IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.01.2011 CORAM THE HONOURABLE Mrs. JUSTICE R.BANUMATHI W.P.No.12035 of 2004 1. The Chief General Manager (Telecom) Chennai Telephones, Bharat Sanchar Nigam Limited, No.89, Millers Road, Chennai-10. 2. The Divisional Engineer (External), Mambalam Division, Bharat Sanchar Nigam Limited, No.304-305, Anna Salai, Teynampet, Chennai-18. 3. The Sub-Divisional Engineer (Phones), Mambalam External, Bharat Sanchar Nigam Limited, V-39-B, South Boag Road, T.Nagar, Chennai-17. ... Petitioners Vs. 1. M.George Francis 2. The Presiding Officer, Central Government Industrial Tribunal- cum-Labour Court, Chennai. ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Certiorari or any other Writ or order or direction in the nature of Writ calling for the records pertaining to I.D.No.53/2003 on the file of 2nd Respondent and quash the impugned order dated 06.01.2004. For Petitioner : Mr.M.Govindaraj For Respondent : Mr.S.J.Varadharajulu O R D E R
Being aggrieved by the Award in I.D.No.53 of 2003 ordering reinstatement of 1st Respondent with backwages, BSNL has filed this Writ Petition.
2. Brief facts are that 1st Respondent joined the service in 1986 as Casual Labourer and he was granted temporary status Mazdoor in 1994. 1st Respondent was selected for Group ‘D’ post and was sent to two months training from 25.09.2000 to 17.11.2000. 1st Respondent has completed theoretical training and he could not attend the training from 01.11.2000. According to 1st Respondent, because of illness, he could not attend the training and informed the Junior Engineer, Training incharge that he would report after recovery from his illness. When 1st Respondent was on leave, the Officer incharge of Training Centre has sent a show cause notice dated 15.11.2000 to discharge the 1st Respondent from training was sent to his residential house. Since there was no response, by an order dated 24.01.2001 the services of 1st Respondent was terminated and the same sent to the 1st Respondent which was returned unserved. According to 1st Respondent, he was taking treatment from his mother-in-law’s house and therefore, he could not get the order. Letter dated 15.12.2000 was sent to the 1st Respondent proposing to terminate his services.
3. Challenging the order of termination as unjust, unfair and malafide, 1st Respondent raised Industrial Dispute before the Industrial Tribunal in I.D.No.53 of 2003. Industrial Tribunal held that Petitioner has not followed the provision of law and that the department has not framed any charge against the 1st Respondent nor conducted any enquiry as contemplated under law. Tribunal took the view that department ought to have followed the mandatory provision of Sec.25(F) of Industrial Disputes Act and held the order of termination as void abinitio. In so far as quantum of punishment, Tribunal held that order of dismissal for his absence is disproportionate particularly when no opportunity was given to the 1st Respondent to explain his absence and on those findings, set aside the punishment order of dismissal and ordered reinstatement with back wages.
4. Challenging the impugned Award, learned counsel for Petitioner contended that only after following the procedures as contemplated under rules and regulations, Telecom department has taken action and that 1st Respondent has not informed his mother-in-law’s house or leave address to the department and so department had issued show cause notice only to the address known to the department and therefore 1st Respondent cannot contend that no notice was issued to him before the order of termination. Learned counsel for Petitioner would contend that 1st Respondent was a chronic absentee and having regard to his past conduct of irregular attendance, the punishment imposed cannot be said to be disproportionate. It was contended that 1st Respondent cannot take advantage of his own mistake since there was no explanation given to the show cause. The department has taken steps for termination of 1st Respondent and therefore, it cannot be said that the action taken by the department is punitive.
