Madras High Court
The Management Of vs The Presiding Officer on 2 January, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.01.2012 CORAM The Honourable Mr. Justice K.CHANDRU Writ Petition Nos.1833 and 1834 of 2007 The Management of Tamil Nadu State Transport Corpn. [Salem Division-2] Ltd. Salem Main Road, Bharathipuram, Dharmapuri-5, rep. by its Managing Director. .. Petitioner in both Writ Petitions vs. 1. The Presiding Officer, Labour Court, Salem. 2. V.Krishnan .. Respondents in both Writ Petitions Prayer: Writ Petition No.1833 of 2007 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari calling for the records made in C.P.No.285 of 2005 dated 9.1.2006 on the file of the Labour Court, Salem, and quash the same. Writ Petition No.1834 of 2007 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari calling for the records made in I.D.No.196 of 2003 dated 5.1.2004 on the file of the Labour Court, Salem, and quash the same. For petitioner : Mr.T.Chandrasekaran For respondents: Mr.M.Selvam for R.2 ----- O R D E R
The Petitioner in both the writ petitions is the same, viz., the Tamil Nadu State Transport Corporation, having its headquarters at Salem. In W.P.No.1833 of 2007, challenge is made to the order passed by the first respondent Labour Court, Salem, in Claim Petition in C.P.No.285 of 2005 dated 9.1.2006. In W.P.No.1834 of 2007, challenge is made to the Award made by the first respondent Labour Court, Salem, in I.D.No.196 of 2003 dated 5.1.2004.
2. The petitioner Corporation had not explained as to why they have taken three years time to file the writ petition against the Award, which was admittedly passed on 5.1.2004. The affidavit is silent in this respect. In any event, the facts narrated in the writ petitions are not in dispute.
3. It is seen from the records that the second respondent workman was employed as Driver w.e.f. 13.10.1995. According to the Management, he absented himself from duty w.e.f. 25.3.1996 due to illness. When they issued a charge memo. to the workman on 31.5.1996, they found the explanation submitted by the workman was not satisfactory and after conducting an enquiry, he was dismissed from service by order dated 4.4.1997. The workman immediately did not raise any dispute with reference to his non-employment, on the contrary, he raised a dispute only in the year 2003. He went before the Conciliation Officer and as the conciliation could not end in settlement, a failure report was given and on the strength of the failure report, he filed a claim statement before the first respondent Labour Court. The Labour Court registered the dispute as I.D.No.196 of 2003 and ordered notice to the Management. The Management filed a counter resisting the claim on two grounds. Firstly, the workman had not completed 240 days of service during his tenure and he was not eligible for restoration of his duty; secondly, his unauthorized absence was proved in a domestic enquiry and therefore, he was not eligible for any relief. It was also stated that after his dismissal, he had taken more than eight years to raise a dispute.
4.Before the Labour Court, on the side of the workman, only one document was filed and marked as Ex.P.1 and on the side of the Management, 11 documents were filed and marked as Exx.R.1 to R.11.
5.The Labour Court found that though the workman submitted an explanation for his absence, he had failed to produce the copy of the leave application. The Labour Court also found that the workman had completed 240 days of service in his employment. It also found that he was not a habitual absentee and therefore, the dismissal imposed on him was disproportionate. Though the workman claimed that he had sent a telegram to the Management, he was unable to produce the copy of the said telegram before the Labour Court. But, nevertheless, the Labour Court found that the dismissal was disproportionate and directed reinstatement of the workman as a fresh entrant on the basis of the present time scale of pay, by award dated 5.1.2004. At that stage, the Management did not think it fit to challenge the said award, and, voluntarily, they sent a communication dated 29.10.2004 directing the workman to report for duty as a fresh entrant, on a daily wage of Rs.149/-, without any continuity of service and back wages.
6.In the meanwhile, since the award was not implemented in its letter and spirit, the workman moved the Labour Court with a claim petition under Section 33C[2] of the Industrial Disputes Act, claiming back wages for the period from 5.1.2004 to 31.12.2004, amounting to a sum of Rs.74,720/-. The said claim petition was registered as C.P.No.285 of 2005 and notice was issued to the management. The Management filed a counter statement stating that after the award, by communication dated 29.10.2004, the workman was given employment as a fresh entrant and thereafter, he was sent for medical examination to find out whether he is eligible to hold the post of Driver. But the Medical Board, by order dated 13.11.2004, certified that he was not fit to hold the post of Driver and hence the Management recalled the order dated 29.10.2004 appointing him as a fresh entrant as per the Award.
