Mehar Singh, J.
1. This petition, under Article 226 of the Constitution, by Roop Narain Ram Chander (Private), Ltd., has been pending since 9 November 1959. If I recollect all right, within the last six weeks lb has at least come up for about half a dozen times for hearing but the counsel for respondent 2. Deep Chand, has not turned up. Respondent 1, Industrial tribunal, obviously is not interested in it. The case has appeared a number of times in the daily cause list but the counsel for respondent 2 does not make it convenient to appear. It is no longer appropriate that this case should continue to be postponed on this account.
2. The question that arises for consideration is rather simple. Respondent 2 was dismissed by a domestic tribunal for an act of indiscipline in having absented himself from his work without leave. The dispute having arisen with regard to the dismissal of respondent 2 a reference of that dispute was made to respondent 1, the industrial tribunal, by a notification of 28 April 1959, the matter referred being stated thus;
Whether Deep Chand should be reinstated with full back-wages, and to what relief is he entitled?
Respondent 1 made his award which has been published in the Delhi Administration Gazette, dated 1 October 1959. The award itself is dated 4 August 1959. In Paras. 14 and 15, respondent 1 upholds the dismissal of respondent 2, These paragraphs read:
14. From, the evidence it is fairly well-established that Deep Chand, who was an employee of the Kanpur office and who on some pretext or the other, was not doing any work from the 7th to 14th deliberately and wilfully absented himself from work from the 15th without leave or permission or intimation. He came away to Delhi, and he absented himself from the 15th without doing duty, and without leave or permission. It is no doubt true that it is admitted by Sri Haveli Ram, that he reported himself for duty on the 21st and then asked for train-fare to go to Kanpur. The management were under no obligation to pay him the train-fare back to Kanpur. It is admitted that he was paid train-fare to Kanpur, when he joined there on 7 July 1958. No doubt, the plea is put forward that Sri Banwari Lal, a merchant of Kanpur, informed Deep Chand that his father was ill, and that, therefore, he was obliged to absent himself. This theory of Deep Chand'a father being ill is also unbelievable. On a consideration of the entire evidence, I find, disbelieving the evidence on behalf of the workman, that Deep Chand absented himself from duty wilfully and deliberately from 15 July 1958, without leave or permission, or intimation from the Kanpur office, and the plea that his father was ill, and therefore, he was obliged to absent himself, has not been established.
15. Some evidence has been led to show that the enquiry was perfunctory and that Deep Chand was not given full opportunity to defend himself. The question as to whether there was a proper enquiry or not is not material now, when an enquiry has been held into the matter in this proceeding. It is clear from the evidence in the case, that Deep Chand is guilty of deliberately absenting himself from duty, without leave or permission, or intimation. I fail to sea how it can be held that the management are wrong in passing the order of dismissal, in the circumstances of this case. It will be impossible for any office to run smoothly and efficiently if the employees take it into their head that they can absent themselves with impunity, without being granted the necessary permission or leave. I find that the order of dismissal is valid and justified and that it is neither wrongful, nor illegal, as has been contended on behalf of the workman. It is also bona fide not an act of unfair labour practice.
3. The finding is clear that the dismissal of respondent 2 is valid and justified. It is not a wrongful dismissal, and respondent 1 emphasizes that it is bona fide and it is not an act of unfair labour practice. After giving this finding, respondent 1 then proceeds to consider the question of relief to which respondent 2 was entitled. This is what respondent 1 says in this respect:
It is clear from the evidence that this workman had been working as a munim. No doubt, he deserved the punishment of dismissal, but it seems to me that, in view of the fact that nothing has been proved in regard to his past conduct, this is a fit case in which a lenient view should be taken and that the workman should be reinstated in service.
Respondent 1 then proceeded to make an award for reinstatement of respondent 2 on the same terms and conditions as before. The direction was to reinstate respondent 2 within two weeks of the award becoming enforceable. It is against this award that the petitioner-company has come with this writ petition.
4. The learned Counsel for the petitioner refers to Section 10(1)(d) of the Industrial Disputes Act, 1947 (Act 14 of 1947), which provides:
Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may, at any time, by order in writing...(do) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in Schedule II or Schedule III, to a tribunal for adjudication;
and in Sch. II, it is Item 3 to which reference is made, which item reads:
Discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen wrongfully dismissed.
The learned Counsel contends that when a workman has been dismissed wrongfully, then only the question of reinstatement arises. Thus, on reading item 3 In Sch. II to the Act with 8.10 (1)(d) of the Act, the correct position is, where there has been dismissal on account of indiscipline and the dismissal is in good faith and not an unfair labour practice, the question of reinstatement really does not arise. In this respect, this is what their lordships observed in Burn & Co., Ltd. v. their workmen 1959-I L.L.J. 450 at 452:. There should have been an application for leave but Roy thought that he could claim, as a matter of right, leave of absence though that might be without permission and though there might not be any application for the same. This was gross violation of discipline. Accordingly, if the company had placed him under suspension, that was in order. On these findings, it seems to us that the tribunal erred in holding that it could not endorse the company's decision to dispense with his services altogether. In our opinion, when the tribunal upheld the order of suspension, it erred in directing that Hoy must be taken back in his previous post of employment on the pay last drawn by him before the order of suspension. In item 18 of the schedule no question of reinstatement was referred to the tribunal. Prima facie, it would appear that the award of the tribunal directing reinstatement was beyond the scope of the reference. Assuming, however, that the tribunal could have dealt with the question of reinstatement, it seems to us that on the findings no such order should have been made.
In the present case, the question of reinstatement was before the tribunal arising out of the reference, but the question still is: the tribunal having endorsed the decision of the domestic tribunal that respondent 2 absented himself from work without leave and that his dismissal was legal and justified and further that it was made in good faith and was not an unfair labour practice, whether the tribunal could still order reinstatement of respondent 2. I think, in this respect, the tribunal, in view of item 3 in Sch. II to the Act, had not the jurisdiction to order reinstatement on compassionate grounds, that a lenient view of the conduct of respondent should be taken because there was no past history of indiscipline in his case. This petition thus succeeds and the order is that part of the award of respondent 1 reinstating respondent 2 is quashed. There is no order in regard to costs in this petition because nobody has appeared for the opposite side.