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Judgment
S. Rajeswaran, J.—The petitioner has filed this writ petition for the relief of writ of certiorari to quash the award of the 1st respondent dated
November 25, 1998 passed in I.D. No. 317 of 1995.
The petitioner states that the 2nd respondent joined the petitioner-company on February 15, 1992 as Technical Assistant. The 2nd respondent
continuously absented himself for duty from November 27, 1993 till December 31, 1993. Because of this unauthorised absence for a long time,
the petitioner-management decided to take action as per Clauses 23.1(15), 23.1(44) and 22.3 of the Standing Orders. The said clauses of the
Standing Order read thus:
Termination of Employment:
22.3. Leave of absence by a workman on ground of sickness for an aggregate period of one hundred and twenty days or more in any calendar
year shall render the workman liable to be classified as unfit for service in the company and consequently be discharged from service.
Misconduct:
23.1. Without prejudice to the general meaning of the term misconduct and not intended to be all inclusive it shall be deemed to mean and include
the following acts or omissions whether alone or in combination with others.
(15) Frequent late coming, frequent absence without permission or absence without permission exceeding eight consecutive days.
(44) Commission of any act subversive of discipline of the Company.
Consequently, the petitioner issued charge-sheet on January 20, 1994 for the unauthorised absence for the period from January 20, 1994 to
February 25, 1994 and another charge-sheet on August 18, 1994 regarding his absence without permission from November 27, 1993 till August
18, 1994. The 2nd respondent submitted his explanation to the charge-sheet issued by the petitioner. In his explanation, the 2nd respondent
himself has admitted that he was taking treatment for his illness and has also regretted for not attending duty for a long time from November 27,
1993. Since the explanation was not satisfactory, an enquiry was conducted. The 2nd respondent participated in the enquiry. Ultimately, the
charges were proved in the enquiry and the 2nd respondent was discharged from service by an order dated November 21, 1994 as per Clauses
23.1(15), 23.1(44) and 22.3 of the Standing Orders. Thereafter, the second respondent filed a claim petition before the conciliation officer under
the provisions of the Industrial Disputes Act. After failure of conciliation the 2nd respondent approached the first respondent who took the dispute
of file as I.D. No. 317 of 1995. After hearing all the parties concerned, the 1st respondent passed an award on November 25, 1998 directing the
petitioner-company to treat the absence of the 2nd respondent as sick leave and also to reinstate the 2nd respondent with continuity of service
from November 27, 1993 with backwages and attendant benefits. This award dated November 25, 1998 has been challenged by the petitioner in
this writ petition.
Learned counsel for the petitioner-management, while supporting the contentions raised in the affidavit, submitted that the 1st respondent has not
adverted to the Standing Orders while passing the impugned award. Learned counsel referred to Clauses 22.3, 23.1(15) and 23.1(44) of the
Standing Orders (cited supra), wherein termination of employment and misconduct have been enumerated and submitted that the order of
discharge was legal and there is no illegality nor infirmity in the same. It is also the specific case of the learned Counsel that the 2nd respondent has
been continuously absent from work for 265 days without prior permission or sanction. According to the learned Counsel, the work entrusted to
the petitioner was very important involving skill and technical aptitude and therefore his absence mattered much to the petitioner-management.
Moreover, it is the case of the learned Counsel that even according to the doctors, the 2nd respondent has become unfit to handle machines and
he cannot be allowed to work directly in automobile section. It is also submitted by the learned Counsel that besides his physical unfitness, the 2nd
respondent was also mentally disturbed at various stages which would definitely affect the concentration of work in the first respondent-
management. Therefore the action taken by the petitioner against the 2nd respondent for violating the provisions of the Standing Orders, has been
interfered with by the first respondent without any valid reason whatsoever. Therefore the order of reinstatement passed by the first respondent is
bad and is liable to be set aside. In support of her contention, the learned Counsel referred to the following decisions:
Punjab and Sind Bank and Others Vs. Sakattar Singh, , Syndicate Bank Vs. The General Secretary, Syndicate Bank Stff Association and
Another, , Maan Singh Vs. Union of India (UOI) and Others, , Rajendran T. Vs. Chief Engineer, Distribution - Madras Region and Special
Officer for Distribution, TNEB and Another, , L.D. Dhamanekar v. Vishwa Bharata Seva Samithi (2001) 4 LLN 759, O. Krishnan v.
