Pandiyan Roadways Corporation Ltd. vs Principal Labour Court and Another

V. Kanagaraj, J.—The petitioner viz., Pandiyan Roadways Corporation Limited has filed this writ petition for the issue of a writ of certiorari,

to call for the records of the first respondent dated January 19, 1990 made in I.D. No. 55 of 1986 and to quash the same.

From the affidavit filed in support of the writ petition and from the arguments of the learned counsel for the petitioner what comes to be known is

that the petitioner Corporation has filed this writ petition as against the award passed by the Labour Court, Madurai, in reinstating the second

respondent herein in service, but without backwages.

On the part of the petitioners, it would be contended that the second respondent joined duty in the petitioner-Corporation on March 10, 1976

and was holding the post of Fitter-Ill, that he was in the habit of absenting himself from the duties often and again thus causing great difficulties and

inconvenience to the department; that several disciplinary proceedings were initiated against the second respondent and he was awarded minor

punishments every now and then. But he never reformed himself and again started his practice of absenting from duties even without prior

permission.

The further contentions of the petitioner are that particularly from January 20, 1982, he was continuously absent without sanction of any leave

and it was only on February 11, 1982, a leave letter was sent to the petitioner. Since absence without leave for more than 10 days consecutively is

a misconduct under the Standing Orders and in such event the employees would become liable for disciplinary proceedings, a communication

dated February 11, 1982 was sent to the second respondent directing him to rejoin duty immediately, failing which disciplinary action would be

taken against him.

The further contentions of the petitioner are that in spite of such caution given to the second respondent, he only sent a medical certificate

obtained from a private medical practitioner on March 1, 1982 requesting for leave on medical grounds for a period of 70 days from March 1,

1982. In fact, the employees are required to obtain the medical certificate from the hospital run by the petitioner Corporation and hence his request

for leave on medical grounds was rejected, that a further communication dated March 20, 1982 was sent, directing the second respondent to joint

duty or alternatively to report before the Medical Officer of the petitioner-Corporation had also not been complied with and hence a detailed

charge memo, was issued on March 23, 1982 showing thereby that he was a habitual absentee; that he had absented continuously for over 10

days thus jeopardizing the interest of the petitioner-Corporation thereby contemplating serious misconduct on the part of the second respondent.

On receipt of the charge memo, no explanation was offered by the second respondent and an Enquiry Officer and a Presiding Officer were

appointed to go into the whole affair connected to the charge memo; that the enquiry notice was issued on April 8, 1992 fixing the date of enquiry

on April 16, 1992 and in spite of receipt of the notice, the second respondent did not attend the enquiry, nor did he send any letter seeking

adjournment of the enquiry, that on a second enquiry notice dated April 16, 1992 fixing the enquiry on May 12, 1992 also failed to achieve the

desired effect of making the second respondent participating in the enquiry '' proceedings as a result of which, the enquiry officer was left with no

option but to decide the matter ex-parte, allowing the management to let in evidence and thus closing the enquiry proceeding; that the enquiry

officer has submitted his finding on May 31, 1982 holding the second respondent guilty of all the charges thus ultimately deciding all the charges

proved against the second respondent.

Consequent to the finding of the enquiry officer, the petitioner-Corporation provisionally agreed with the findings and issued a show cause notice

to the second respondent along with a copy of the enquiry report on June 12, 1992 directing him to submit his representation, if any, against the

proposed punishment of dismissal, that considering that the second respondent was an incorrigible absentee, ultimately the petitioner-Corporation

had proposed the extreme punishment of dismissal from service.

However, the second respondent submitted his explanation to the show cause notice on June 19, 1982 containing only unacceptable reasons

and hence rejecting the same the disciplinary authority concluded the charges as proved and since the charges being grave and serious in nature,

warranting the extreme punishment of dismissal from service, the second respondent was dismissed from service as per the order dated July 1,

1982. Aggrieved by the order of dismissal dated July 1, 1984, a dispute was raised and the same was taken on the file of the first respondent in

I.D. No. 55 of 1986 and in spite of the Management having filed a detailed counter on appreciation of the facts and circumstances of the case, the

first respondent arrived at the conclusion to reinstate the second respondent in service but without backwages, invoking Section 11A of the

Industrial Disputes Act. It is only testifying the legal validity of the said decision and challenging the same, the petitioner Corporation has come

forward to file this writ petition, seeking the relief as prayed for in the writ petition.

During arguments, the learned counsel appearing for the petitioner has cited two Judgments, one by the single Judge of this Court delivered in

Anna Transport Corporation v. Labour Court, Salem and Anr., (1998) I LLJ 710, wherein it has been held:

Though this Court would not normally interfere with the discretion exercised by the authorities under the Industrial Disputes Act, in an order made

in the exercise of the discretionary power u/s 11A interference is called for in cases where the reasons given by the Labour Court are not germane

to the decision relating to the appropriate penalty. The fact that a workman has a family itself cannot be a justification for condoning all the

misconducts or declining to impose any penally. The past record of the petitioner, which had been set out in the order of the Labour Court, has

been completely ignored by the Labour Court when it came to the question of exercising the discretion given under the Act. The Labour Court has

clearly erred in making an order which it did without taking into account the long history of the repeated absence on the part of the workman and

the long absence of about 5 months continuously for which he was ultimately dismissed from function as a charity organisation. Any organisation is

established to render efficient service and fulfil the object for , which it has been set up. If its personnel stay away from work frequently and for

long periods no organisation can retain them in employment. The discretion u/s 11A is not meant to be equated to charity. That is not the object of

