1 2025:CGHC:1209 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPL No. 137 of 2015  Steel Authority Of India Ltd. Bhilai Steel Plant, Through Managing Director, Now Known As Chief Executive Officer Bhilai Steel Plant Bhilai, Durg Chhattisgarh., Chhattisgarh ... Petitioner(s) versus 1. Hemant Kumar S/o Late Manrakhan, Aged About 35 Years Ex.- Attendant, Dalli Mech. Mine, Azad Nagar, Dalli Rajhara, District - Balod Chhattisgarh., Chhattisgarh 2. Industrial Court, Raipur Chhattisgarh ... Respondent(s) (Cause Title is taken from Case Information System) For Petitioner : Mr. Kashif Shakeel, Advocate For Respondent No. 1 : Mr. Rishi Soni, Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 08 .01.2025 1. The petitioner has challenged the order passed by the State Industrial Court Chhattisgarh, Raipur in Civil Appeal No. 19/CGIR/A/11/2014 dated 09.04.2015, whereby the appeal preferred by the respondent was allowed and he was reinstated with full back wages. 2. The facts of the present case are that respondent No. 1 was appointed as Attendant on compassionate grounds in Dalli Mechanized Mine on 29.07.2002. As per pleadings, respondent No. 1 was a habitual absentee. Respondent No. 1 remained absent from services for the period from 01.08.2005 to 11.03.2006 for a total of 93 days without intimation or prior 2 sanction of leave. The absence of the petitioner was major misconduct as per clause 29(1)(iv) of the Standing Orders (Mines). Respondent No. 1 was served with the memorandum dated 08.04.2006 along with the statement of allegations and charges by the disciplinary authority for his unauthorized absence for 93 days. No reply was filed by respondent No. 1. 3. One Manish Pant, Assistant Manager (Personal), Rajhara Mines was appointed as an Enquiry Officer and Shri Sameer Kumar, Assistant Manager (Personal) was appointed as Prosecution Nominee. The Enquiry Officer conducted an enquiry, afforded the sufficient opportunity of hearing to respondent No. 1 and submitted its report before the disciplinary authority on 03.08.2006. The disciplinary authority vide order dated 31.01.2007 inflicted the penalty of removal from services. 4. Respondent No. 1 moved an application under Section 31 of the C.G. Industrial Relations Act, 1960 before the Labour Court challenging therein the order of removal from service. The Labour Court vide order dated 17.10.2014 rejected the application moved by respondent No. 1. 5. Respondent No. 1 preferred an appeal according to provisions of Section 65(1)(a) of the Industrial Relations Act, 1960 before the State Industrial Court, Chhattisgarh. The appellate Court allowed the appeal preferred by respondent No. 1 and passed an order of reinstatement in his favour with full back wages. 6. Learned counsel appearing for the petitioner would submit that two issues were framed by Labour Court, they are:- i. Whether the Labour Court has no jurisdiction to adjudicate upon the application moved by respondent No. 1/employee. ii. Whether the departmental enquiry against the employee is in- appropriate and illegal. 3 7. He would also submit that WPL No. 1144 of 2011 was filed challenging issue No. 1 and that was dismissed. It is contended that thereafter sufficient opportunity of hearing was afforded to respondent No. 1 and evidence was led, but with respect to the misconduct committed by the delinquent employee, the application moved by respondent No. 1 was rejected. It is stated that the learned Industrial Court without taking into consideration the evidence and previous misconduct of respondent No. 1, allowed the appeal. It is further stated that though there is no evidence to the effect that respondent No. 1 was not gainfully employed anywhere, the Court below granted full back wages with reinstatement. He would pray to set-aside the order passed by the learned Industrial Court. He would also submit that there was an erroneous finding by the Industrial Court to the effect that the employer could not prove the misconduct, whereas, sufficient evidence was led by the employer. 8. On the other hand, Mr. Rishi Soni, would submit that the management failed to prove the misconduct by adducing clinching evidence against respondent No. 1. He would further submit that the learned Court below has recorded a categorical finding that the management failed to produce evidence in respect of unauthorized absence of delinquent employee. With regard to back wages, he would submit that respondent No. 1 has categorically stated in evidence before the learned Labour Court that he was not gainfully employed anywhere during the period when the appeal remained pending. 9. I have heard learned counsel appearing for the parties and perused the documents placed on the record. 