IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 8.4.2008 Coram THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.13436 of 1998 W.P.No.11380 of 2000 and W.P.M.P.No. 20427 of 1998 & W.P.M.P.Nos.1673, 1674 of 2000 The Management of Tamil State Transport Corporation, (Kumbakonam-Division-II) Ltd., Periamilaguparai, Tiruchirapalli. ... Petitioner in W.P.No.13436 of 1998 & 2nd respondent in W.P.No.11380 of 2000
V.Balakrishnan ... Petitioner in W.P.No.11380 of 2000 & 2nd respondent in W.P.No.13436 of 1998 vs. 1.The Presiding Officer, Labour Court, Tiruchirapalli. ... 1st respondent in both the W.Ps. Petitions filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorari to call for the records of the first respondent dated 10.12.1997 made in I.D.No.76 of 1994 and to quash the same. For Petitioner : Mr.R.Parthiban For Respondents: Mr.G.Purushothaman for R2 COMMON ORDER Heard the arguments of Mr.R.Parthiban, learned counsel appearing for the State Transport Corporation and Mr.G.Purushothaman for workman and perused the records.
2. W.P.No.13436 of 1998 is filed by the State Transport Corporation aggrieved by the award of the first respondent/Labour Court made in I.D.No.76 of 1994 dated 10.12.1997 in so far as the granting of the relief of reinstatement without back wages by the Labour Court. W.P.No.11380 of 2000 is filed by the workman against the very same award in so far as it denied back wages to him. In view of the interconnectivity between the two writ petitions, the matters were heard together and disposed of by a common order.
3. The parties are respectively referred to as the ‘management’ and the ‘workman’.
4. The workman was working in the management as a driver from 10.3.1984 and was absent from 18.10.1991 to 27.1.1992. It was the stand of the workman that he went on leave and he has sent a telegram requesting 15 days’ leave and this fact is not denied by the management. However even before the charge memo was framed against the workman he reported for duty, but was refused work. During the pendency of domestic enquiry conducted by the management, the workman was restored to duty without prejudice to the out come of the enquiry. After the conclusion of the enquiry, after giving a show cause notice, the workman was dismissed from service by the final order dated 8.12.1992. Thereafter, the workman raised a dispute before the Labour Officer, which finally culminated in an Industrial Dispute and the first respondent/Labour Court took up the dispute on its file as I.D.No.76 of 1994.
5. Before the Labour Court after a preliminary issue was framed with reference to the validity of the enquiry, the Labour Court allowed the parties to record evidence. Though initially it was on the presumption that the evidence let in related to the conduct of the enquiry, however it transpires that both the parties have let in evidence on merits before the Labour Court both oral and documentary. On the side of the workman 16 documents were filed and they were marked as Ex.W.1 to Ex.W.16. On the side of the management 19 documents were filed and they were marked as Ex.M.1 to Ex.M.19. On the side of the workman, he had examined three witnesses, including himself. It is significant that he also examined the Doctor Johnbosco,who treated him, as W.W.2. On the side of the management, three witnesses were examined.
6. Thereafter, the Labour Court made a strange finding that since both the parties have let in evidence, it is unnecessary to go into the question of validity of the enquiry. This approach is impermissible and contrary to the provisions contained under Section 11-A of the Industrial Disputes Act(hereinafter referred to as the ‘Act’). However, at this stage it is unnecessary to go into the said issue.
7. When the writ petition was admitted, which was filed by the management i.e. W.P.No.13436 of 1998, this Court, by an order dated 10.4.2000 granted the relief under Section 17-B to the workman. The management was directed to pay Rs.2507/- commencing from 1.5.2000 till the disposal of the writ petition and also directed a sum of Rs.70,000/- to be deposited and out of which, Rs.20,000/- was allowed to be withdrawn by the workman and the balance of Rs.50,000/- to be invested in a fixed deposit with the State Transport Finance Corporation, with interest to be drawn periodically.
8. In order to avoid making payment under Section 17-B of the Act and considering the nature of the misconduct committed by the workman the management voluntarily reinstated the workman with effect from 30.6.2000. The workman is in employment till this date and nothing adverse is brought to the notice of this Court that during this relevant period of eight years the workman had committed any further misconduct.
9. However, after obtaining the interim relief from this Court, the workman had chosen to file the writ petition, viz., W.P.No.11380 of 2000. Such an action on the part of the workman is impermissible because he cannot avail the benefit of the interim order passed by this Court and thereafter, after a considerable period of delay, (i.e.a delay of 3 years), file the writ petition challenging the portion which denied him back wages. On this ground, the writ petition filed by the workman deserves to be dismissed.
