R.M.S. Khandeparkar, J.
1. Heard the learned Advocates for the parties.
Perused the records.
2. The petitioners challenge concurrent judgments and orders passed by both the courts below dismissing the complaint filed against the respondents alleging unfair labour practice under Item No. 1(a & g) of Schedule IV of M.R.T.U. & P.U.L.P. Act (hereinafter called as 'the said Act'). The complaint was dismissed by the Labour Court on 26-12-1996 and the revision application was dismissed by the Industrial Court on 30-8-1999. The impugned orders are sought to be challenged on three grounds. Firstly, that the Labour Court having found the domestic enquiry to be fair and just and the findings arrived therein to be not perverse, it could not have allowed the employer to lead further evidence in support of the charges and even if having allowed could not have relied upon the same while deciding the complaint and as both the courts have relied upon such evidence led by the respondents, the impugned orders are bad in law. Secondly, that both the courts below failed to consider the point of victimisation in relation to the punishment imposed for the alleged misconduct by merely observing that the same is neither pleaded nor proved. Thirdly, that the courts below failed to take note of the fact that the order of dismissal was passed without considering the mitigating factors which were required to be considered while passing such order in terms of Standing Order No. 25(6) and such exercise ought to have been apparent on the face of the order itself and therefore, both the impugned orders are bad in law and liable to be set aside.
3. Few facts relevant for decision are that one Mr. Raman Patel a member of the petitioner-Union was employed as a driver with the respondent-company since July 1989 and was attached to the Managing Director of the said company. He was charge-sheeted on 7-12-1990 on the ground that he had remained absent without leave from 1st October, 1993 continuously and without any intimation or application seeking leave. Earlier, on 5th October, 1993 a telegram was received by the respondents from the said Patel informing them about the hospitalisation of his brother and request for leave. In reply thereto a telegram was sent by the respondents asking him to join the duty immediately and as he failed to join the duty, another telegram was sent to him on 26th October, 1993 informing him that no leave was granted to him and further asking him to report to duty immediately. As Mr. Patel did not report to duty, a letter was sent to him on 30-11-1993 asking him to report to duty and further requiring him to furnish satisfactory explanation for his absence. He reported to his duty on 7-12-1993. It is the case of the petitioners that on account of the illness of the brother of Mr. Patel, he could not report to duty prior to 7-12-1993 while it is the case of the respondents that there was no satisfactory explanation for the un-authorised absence of Mr. Patel from 1st October, 1993 till 6-12-1993 and that he had remained absent without even application for leave as also without sanction for more than 10 days and that amounted to serious mis-conduct, and it caused inconvenience to the establishment. Pursuant to the charge-sheet issued to Mr. Patel, domestic enquiry was held. While submitting his explanation as well as apology letter dated 10-12-1993, it was his case that his brother who was working in Diamond factory at native place had met with the accident and had lost a left hand finger and on receipt of such information on 3rd October, 1993, he had sent a telegram to the respondents on 5th October, 1993. It was his further defence that though the telegram sent by the company was received by him, he was unable to sent his reply as he was under great mental stress on account of the hospitalisation of his brother and that after receipt of the letter dated 30-11-1993, he left his native place and reached Bombay and immediately reported to the duty on 7-12-1993. He had further stated in his explanation that though he was on duty on 1st October, 1993 he had not signed the muster roll and the 2nd October was holiday and 3rd was Sunday and therefore, he was absent only from 4th October and not from 1st October as was otherwise alleged in the charge-sheet. On conclusion of the domestic enquiry, the findings were against the employee and after giving necessary opportunity to make submission on the findings and after hearing the employee, his services were terminated by order dated 7-1-1994. Complaining the action to be illegal and punishment being disproportionate to the alleged mis-conduct and amounts to victimisation, the petitioners filed complaint as stated above which was dismissed by the Labour Court after hearing the parties and the order of dismissal of complaint was confirmed by the Revisional Court. It is also to be noted that the preliminary issues as to whether the enquiry conducted against the workmen was fair and proper or not and whether the findings of the enquiry officer are perverse or not, were answered by the Labour Court by order dated 7-12-1996 to the effect that the enquiry was fair and proper and the findings were not perverse. Consequent thereto the evidence was led and ultimately the Labour Court dismissed the complaint.