Management of Dheeran Chinnanalai Transport Corporation Limited 2006 I LLJ 55 National Thermal Power Corporation Ltd. Vs. Karri
Pothuraju and Others, , Krishnan P. Vs. Management, Jonas Woodhead and Sons (India) Ltd. and Another, Anna Transport Corporation v.
Labour Court (1998) 1 LLN 710 and in Puratchi Tahalaivar MGR Transport Corporation Ltd. Vs. Presiding Officer, Principal Labour Court and
T. Subramanian, Learned counsel has also referred to the clear admission made by the second respondent-employee that even the Doctor has
advised him not to take any work and particularly he is unfit to take any machine work. When it has been categorically admitted by him that the
second respondent had no reasonable explanation for his absence for November 27, 1993 till December 31, 1993, the first respondent-labour
Court has wrongly come to the conclusion that he was on medical leave. It is his further submission that the second respondent has no grievance
whatsoever in respect of the way in which the enquiry was conducted and he expressed satisfaction over the enquiry. Therefore, according to her,
in whichever way one looks at it, the award passed by the first respondent is vitiated and consequently prayed for setting aside the same.
In reply to the submissions made by the learned Counsel for the petitioner, learned Counsel for the 2nd respondent-workman submitted that the
charge is for the unauthorised absence for the period from November 27, 1993 to August 18, 1994. Learned counsel, in this connection has
referred to the Standing Order 22.3 which reads thus:
22.3. Leave of absence by a workman on ground of sickness for an aggregate period of one hundred and twenty days or more in any calendar
year shall render the workman liable to be classified as unfit for service in the company and consequently be discharged from service.
Learned counsel has reiterated that only in the case of long absence, leave of absence of a workman aggregating for a period of 120 days or more
in a calendar year, shall render the workman liable to be classified as unfit for service and consequently be discharged from service. Therefore, it is
her contention that the continuous absence should be in a calendar year. Learned counsel has also submitted that the 2nd respondent has reported
to the petitioner-management on April 8, 1994 and he was referred to meet the Company Dr. T.V. Devarajan who in turn referred him to Dr. V.
Palaniappun. Dr. Palaniappun has also reported to Dr. T.V. Devarajan, the petitioner-management Doctor, that the petitioner has to take treatment
up to April 27, 1994. While that be so, it is stated that the 2nd respondent was absent from November 27, 1993 to August 18, 1994. Therefore,
according to the learned Counsel, in 1993 the 2nd respondent was absent only for 35 days and in 1994 the absence was for 95 days. Apart from
this, there was no unauthorised absence. While that being so, the enquiry officer in his findings has stated that in 1994, the 2nd respondent was
absent for more than 120 days. This finding is categorically wrong and against facts. It is further stated by the learned Counsel that Exhibit W-13
dated July 19, 1994 would clearly show that according to the petitioner-management Dr. Palaniappun, on April 19, 1997, the 2nd respondent was
referred to him, who also has given a certificate that he is fit to report for duty. While that be so, the stand of the petitioner- management that
Exhibit W-13 was not received by them cannot be accepted. Even assuming that Exhibit W-13 is false, it is to be seen that Dr. Devarajan, on the
basis of the petitioner- management Dr. Palaniappun has given a certificate that the 2nd respondent should be treated up to August 27, 1994. But
it is the case of the learned Counsel for the petitioner that strangely, before the said period could expire, action has been initiated against the 2nd
respondent, which is opposed to the principles of law.
Learned counsel for the 2nd respondent-workman has relied on the decision in D.K. Yadav Vs. J.M.A. Industries Ltd., , for the specific
purpose to resist the contention made by the learned Counsel for the petitioner-management that according to the Standing Orders, even for a
continuous period of absence beyond the period of sanction, leave for more than 8 days, the management is entitled to take action against the
workman. In the said decision referred to by the learned Counsel for the 2nd respondent-workman, even the absence without prior sanction, the
leave for more than 8 days has been dealt with and so she submitted that the order of termination should not be automatic and it depends upon the
principles of natural justice. She has reiterated that those facts to the case on hand and also the one reported in the said decision, are identical and
therefore the dictum drawn by the said decision would squarely apply to the facts of this case and therefore as laid down by the Supreme Court,
the unfair conditions stipulated in the Standing Orders cannot be looked into and only the overall facts and circumstances which led the 2nd
respondent absenting himself for duty has to be looked into. Moreover, in this case, the 2nd respondent did not absent himself for duty and in fact
he was referred to the management doctor by the petitioner-management and only on their certificate, he was not able to present himself. Only in
consideration of all the materials available on record, the, 1st respondent-labour Court has held that the order of dismissal will have to be set aside
and it was accordingly set aside by the labour Court. Further, considering the health condition of the 2nd respondent, the 1st respondent has also
held that a suitable job could be considered and given to him. Therefore, the learned Counsel has submitted that there is no infirmity in the
impugned award passed warranting interference by this Court.