10. Respondent No. 1 was removed from services on the ground that he 4 remained unauthorizedly absent for a period of 93 days and his period of absence was also taken into consideration with regard to absence. Respondent No. 1 was appointed to the post of Attendant on 29.07.2002 on compassionate basis. Vasant Kumar R.P., Junior Manager (Personal), Management witness-in-chief has not stated the fact that respondent No. 1 remained absent for 93 days. 11. Another Management witness, namely, Banwari Lal Markam in the affidavit, in para 4 stated that respondent No. 1 remained absent for the entire month of August and September, 2005, for 16 days in October, 2005, 8 days in December, 2005, 10 days in February, 2006, and 3 days in March, 2006. 12. It is not a case of the petitioner that respondent No. 1 remained continuously unauthorizedly absent from services for 93 days. Respondent No. 1 remained absent in intervals. Respondent No. 1 in the affidavit filed under Order 18 Rule 4 of CPC had stated that he was not gainfully employed anywhere after removal from services. 13. The Hon’ble Supreme Court in the matter of Krushna Kant B. Parmar Vs. Union of India and another, reported in (2012) 3 SCC 178, held that the question of whether unauthorized absence from duty amounts to a failure of devotion to duty or behavior unbecoming of a Government servant cannot be decided without deciding the question whether the absence is willful or because of compelling circumstances. The relevant paras No. 15 to 20 are reproduced as under:- “15.. Rule 3(1)(ii) and Rule 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964, relates to all time maintaining integrity, devotion to duty and to do nothing which is unbecoming of a Government servant and reads 5 as follows: "Rule 3 - General. (1) Every Government servant shall at all times-- (i) maintain absolute integrity; (ii) maintain devotion to duty; and (iii) do nothing which is unbecoming of a Government servant." 16. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances. 17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant. 18. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct. 19. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty. 20. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B. Bijlani vs. Union of India and others reported in (2006) 5 SCC 88 wherein this Court held: "25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a 6 preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with." 14. Taking into consideration the period of absence of the petitioner which is not in continuity, but there were intervals, and further considering that the witnesses of the management have not stated categorically with regard to the period of absence of the petitioner, in opinion of this Court, no case is made out for interference with regard to setting-aside of the order of removal dated 31.01.2007 and findings recorded by the learned Industrial Court with regard to reinstatement of services of respondent No. 1. 15. With regard to back wages, the learned counsel for the petitioner has placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of State of Rajasthan and another vs. Mohd. Ayub Naz reported in (2006) 1 SCC 589. He would submit that the petitioner remained absent from services for a considerable period; therefore, he is not entitled to back wages. In para 16, 18 it was held as under:- “16. Bank of India vs. T.S. Kelawala, (1990) 4 SCC 744 : 1991 SCC (L&S) 170 : (1991) 15 ATC 747, in the above case, the Industrial Court accepted the evidence of the witness of the Company that the workmen had not worked for full 8 hours on any day in the month concerned and that they were working intermittently only for some time and were sitting idle during the rest of the time. According to the Company, the workers had worked hardly for an hour and 15 to 20 minutes per day on an average during the said months. The Industrial Court has recorded a finding that the pro rata deduction of wages made by the Company for the month did not amount to an act of unfair labour practice. The Company deducted wages on the basis of each day's production. In view of the fact that there is a finding recorded by the Industrial Court that there was a go-slow resorted to by the workmen and the production was as alleged by the Company during the said period, which finding is not challenged before this Court. It is not possible for the court to interfere with it in the appeal. All that was 7 challenged was the right of the employer to deduct wages even when admittedly there is a go- slow which question had been answered in favour of the employer earlier. This Court said go-slow is a serious misconduct being a covert and a more damaging breach of the contract of employment. Hence once it is proved those guilty of it have to face the consequences which may include deduction of wages and even dismissal from service. This Court, applying the principle `no-work no-pay' held that deliberate abstention from work, whether by resort to strike or go-slow or any other method, legitimate or illegitimate, resulting in no work for the whole day or days or part of a day or days, will entitled the Management to deduct, pro-rata or otherwise, wages of the participating workmen notwithstanding absence of any stipulation in the contract of employment or any provision in the service rules, regulations or standing orders. In the instant case, the respondent was deliberately absent for a period of about 3 years and, therefore, he has violated Rule 86(3) of the Service Rules which contemplated removal from service and, therefore, he will not be entitled to any back-wages or any other emoluments for the period for which he was absent. 