4. As regards the first ground of challenge regarding alleged illegality on the part of the courts below and particularly of the Labour Court in allowing the respondents to lead further evidence, after the deciding the preliminary issues in their favour, placing reliance upon the decision of the Apex Court in Delhi Cloth and General Mills v. Ludh Budh Singh, reported in : (1972)ILLJ180SC , the learned Advocate for the petitioners submitted that the law on the point is well-settled that once the Tribunal is satisfied that the enquiry proceedings were just and fair and the findings by the Enquiry Officer were not perverse, there cannot be any question of allowing the employer to lead any further evidence in support of the charges against the employee and ignoring the same the courts below not only allowed the respondents to lead the evidence in support of charges but relied upon such evidence to justify the dismissal of the complaint. The learned Advocate for the respondents on the other hand submitted that the evidence which was laid subsequent to the findings on the preliminary issues was not in relation to the merits of the case and pertaining to the charges against the employee but in relation to the allegation of victimisation and to establish the punishment being not disproportionate to the proved mis-conduct. Attention was also drawn in that regard to the testimony of the witness who was examined by the respondents before the Labour Court.
5. The Apex Court in Delhi Cloth and General Mills, while dealing with the issue regarding the right of the employer to lead evidence subsequent to the order of the Court of Tribunal on the issue of fairness of the domestic enquiry and regarding the findings of the Enquiry Officer being perverse or not has laid down certain principles to be observed by the Court in such situation and it was held that when the management relies on the enquiry conducted by it, and also, simultaneously adduces evidence before the Tribunal, without prejudice to its pleas that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper, and that if the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives, but it is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence. At the same time, the Apex Court has also held that---if no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightway adduce evidence before the Tribunal justifying its action and the Tribunal is bound to consider that evidence so adduced before it, on merits, and give a decision thereon and that in such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it. The Apex Court has further held that---if a domestic enquiry had been held, it is open to the management to rely upon the domestic enquiry held by it, in the first instance, and alternatively and without prejudice to its plea that the enquiry is proper and binding, simultaneously adduce additional evidence before the Tribunal justifying its action, and in such a case no inference can be drawn, without anything more, that the management has given up the enquiry by it.
6. The ruling of the Apex Court in Delhi High Cloth and General Mills Co. discloses that it is for the management to decide as to whether it wants to rely upon the proceedings in the domestic enquiry in support of the charges levelled against the employee and in respect of which the latter has approached the Tribunal complaining about the illegal action based on such proceedings or whether the employer wants to lead the evidence independently of the proceedings in the domestic enquiry. However, once having decided to rely upon the proceedings in the domestic enquiry and having informed so to the Tribunal and if Tribunal holds the findings in such inquiry being not perverse, the question of employer being given opportunity to lead further evidence in support of charge against the employee does not arise. At the same time, the management can also lead evidence without prejudice to its plea that the enquiry is proper and binding and in that case Tribunal is not required to go into the issue as to whether proceedings before domestic enquiry were fair and just and findings of the Enquiry Officer are perverse or not. However, the decision of the Apex Court on all these aspects is in relation to the merits of the case i.e. to say in relation to the charges levelled against the employee. It does not pertain to the evidence which the employer may require to produce before the Labour Court to meet the case of the employee in the complaint regarding the allegation of victimisation or the punishment being dis-proportionate to the charges proved. The ruling by the Apex Court in Delhi-Cloth & General Mills does not anywhere prohibit the employer from leading evidence in relation to the facts pleaded by the complainant in relation to the allegations of victimisation in the matter of imposition of punishment or in relation to the allegation that the punishment being disproportionate to the mis-conduct proved. Being so, while objecting to the decision of the Labour Court or for that matter, the Industrial Court, allowing the employer to lead evidence after the findings of the Labour Court on preliminary issues regarding the fairness of the enquiry and the findings of the Enquiry Officer being not perverse, it is necessary for the person making grievance about such permission having been granted to the employer by the Labour Court, to point out that the evidence which was led by the employer was in relation to the merits of the case or in relation to the charges levelled against the workmen. In the case in hand, apart from submitting that the action on the part of the Labour Court to permit the respondents to lead further evidence in support of the charges being in contravention of the ruling of the Apex Court, the petitioners have not able to point out any part of the evidence to be relating to the merits of the case and not in relation to the allegation of victimisation or pertaining to the issue of proportionality of the punishment imposed upon the workmen. On the contrary, the learned Advocate for the respondents referring to the testimony of the witness examined on behalf of the employer has clearly pointed out that the said testimony relates entirely to the issue of allegation of victimisation and proportionality of the punishment. Perusal of the testimony clearly disclose that the learned Advocate for the respondents is justified in his contention in relation to the said evidence.