5. Learned counsel for 1st Respondent contended that termination of 1st Respondent from service is punitive in nature and was in violation of principles of natural justice and opportunity should have been given to the 1st Respondent before passing the order of dismissal and without holding enquiry and without giving opportunity to the 1st Respondent, order of dismissal passed by the department is illegal and arbitrary. It was contended that 1st Respondent is a workman within the meaning of Sec.2(s) of I.D. Act and he has put in more than 240 days of continuous service in a year and therefore, before retrenching the 1st Respondent, statutory obligation as contemplated under Sec.25F of I.D. Act has to be followed by the department. Contention of 1st Respondent is that he was not issued with any such notice or paid retrenchment compensation and hence, termination is in violation of principles of natural justice and also violative of provisions of Sec.25F of I.D. Act.
6. I have carefully considered the submissions and also the Award of the Industrial Tribunal and its findings.
7. Admittedly, 1st Respondent joined the service of the Petitioner in 1986 and he was granted temporary status Mazdoor in 1994 and serving for more than 7 years as temporary status Mazdoor. 1st Respondent was selected for Group ‘D’ post in 2000. After serving for 7 years as temporary status Mazdoor, 1st Respondent was selected for Group ‘D’ post and was sent for two months training from 25.09.2000 to 17.11.2000. 1st Respondent did not attend the training from 01.11.2000. According to 1st Respondent he was taking treatment from Dr.Shariff K.Mohamed and that he was diagnosed jaundice and after recovery from illeness, he obtained the medical certificate and fitness certificate and reported for duty on 04.1.2001. In the mean time notice dated 15.11.2000 was issued to him proposing to terminate his services w.e.f. 15.01.2001. As there was no response from the 1st Respondent, services of 1st Respondent was terminated by the order dated 24.01.2001 w.e.f. 25.01.2001 F.N.
8. Main contention of Petitioner/BSNL is that Industrial Tribunal erroneously held that department has not followed the procedure as per the rules and regulations of the department of Telecom and Tribunal was not right in faulting the department for framing charges against the 1st Respondent before terminating him. Further contention of Management is that 1st Respondent being only a temporary Mazdoor and was a chronic absentee and used himself absent unauthorisedly without leave and since he was abruptly left the training, he was rightly discharged by the Training Centre Authorities. Learned counsel would further contend that as per Industrial Employment (Standing Orders) Central Rule 13 (2), no temporary workman whether monthly-rated, weekly-rated or piece-rated or badli shall be entitled to any notice or pay in lieu thereof if his services are terminated. According to department the only requirement as per Rule 13(2) is that he has been given opportunity of explaining the charges of misconduct alleged against him in the manner prescribed and such notice was given to the 1st Respondent on 15.12.2000 and since there was no response, his services was terminated w.e.f. 24.01.2001.
9. Under Rule 13 (2), services of temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges of misconduct alleged against him in the manner prescribed in Paragraph-14. Even though the department has sent notice on 15.12.2000 which was returned unserved and department could have tried to serve another notice either in person or by sending another notice. According to 1st Respondent due to his illness, he was taking treatment in his mother-in-laws house and therefore he did not get the show cause notice and hence, he could not send his response. To substantiate his contention, 1st Respondent has also produced the medical certificate issued by Dr.Shariff K.Mohamed to the effect that 1st Respondent was taking treatment from 01.11.2000 till 30.12.2000. In the Labour Court in his evidence, 1st Respondent has also stated that he had orally informed the JTO about his illness and he went to JTO office on 04.1.2001 and produced the medical certificate. But the JTO informed him that he was already discharged from services. Even though the department has denied the stand of 1st Respondent, by perusal of records, it is seen that Dr.Shariff K.Mohamed had issued a certificate to the effect that 1st Respondent is fit to join duty from 04.01.2001. Having regard to the certificate issued by the Doctor, the stand of 1st Respondent cannot be said to be without substance.
10. Contending that even if the order was passed in violation of principles of natural justice, the same need not be set aside where no prejudice is shown to have been caused to the person concerned, the learned counsel placed reliance upon (2000) 7 SCC 529 [Aligarh Muslim University and others v. Mansoor Ali Khan]. It was contended that merely because of violation of principles of natural justice, it is not necessary to quash the order and Industrial Tribunal erred in setting aside the order on the ground of violation of principles of natural justice.