I have considered the submissions made by both the learned Counsel and also the decisions referred to by them.
Clause 22 of the Madras Fertilizers Limited''s Standing Order deals with termination of employment and Clause 23 deals with misconduct.
Clause 22.3 deals with leave of absence by a workman on ground of sickness for an aggregate period of 120 clays or more in any calendar year,
which shall render the workman liable to be classified as unfit and consequently to be discharged; Clause 23.1(15) deals with absence without
permission exceeding eight consecutive days; Clause 23.1(44) deals with commission of act subversive of discipline of the company.
The claim of the petitioner-management is that the second respondent absented himself continuously for a period of 255 days from November
27, 1993 to December 31, 1993 and from January 1, 1994 to August 18, 1994 (230 days) and therefore charge-sheet was issued and enquiry
was conducted wherein he was found guilty and consequently he was discharged from service by invoking the above Standing Orders.
We, have to see whether the above charge would come under the clauses of the Standing Orders referred to above.
While dealing with this aspect the 1st respondent-Labour Court has held that the 2nd respondent attended duty on April 6, 1994, but he was
directed to report to Psychiatrist by the management Dr. Devarajan. The Psychiatrist after examination on April 7, 1994 diagnosed that the 2nd
respondent was suffering from paranoid schizophrenia and advised to take rest for two months i.e., till August 27, 1994 and also further advised
that periodical review and confirmation of drugs are essential for complete recovery from the illness. But the charge-sheet was issued on August
18, 1994 before the expiry of the 2 months rest period charging the 2nd respondent for unauthorised absence from November 27, 1993 to August
18, 1994. Therefore this act of the petitioner-management has been rightly found to be wrong by the 1st respondent-Labour Court. As such the
health condition of the 2nd respondent was known to the petitioner-management as held by the 1st respondent-Labour Court. In view of this, the
contention of the learned Counsel for the petitioner-management that the 2nd respondent did not give medical certificate for the period from
November 27, 1993 to August 18, 1994 cannot be accepted. Therefore, as far as the medical diagnosis is concerned, the second respondent was
found to be fit after the period of two months rest.
As regards the question of unauthorised absence is concerned, the 1st respondent on evaluating the entire evidence adduced before it
categorically held that the petitioner-management has not proved that the 2nd respondent was continuously unauthorisedly absent for 265 days,
from 27.11.1993 to 18.8.1994. The Labour Court has also observed that 120 days referred to in Clause 22.3 of the Standing Orders should be
for a continuous period in a calendar year and this continuous period without any break has not been proved by the petitioner-management.
The decisions referred to by the learned Counsel for the petitioner-management are as follows:
(i) Punjab and Sind Bank v. Sakattar Singh (supra): In this case, the Hon''ble Supreme Court has held that if a Bank employee who had defaulted
in not offering any explanation regarding his unauthorised absence and duty he can be terminated without domestic enquiry as per Bi-partite
settlement. This case is not applicable to the facts of the case on hand.
(ii) Syndicate Bank v. General Secretary, Syndicate Bank Staff Association, (supra). The facts of this case are similar to Sakattar Singh case
referred to above. Here also, the Hon''ble Supreme Court has held that failure of the bank employee to respond to the notice to show cause for his
unauthorised absence from duty amount to his voluntary retirement from service as per the Bi-partite settlement.
(iii) O. Krishnan v. Management of D.C. Transport Corporation Limited (Mad.), (supra). In this case, this Court upheld the award passed by the
Labour Court upholding the termination of the workman keeping in mind his unauthorised absence on numerous earlier occasions.
This case will not apply to the facts and circumstances of the case on hand. Further, in this case, a reference has been made to the judgment of the
Hoh''ble Supreme Court reported in (2004) 2 L.L.N. 7, wherein the employee was absent for more than two months on medical grounds and
under circumstances it was held that dismissal on the ground of absence was excessive.
(iv) L.D. Dhamanekar v. Vishwa Bharata Seva Samithi, (supra): In this case, Hon''ble Supreme Court has held that in the absence of any provision
in the Act or Rules, there cannot be any automatic termination on the ground of absence without leave. Whereas the facts of the present case are
different and hence this decision will not apply
(v) National Thermal Power Corporation Limited v. K. Pothuraju, (supra): This is a case of regularisation of services and hence not applicable to
the facts of the present case.