7. The testimony of the said witness primarily discloses the inconvenience caused to the respondents on account of absence of Mr. Patel and it does not disclose any fact which can reveal justification of the charges against the workmen. It is not in dispute that the complainant had alleged victimisation on account of punishment imposed upon the workmen and therefore, obviously the employer was required to meet the said allegation and having denied the said allegation in their reply, the respondents were within their right to justify the same by leading necessary evidence in that regard. The orders passed by the Labour Court as well as by the Industrial Court nowhere refers to any part of testimony of the said witness as a justification for the charges levelled against the employee. Being so, the contention of the petitioners that the evidence so led by the respondents was relied upon by the courts below in support of the proof of charges against the employee is devoid of substance. The first ground of challenge, therefore, fails.
8. As regards the second ground of challenge which pertains to the issue of victimisation. The contention of the petitioners is that both the courts have failed to address themselves to the issue of victimisation in the manner it was required to be considered and merely by observing that there was neither pleading nor proof they have refused to deal with the same and dismissed the complaint. Attention was drawn in that regard to the complaint and particularly paragraph 3(g) of the complaint. Reliance was also placed in the decision of the Apex Court in the matter of Colour-Chem Ltd. v. A.L. Alaspurkar and others, reported in : [1998]1SCR663 , while contending that the victimisation can be in fact or can be in law and therefore, the contention raised regarding the disproportionate punishment and failure to take note of the unblemished service by the employee while imposing the punishment of dismissal amounts to victimisation in law, and therefore, it was necessary for the courts below to consider the same and having failed to do so, they have acted illegal in dismissing the complaint without addressing to the said issue. On the other hand, the learned Advocate for the respondents has submitted that both the courts have considered the said issue regarding the victimisation in the manner it was required to be considered in view of the fact that it was merely relating to the allegation of the punishment being disproportionate and therefore, no fault can be found with the approach of the courts below while dealing with the said issue pertaining to the alleged victimisation.
9. After considering the facts of the case and provisions of section 3(18) of the said Act, it was observed by the Apex Court in Colour Chem case that in view of absence of definition of the term victimisation in the said Act as well as in the Bombay Industrial Relations Act, 1946 and the Industrial Disputes Act, 1947 that dictionary meaning of the said term is to be accepted and it was held that---
'Thus if a person is made to suffer by some exceptional treatment it would amount to victimisation. The term 'victimisation' is of comprehensive import. It may be victimisation in fact or in law. Factual victimisation may consist of diverse acts of employers who are out to drive out and punish an employee for no real reason and for extraneous reasons. However, when looking to the nature of the charge of even major misconduct which is found proved if the punishment of dismissal or discharge as imposed is found to be grossly disproportionate in the light of the nature of the misconduct or the past record of the employee concerned involved in the misconduct or is such which no reasonable employer would never impose in like circumstances, inflicting of such punishment would be unfair labour practice by itself being an instance of victimisation in law or legal victimisation independent of factual victimisation, if any.'
Referring to the above decision and contending that the punishment imposed upon Mr. Patel being shockingly disproportionate and without consideration of the past service record, it was sought to be contended on behalf of the petitioner that there was victimisation apparent on the face of the record and in that connection even reference was made to the order of dismissal itself. The third ground of challenge infact relates to the absence of consideration of the past record and mitigating factors while imposing punishment of dismissal and further absence of disclosure of consideration of these factors in the order itself. Being so, it would be worthwhile to consider both the grounds of challenge together.