7.Before the Labour Court, the workman filed the Award as Ex.P.1. On the side of the Management, three documents were filed and marked as Exx.R.1 to R.3. Ex.R.1 is the order restoring him to service as a fresh entrant, Ex.R.2 is the Medical Board Certificate and Ex.R.3 is the order cancelling the earlier appointment given in favour of the workman.
8.The Labour Court, by observing that the award of the Labour Court was not complied with inasmuch as the Management after offering employment to the workman as a fresh entrant as per Ex.R-1 cancelled the same under R-3 based on Ex.R-2, held that the workman was entitled for wages from the date of the Award, till the date of the application. It is at this stage, the Labour Court passed the order dated 9.1.2006 and after an year, the Management decided to file both the writ petitions, jointly challenging both the award passed in I.D.No.196 of 2003 dated 5.1.2004 and the order passed in C.P.No.285 of 2005 dated 9.1.2006. As noted already, the Management did not give any satisfactory explanation for not challenging the award passed by the Labour Court initially and on the contrary, they were satisfied with the Award and on that ground they have issued an unilateral appointment order implementing the Award of the Labour Court.
9.Both the writ petitions were admitted on 19.1.2007. Pending writ petitions, this Court directed the Management to deposit the entire amount ordered by the Labour Court within four weeks and it is claimed that the amount had already been deposited. Thereafter, the workman filed four applications in M.P.Nos.1 and 2 of 2008 in both the writ petitions seeking withdrawal of the deposited amount and for vacating the interim orders and also to pay the back wages. This Court, by order dated 5.3.2008, held that since reinstatement was not possible in the light of the report of the Medical Board, the workman was entitled for wages in terms of Section 17-B of the Industrial Disputes Act, calculated from 9.1.2007 onwards, which shall be paid every month pending disposal of the writ petitions. The arrears from 9.1.2007 till February, 2008 was directed to be paid in one lump sum and it is admitted that the order has been complied with.
10.The short question that arises for consideration is whether the impugned Award as well as the order passed by the Labour Court suffer from any legal infirmity. Before going into the merits of the impugned orders, it must be noted that after the Award, the Management did not have any inhibition in implementing the Award and issued the proceedings dated 29.10.2004, reinstating the workman as a fresh entrant. Therefore, it is not open to the Management to challenge the Award, that too after a period of two years. Further, the writ petitions are liable to be rejected on the short ground of estoppel. In any event, it is only after the workman filed a claim petition under Section 33C[2] claiming back wages, the Management came up with the defence that the Award could not be implemented in view of the physical disablement noticed by the Medical Board. But, that is altogether a different cause of action, which will not invalidate the earlier award passed by the Labour Court. If the workman, who is directed to be reinstated, is subsequently found unfit on medical grounds, certainly, Section 47 of the Persons with Disabilities [Equal Opportunities, Protection of Rights and Full Participation] Act, 1995, would come into operation. In the present circumstances, after restoration of duty vide Ex.R.1 proceedings, it is the Management, which sent the workman for medical examination and the Medical Board gave the following report:-
"He does not have Flat Foot, Knock Knee [or] Bow Legs. But he is having stregging gait due to defect in Brain. Do not in a position to do driving. He may be given light duties'.
11.When once the Management was willing to reinstate the workman as a fresh entrant, foregoing his past misconduct and his delayed dispute, the only obstacle was the medical disqualification found as per Ex.R.2 in the claim petition. Under such circumstances, automatically, Section 47 of the Persons with Disabilities [Equal Opportunities, Protection of Rights and Full Participation] Act, 1995 will come into operation and the Management cannot certainly issue Ex.R.3 withdrawing the earlier reinstatement order. It is obligatory on the part of the Management to restore the workman either to the original post, or to any other alternative employment with full pay protection.
12.Under such circumstances, both the Writ Petitions are misconceived and clear abuse of the process of the Court and hence the same are dismissed with a cost of Rs.5,000/- [Rupees five thousand only] payable to the second respondent workman. The Management is directed to implement the order in C.P.No.285 of 2005 dated 9.1.2006 within a period of eight weeks from the date of receipt of a copy of this order and also restore the workman to any alternative employment pursuant to the medical disqualification made by the Medical Board, within the said period of eight weeks. Connected miscellaneous petitions are closed.
gs To The Presiding Officer, Labour Court, Salem