IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.4.2011
CORAM
THE HON'BLE MR.JUSTICE M.JAICHANDREN
Writ Petition No.22846 of 2006
1 C. GANGADHARAN [ PETITIONER ]
Vs
1 THE MANAGEMENT
THE TAMIL NADU STATE TRANSPORT CORPORATION
(COIMBATORE DIVISION-I) LTD.
37, METTUPALAYAM ROAD
COIMBATORE - 641 043.
2 THE PRESIDING OFFICER
INDUSTRIAL DISPUTE TRIBUNAL
CHENNAI. [ RESPONDENTS ]
Writ Petition filed under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus calling for the records pertaining to the order of the 2nd respondent dated 10.4.2006 made in Petition 5 of 1998 in ID No.3 of 1990, quash the same and direct the respondent No.1 to continue the petitioner in its employment as Conductor with all the attendant benefits back-wages and continuity of service.
For petitioner : Mr.P.K.Rajagopal
For respondents : Mr.S.Aravindan
for M/s.Jayesh B.Dolia
for R1
R2 Tribunal
O R D E R
It has been stated that the petitioner had been working as a conductor in the first respondent Corporation, from 22.11.1978, as a permanent employee. While he was working as a conductor attached to the Udumalpet branch of the first respondent Corporation in the year, 1996, he had applied for medical leave, on account of chest pain caused due to severe bronchitis, from 1.9.1996 to 7.9.1996. He had produced a valid medical certificate issued by the competent doctor, while applying for the medical leave. The leave application had been approved and the leave had been sanctioned by the authority of the first respondent Corporation. Thereafter, on 8.9.1996, he had resumed duty by producing a fitness certificate from the same doctor.
2. It had been further stated that the management of the first respondent Corporation had issued a charge memo, on 30.9.1996, alleging that the petitioner had availed the leave by producing a false medical certificate. Inspite of the petitioner submitting an explanation, the management of the first respondent Corporation had decided to conduct a domestic enquiry, in respect of the charges levelled against the petitioner.
3. It had been further stated that on completion of the enquiry, the enquiry officer had given a finding that the misconduct alleged against the petitioner had been proved. Thereafter, a second show cause notice had been issued to the petitioner, on 31.10.1997. After the second show cause notice had been issued to the petitioner, an order, dated 19.1.1998, had been issued dismissing the petitioner from service. The management of the first respondent Corporation had filed an application for approval, in petition No.5 of 1998, in I.D.No.3 of 1990, under Section 33(2) (b) of the Industrial Disputes Act, 1947, seeking approval of the dismissal order issued by the management of the first respondent Corporation.
4. It had been further stated that the Industrial Tribunal had dismissed the approval application, by its order, dated 17.9.2001. Challenging the said order, dated 17.9.2001, the first respondent had filed a writ petition before this Court, in W.P.No.20709 of 2002. This Court, by its order, dated 3.9.2004, had set aside the order of the Industrial Tribunal, Chennai, dated 17.9.2001, and had remitted the matter back to the said Tribunal for the purpose of enabling the management of the first respondent Corporation to adduce evidence. Accordingly, the Industrial Tribunal, Chennai, took up the matter, once again, for a fresh enquiry. The management of the first respondent Corporation had examined three witnesses, during the enquiry. The petitioner had examined himself as a witness on his side. Thereafter, an order, dated 10.4.2006, had been passed by the Industrial Tribunal, Chennai, the second respondent, in Petition No.5 of 1998, allowing the petition and granting approval for the dismissal order passed by the first respondent, for dismissing the petitioner from service. Therefore, the petitioner had preferred the present writ petition, before this Court, challenging the order of the second respondent, dated 10.4.2006, under Article 226 of the Constitution of India.
5. The learned counsel appearing on behalf of the petitioner had submitted that the impugned order of the second respondent, dated 10.4.2006, is arbitrary, illegal and void. The second respondent did not consider the obvious contradictions in the different versions of the case presented by the first respondent management, before the enquiry officer, during the domestic enquiry and before the second respondent Industrial Tribunal, during the course of the enquiry relating to the matter. It is in violation of the fundamental principles of the law of evidence.
6. The learned counsel appearing on behalf of the petitioner had further submitted that the second respondent had failed to properly appreciate the evidence of the petitioner, resulting in failure of justice. It had also been submitted that the impugned order of the second respondent, dated 10.4.2006, suffers from an error of law on the face of the records. The impugned order had been passed without proper appreciation of the material evidence placed before the second respondent. The impugned order is contrary to Section 32(2)(b) of the Industrial Disputes Act, 1947, and the other relevant provisions of the said Act.
7. The learned counsel appearing for the petitioner had also submitted that when the matter had been remitted back to the Industrial Tribunal, by an order, dated 3.9.2004, passed by this Court, in W.P.No.20709 of 2002, the second respondent Tribunal ought to have heard the matter, from its inception, in its entirety. Instead, the second respondent Tribunal had gone into the issue, on a cursory level, only with regard to the prima facie case of the matter.
8. The learned counsel appearing on behalf of the petitioner had also submitted that the second respondent Industrial Tribunal had not applied its mind, with regard to the disproportionate punishment imposed on the petitioner, in spite of the fact that the main charge against the petitioner is that he had availed the medical leave, for seven days, based on a false medical certificate. He had also submitted that there is no proper discussion, with regard to the evidence available on record.
9. The learned counsel appearing on behalf of the petitioner had also submitted that the punishment of dismissal from service imposed on the petitioner, by the first respondent management, amounts to clear victimisation, as the petitioner had been involved in trade union activities.
10. The learned counsel appearing on behalf of the petitioner had relied on the following decisions in support of his contentions:
(i) TARINI KAMAL PANDIT Vs. PRAFULLA KUMAR CHATTERJEE (1979) 3 SCC 280.
