IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28-04-2009 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.21125 of 2004 The Management of Metropolitan Transport Corporation, (Chennai) Ltd. Formerly known as Dr.Ambedkar Transport Corporation Ltd. Ayanavaram, Chennai-23, Rep. by its Managing Director .. Petitioner. Versus 1.The Presiding Officer, Principal Labour Court, Chennai. 2.S.Kathavarayan .. Respondent. Prayer: This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, to call for the records of the 1st respondent in I.D.No.328 of 1997, dated 30.4.2003, and quash the same. For Petitioner : Mr.G.Munirathinam For Respondents : Mr.K.Bharathi (R2) O R D E R
Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the second respondent.
2. This writ petition has been filed challenging the award of the first respondent Labour Court, dated 30.4.2003, made in I.D.No.328 of 1997.
3. It has been stated that the second respondent had been appointed as a Conductor in the petitioner Corporation, with effect from 31.12.1986. While he was on duty at Avadi Depot of the petitioner Corporation, he had absented himself from duty, from 20.11.1993, without prior permission and without leave being sanctioned. As he was absent for more than 8 consecutive days, disciplinary proceedings had been initiated against him, under Clause 11(C) of the Certified Standing Orders of the petitioner Corporation, for unauthorised absence amounting to misconduct. Hence, the second respondent was issued with a charge memo, on 6.12.93. The charge memo had been sent to the second respondent’s last known address, by a registered post with acknowledgment due. The envelope sent by registered post had been returned with the endorsement `Not Found during my delivery time’.
4. Subsequently, the charge memo was exhibited on the notice Board at the Avadi Depot. The second respondent did not tender any explanation to the charge memo, nor had he reported for duty. Therefore, it was deemed that the second respondent had left the service on his own accord. Accordingly, his name has been removed from the rolls by the proceedings issued, on 10.1.1994. The proceedings had been issued to the second respondent’s residential address by registered post with acknowledgment due. The said letter was returned undelivered by the postal authorities with the endorsement `Not found’. The appeal preferred by the second respondent to the Managing Director had also been rejected, on 2.9.1996, as no fresh and valid explanation was found for reconsidering the punishment imposed on him. Thereafter, the second respondent had raised an industrial dispute before the first respondent Labour Court, in I.D.No.328 of 1997, to declare his non-employment, as illegal and to direct the management of the petitioner Corporation to reinstate him, with continuity of service, with backwages and all other attendant benefits. The first respondent Labour Court had passed the award, dated 30.4.2003, setting aside the order of dismissal, dated 10.1.1994, directing the management of the petitioner Corporation to reinstate the second respondent, with continuity of service, backwages and all attendant benefits. The petitioner Corporation had filed the present writ petition challenging the said award, dated 30.4.2003, under Article 226 of the Constitution of India
5. The main grounds raised by the learned counsel for the petitioner are that the first respondent Labour Court had erred in setting aside the order of the petitioner Corporation removing the name of the second respondent from its rolls, for the misconduct and unauthorised absence stating that the representations made by the second respondent had not been considered by the petitioner Corporation. In fact all the representations made by the second respondent were subsequent to the removal of his name from the rolls of the petitioner Corporation. Further, the first respondent Labour Court ought to have seen that there was no explanation from the second respondent to the charge memo issued by the petitioner Corporation. Therefore, it was clear that the second respondent had abandoned his service in the petitioner Corporation and therefore, there was no need for the issuing of a further notice to the second respondent.
