IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10/10/2003
CORAM
THE HONOURABLE MR.JUSTICE A.K.RAJAN
Writ Petition No.9167 of 2001
The Management of Kancheepuram
Central Co-operative Bank Ltd.,
Rep. by its General Manager
Kancheepuram ..... Petitioner
-Vs-
1. The Deputy Commissioner
of Labour (Appeals)
Chennai
2.R.Murugappan
Kancheepuram ..... Respondents
Prayer: Petition filed under Article 226 of the Constitution of
India, praying to issue a writ of certiorari, as stated therein.
For Petitioner : Mr.R.Balasubramanian
For Respondents : Mr.R.Vijaykumar for R1
Mr.M.Ramamoorthi for R2
:ORDER
This writ petition has been filed for the issuance of the writ of
certiorari, to call for the records pertaining to the orders of the first
respondent made in T.S.E.No.1 of 1997 dated 05.07.1999, and to quash the same.
2. The brief facts that are necessary for the disposal of the writ
petition is as follows:
The second respondent was employed as a Supervisor Secretary in the
petitioner/ Co-operative Bank from the year 1962. He went on leave from
12.05.1995 to 14.05.1995. Thereafter, he ought to have joined duty on
15.05.1995. But, he did not report for duty on that day. But, he reported to
duty on 29.05.1995, without any intimation or prior leave application for the
period from 15.05.1995 to 28.05.1995. Therefore, charges were framed against
the second respondent on the ground that he did not join duty immediately
after completion of the leave and that he gave a false statement that he had
sent a leave letter by post. But, no such leave letter was received. Against
the misconduct, enquiry was conducted the charges were proved. On the basis
of the enquiry report, the second respondent was imposed a punishment of
dismissal from service.
Against the order of dismissal, the second respondent moved the
appellate authority under Tamil Nadu Shops and Establishments Act. The
appellate authority after considering the submissions made by the appellant
and the respondent herein, passed an order setting aside the order of
dismissal and allowed the appeal. Aggrieved by the order of the appellate
authority, the present writ petition has been filed.
3. The learned counsel for the petitioner submitted that the
appellate authority has applied a wrong provision and has come to the
conclusion that the punishment is invalid. He referred to a Provision which
provides absenting for more than two years and the appellate authority came to
the conclusion that only for violation of that rule, he was dismissed form
service. But, in fact, there is another bylaw 45 (8) which deals with such
absence similar to the petitioner’s absence. This Bylaw makes the act
punishable with imposition of penalties. Therefore, the bylaw provides for
punishment on a person for not joining after completion of the leave.
Therefore, the order of the appellate authority is liable to be set aside for
non-application of mind.
4. Admittedly, the second respondent has already retired from
service. Further the act complaint of by the second respondent is only
staying away from duty for 14 days. The learned counsel for the petitioner
submitted that unlike the labour Court, the appellate authority under the
Tamil Nadu Shops and Establishments Act, cannot exercise power under Section
11(A) of the Industrial Disputes Act and therefore, the punishment imposed by
the petitioner cannot be interfered with or modified by the appellate
authority.
5. Be that as it may, the punishment awarded for the absence of 14
days is disproportionate to the act committed. The order of dismissal is not
justified on any ground. It is a well established principle that imposition
of punishment shall be proportionate to the act complained of against the
employee. Applying that principle, the order of termination, for the absence
of 14 days, appear to be not proportionate. Therefore, on that ground alone
the argument of the learned counsel for the petitioner fails.
6. Considering the facts and circumstances of the case, it is not a
fit case for interference exercising power under Article 226 of the
Constitution of India and there is no illegality committed by the appellate
authority.
7. In the result, the writ petition fails and the same is dismissed.
No costs.
Index:yes
Internet:yes
ksr