(ii) RATTAN LAL SHARMA Vs. MANAGING COMMITTEE
(1993) 4 SCC 10.
(iii) ANIL KUMAR GUPTA Vs. STATE OF U.P.
(1995) 5 SCC 173.
(iv) MOHD. LAIQUIDDIN Vs. KAMALA DEVI MISRA
(2010) 2 SCC 407.
(v) W. OF W.M. & CO. LTD Vs. WILLIAM MAGOR & CO LTD.,
(1982 I L.L.J. 33).
(vi) RAJENDRA B. OZA Vs. AIR INDIA (2002-IV-LLJ) (SUPPL)-NOC-704 (vii) UNION OF INDIA Vs. GIRIRAJ SHARMA 1994 SUPP (3) SCC 755. (viii) PEPSU RTC Vs. RAWEL SINGH (2008) 4 SCC 42).
11. Per contra, the learned counsel appearing on behalf of the first respondent had submitted that the order passed by the second respondent Industrial Tribunal is legally valid and sustainable in the eye of law. There is no error in the impugned order passed by the second respondent Tribunal, in granting the approval for the order of dismissal issued by the first respondent management, dismissing the petitioner from service. It has been proved, by sufficient evidence, that the petitioner had availed medical leave based on a false medical certificate. During the period of medical leave, the petitioner had been involved in certain activities, including participation in a road roko agitation at Thali, on 6.9.1996. The doctor, who had issued the medical certificate, had made it clear, in his evidence, that the petitioner had obtained the certificate from him stating that he was unwell due to bronchitis, even though he was hale and healthy.
12. The learned counsel had also submitted that the domestic enquiry conducted, with regard to the charges levelled against the petitioner, had clearly shown that the petitioner was guilty of producing a false medical certificate to avail medical leave. Thereafter, pursuant to the order passed by this Court, by its order, dated, 3.9.2004, in W.P.No.20709 of 2002, a fresh enquiry had been conducted before the second respondent Industrial Tribunal. Based on the evidence available on record, the second respondent Industrial Tribunal had arrived at the conclusion that the petitioner was guilty of the charges levelled against him. Based on such findings, the second respondent Industrial Tribunal had granted its approval of the order passed by the first respondent management, dismissing the petitioner from service. The punishment imposed on the petitioner, by the second respondent management, cannot be said to be disproportionate in nature, as the petitioner had committed a major misconduct by availing the medical leave, based on a false medical certificate.
13. The learned counsel for the first respondent had relied on the following decisions in support of his contentions:
(i) DELHI CLOTH AND GENERAL MILLS CO. LTD., Vs. LUDH BUDH SINGH (1972 I LLJ 180) (ii) THE WORKMEN OF M/S.FIRESTONE TYRE AND RUBBER CO. OF INDIA P. LTD Vs. THE MANAGEMENT AND OTHERS (AIR 1973 SC 1227(1).
14. In view of the averments made in the affidavit filed in support of the writ petition and in view of the submissions made by the learned counsels appearing on behalf of the parties concerned and in view of the decisions cited supra, it is seen that the second respondent Industrial Tribunal had conducted a fresh enquiry, pursuant to the order passed by this Court, on 3.9.2004, in W.P.No.20709 of 2002.
15. Based on the evidence available on record, the second respondent Industrial Tribunal had granted its approval for the order of dismissal passed by the first respondent management, dismissing the petitioner from service.
16. It is also noted that the main charge levelled against the petitioner is that he had obtained medical leave, for seven days, based on a false medical certificate. However, from the records available, there is nothing to show that the petitioner had obtained the medical certificate by misrepresentation or fraud.
17. Even though the medical certificate might have been issued by the authorised medical practitioner concerned, without physically examining the petitioner, there cannot be a presumption that such a certificate had been issued due to the mala fide manipulation by the petitioner.
18. It is also not in dispute that the petitioner had been allowed to join duty, at the end of his medical leave, based on the fitness certificate issued by the same medical practitioner, without conducting a physical examination on the petitioner. Further, it cannot be said that a person suffering from bronchitis cannot carry on certain personal activities or involve himself in some public activities, as alleged by the first respondent Management.
19. Unless a proper medical examination had been conducted on the petitioner, at the relevant point of time, it cannot be said that he was not suffering from bronchitis. If at all, it could be said that it is the fault of the medical practitioner concerned, to have issued a false medical certificate without examining the petitioner, physically.
20. A safe inference could not have been drawn holding the petitioner guilty of obtaining a false medical certificate to avail the medical leave, based on his activities during the period when he was on medical leave. Further, the second respondent Industrial Tribunal ought to have considered the issue relating to the disproportionate nature of the punishment imposed on the petitioner, by the first respondent management. In such circumstances, this Court finds it fit to set aside the impugned order of the second respondent industrial Tribunal, dated 10.4.2006, in Petition No.5 of 1998, and the matter is remitted back to the first respondent to consider the matter, afresh, and to impose any other lesser punishment on the petitioner, except the punishment of dismissal from service, as it may deem fit to do so, as per law.
The writ petition is ordered accordingly. No costs.
26.4.2011
lan
Index : Yes/No
Internet : Yes/No
M.JAICHANDREN J.,
lan
To
1 THE MANAGEMENT
THE TAMIL NADU STATE TRANSPORT CORPORATION
(COIMBATORE DIVISION-I) LTD.
37, METTUPALAYAM ROAD
COIMBATORE - 641 043.
2 THE PRESIDING OFFICER
INDUSTRIAL DISPUTE TRIBUNAL
CHENNAI.
Writ Petition No.22846 of 2006
26.4.2011