The Management, Tamil Nadu State Transport Corporation vs The Presiding Officer, Labour Court and K. Kailasam

N. Paul Vasanthakumar, J.—Heard Mr. P. Paramasivadoss, learned counsel for the appellant-Transport Corporation and Mr. T.P.

Kathirravan, learned counsel for the second respondent-workman. This writ appeal is filed by the Tamil Nadu State Transport Corporation (Salem

Division), challenging the order of the learned Single Judge made in W.P. No. 20376 of 2009, dated 8.9.2011, ordering reinstatement with

continuity of service and also 50% of back-wages till the date of superannuation of the second respondent in the year 2010 with all terminal

benefits on the basis of the continuity of service, as if there was no termination.

The facts of the case in brief are as follows:-

The second respondent was employed as a Conductor in the appellant-Transport Corporation with effect from 5.4.1978 in Salem Division and he

was proceeded for unauthorised absence departmentally and he was dismissed from service on 30.7.2002. Thereafter, I.D. No. 558 of 2004 was

raised. The said Industrial Dispute was dismissed by the Labour Court, Salem, which was challenged in the writ petition and in the said writ

petition was partly allowed, the above said order was passed on 8.9.2011. The said order is challenged by the appellant-Transport Corporation

contending that the second respondent absented from duty for a period from 4.11.2001 to 26.3.2002 without prior permission, which is against

the provisions of the Standing Order i.e. under Clauses 19(1)B, 19(1)C and 19(1)F and considering the past conduct i.e. lapses and punishment

imposed, the second respondent was dismissed from service, which having been confirmed by the award, the learned Single Judge ought not to

have set aside the said order of dismissal with 50% of back-wages with continuity of service.

The learned counsel appearing for the second respondent submitted that the second respondent was appointed on 5.4.1978 and he served for

27 years and the unauthorised absence alleged for the period from 4.11.2001 to 26.3.2002 is without any basis and the second respondent could

not attend for some time due to the marriage of his daughter, which was held on 26.11.2001 and when he reported for duty on 17.12.2001, the

appellant-Transport Corporation refused to permit him to work stating that after getting orders from the higher officials only, he can be permitted to

work. However, a charge memo was issued stating that the petitioner unauthorisedly absented from duty from 4.11.2001 to 26.3.2002 for a

period of less than five months. Enquiry was conducted, wherein the second respondent produced his daughter''s wedding invitation held on

26.11.2001 and his case was that on 4.11.2001, he requested leave for his daughter''s marriage and when he reported for duty on 17.12.2001, he

was denied duty. Therefore, from 17.12.2001 onwards, the second respondent could not be held responsible for not attending duty, as he was

willing to work. The Enquiry Officer gave an adverse finding. Consequently, the second respondent was dismissed from service, which was

confirmed by the Labour Court. The learned Single Judge noticing the reason for his absence upto 17.12.2001 due to his daughter''s wedding,

thought it fit that, dismissal from service, even if the absence is to be treated as unauthorised absence, is too harsh, and set aside the order of

dismissal, with continuity of service and 50% of back-wages, which was directed to be paid till his date of retirement and denied 50% back-wages

from 2002, till the date of retirement which is more than a punishment and therefore, no interference is required.

We have considered the rival submissions made by the learned counsel on either side as well as the records, including the explanation submitted

by the second respondent for the charge memo.

In the explanation submitted on 24.1.2002, the second respondent has stated that he has applied for medical leave for distribution of marriage

invitation of his daughter from 4.11.2001 to 16.12.2001 and the marriage was also solemnized on 26.11.2001 and he reported for duty on

17.12.2001 and he was not given duty by the officials stating that the second respondent should meet the Branch Manager and the Branch

Manager directed the second respondent to meet the General Manager and when he attempted to meet the General Manager, he was informed

that he is not available in the office due to attending a camp. Therefore, he is not responsible for the absence of duty on and from 17.12.2001,

from which date he was denied employment. Considering the said fact as well as the charge of unauthorised absence from 4.11.2001 to

16.12.2001 and the service of the second respondent for more than 27 years, the learned Single Judge thought it fit to set aside the order of

dismissal and ordered reinstatement with continuity of service and also 50% of back-wages from the date of termination with a direction to pay the

terminal benefits.

The issue as to whether a person, who explains his unauthorised absence can be dismissed from service, after serving the department for a long

number of years, was considered by the Honourable Supreme Court in the following decisions:-

(i) South Bengal State Transport Corporation Vs. Ashok Kumar Ghosh and Others,

(ii) Krushnakant B. Parmar Vs. Union of India (UOI) and Another,

The said judgments were followed by the First Bench in the decision reported in S. Shanmugarajan Vs. The State of Tamilnadu, The

Commandant, The Deputy Inspector of Police and The Inspector General of Police, and directed to reconsider the punishment. In the judgments

of the Honourable Supreme Court, the Court itself modified the punishment to shorten the litigation.

It is a well settled principle of law as laid down by the Honourable Supreme Court and the decisions of this Court, and it is abundantly clear that

for charge of unauthorised absence, dismissal is too harsh, unless it is clearly proved that the absence was wilful and he was habitually absenting

unauthorisedly with intention to dislocate the work of the employer/management.

Here in this case, the marriage of the second respondent''s daughter on 26.11.2001 is not disputed. Even assuming that without getting prior

sanction of leave for the period from 4.11.2001 to 16.12.2001, which alone can be treated as unauthorised absence, the said absence too, is not

wilful and consequently for the said absence, dismissal from service of the second respondent, who has served in the Transport Corporation for 27

years is clearly unproportionate to the gravity of the charge. The charge memo was issued in the year 2001. Now, 12 years have passed. Hence,

we are of the view that instead of dismissing the second respondent from service, compulsory retirement could have been imposed against the

second respondent taking note of the past conduct of the second respondent. In the result, the order of the learned Single Judge, ordering

reinstatement with 50% back-wages and continuity of service, is set aside and the punishment of dismissal passed by the appellant-Transport

Corporation dated 30.7.2002 is modified, as punishment of compulsory retirement from 30.7.2002. The second respondent is entitled to get

terminal benefits and pension in accordance with the Standing Orders of the Transport Corporation from 1.8.2002. The appellant-Corporation is

directed to sanction and pay the terminal benefits treating the second respondent as if he had been compulsory retired from 30.7.2002 and pay the

arrears of pension and terminal benefits to the second respondent within a period of eight weeks from the date of receipt of a copy of this order.

With the above directions, the writ appeal is disposed of. No costs. Consequently, connected miscellaneous petition is closed.