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Judgment
A.K. Rajan, J.—This writ petition has been filed for the issuance of a writ of Certiorari, to call for the records relating to the award dated
02.09.1996 in I.D. No. 591 of 1994 on the file of the first respondent, the Presiding Officer, Principal Labour Court, Madras and to quash the
same.
The brief facts that are necessary for the purpose of disposal of this case are as follows:
(i) The petitioner is the Managing Director of the Transport Corporation. The second respondent was previously working as conductor in
Pattukottai Azhagiri Transport Corporation; later he was transferred to the petitioner''s Corporation; he was a chronic absentee and used to absent
himself very often causing dislocation of work and loss to the corporation; Earlier he stopped from work for more than 9 months that is from
28.08.1992 to 30.05.1993; Though his absence then was in violation of the standing order of the Transport Corporation, he was then admitted
into service with severe warning; On account of his long absence, the vacancy of the post was filled up by some other person and on his return
from leave, he was transferred to Madhuranthagam Depot. He joined duty on 19.09.1993 and worked for 5 days only and again absented from
work from 04.10.1993. Thereupon, charges were framed against him and domestic enquiry was conducted; he admitted the first charge. The
enquiry Officer found all the charges proved; The Management accepted the report of the Enquiry Officer after following the procedure imposed
punishment of removal from service; the second respondent was removed from service, by order dated 20.04.1994. He raised an industrial
dispute against the order of removal; In that, he had not disputed his absence; but only challenged the validity of the domestic enquiry; No oral
evidence was adduced before the enquiry officer. Only documentary evidence was adduced. The first respondent/Labour Court found the enquiry
''biased'' and passed an award ordering reinstatement of the second respondent with continuity of service and back wages.
(ii) The petitioner had requested an opportunity to be given to the petitioner to prove the charges before the labour Court, should the Court find
there is no sufficient evidence in the domestic enquiry, it should have permitted the parties to adduce evidence. That was not done in this case.
Therefore, the award is liable to be set aside on that ground alone. The Labour Court has also held that the Management has not taken into
consideration the past record of the service of the second respondent while awarding punishment to him. In fact, in the second show cause notice,
his past absence for over 6 months as recorded in M12 to M14 was specified. The documents W1 to W17 and M1 to M18 had been admitted in
evidence before the Labour Court by consent of both parties. But the Labour Court arbitrarily rejected these documents. Hence, the writ petition
has been filed to quash the award of the Labour Court.
No counter affidavit has been filed on behalf of the respondents.
The learned counsel appearing for the petitioner, Mr. T. Arulraj, submitted that the award of the Labour Court is not legally sustainable. The
reasons given by the Labour Court for setting aside the order of termination from service were that firstly, the past service is not taken into
consideration. Secondly, the documents M.12 to M14 could not be relied upon.
The learned counsel appearing for the petitioner also submitted that both these reasons are not valid. The learned counsel pointed out that in
fact, the Labour Court itself finds that the past record has been referred to in the second show cause notice. The Labour Court states, that
admittedly the petitioner was absent from 04.10.1993 till he was terminated from service on the ground that he was absented himself for more
than 8 days without any prior permission or leave."" But the Labour Court found that he was relieved himself during that period after applying for
medical leave, enclosing a Medical Certificate. The Labour Court rejected Exs.M12 to M14 on the ground that it was not proved in any enquiry.
The Management did not issue any charge memo which is stated in Ex.M.13. Ex.M.14 is a communication which discloses that the department has
taken disciplinary action for his absence in the year 1992-93 separately. The rejection of Exs.M12 to M.14 is not proper.
The leaned counsel for the petitioner further stated that the Labour Court has held that there is no evidence to prove that the respondents have
taken into consideration the past record of service of the petitioner while imposing punishment to the second respondent. The learned counsel for
the petitioner referred to the second show cause notice which is filed in the typed set filed by the respondents and pointed out that the past conduct
of the petitioner has been referred to. Further the rejection of Exs.M12 to M14 is not valid and if that is taken into account, the charges are
proved. Therefore, the award of the Labour Court is liable to be set aside.
