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Judgment
K. Chandru, J.—Heard Mr. Vellaichamy, the learned Counsel for the petitioner-Railways.
The writ petition is filed by the petitioner challenging the award passed by the first respondent-Industrial Tribunal made in I.D. No. 3/2000,
dated July 12, 2000.
The writ petition was admitted on November 1, 2000. Pending the writ petition, this Court granted an order of interim stay subject to the
condition that the petitioner-Railways will comply with the conditions of Section 17-B of the Industrial Disputes Act. Subsequently, when the
matter came up on September 23, 2002, the petitioner-Railways informed this Court that they are complying with the conditions imposed by this
Court. In that view of the matter, the interim stay was made absolute and the application to vacate the stay was also rejected.
The facts leading to this filing of the writ petition are as follows.
The second respondent, who was employed as a Khalasi in the petitioner Railways was working in the Spring Shop/Carriage and Wagon Works
at Perambur since October 4, 1978. The petitioner had absented himself from duty for 101 days starting from January 11, 1996 to December 4,
1996. He was given a charge memo, after getting an explanation and after conducting a departmental enquiry, the petitioner was removed from
service by an order dated May 29, 1998. Thereafter, the petitioner preferred an appeal on June 30, 1998 and by order dated November 27,
1998, the Appellate Authority disposed of the same by holding that the penalty imposed is adequate. Thereafter, the second respondent filed a
Mercy Appeal dated October 20, 1999 before the Revising Authority and the same was rejected by order dated February 10, 1999.
The second respondent, having failed in his attempt to discharge the penalty order, raised an industrial dispute before the Regional Labour
Commissioner (Central), Chennai. Thereafter, conciliation proceedings were held before the Special Officer and on his sending a Failure Report,
the Government of India, Ministry of Labour, by order dated December 15, 1999, referred the dispute for adjudication by the first respondent-
Tribunal. The reference that was made to the first respondent-Tribunal was whether the action of the management in terminating the services of the
second respondent with effect from May 29, 1998 was justified, and if not, to what relief, he is entitled to.
The Tribunal took up the dispute as I.D. No. 3/2000 and ordered notice to the petitioner-Railways. The second respondent filed his claim
statement to which the petitioner-Railways filed a counter statement. Before the Industrial dispute, on behalf of the petitioner-Railways, 25
documents were filed and they were marked as Ml to M25 by consent of parties. With reference to the preliminary issue regarding the validity of
the enquiry, the Tribunal came to the conclusion that the enquiry was fair and proper. With reference to the finding that whether the petitioner was
absent, the Tribunal came to the conclusion that he was absent without leave. Though the Tribunal made a technical difference between the period
mentioned in the charge sheet and the actual days of absence by the second respondent, however, on the question of penalty, having regard to the
long service put in by the second respondent and also he comes from very poor family and taking into account the circumstances of his family
position and financial status, the Tribunal held that the dismissal was shockingly disproportionate.
The petitioner has put in 20 years of service by then. Therefore, it is a fit case where he should be reinstated. But however, the Tribunal, for the
misconduct committed by the second respondent, deprived the entire backwages and the period was to be treated as leave on loss of pay or any
other leave. It is this award dated 12.7.2000, which is the subject matter of the writ petition.
Though Mr. Vellaichamy, the learned Counsel for the petitioner contended that the absence will have to be viewed strictly and no indulgence
should be shown, but in the present case, the Tribunal, taking into the overall circumstances of the case, held that the punishment of removal was
shockingly disproportionate and therefore, in the exercise of power u/s 11-A of the Industrial Disputes Act, interfered with the proportionality of
the punishment, but at the same time in order to balance the interest of both sides, it had deprived backwages for the entire period.
In this context, it is necessary to refer to the judgment of the Supreme Court in Chairman-cum-Managing Director, Coal India Ltd. and Anr. v.
Mukul Kumar Choudhuri and Ors. (2009) 8 MLJ 460 (SC). In that case, the Bench of the Supreme Court headed by P. Sathasivam, J., also
dealt with the cases of absence and finally analysed the scope for interference u/s 11-A of the Act. Paragraph-26 of the said judgment reads as
follows:
The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the
discretionary domain and sole power of the decision-maker to quantify punishment once the charge of misconduct stands proved, intervention if
exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim
immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied, while dealing with the question of
quantum of punishment would be: would any reasonable employer have imposed such punishment like circumstances? Obviously, a reasonable
employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude
irrelevant matters before imposing punishment. In a case like the present or where the misconduct of the delinquent was unauthorized absence from
duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that
he did not have any intention nor desired to disobey the order of higher authority or violate any of the company Rules and Regulations but the
reason was purely personal and beyond his control and as a matter of fact, he sent his resignation, which was not accepted, the order removal
cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like
circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to
the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may
not be proper. In our view, the demand of justice would be met if the respondent No. 1 is denied backwages for the entire period by way of
punishment for the proved misconduct of ''unauthorized absence'' for six months.
Applying the above ratio propounded by the Supreme Court to the present case, it is not a fit case where this Court should interfere with the
order passed by the Tribunal. Further, after the impugned award was passed, the petitioner has reached the age of superannuation. Hence, the writ
petition stands dismissed. The petitioner-Railways is directed to comply with the award in its entirety within a period of eight weeks from the date
of receipt of a copy of this order. No costs.