Madras High Court
B.Manimaran vs The Presiding Officer on 9 February, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.02.2012 CORAM: THE HONBLE MR. JUSTICE K.CHANDRU W.P.No.29180 of 2007 B.Manimaran .. Petitioner Vs. 1. The Presiding Officer Labour Court Vellore 2. The Management M/s.C.M.C.Hospital Arcot Road, Vellore .. Respondents Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records and papers from the files of the 1st Respondent relating to I.D.No. 141 of 2004 and quash its impugned Award dated 21.05.2007 in so far as it has rejected the claim of the Petitioner for reinstatement in service with back wages with continuity of service and with all other attendant benefits; to award costs For Petitioner :: Mr.K.M.Ramesh For Respondent-2 :: Mr.Sanjay Mohan for M/s.Ramasubramanian Associates O R D E R
The Writ Petition is filed by the petitioner, who was employed by the 2nd respondent Hospital at Vellore. In this Writ Petition, the petitioner has come forward to challenge an award passed by the 1st respondent Labour Court, Vellore in I.D.No.141 of 2004 dated 21.05.2007. By the impugned award, the Labour Court in lieu of reinstatement computed a sum of Rs.1 Lakh to be paid to him. Not satisfied with the other claims, the rest of the claim made in the claim statement was dismissed by the Labour Court. The Writ Petition came to be filed challenging that portion of the award in not granting the relief of reinstatement with backwages and other attendant benefits.
2. The Writ Petition was admitted on 5.9.2007. Even before filing the Writ Petition, the petitioner received the amount of Rs.1 Lakh without prejudice to his claiming relief before this Court. The amount has been admittedly paid by the 2nd respondent and received by the petitioner, as evidenced from the letter dated 30.8.2007 addressed to the management and a copy of which is found enclosed in page 33 of the typed set of papers.
3. It is seen from the records that the petitioner was given a charge memo dated 9.4.1997 alleging that he had absented himself from work without leave or permission for more than 8 consecutive days. The dates on which he absented were communicated in the memo, which are as follows:
"16.9.1996 to 20.9.1996, 25.9.1996 8.10.1996, 9.10.1996, 15.10.1996 to 18.10.1996, 22.10.1996 to 31.10.1996, 6.11.1996 to 9.4.1997."
The petitioner in response to the charge memo sent a representation dated 24.4.1997 stating that he has borrowed Rs.15,000/- from money lenders, agreeing to pay the same within one years. He was able to pay the interest only and not the principal. Therefore, the money lenders have engaged certain persons to threaten the petitioner to recover the amount. Though he made demand that he will the amounts in instalments, he could not escape from their threat. Since he was afraid of getting hurt by those persons, he could not come to work and he tendered apology for not coming to work. Notwithstanding the said explanation, a charge memo cum suspension was given to him.
4. Thereafter, an enquiry was directed to be held by the Personnel Officer of the Hospital. In the enquiry held, Mrs.Pramila Jesudasan, Incharge of the Personnel Officer was examined as management's witness and the documents relating to his absence were marked. When it was questioned, the petitioner in the enquiry stuck by his earlier explanation as the reasons for his absence. The enquiry officer by the report dated 23.7.1997 held guilty of the charges. On the basis of the enquiry report, a further explanation was called for. The petitioner, agreeing with the mistake committed by him, sought for one more opportunity to lead fresh life. Thereafter by an order dated 8.10.1997, the petitioner was dismissed from service.
5. As at that time an industrial dispute was pending before the Industrial Tribunal, an Approval Petition was filed by the management. The Industrial Tribunal took up the application filed under Section 33(2)(b) of the Industrial Disputes Act as A.P.No.87 of 1997. By an order dated 26.5.1998, the Industrial Tribunal granted approval for dismissing the workman.
6. It was thereafter, the petitioner raised the industrial dispute before the Government Labour Officer at Vellore. The said Conciliation Officer after due notice to the management could not bring about mediation between the parties and gave a failure report dated 22.1.2004. On the strength of the failure report, the petitioner filed a claim statement dated 29.5.2004.