The learned counsel appearing for the respondents, Mr. D. Hariparanthaman, submitted that in so far as the absence during the year 1992, no
action was taken and therefore it is deemed to have been condoned. Therefore, that cannot be relied upon to impose the punishment in the present
case. Further, from 04.10.1993, he was suffering from illness. To prove that he had given medical certificate dated 01.11.1993. He had also given
a same reason in his explanation to the charge memo that he appeared and he could not attend to duty from 04.10.1993. That is, since the
employees declared strike, he wanted to join duty on 03.11.1993 and appeared before the authorities. But on 04.03.1993, the Branch Manager
refused to grant him work. Therefore, his absence was only due to his illness. Further the learned counsel submitted that even if charges have been
proved, the punishment of removal from service is excessive and the Labour Court has considered this aspect also and has set aside the
termination. The Labour Court has got power u/s 11(A) of the Industrial Disputes Act, to modify the punishment. Further the Labour Court
concluded that ""viewed from many angles"", the order of termination from service is not sustainable. That reasoned order cannot be set aside in this
writ proceedings.
In support of his contention, the learned counsel for respondents relied upon the judgment in Secretary, School of Commerce, Thiruvaluvar
Higher Secondary School Vs. The Government of Tamil Nadu and others reported in 2003 (2) CTC 175, wherein the Supreme Court has held
that while imposition of punishment for termination of service, adequate and reasonable ground must be looked into and the gravity of the charges
must be considered. So viewed this absent for 8 days cannot result in termination of service.
He referred to another Judgment in Lakshmi Precision Screws Ltd. Vs. Ram Bahagat, , wherein the Supreme Court has held as follows:
Arbitrariness is an antithesis to rule of law, equity, fair play and justice - contract of employment there may be but it cannot be devoid of the basic
principles of the concept of justice. Justice-oriented approach as is the present trend in Indian jurisprudence shall have to read as an inbuilt
requirement of the basics of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law.
Therefore, the punishment awarded should be fair and reasonable and commensurate with the charges framed on the employees.
The counsel for the respondents relied upon another Judgment of the Supreme Court in Union of India and others Vs. Giriraj Sharma, wherein
the Supreme Court has held:
The punishment of dismissal for over-staying the period of 12 days, on account of unexpected circumstances which have not been controverted in
the counter is harsh since the circumstances show that it was not his intention to willfully flout the order, but the circumstances forced him to do so.
It was open to the authority to visit him with a minor penalty, but a major penalty of dismissal from service was not called for.
The learned counsel also relied upon an unreported Judgment of this Court in S. Venkatesan vs. The Tamil Nadu Electricity Board in W.P.
No. 11205 of 1987 dated 05.04.1991. In a similar case, the High Court has remitted the matter back for fresh disposal for imposing minor
penalty. Therefore, this case also may be remitted back.
A perusal of the Labour Court award shows that the imposition of punishment of termination has been set aside on the ground that the past
service of the second respondent was not taken into account. But in the show cause notice dated 12.03.1994, it is clearly stated about his past
conduct of absenting himself for more than 5 months and in spite of that he was admitted after severe warning. Therefore, the award of the Labour
Court that the past conduct of the employee was not taken into account, while awarding punishment cannot be sustained. Therefore, the reasoning
is not sustainable as it is factually incorrect.
Further in the enquiry proceedings, when the question were asked by the enquiry officer, the petitioner admitted the first charge. He only
denied the second charge. The second charge is dislocation of the work of the petitioner due to his absence. Therefore, in so far as the first charge
is concerned, he admitted that he absented himself for more than 8 days without prior permission. Further, the medical certificate given by him
which is attached to the typed set filed by the respondents wherein it is stated that it is given by the medical practitioner by name Ganesan who is
the authorised medical attendant, ONGC, a Central Government Employee. In that it is stated that the second respondent ""Mr. T. Subramanian
was under treatment for allergic prounchitic and was advised rest from 04.10.1993 to 01.11.1993 and he was fit to join duty on 02.11.1993."" But
admittedly, he went to join duty on 04.11.1993. There is no reason as to why he did not go to join duty on 02.11.1993.