10. Mr.Parthiban, the learned counsel appearing for the management argued that the Courts have taken a view that even an unauthorised absence is also a serious misconduct and no sympathy can be shown in such circumstances. The learned counsel brought to the notice of this Court the judgment of the Division Bench of this Court in G.VIJAYAN VS. THE PRESIDING OFFICER, LABOUR COURT, SALEM AND ANOTHER REPORTED IN (2007)5 MLJ 1331 so as to impress this Court that absenteeism is to be treated as a grave misconduct and therefore no sympathy can be shown.
11. A careful perusal of the judgment referred to supra shows that in that case the workman had committed unauthorised absence for a prolonged period, namely, 1987 to 1995 and that he had merely absented for 21 times unauthorisedly and therefore, the previous record of the workman also was taken into consideration. Further, the learned counsel for the management submitted that in the present case also the management had submitted before the Labour Court 8 instances of unauthorised absence.
12. The learned counsel also brought to the notice the recent judgment of the Supreme Court in L& T KOMATSU LTD. VS. N.UDAYAKUMAR (2008) 1 SCC 224 for the very same proposition. There also it is found that the workman had unauthorisedly absented for more than 105 days i.e. for a period from 1.8.2000 to 30.4.2001 and also in the previous occasion he has absented for more than 15 times. In that context the Supreme Court, after referring to several decisions rendered under Section 11-A of the Act, came to the conclusion that no sympathy can be shown to the workman in such circumstances.
13. The learned counsel also referred to an unreported Division Bench judgment of this Court in DHEERAN CHINNAMALAI TRANSPORT CORPORATION VS. THE PRESIDING OFFICER, TRICHY AND ANOTHER made in W.A.No.1414 of 2000 dated 13.4.2006. There also the Division Bench held that the workman in that case had habitually absented from 19.7.1978 to 26.7.1998 i.e. nearly a period of nearly 20 years and therefore, his absence cannot be viewed lightly and therefore, the order of the learned single Judge was set aside by this Court.
14. However, there are two distinguishing features in the present case. The first was that the initial absence of the workman was found to be not without notice by the Labour Court and the fact that the workman had sent a telegram seeking leave for 15 days was accepted by the Labour Court. Even before this Court the learned counsel for the management had stated that the management had received such a telegram. Further during the course of evidence, the workman, whose evidence was also corroborated by the Doctor and another co-employee to the fact that even before the charge sheet, the workman had reported for duty and he was refused work by the management. Further, in the present case, the alleged absence was only for a period of 51 days and even the 15 days, for which he had sought for leave is excluded then it comes to only 36 days. Apart from that during the domestic enquiry conducted by the employer the workman was restored to duty and he was in service until the final orders were passed. Subsequently when the interim order was passed by this Court, the management had voluntarily restored the workman to duty from 30.6.2000 and he has been in service for the last 8 years without any blame worthy conduct on his part. These are all distinguishable features which one has to take into account.
15. Looked with these factual backdrop the judgments cited by the learned counsel for the management can have no direct nexus to the facts of the present case. Under these circumstances, this Court is not inclined to take a different view especially when the Labour Court had exercised its discretionary power under Section 11-A of the Act to restore the workman to duty and deny him the backwages for the prolonged period of dispute. Further this Court by exercising power vested under Article 226 of the Constitution of India cannot interfere with all kinds of awards by the Labour Court on the basis that a different view can be taken by this Court. Under these circumstances, this Court has no hesitation to dismiss the writ petitions and accordingly, the writ petitions are dismissed. However, under peculiar circumstances of the case, there is no order as to costs. Consequently, connected miscellaneous petitions are closed.
16. By the interim order dated 10.4.2000, made in W.P.M.P.No.1673 this Court has directed deposit of Rs.50,000/- with the State Transport Finance Corporation. In view of both the writ petitions being dismissed, the workman(Mr.V.Balakrishnan) is entitled to withdraw the amount lying in deposit with the State Transport Fiannce Corporation.
17. Mr.G.Purushothaman, the learned counsel for the workman submits that even though the workman was restored to duty he has not been paid wages on par with his contemporary and he was treated as a fresh entrant. Mr.R.Parthiban, the learned counsel appearing for the management submits that that was only an interim arrangement and hence the management is entitled to treat him as fresh entrant, pending the award passed by the Labour Court upheld by this Court.
18. The workman cannot be treated as a fresh entrant and he is entitled for all the increments and allowances, arising out of various wage settlement. The maanagement is hereby directed to compute the wage in terms of the wage settlement between the trade unions and the management together with increments and pay the arrears within a period of two months from the date of receipt of copy of this order.
Msk
To
The Presiding Officer,
Labour Court,
Tiruchirapalli.