10. Referring to the order of dismissal passed on 7-1-1994, it was contended on behalf of the petitioners that same is clearly in contravention of Rule 25(6) of the Bombay Industrial Employment (Standing Orders) Rules 1959 (hereinafter called as 'the said Rules'), in as much as that said Rule 25(6) clearly requires the management to take into account gravity of the mis-conduct, the previous record if any, of the workman and any other extenuating or aggravating circumstances that may exist while awarding punishment and that the management in the case in hand failed to take note of the past record as well as extenuating and aggravating circumstances while imposing punishment of dismissal and that therefore, there was clear case of victimisation in law. In this regard, reliance is also placed in the decision of the Division Bench of this Court in the matter of Borosil Glass Works Ltd. v. M.G. Chitale, reported in : (1974)IILLJ184Bom . According to the learned Advocate for the petitioners, the said order of dismissal apparently discloses failure on the part of the respondents to comply with the requirement of Rule 25(6) of the said Rules and therefore, the same apparently discloses victimisation. While the order specifically refers to the aggravating circumstances, there is no reference to the past record or extenuating circumstances. According to the learned Advocate for the petitioners such consideration must be ex facie apparent on the face of the order of the dismissal itself and any defect in that regard cannot be made good by leading evidence by the parties. Even otherwise, according to the petitioners, there is no evidence led on this aspect by the respondents nor the issue has been considered in proper perspective by both the courts. On the other hand, the learned Advocate for the respondents has submitted that the issue regarding non-compliance of the provisions of Rule 25(6) was never raised either before the Labour Court or before the Industrial Court and therefore, the petitioners are not entitled to raise the same for the first time in writ petition. It is further contended that the order on the face of it discloses all the factors having been considered by the management and in any case in the absence of specific plea regarding the absence of consideration of past record or the mitigating factors and thereby resulting in non-compliance of Rule 25(6) having been not raised before the Labour Court, there was no occasion for the respondents to lead any evidence in that regard to disclose that the said factors were considered while passing the order of dismissal. It was also submitted on behalf of the respondents that even assuming order of dismissal may not disclose consideration of such factors, nothing prevents the management from leading evidence in that regard. It is further contended in alternative that once the mis-conduct itself is of serious nature, there is absolutely no need to consider the past record as such and action of dismissal in such cases can be perfectly valid. According to the learned Advocate for the respondents, the issue of victimisation has been considered by both the courts to the extent it was required to be considered bearing in mind the case pleaded and proved before the Labour Court. Reliance is placed in the decision in the matter of Chandrakant K. Patil v. Union of India & others, reported in 1995(II) C.L.R. 445, A.S. Kasinathan v. Chairman, M.D.L. Board, reported in 1983(2) L.L.N. 465, Boots Pure Drug Co. (India) Ltd. v. K.C. Bastian, reported in : (1977)IILLJ113Ker , Mahesh Kumar Narottambhai Kantharia v. Administrative Officer, Nagar Prathmik Shikshan Samiti, Surat and another, reported in : (2001)3GLR2045 , Mithilesh Singh v. Union of India & others, reported in 2003(1) C.L.R. 825, and of the Division Bench of this Court in the matter of Raymond Woollen Mills v. A.K. Thorat, reported in 1980(40) F.L.R. 13, as well as in the case of Mr. Ziakh v. Firestone Tyre and Rubber Company Ltd. and another, reported in : (1954)ILLJ281Bom .
11. The order of dismissal dated 7-1-1994 after taking note of the facts regarding the proceedings prior to the passing of the said order refers to the conduct of the respondents which is said to have revealed the factors like Acts of commission and omission on the part of employee being irresponsible, and inconvenience caused to the Managing Director to whom the driver was attached to, failure on the part of the employee to consider the inconvenience caused to the superior, absence from duties without application and sanction, failure to respond to the repeated calls from the office as well as ignoring of repeated communication from the office and act of attaching least importance to the performance of duty which have been considered as aggravating circumstances and that therefore, interest of discipline being warranting the punishment of dismissal and impossibility to underweight the mis-conduct. Being so, it cannot be disputed that the order on the face of it does not disclose any mitigating factors having been considered or any past record of the employee having been taken into consideration while imposing the punishment. The entire consideration apparently appears to be in relation to the conduct of the employee from 1st October, 1993 onwards and the aggravating factors which according to the management warranted imposition of punishment of dismissal. Undoubtedly, therefore, the order of dismissal ex facie does not disclose consideration of the previous record of the employee and any other extenuating circumstances that might have existed.
