Madras High Court
The Managing Director vs The Presiding Officer on 10 August, 2012
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:-10.08.2012 Coram:- THE HON'BLE MR.JUSTICE T.RAJA W.P.No.35723 of 2002 The Managing Director Tamil Nadu State Transport Corporation (Villupuram Divn.III)Ltd., Kancheepuram ... Petitioner vs. 1.The Presiding Officer II Addl.Labour Court Chennai 2.K.Kanagaraj 106/A 2nd Street Bhaktavatsalam Nagar Vyasarpadi Chennai 600 039 ... Respondents Writ Petition is filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorari calling for the records relating to I.D No.534 of 1997 dated 15.04.2002 passed by the II Addl. Labour Court, Chennai and quash the same. For petitioner : Mr.T.Chandrasekaran For Respondents : for R1-Labour Court Mr.C.Manohar (for R2) O R D E R
The present writ petition is directed against the correctness of the award passed by the first respondent- second Additional Labour Court, Chennai, wherein the petitioner management-Tamil Nadu State Transport Corporation, (Villupuram Division No.III) Ltd., Kancheepuram was directed to give continuity of service to the 2nd respondent K.Kanagaraj for the simple reason that during the pendency of the Industrial Dispute-I.D.NO.534/1997 before the Labour Court on completing 25 years of service he has reached superannuation. It was pleaded that the Labour Court erroneously failed to consider the charges for his unauthorised absence from 1.12.1992 to 26.10.1993 for which he was dismissed from service by the petitioner management. Aggrieved by the same, the present writ petition was filed by the petitioner management.
2. The learned counsel appearing for the petitioner submits that the second respondent was appointed as Assistant Tradesman on 18.4.1967. Later on, he was transferred to Pattukkottai Azhagiri Transport Corporation and after some time, again he was retransferred to M.G.R. Transport Corporation. Even while he was working during the period 1967-1992, it was argued that he was not a regular employee. However, for the period starting from 1.12.1992 to 26.10.1993 he remained unauthorisedly absent without even taking prior permission. Even though on 6.1.1993, the second respondent submitted a leave application requesting the petitioner management to grant him leave on the ground that he fell ill, as the said application was not supported with any medical certificate, he was not granted the leave. Ignoring the refusal of leave, the second respondent absented from duty unauthorisedly from 1.12.1992 to 26.10.1993 for about 10 months. Therefore, the petitioner management framed the charges for his unauthorised absence on 21.2.1994. After receiving the said charges, the petitioner also submitted his explanation on 4.3.1994. But the management finding the said explanation unsatisfactory, appointing an enquiry officer, directed the second respondent to appear for enquiry before the enquiry officer. The enquiry officer after completion of the enquiry submitted his report on 30.5.1994 finding the petitioner guilty of unauthorised absence from 1.12.1992 to 26.10.1993. Thereafter, the enquiry officer submitted his report before the disciplinary authority. The petitioner was also issued with the second show cause notice along with the copy of the report on 1.7.1994. Subsequently, the 2nd respondent/workman also submitted his written submissions on 30.9.94. The disciplinary authority, finding that the report submitted by the enquiry officer was acceptable, and also finding that the written submissions submitted by the second respondent was not having any satisfactory answer to any of the charges or any of the findings of the enquiry officer, finally came to the conclusion that the second respondent workman was a "habitual absentee" on different periods in the past service, passed the order of dismissal from service on 28.10.1994. After lapse of 3 years from the date of dismissal from service, the second respondent workman raised an I.D.No.534/1997 before the first respondent.
3.(i) According to Mr.T.Chandrasekaran, the learned counsel appearing for the petitioner, the learned II Additional Labour Court, Chennai on two flimsy reasons without even giving any reasonable finding, by setting aside the order of dismissal directed the petitioner management to give continuity of service to the 2nd respondent workman as though he worked from 1.12.1992 to 26.10.1993.
(ii) The learned counsel further contended that when the second respondent-K.Kanagaraj during the course of domestic enquiry has categorically admitted his unauthorised absence for the period from 1.12.1992 to 26.10.1993 and on the basis of his own admission along with the past record which also shows that the petitioner was a "habitual absentee", the Labour Court ought not to have interfered with the order of dismissal issued against the second respondent.
(iii) The second respondent even after the dismissal from service by order dated 28.10.1994 remained without challenging the same for about three years and when the 2nd respondent has failed to furnish any explanation for the delay in approaching the Labour Court, the Labour Court ought not to have allowed the Industrial Dispute. On this basis, the learned counsel appearing for the petitioner further submitted that in any event the impugned award passed by the first respondent, Labour Court is liable to be set aside as there was no specific finding given to condone the unauthorised absence from 1.12.1992 to 26.10.1993.