(vi) T. Rajendran v. Chief Engineer, (supra): In this case, this Court has held that the order of dismissal passed by the Tamil Nadu Electricity Board
against an Assistant Engineer for continuous unauthorised absence was valid as the Engineer was serving outside India during that period.
Therefore the ratio of this case will not be applicable to the facts of the present case.
(vii) Maan Singh v. Union of India, (supra): In this case, the Hon''ble Supreme Court has held that the disciplinary authority cannot be said to have
invalidated the order of termination when he was subsequently regularised the period of unauthorised absence. This ratio will not be of any use to
the petitioner-management.
(viii) State of Rajasthan and Another Vs. Mohammed Ayub Naz, : In this case, the Hon''ble Supreme Court held that an employee of the co-
operative department remaining absent deliberately for three long years deserves to be removed from service and the punishment of removal is not
disproportionate. This ratio is also not applicable to the facts of the present case.
(ix) Vermon Lobo v. Himalaya Drug Co. (Bom. (2001) 98 F.J.R. 328: It is a case wherein the Panaji Bench of the Bombay High Court confirmed
the award of the Tribunal, confirming the dismissal of an employee for unauthorised absence in the absence of proper evidence. Whereas the facts
of the case on hand are totally different.
(x) Anna Transport Corporation v. Labour Court (supra): In this decision, this Court has held that the discretion vested u/s 11-A of the Industrial
Disputes Act is not meant to be equated to charity and therefore set aside the award of the Labour Court for not properly exercising the discretion
u/s 11-A. This ratio is not applicable to the facts of the case on hand.
(xi) Puratchi Thalaivar M.G.R. Transport Corporation Limited v. Industrial Tribunal, (supra): In this case, this Court has held that factual error in
the impugned award regarding non- consideration of past service of workman nor omission to take action for earlier violation would render
removal of workman from service unsustainable. This ratio is also not helpful to the petitioner-management.
(xii) Madras Refineries Limited v. V. Jayakumar 2003 1 LLJ 1007 : In this case, an award was passed by the Labour Court directing the
reinstatement of a workman who was terminated for unauthorised absence after finding the delinquency was proved. This Court instead of passing
orders on merits gave direction to the management to pay compensation. Whereas in the present case, the Labour Court on facts found that the
charge of unauthorised absence in the light of the Standing Orders was not proved.
(xiii) P. Krishnan v. Jones Woodhead and Sons (I) Limited (Mad.) (supra): In this case, this Court has held that non-conduction of enquiry would
not vitiate the order of termination as the workman stayed with unauthorised absence, refused to receive the letter and also final reminders calling
upon him to report for duty and upheld the award of the Labour Court. These facts are totally different to the facts of the present case.
In the light of the aforesaid facts and law, I am of the view that the petitioner-management could not substantiate the charge of infirmities in the
impugned award. The findings of the Labour Court are on evidence and this Court cannot substantiate its own independent findings under Article
226 of the Constitution of India. As such, I have to necessarily hold that the impugned award has been validly passed and there is nothing to be
interfered with.
Learned counsel for the petitioner-management produced a letter dated June 18, 1999 of Dr. V. Palaniappun, Neuro Psychiatrist, Madras
Medical College, enclosing his report regarding the fitness of the 2nd respondent. A perusal of the same would amply prove that the 2nd
respondent would not be psychologically fit for a technical job in utility plant. He has also added that his general information, memory orientation
and other primary mental functions are fair. By producing this letter and report, learned Counsel for the petitioner-management urged that the 2nd
respondent was not fit to be absorbed in the company. Whereas the Doctor has stated that his health condition is not suitable for skilled technical
job.
In my view, even this letter sent along with the report is of the year 1999 during which time the 2nd respondent was found unfit to do only
skilled technical job. Therefore the stand of the management that the 2nd respondent is totally unfit cannot be sustained. Further, the. Labour Court
has rightly gone into this aspect and directed the petitioner-management to examine him medically to prove his fitness to do the technical job. Since
it was proved that he is not suitable for technical job, the Labour Court directed the petitioner-management to give him some other suitable job
considering his educational qualifications and experience. In view of this, the pragmatic approach of the Labour Court cannot be found fault with.
In view of this clear and categorical findings of the 1st respondent-Labour Court, rendered on evaluation of evidence adduced before it, no
interference is warranted from this Court.
In the result, this writ petition deserves to be dismissed and accordingly dismissed. However, there is no order as to cost.