12. Rule 25(6) of the said Rules provides that---
'In awarding punishment under this standing order the manager shall take into account the gravity of the misconduct, the previous record, if any, of the workman and any other extenuating or aggravating circumstances that may exist.'
Apparently the rule which is undisputedly applicable to the parties required that at the time of imposing punishment, the management while considering the gravity of misconduct should also take into consideration the previous record as well as extenuating and aggravating circumstances those might have existed. There cannot be therefore, dispute on the point that the management is required to take into consideration all those factors while awarding the punishment.
13. The point, however, which is raised in the matter is that the consideration of all such factors must be ex facie apparent in the order itself and in the case of absence thereof, the order is to be held as bad in law. There cannot be dispute that a person against whom a disciplinary action is taken is entitled to know the reasons for any action being taken against him. However, when the law on the subject in relation to the factors to be considered while imposing the punishment enumerates those factors by way of a statutory provision for the consideration by the disciplinary authority but at the same time, does not make it mandatory that consideration of all such factors should be revealed from the order, on the face of it, can it be said that on account of failure to disclose consideration of all such factors in the order itself, that would render the order to be bad in law
14. In Firestone Tyre's case the Division Bench of this Court, while dealing with the contentions regarding controversy of the standing order which required that in awarding punishment the manager should take into account gravity of mis-conduct, the previous record, if any, of the workman or any other extenuating or aggravating circumstances that might have existed and taking into consideration the facts and circumstances of the case before the Court, observed that---
'Now, unfortunately, the petitioner when he filed his affidavit in reply to the application made by the employer for permission under section 22 never suggested that this standing order had not been complied with. If such a suggestion had been made the employer would have had an opportunity of adducing necessary evidence to establish that this standing order had been complied with. The standing order does not require that the fact that certain facts have been taken into consideration before punishment is meted out should be either communicated to the petitioner or that it should appear in any record. It is a mandatory direction to the manager and that mandatory direction has got to be complied with, but it may be complied with without a written record being made of it, and therefore, if it had been suggested that there had been non-compliance of this particular standing order it would have been possible for the manager to give evidence and satisfy the Tribunal that he had taken into consideration the factors which it was obligatory upon him to take into consideration.'
15. In Borosil Glass Works Ltd., the Division Bench of this Court while considering the Standing Order 25(6) and dealing with the issue as to whether the order of dismissal is in accordance with the standing orders or not, it was held thus---
'So far as Standing Order 25(6) is concerned, it is a very important and relevant standing order which safeguards the interest of the workman concerned, who has been charged for misconduct and in respect of whom an enquiry has been held, more so in the context of the case where an application for approval has to be made under section 33(2)(b), where the Industrial Tribunal cannot go into the details of the enquiry as a Court of Appeal nor on the question of quantum of punishment. Under section 33(2)(b) of the Industrial Disputes Act, all that the Industrial Tribunal has to see is whether an enquiry has been made, rules of natural justice have been observed and a prima facie case is made out. The Industrial Tribunal, therefore, has to give careful consideration on the findings on which the order of discharge or dismissal or any other punishment is meted out, and there should be sufficient material to show that the punishing authority has applied his mind to the various allegations and what kind of punishment can ultimately be meted out to him. He has to show under the Standing Order 25(6) whether he has considered the previous record, if any, what is the gravity of the misconduct on which he relies, and what are the extenuating or aggravating circumstances that he has to take into consideration before passing the final order. The Standing Order 25(6) has not to be covered merely as a routine or a matter of form but careful application of mind is required to each of the relevant factors mentioned therein before coming to the conclusion, and such an application of mind must be revealed in the order itself, and much more so when it is the question of dismissal of an employee.'