4.(i) In reply, Mr.C.Manohar, learned counsel appearing for the second respondent-K.Kanagaraj submitted that the second respondent being an elderly person, at the verge of his retirement due to ill-health was unable to come to the office. Therefore, when he submitted medical certificate dated 12.10.1993 on 18.10.1993, requesting the petitioner management to take him back in the service, the enquiry officer has not even adverted to the correctness of the medical certificate. Further, the enquiry officer has not taken any steps to summon or enquire the medical officer. Therefore, the Labour Court was right in concluding that the order of dismissal dated 28.10.1994 was passed without proper application of mind by the disciplinary authority.
(ii) The learned counsel for the second respondent further argued that when the second respondent has put in 25 years of service for the simple reason he abstained from work due to ill-health from 1.12.1992 to 26.10.1993, he should not have been awarded with a grave punishment of dismissal from service.
(iii) The learned counsel for the second respondent in support of his submissions relied on the decision in TAMIL NADU STATE TRANSPORT CORPORATION (MADURAI) LTD., V. THE PRESIDING OFFICER, INDUSTRIAL TRIBUNAL (2005 (4) CTC 390) to say if an employee is unauthorisedly absent for about a month, the order of dismissal cannot be imposed against such an employee as it is disproportionate to even the findings of the enquiry officer.
5.(i) Nodoubt, the punishment required to be imposed against a delinquent employee should not be disproportionate to the delinquency. But, in the present case, as argued by the learned counsel appearing for the second respondent workman, the Labour Court by exercising its inherent power under Section 11 A of the Industrial Disputes Act 1947 ought not to have interfered with the order of dismissal dated 28.10.1994 inasmuch as the second respondent while serving as Assistant Tradesman, even on the basis of his own admission which he made before the enquiry officer which was also relied upon by the Labour Court, unauthorisedly absented without taking prior permission from any of the officer of the petitioner management to remain on leave from 1.12.1992 to 26.10.1993. When the charge memo was also issued against the second respondent, even in his explanation dated 4.3.1994, the 2nd respondent has not furnished any plausible explanation to the charges. Therefore, the enquiry officer after completing the enquiry, found the second respondent guilty and based on this, the disciplinary authority by going through the past record found that the second respondent was not regular in service. In fact, a reading of the finding of the enquiry officer along with the order of dismissal dated 28.10.1994 goes without saying that the second respondent was a "habitual absentee." Therefore, the petitioner management finding that the medical certificate dated 12.10.1993 submitted on 18.10.1993 was not helping the case of the second respondent to recover from unauthorised absence from attending the duty from 1.12.1992 to 26.10.1993 has rightly awarded the penalty of dismissal from service. However, when the 2nd respondent also has admitted in his own statement before the enquiry officer that he himself unauthorisedly absented for the past said period, the award of the Labour Court simply for the reason that he has already reached the age of superannuation by completing 25 years of service he should be given continuity of service is totally uncalled for. Therefore, this Court is inclined to set aside the impugned order. Consequently, the impugned award passed by the Labour Court is hereby set aside.
(ii) The ratio laid down in the decision cited by the learned counsel for the 2nd respondent cannot be applicable to the present case. The reason being, in the said case, the delinquent's conduct of unauthorised absence was for one month, for which he was visited with a grave punishment order of dismissal, hence that punishment was modified by this Court. But, the case on hand is something different and the second respondent remained unauthorisedly absent from 1.12.1992 to 26.10.1993. Therefore, the case relied on supra by the learned counsel for the second respondent cannot be made applicable to the present case. Accordingly, the impugned award is set aside.
6. It is also brought to the notice of this court, after dictating the order, by the learned counsel appearing for the petitioner management that during the pendency of the writ petition, the petitioner management was directed to deposit backwages. In the light of the order passed by this Court, the petitioner management also deposited Rs.1,90,257/-(Rupees One lakh Ninety Thousand and Two hundred and Fifty Seven only). Out of this, the second respondent has already withdrawn 50%. Therefore, the balance 50% is entitled to be taken back by the petitioner management along with accrued interest earned thereon. However, since the second respondent has already withdrawn 50%, that money need not be refunded to the petitioner management.
7. Accordingly, this W.P.No.35723/2002 stands allowed. No costs.
sal To
1.The Presiding Officer II Addl.Labour Court Chennai