Section 11A of the Industrial Disputes Act

So far as this judgment is concerned, it is pertinent to note that the workman therein was absent for a continuous period of 156 days. Further so far

as the case in hand is concerned, it is not a case wherein the Labour Court has made an order without taking into account the long history of the

repeated absence on the part of the workman. A cursory glance of the order of the Labour Court would make it very clear, that it has well

considered this aspect prior to arriving at the conclusion and inspite of having considered the facts, the Labour Court in exercise of its discretion u/s

11A, had its own reason to arrive at the conclusion as it has arrived at. Hence, it is not correct to say that the above judgment cited by the learned

counsel for the petitioner is in any manner applicable to the case in hand.

The next judgment relied upon by the learned counsel for the petitioner is that of a Division Bench of this Court delivered in B. Govindarajulu

Vs. The Management of K.P.V. Shaik Mohamed Rowther and Co. (P) Ltd. and Another, wherein it has been held at p. 596:

We are unable to agree with learned counsel for the appellant workman that the learned Judge ought not to have interfered with the indulgence

shown by the Tribunal u/s 11A of the Industrial Disputes Act Likewise, we are unable to countenance the contention of learned counsel for the

appellant that the learned Judge has exceeded his jurisdiction in interfering with the award of the Tribunal. We have already observed that the

direction given by the Tribunal directing the management to reinstate the workman the said direction cannot be sustained on any legal principle, The

learned Judge, in our view, is right in not considering or placing any reliance upon the workman''s past conduct in deciding as to whether the

dismissal of the workman by the management was in accordance with law. The charge against the workman having been established before the

enquiry officer, the order of dismissal was fully justified. The Tribunal, in our opinion, would not have, as it purported to, converted the penalty into

a reward by exercising the power u/s 11A of the Industrial Disputes Act.

The above remarks offered by the Division Bench are purely based on the facts and circumstances encircling the case that the Division Bench has

dealt with and so far as this Court is concerned it is not appraised of those details, but it is concerned only with those remarks given by the Division

Bench on the basis of which the case on hand can be decided. Therefore, there is no point in relying upon this judgment, nor could I arrive at valid

conclusion so far as the case on hand is concerned.

In a nutshell, the sum and substance of the case is that the second respondent was a chronic absentee, to say in the language of the petitioner

an incorrigible absentee and that without any prior permission, he went on leave for a continuous period of 70 days and the manner in which he

conducted himself during the time of his absence not applying for leave and subsequently during the enquiry proceedings, without co-operating with

the petitioner Corporation to have a fair enquiry held thereby leaving the enquiry officer without any option left with, but to decide the same ex-

parte, are all unbecoming on the part of the workman warranting serious and severe punishment.

Moreover, the grievance lies on the second respondent often and again going on leave without prior permission thereby jeopardizing the

interests of the petitioner Corporation, the contention of the petitioner that the punishment that was meted out by them in conclusion on the enquiry

proceedings that is dismissal is more appropriate punishment which could be inflicted on a person of such incorrigible negligence of duty and it is

unfortunate that the Labour Court in the impugned order had arrived at a different punishment that what it would have warranted in the

circumstances of the case by ordering the reinstatement of the second respondent in service but without backwages.

So far as the facts and circumstances of the case especially on such nature is concerned, it differs from party to party that is from the

Management to the workman. So far as the workman is concerned, the inability to attend duty on account of ill-health would be put forth and

would be argued in the circumstances that he would have left with no option, but to go on leave as he has done. It is also relevant to take into

consideration that most probably in realisation that on account of his absence, some damage had been caused to the petitioner Corporation and the

second respondent did not agitate that part of the Judgment which is disadvantageous to him that is denial of backwages and he has not preferred

any Appeal questioning the same.

But so far as this Court is concerned, though it is argued on the part of the learned counsel for the petitioner that the factum of past punishment

had been considered by the Labour Court in spite of having so many punishments having been received in the past by the second respondent. The

Labour Court while exercising its discretion u/s 11A has not judiciously exercised its discretion and the manner in which the Labour Court has

exercised its discretion in favour of the workman, the second respondent herein is wrong, but still, considering the facts and circumstances, the

Labour Court having discussed all the aspects of the case including that of the past punishment given to the second respondent in such manner so

as to become beneficial to the workman in its own considered manner and to that extent of exercising the discretion since having not been tainted

by valid points by offering valid or tangible reason on the part of the petitioner-Corporation, the discretion exercised by the Labour Court will

persist.

Barring the above, no other aspect that are necessary for this Court, to interfere with such as, perversity in the approach of the Labour Court

in so far as the decision arrived at by it or any patent errors of law or violation of natural justice or any failure of procedure so as to end up in

failure of justice has been brought forth on the part of the petitioner-Corporation. Hence, this Court has no valid or tangible reason to interfere with

the well considered and well merited order passed by the Labour Court.

In the above circumstances, this Court is left with no option, but to arrive at the conclusion to dismiss the writ petition.

In result, the above writ petition fails and the same is dismissed. No costs.