16. In Raymond Woollen Mills Ltd., the Division Bench of this Court, while dealing with the issue pertaining to the non-compliance of the provisions of Model Standing Orders 25(6) and after taking note of the decisions of the Division Bench in Borosil Glass Works Ltd., as well as in Firestone Tyre and Rubber Company Ltd., observed that---
'It is unfortunate that while this judgment was being delivered in the year 1974, a much earlier judgment of this Court of the Division Bench consisting of Shri Chagla the then C.J. and Dixit, J., in the case of Ziakh v. Firestone Tyre and Rubber Company Ltd., (2) does not seem to have been cited. As early as 1954 by a considered judgment the Division Bench laid down the law that for the proper compliance with the provisions of Standing Order 25(6) a reference to it or a discussion thereafter by a speaking order is not necessary. It is an obligation on the competent authority to apply its mind to the provisions of that order which requires the competent authority to take into account several factors, like the previous record, gravity of mis-conduct and any other extenuating and aggravating circumstances. In that case before the Division Bench there was no specific challenge raised by the delinquent.
The Division Bench further observed that---
'If such a challenge was raised, the competent authority was required to adduce evidence and produce witnesses to show how there was compliance with the Standing Order 25(6).'
17. Apparently all above three decisions would disclose that the Division Bench of this Court in Fire Stone case as well as in Raymond case has held that the Standing Order 25(6) undoubtedly requires the manager to apply its mind to the provisions of the said order which requires it to take into consideration factors like previous record, gravity of mis-conduct as well as any other extenuating or aggravating circumstances while awarding the punishment but it does not warrant that the consideration of such factors should be disclosed ex facie in the order itself and that the compliance of the said standing order can be established by leading necessary evidence in that regard when the consideration of such factors is disputed by the employee. Undoubtedly, in Borosil case, it was held as quoted above that the compliance of Standing Order 25(6) is not merely a routine or a matter of form but careful application of mind is required to each of the relevant factors and that the application of mind should be revealed from the order itself. The act of exercise of consideration of all such factors is one thing and disclosure of such act of exercise of consideration of all such factors in the order itself is another thing. Application of mind to all such factors can certainly be revealed from the analysis of the materials on record with reference to each of those factors but mere absence of details in that regard in the order itself may not be sufficient to conclude about the absence of application of mind to those factors. Besides, the issue of application of mind in that regard can be known, even in absence of such details, from other contents of the order itself.
18. Besides, considering the decision in Borosil case alongwith decisions of the Division Bench in Fire Stone case as well as in Raymond case, there is hardly any scope to contend that the exercise done by the Manager in relation to the application of mind for consideration of the factors like the past record, gravity of mis-conduct and any other extenuating or aggravating circumstances should be necessarily revealed ex facie from the order itself. On the contrary the decisions clearly hold that the management can establish these factors having been considered by leading necessary evidence in that regard when consideration thereof by the management while passing the order is sought to be disputed by the employee. It is also pertinent to note that even in Borosil Glass case, there was specific objection raised regarding non-consideration of the said factors and inspite of the said objection being raised, no evidence was laid to show that the previous record of the employee was taken into account while awarding punishment.
19. Being so, merely because the order dated 7-1-1994 does not ex facie disclose consideration of past record or mitigating factors that would not be sufficient to hold the said order to be bad in law. In order to assail the said order on the ground of non-consideration of the said factors, therefore, it was necessary for the petitioners to raise a specific ground in that regard before the Labour Court and invite the respondents to prove that the said factors were duly considered. The learned Advocate for the respondents is justified is submitting that neither the complaint before the Labour Court nor the revision application before the Revisional Court disclose specific ground in that regard. It is however, true that the grievance was made in the course of hearing before the Labour Court that the past records of the employee were not considered. Apart from disputing the said contention of the petitioners, it has been the case of the respondents that the punishment of dismissal has been imposed after taking into consideration the gravity of the mis-conduct and the aggravating circumstances and when the misconduct itself is of serious nature, even assuming that the past records are not considered, that would not render the order of dismissal to be bad in law.
20. In Chandrakant K. Patil's case the learned Single Judge of this Court has held that past service record is required to be considered as a mitigating circumstance, but it is well-settled that where the delinquent is guilty of serious misconduct then even one single misconduct like theft or connivance therein may warrant dismissal. However, the learned Advocate for the petitioner is justified in contending that the said observations were made bearing in mind that in the said case there was no rule which required the disciplinary authority to consider past record of the employee, apart from the fact that it was a case of theft and not absence from the duties.
