IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10-4-2008 CORAM THE HON'BLE MR.JUSTICE K. CHANDRU W.P.Nos.5080 and 36607 of 2002 The Management of VI Spl.117, Kamadhenu Primary Agricultural Co-operative Bank Limited Kalavai, Vellore District rep by its Secretary ... Petitioner in W.P.No.5083 of 2002 and the 2nd respondent
in W.P.NO.36607 of 2002
vs
1. The Presiding Officer
Labour Court, Vellore … 1st respondent in both the
writ petitions
2. V. Ranganathan … 2nd respondent in W.P.No.
5080 of 2002
Prayer in W.P.No.5080 of 2002: Writ Petition filed under Article 226 of the Constitution of India praying this Court to issue a Writ of Certiorari to call for the entire records relating to the award dated 9.7.2001 made in I.D.No.160 of 1995 on the file of the first respondent and quash the same.
Prayer in W.P.NO.36607 of 2002: Writ Petition filed under Article 226 of the Constitution of India praying this Court to issue a Writ of Certiorarified Mandamus to call for the records of the 1st respondent award dated 9.7.2001 I.D.No.160 of 1995 and quash the same with respect to the denial of back wages to the petitioner alone and consequently direct the 2nd respondent to pay the back wages to the petitioner from the date of dismissal.
Petitioner in W.P.No.5080 : Mr.Prabakaran for
of 2002 and R2 in Mr.M. Sathyanarayanan
W.P.NO.36607 of 2002
petitioners in W.P.No. : Mr.V. Velumani
36607/02 & 2nd respondent
in W.P.NO.5080 of 2002
COMMON ORDER
Both these writ petitions have been filed challenging the Award passed by the first respondent, labour Court in I.D.No.160/95 dated 9.7.2001. In the first writ petition W.P.No.5080 of 2002 filed by The Management of VI Spl.117,Kamadhenu Primary Agricultural Co-operative Bank, the writ petition seeks to challenge the award insofar as it directed reinstatement of the workman without back wages. In the second writ petition W.P.No.36607 of 2002, the workman (V. Ranganathan) challeges the very same Award insofar as it denied the back wages for the period of non-employment.
2. During the pendency of the writ petition, on an application taken out by the workman, this Court passed an order to make payment under Sec.17-B of Industrial Disputes Act from February 2002 till the disposal of the writ petition. An alternative was also suggested by which the Management can also reinstate the workman without prejudice to the rights of the parties. Though the Management was willing to re employ the workman, the workman insisted as a pre-condition that he should be given in writing that he will be paid the normal wages as being paid to the other clerks.
3. In reply to the legal notice, the Management informed that they will pay only the last drawn wages. This resulted in a contempt application, which was not pursued.
4. The fact of the matter was that the workman has not restored to duty after being offered employment pursuant to the interim order of this Court.
5. Mr. Prabakaran, learned counsel for petitioner in W.P.No.5080 of 2002 and Mr.V. Velumani learned counsel for respondent in W.P.No.36607 of 2002, in both the writ petitions strenuously contended that the workman was continuously absent with one excuse or other right from February 1993 to July 1993. The Management sent a registered letter to the workman to report within 21 days and even thereafter, the workman continued to remain absent. The workman under the pretext that subsistence allowance was not paid to him, did not participate in the enquiry and before the Labour Court, made it an issue that the entire enquiry was vitiated.
6. The Lower Court took the view that because of non payment of subsistence allowance, the workman did not participate in the enquiry and in the absence of any prejudice, such a contention was cannot be allowed.
7. The Labour Court held that there was no procedural irregularity in the ex-parte enquiry and also charge of misconduct was supported by sufficient evidence. On the question of penalty, the labour Court held that during the period of absence for certain period, the workman was having ill-health and medical leave has been sanctioned. But it held that the indifferent attitude of the workman in not informing the Management about his absence so that the Management could have made alternative arrangements, cannot be considered to be a grave misconduct so as to warrant his dismissal and at the same time, he should be imposed with some penalty. In view of the matter, the Labour Court held that the Management should have imposed a lenient punishment instead of rendering a capital punishment of dismissal. The Labour Court held that reinstating the workman without back wages can be a sufficient deterrent and therefore, in that view of the matter, by exercising the power under Sec.11-A of the Industrial Disputes Act, directed his reinstatement but without back wages.
8. Mr. Prabakaran learned counsel for the management submitted that the unauthorised absence cannot be dealt with lightly. In support of that contention, he also brought to the notice of this Court the judgement of the Supreme Court reported in 2007 (8) Supreme 303 (M/s L&T Komatsu Ltd vs N. Udayakumar). On the strength of the judgment, the award of the Labour Court should be set aside. He also submitted that there was no disproportionality in the punishment imposed on the workman.
9. Per contra, Mr.J. Saravanavel learned counsel for the workman took this Court to the facts of the case cited supra and stated that in that case it was not of single absenteeism but there was 15 such previous instances. In paragraph -11 of the judgment cited supra, the Supreme Court indicated that while exercising under Sec.11-A, the Labour Court should take into account not only the gravity of misconduct and also the existence of any mitigating circumstances, which require reduction of sentence.
10. In the present case, the Labour Court held that though the absence of the workman was not fully justified, but during the aforesaid period, the workman was also suffering due to ill-health, which was supported by medical evidence and therefore, leniency could be shown with regard to punishment of dismissal.
11. The Labour Court also deprived the entire back wages, which it thought will be a sufficient deterrent for future lapses on the part of the workman. Therefore, I do not think it is a fit case that this Court is called upon to interfere with the Award passed by the Labour Court.
12. Under such circumstances, both these writ petitions are dismissed. No costs.
13. With reference to the conduct of the parties during the pendency of these writ petitions, this Court is not recording any finding and it is left to the parties to establish that they have implemented the Award of the Labour Court or the interim order passed by this Court in an appropriate proceedings. But nevertheless the Award of the Labour Court shall be implemented within a period of two months from the date of receipt of copy of this order.
sr
To
The Presiding Officer
Labour Court,
Vellore