7. The Labour Court registered the dispute as I.D.No.141 of 2004 and issued Notice to the management. The management filed a written statement of defence dated 27.9.2004. Since the workman did not raise an issue about the validity of the domestic enquiry, there was no occasion for the Labour Court to consider the same. Notwithstanding the same, it received the proof affidavit from the workman dated 16.11.2005, unmindful of the procedure adopted. In such circumstances, this led to the management filing an application in I.A.No.281 of 2006 seeking the Labour Court to eschew the extraneous evidence received by the Labour Court contrary to the provision under Section 11-A of the Industrial Disputes Act, which clearly states that the Labour Court in such circumstances shall confine its adjudication on the materials available on record. As to what constitute the materials on record, the management Court relied upon the judgment of the Supreme Court in NEETA KAPLSIH VS. THE PRESIDING OFFICER, Labour Court AND ANOTHER REPORTED IN 1999 (1) SCC 517.
8. The Labour Court has removed the proof affidavit filed by the workman for being considered. It was, thereafter, the arguments were based upon the domestic enquiry proceedings filed by the Management and the same were marked as Exs.M1 to M19. The documents were marked by consent. The labour Court held that the charges levelled against the workman were clearly proved. Even his past conduct shows that on several previous occasions, as per Ex.M1, he has committed several misconduct. Therefore, on the proved misconduct, the Labour Court was not inclined to grant any relief of reinstatement but confined the relief to one of compensation and arrived at a sum of Rs.1 lakh as compensation. This was based upon the fact that he has worked for 10 years and his approximate wage was Rs.1,938/- p.m. This award dated 21.05.2007 is the subject matter of this Writ Petition.
9. The contention raised by the workman before this Court was that for a trivial misconduct, harsh punishment cannot be given and the punishment is disproportionate and the Labour Court ought to have interfered with the penalty in exercise of its power under section 11-A of the Industrial Disputes Act. In support of his contention, the learned counsel for the petitioner places reliance upon the judgment of the Supreme Court in SCOOTER INDIA LIMITED, LUCKNOW VS. LABOUR COURT, LUCKNOW AND OTHERS reported in AIR 1989 SC 149.
10. The decision relied upon by the petitioner workman has got no relevance for 'unauthorised absence'. It is related to the enmity between the workman and the Management and the rude behaviour of the workman which led to his dismissal and the Labour Court interfered with the penalty and granted reinstatement to the workman therein to an extent of 75%. The High Court in exercise of power under Article 226 of the Constitution of India, refused to interfere with the same. Thereafter, on appeal, the Supreme Court confirmed the order of the labour Court and the High Court of Allahabad. It is not clear as to how the said decision will have a bearing in the case on hand. On the other hand, on the question of absence and whether for a rude misconduct, any indulgence can be shown, came to be considered by the Supreme Court in more than one decision. The Supreme Court vide its judgment in L&t KOMATSU LTD. VS. N.UDAYAKUMAR reported in (2008) 1 SCC 224, has observed as follows:
"8. So far as the question whether habitual absenteeism means the gross violation of discipline, it is relevant to take note of what was stated by this Court in Burn & Co. Ltd. v. Workmen AIR 1959 SC 529:
"5. .... 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 Roy must be taken back in his previous post of employment on the pay last drawn by him before the order of suspension."
9. In LIC of India v. R.Dhandapani (2006) 13 SCC 613, it was held as follows:
"It is not necessary to go into detail regarding the power exercisable under Section 11-A of the Act. The power under said Section 11-A has to be exercised judiciously and the Industrial Tribunal or the Labour Court, as the case may be, is expected to interfere with the decision of a management under Section 11-A of the Act only when it is satisfied that punishment imposed by the management is wholly and shockingly disproportionate to the degree of guilt of the workman concerned. To support its conclusion the Industrial Tribunal or the Labour Court, as the case may be, has to give reasons in support of its decision. The power has to be exercised judiciously and mere use of the words 'disproportionate' or 'grossly disproportionate' by itself will not be sufficient.
In recent times, there is an increasing evidence of this, perhaps well-meant but wholly unsustainable, tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability.(See Kerala Solvent Extractions Ltd. v. A.Unnikrishnan (1994) 1 Scale 631)."
11. In view of the above said circumstances, this Writ Petition is dismissed. No costs.
ajr/gm To The Presiding Officer Labour Court Vellore