21. In Kasinathan's case the learned Single Judge of the Madras High Court has held that where a worker is found to be guilty of a serious offence inviting dismissal, very little will turn upon the previous record of the worker and the fact that a person had a previous good record can hardly weigh with the management when it finds that the worker by inciting an illegal strike was paralyzing the working of the industry, and if in such an instance, the management proceeded to dismiss the person, the non-consideration of the previous record would not vitiate the final order. However, while arriving at the said conclusion the Madras High Court had taken note of the fact that the Standing Order 16(4) which was in force in the State of Madras, as was it then, merely provided that the management shall take into account the gravity of the misconduct, the previous record, if any, of the workman, and any other extenuating or aggravating circumstances. Regulation 45, however, stated that if the gravity of the misconduct standing by itself, would justify the dismissal, and no amount of previous good conduct might affect the gravity of the misconduct. Apparently, therefore, on one hand, standing order required consideration the gravity of misconduct, previous record as well as any other extenuating or aggravating circumstances, simultaneously on the other hand, Regulation 45 provided that if the gravity of misconduct, standing by itself, would justify the dismissal then no amount of previous good conduct would affect such decisions.
22. Apparently both the above decisions were given after taking into consideration the fact of the case and the law applicable thereto. While in Chandrakant case there was no rule which required the disciplinary authority to take into consideration the past record whereas in Kasinathan case, Regulation 45 permitted dismissal in case of grave misconduct without consideration of previous good conduct. That is not the case in hand and apparently those decisions are of no help in the matter in hand.
23. In Mithilesh Singh case the Apex Court has ruled that---
'Absence from duty without proper intimation is indicated to be a grave offence warranting removal from service.'
Referring to the said decision it was sought to be contended on behalf of the petitioners that the said observation was made with reference to the specific rule. Rule No. 104 which governed the conditions regarding the grant of leave and further Rule No. 147 which specified the offences and Rule 156 provided for punishment of dismissal on account of absence from duty without proper intimation. Indeed, Clause (vi) of Rule 147 therein provided that absenting himself without proper intimation to his controlling authority or without sufficient cause, overstaying leave granted to him or failing without reasonable cause to report himself for duty on the expiry of such leave, would warrant punishment and Rule 156(b) provides for the punishment of removal from service if the delinquent suffers conviction by a Criminal Court or is guilty of repeated minor misconduct or is found absent from duty without proper intimation or without sufficient cause. Bearing in mind those provisions of law and the fact that matter related to an action against the member of Railway Protection Special Force, the said ruling was given by the Apex Court.
24. In Maheshkumar case the learned Single Judge of the Gujarat High Court taking note of the fact that the employee had remained absent from 28-2-1990 to 6-4-1990 and thereafter, the services having been terminated on the ground of being absent from 15-6-1990 it was observed that---
'There cannot be two opinions on the question that remaining unauthorisedly absent from duty by employee is a grave and serious misconduct and on proof or admission of the same, the employer has all the right to dispense with the services of such an indisciplined employee.'
This decision was however, sought to be distinguished by the learned Advocate for the petitioners submitting that it was a case of habitual absence without leave.
25. In Boots Pure Drug Co. (India) Ltd., the Division Bench of the Kerala High Court after rejecting the contention of the employee that the employer was motivated by mala fides or by extraneous consideration like victimisation of an employee or harassment of an employee held thus---
'..........the post of a driver is different from the post of a worker in a factory or some other employee who it may be said is ordinarily remotely controlled by the employer. Such an employee in the factory does not come into daily contact with the employer and his every action would not have some repercussion on the employer, as in the case of a manager sitting in a car driven by a driver. We must also say that an employee may bona fide loss confidence on a driver for reasons or grounds which another may not consider reasonable or just. In such cases the subjective satisfaction if honestly arrived at by the employer may be sufficient for an employer to say that he has lost confidence in his driver.'
This is also sought to be distinguished by contending that it was a case where charge of loss of confidence was being dealt with and that was not the charge against Mr. Patel in the case in hand, though the action is sought to be justified on that ground.