6. The first respondent Labour Court had also erred in not considering the fact that the second respondent had committed a serious misconduct, under Clause 11(C) of the Certified Standing Orders of the petitioner Corporation by absenting himself from duty for more than 8 days, consecutively, without the prior permission necessary and without leave being sanctioned in his favour. Even though notice had been sent to the second respondent he had not received the same. Therefore, the findings of the first respondent Labour Court that the petitioner Corporation had failed to issue notice to the second respondent and that no opportunity had been given to him to explain his case, are erroneous and unsustainable in the eye of law. The finding of the first respondent Labour Court that the termination of the service of the second respondent, by the management of the petitioner Corporation, is arbitrary and violative of Section 25F of the Industrial Disputes Act, 1947, cannot be held to be valid. Further, even though the second respondent had been removed from the rolls of the petitioner Corporation, on 10.1.1994, he had filed the petition, under Section 2A of the Industrial Disputes Act, only on 10.1.1997, after a lapse of three years.
7. The learned counsel for the petitioner had also submitted that since there has been an inordinate and unexplained delay on the part of the second respondent in raising the industrial dispute before the first respondent Labour Court and as he had not pleaded that he was unemployed during the period when he was out of service, the first respondent Labour Court had erred in directing the payment of full backwages to the second respondent.
8. The learned counsel had relied on a decision of a Division Bench of this Court, dated 31.7.2008, made in W.A.No.2010 of 2005, to support his contention that when the workman had never pleaded that while he was out of service he was not in gainful employment in any other organisation or department, he would not be eligible for backwages since the employer would not be in a position to meet such a claim by producing the evidence to the contrary.
9. The learned counsel for the petitioner had also relied on a decision, reported in Indian Oxygen Employees’ Union V. State of Tamil Nadu & Anr. (1992 (I) LLJ 583), to show that the workman would loose his lien on employment, as a result of his unauthorised absence, as provided under the Standing Orders of the petitioner Corporation and therefore, he would not be a workman, under Section 2(s) of the Industrial Disputes Act, 1947, and as a consequence no reference could be made, under Section 10(1) of the Act.
10. Per contra the learned counsel appearing on behalf of the second respondent had submitted that the award of the first respondent Labour Court, dated 30.4.2003, is in accordance with law. The first respondent Labour Court had rightly held that when the second respondent was serving as a conductor in the petitioner Corporation his daughter had disappeared from his house. Therefore, he was under severe psychological stress and mental agony and therefore, he could not report for duty from 20.11.1993. However, when the second respondent had reported for duty during the first week of January 1994, he was prevented from joining in duty by the management of the petitioner Corporation. Thereafter, the second respondent had written several letters explaining the circumstances under which he was absent from work, from 20.11.1993. Without considering the explanation submitted by the second respondent, the management of the petitioner Corporation had abruptly terminated the service of the second respondent, without notice and without holding an enquiry. Therefore, the termination of the second respondent from service, by the petitioner Corporation, is arbitrary and illegal.
11. In view of the submissions made by the learned counsel for the petitioner, as well as the second respondent and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to interfere with the award of the Labour Court, dated 30.4.2003, made in I.D.No.328 of 1997.
12. It is clear that the petitioner Corporation had removed the second respondent from its rolls on the allegation that the second respondent had absented himself, unauthorisedly, without prior permission and and without leave having been granted to him, without conducting an enquiry. The representations said to have been sent by the second respondent, explaining the reasons for his absence, had not been considered by the management of the petitioner Corporation. Further, it is seen that the second respondent, by an affidavit filed before this Court, in W.V.M.P.No.1777 of 2004, had stated that he was not gainfully employed during the period when he was out of service. The said claim of the second respondent had not been refuted by the petitioner Corporation either by way of a counter or a reply.
13. In such circumstances, the contention of the learned counsel for the petitioner Corporation, that the first respondent Labour Court had erred in coming to the conclusion that the second respondent workman was eligible to get full backwages for the period when he was out of employment, cannot be countenanced. Accordingly, the writ petition filed by the petitioner Corporation is liable to be dismissed, as it is devoid of merits. Hence, it is dismissed. No costs.
Index:Yes/No 28-04-2009
Internet:Yes/no
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To
The Presiding Officer,
Principal Labour Court, Chennai.
M.JAICHANDREN,J.
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W.P.No.21125 of 2004
28-04-2009