11. In (2000) 3 SCC 588 [Nar Singh Pal v. Union of India and others], the Supreme Court held that the Appellant although a casual labour, had acquired temporary status. Once an employee attains the “temporary” status, he becomes entitled to certain benefits one of which is that he becomes entitled to the constitutional protection envisaged by Article 311 of the Constitution and other articles dealing with services under the Union of India. The services were terminated on account of the allegation of assault made against the Appellant. The order of termination in the instant case, cannot be treated to be a simple order of retrenchment. It was an order passed by way of punishment and, therefore, was an order of dismissal which, having been passed on the basis of preliminary inquiry and without holding a regular departmental inquiry, cannot be sustained.
12. As pointed out earlier, 1st Respondent has worked in BSNL for more than 16 years and had acquired temporary status. Once an employee attains temporary status, be becomes entitled to protection envisaged by Article 311 of Constitution of India. While so, by terminating his services without affording sufficient opportunity, the department has not acted reasonably and the Tribunal has rightly held that no sufficient opportunity was given to the workman and that the termination was in violation of principles of natural justice and the same cannot be sustained.
13. Learned counsel for Petitioner nextly contended that in any event, 1st Respondent was a chronic absentee and that number of days of absence is more than the number of days which he worked and the past attendance of 1st Respondent would show his irregular attendance and while so, when 1st Respondent has chosen himself absent during the period of training, punishment of dismissal from service was justified. By perusal of records, 1st Respondent absented for number of days and he was irregular in his attendance in the past cannot be the reason for terminating his service in 2001. As pointed out earlier, 1st Respondent was selected for Group ‘D’ post in the year 2000 and that his services by conferring Group ‘D service. Thus at the time of selecting Group ‘D’ status, the department did take note of the past attendance of 1st Respondent and just to select him for Group ‘D’ post and while so, the past irregular attendance from 1997 to 2000 cannot be put against the 1st Respondent.
14. In so far as quantum of punishment, it is fairly settled law that Courts/Tribunal cannot interfere with the question of imposition of punishment unless it is shockingly disproportionate. 1st Respondent could not attend the training because of his illness. In CDJ 2005 MHC 725 [Tamil Nadu State Transport Corporation (Madurai) Limited v. The Presiding Officer and another], the workman who was a conductor of Tamil Nadu State Transport Corporation (Madurai) Limited was absent from duty without leave for about a month. His explanation was that he was suffering from jaundice. Management has not accepted his explanation and enquiry was ordered. In the enquiry, the workman found guilty by the Enquiry Officer and Management sought approval of its action under Sec.33(2)(b) of I.D. Act which has been rejected. Learned single Judge held that in an application under Sec.33(2)(b), the Tribunal/Labour Court as the case may be, cannot sit in appeal over the findings of Enquiry Officer unlike in a reference under Sec.10 of I.D. Act where in view of Sec.11-A of I.D. Act, it can and the learned single Judge held that the charge against the workman was not so grave as to justify the order of dismissal. In the appeal preferred by the Management confirming the order of learned single Judge, the First Bench of this Court held that punishment should not be disproportionate to the delinquency and dismissed the appeal. The ratio of the above decision is squarely applicable to the present case. Since the absence of 1st Respondent is only for a short spell and having regard to the long years of service, Tribunal rightly took the view that punishment of dismissal from service is grave in nature. Upon consideration of evidence and materials on record, Industrial Tribunal has rightly set aside the order of punishment and ordered reinstatement. In so far as back wages is concerned, it cannot be said that Tribunal erred in exercising its discretion warranting interference.
15. In the result, the Writ Petition is dismissed. Consequently, connected M.P. is closed. No costs.
18.01.2011
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R.BANUMATHI,J
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Order in
W.P.No.12035/2004
18.01.2011