26. In the case in hand, Standing Order No. 24(f) discloses that habitual absence without leave, or absence without leave for more than ten consecutive days or overstaying the sanctioned leave without sufficient grounds or proper or satisfactory explanation, would amount to an act of misconduct on the part of the employee. Standing Order No. 25(1) provides that a workman guilty of misconduct may be warned or censured or fined subject to and in accordance with the provisions of the Payment of Wages Act, 1936 or (c) suspended by an order in writing signed by the Manager for a period not exceeding four days, or (d) dismissed without notice. Sub-clause (3) of Standing Order No. 25 provides that no order of dismissal under sub-clause (d) of Clause (1) shall be made except after holding an enquiry against the workman concerned in respect of the alleged misconduct in the manner set forth in Clause (4). Apparently similar to Rule 156 in the matter of Mithilesh Singh before the Apex Court though there is no specific provision empowering the management to remove the employee from the services, certainly it has been left to the discretion of the management to impose an appropriate punishment in case of various misconducts including misconduct of remaining absent without leave for more than ten consecutive days and such punishment apart from other punishment specified in Clause (c)(1) of Standing Order 25 also includes dismissal from service. The learned Advocate for the petitioners is certainly justified in contending that mere absence of an employee by itself would not be a grave misconduct. Nevertheless in the given set of facts it can certainly amount to the grave misconduct and it will all depend upon the facts of each case in the absence of clear guidelines either in the standing orders or in the settlement arrived at between the management and the workers in that regard. As is observed by the Division Bench of the Kerala High Court in Boots Pure Drug Co. (India) Ltd., a mere employee in a factory because of his absence for a continuous period of ten days without leave may not by itself lead to conclusion that it is a grave misconduct on the part of such employee. However, an employee whose absence can result in great prejudice to the employer, the nature of prejudice being depending upon the facts of each case, may amount to grave misconduct as has been held by the Kerala High Court where it is a case amounting to bona fide loss of confidence on account of such continuous absence without leave and may justify the conclusion arrived at by the management that such misconduct is of grave and serious nature and therefore, may invite an action of dismissal of the employee. In the absence of specific rule or provision in that regard, it is not possible to arrive at a general proposition of the law as such that moment there is continuous absence without leave, it will tantamount either to the grave misconduct or otherwise.
27. Bearing in mind the above discussion if one considers the matter in hand, apart from the fact that the order dated 7-1-1994 apparently discloses the inconvenience caused to the management on account of continuous absence of the driver and further aggravating circumstances having been taken into consideration, the evidence produced by the respondents in relation to the issue of victimisation also apparently reveal the aggravating factors disclosing the gravity of the misconduct on the part of the driver.
28. As regards the issue of victimisation the contention of the learned Advocate for the petitioners as already observed above is that the same was required to be considered in the context of proportionality of the punishment vis a vis the misconduct proved in the matter. Once it is established that it is a serious misconduct and the management having chosen to impose the punishment of dismissal, the imposition of such a punishment being permissible in terms of the provisions of law and there being no factual foundation laid down or disclosed in the pleadings of the complaint as well as in the course of hearing before the Labour Court by the employer, there is hardly any scope to contend that in such circumstances, there is any victimisation in law.
29. Considering the decisions referred to above as well as the facts of the case and the law on the point of interpretation of Standing Order No. 25(6), once it is revealed that misconduct is of grave and serious nature, no fault can be found even if past conduct is not considered while imposing the punishment. Needless to say that there cannot be any general proposition of law on this aspect but it would all depend upon the facts of each case and as already held above the facts of the case in hand which clearly reveal a serious misconduct on the part of the driver of the respondent resulting in great prejudice to the respondent, no fault can be found with the punishment imposed upon the employee. Viewed from this angle, therefore, no fault can be found with the concurrent findings arrived at by both the courts below while dismissing complaint filed by the petitioner as the materials on record do not reveal any unfair labour practise having been adopted by the respondents against the said employee.
30. For the reasons stated above, the petition fails and is hereby dismissed and the rule is discharged with no order as to costs.
At the request of the learned Advocate for the petitioners, the direction issued by the Labour Court to repay the amount paid to the workman by way of interim relief is stayed for a period of six weeks.