18. For the foregoing reasons, we are of the opinion that a Government servant who has wilfully been absent for a period of about 3 years and which fact is not disputed even by the learned Single Judge of the High Court has no right to receive the monetary/retrial benefits during the period of question. The High Court has given all retrial benefits which shall mean a lumpsum money of lakhs of rupees shall have to be given to the respondent. In our opinion, considering the totality of the circumstances, and the admission made by the respondent himself that he was wilfully absent for 3 years, the punishment of removal imposed on him is absolutely correct and not disproportionate as alleged by the respondent. The orders passed by the learned Single Judge in S.B. Civil Writ Petition No. 2239/1991 dated 24.08.2001 and of the order passed by the Division Bench in LPA No. 1073 of 2001 dated 13.12.2001 are set aside and the punishment imposed by the disciplinary authority is restored. However, there shall be no order as to costs. The appeal stands allowed.” 16. The Hon’ble Supreme Court while dealing with the issue of back wages in the matter of M/S. Reetu Marbles vs. Prabhakant Shukla, reported in AIR 2010 SC 397 : 2009 AIR SCW 7614 in para 21, 22 and 23 held as under:- “21. Applying the aforesaid ratio of law we have examined the factual situation in the present case. The services of the respondent were admittedly terminated on 11.6.87. The Labour Court gave its award on 27.9.02. Therefore, there is a gap of more than 15 years from the date of termination till the award of reinstatement in service. Labour Court upon examination of the entire issue concluded that the 8 respondent would not be entitled to any back wages for the period he did not work. A perusal of the award also shows that the respondent did not place on the record of the Labour Court any material or evidence to show that he was not gainfully employed during the long spell of 15 years when he was out of service of the appellant. In the writ petition the respondent was mainly concerned with receiving wages in accordance with the Minimum Wages Act and for inclusion of the period spent in Conciliation Proceedings for the calculation of financial benefits. The High Court without examining the factual situation, and placing reliance on the judgment in M/s. Hindustan Tin Works Pvt. Ltd. vs. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. and ors. held that the normal rule of full back wages ought to be followed in this case. We are of the considered opinion that such a conclusion could have been reached by the High Court only after recording cogent reasons in support thereof. Especially since the award of the Labour Court was being modified. The Labour Court exercising its discretionary jurisdiction concluded that it was not a fit case for the grant of back wages. In the case of P.V.K. Distillery Ltd. (supra), it is observed as follows: "The issue as raised in the matter of back wages has been dealt with by the Labour Court in the manner as above having regard to the facts and circumstances of the matter in the issue, upon exercise of its discretion and obviously in a manner which cannot but be judicious in nature. There exists an obligation on the part of the High court to record in the judgment, the reasoning before however denouncing a judgment of an inferior tribunal, in the absence of which, the judgment in our view cannot stand the scrutiny of otherwise being reasonable." 22. In our opinion the High Court was unjustified in awarding full back wages. We are also of the opinion that the Labour Court having found the termination to be illegal was unjustified in not granting any back wages at all. 23. Keeping in view the facts and circumstances of this case we direct that the respondent shall be paid 50 per cent of the back wages from the date of termination of service till reinstatement.” 17. The present is not a case where the petitioner remained unauthorizedly absent for a long period. Though he remained absent for 93 days but it was in intervals and after the order of the removal, the petitioner was not gainfully employed as stated in his evidence and the same remained unrebutted; therefore, in the considered opinion of this Court, respondent No. 1 would be entitled to get 40% of back wages in light of the judgment 9 passed by the Hon’ble Supreme Court in the matter of M/S. Reetu Marbles (supra). The order passed by the learned Industrial Court is modified up to the extent stated above. Accordingly, the instant petition is partly allowed. Sd/- (Rakesh Mohan Pandey) Judge $iddhant