Further this medical certificate was given nearly after one month after he stayed from work. That means the worker had not submitted the
Medical Certificate in accordance with the rules. The medical leave must be applied along with medical certificate before the date on which he
goes on medical leave and the medical leave shall also be sanctioned; before that a worker has no right to go on medical leave. But in this case, the
medical Certificate was given only when he wanted to join duty. The Medical certificate given is only a fitness certificate. As per the rules a medical
certificate is required to grant medical leave and the fitness certificate is required for permitting him to join duty. Hence, in the present case neither
the certificate had been given as per the rules nor the certificate contained all particulars that a medical certificate should contain. Further the grant
of medical leave is not automatic; the authority has the right to right even to refuse such leave as per the Rules. That is, unless the leave was granted
to worker, he has no right to stay away from work. Under those circumstances, the authorities are not bound to grant medical leave; the worker
has no such right to get the leave just because he procured a medical certificate and produced it where he wanted to come to work.
It is true the authorities had allowed such indiscipline in the past. Indiscipline in the sense granting of leave though not applied promptly and
properly. But merely because the authorities earlier ignored such violations of the Rules, such violations does not become a Rule which can be
enforced. For such an indiscipline in the service, the Superior officers who had the right and the authority of granting of such leave are also
responsible. But, at the same time, the worker cannot as a matter of right claim that he can be granted medical leave retrospectively, though he did
not even apply for medical leave on the date he went on such a leave and though he did not submit the medical certificate before going on leave.
Such indiscipline if allowed to continue will be detrimental to the discipline in the service.
Further the learned counsel for the petitioner submitted that rejection of M12 to M14 by the Labour Court is not legally sustainable. The
provisions of CPC is not applicable to a proceedings in a labour Court. The documents does not cease to loose its evidentiary value merely
because the author was not examined. This argument of the counsel for the petitioner is acceptable. The rejection of Exs. M12 to M14 by the
Labour Court is not legally sustainable and that has to be set aside. Therefore, on both the grounds, the punishment that was set aside by the
Labour Court is not legally sustainable and hence the award of the Labour Court is not legal and it is liable to be set aside and hence set aside.
The learned counsel for the respondents next submitted a number of authorities to show that punishment awarded shall be commensurate with
the gravity of the offence; In other words, the punishment should be proportionate to the misconduct committed by the person. Admittedly, the
second respondent was absent for more than 5 months, on the previous occasion; then he was severely warned that he shall not repeat the same.
But, in spite of that, he again absented himself without even informing the department. It is nothing but gross indiscipline. Such an indiscipline cannot
be tolerated by any authority. It is only for the authority to decide what is the punishment that must be imposed in such matter. Such absenteeism
without applying for leave will only breed indiscipline. Considering the type of service rendered by the petitioner, providing transport to the public,
and if number of persons absent themselves in this manner, the entire transport service will collapse and ultimately it is the public that will suffer. No
separate evidence is required to prove the dislocation of service and causing inconvenience to public. Therefore, the conclusion of the disciplinary
authority cannot be assailed.
Only if the punishment is gravely disproportionate to the misconduct, this court can interfere when exercising the power under Article 226 of
the Constitution of India. This is not one such incident in which the Court can interfere when exercising the power under Article 226 of the
Constitution of India. Therefore, the punishment cannot be set aside as disproportionate to the misconduct committed by the employee.
Just because the authorities showed undue lenience in cases of such absence in the past, they cannot be expected to show the same lenience
always. When the authorities wanted to enforce the Rules, such enforcement of discipline in accordance with the Rules cannot be interfered with.
In this circumstance, the award of the Labour Court is set aside and the order of the disciplinary authority is restored.
In the result, the writ petition is allowed as prayed for. No costs.