of time, notices and show-cause notices were issued to the petitioner, but he failed to avail any and every opportunity granted to him, which further aggravates his misconduct. In this view of the matter, it is unhesitatingly held that the learned Labour Court committed no error of law, while passing the impugned award and the same deserves to be upheld for this reason also.
No other argument was raised. Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the instant writ petition is misconceived, bereft of merit and without any substance. Thus, it must fail. No case for interference has been made out.
Resultantly, the present writ petition stands dismissed, however, with no order as to costs.