IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 29/06/2006
Coram
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
Writ Petition No.6640 of 1998
The Management of
Tamil Nadu State
Transport Corporation
(Coimbatore Division II) Limited
Formerly known as
Jeeva Transport Corporation
represented b its Managing Director
Erode. ...Petitioner
-Vs-
1.The Presiding Officer
Labour Court
Salem.
2.K.S.Palaniswamy ...Respondents
This writ petition has been filed under Article 226 of Constitution of
India, praying this Court to issue a writ of Certiorari, calling for the
records pertaining to the award passed by the first respondent, made in
I.D.No.16 of 1997 dated 28.7.1997 and quash the same.
!For Petitioner :Mr.V.R.Kamalanathan
For 1st Respondent :Court
For 2nd Respondent :Mr.D.Hariparanthaman
:ORDER
This writ petition is filed by the management challenging the award
passed in I.D.No.16 of 1997 dated 28.7.1997 on the file of the Labour Court,
Salem, viz., the first respondent herein.
2. The brief facts of the case as stated in the affidavit are
that the second respondent was working as Assistant in the Revenue Department
of the Tamil Nadu State Transport Corporation (Coimbatore DivisionII) Limited
from 1983. The second respondent took leave from 6.3.19 96 to 8.3 .1996 by
sending telegrams stating that he was not doing well. According to the
management, it rejected the leave and informed the second respondent to join
duty. The second respondent having failed to join duty, he was issued with a
show cause notice on 19.3.1996. As the second respondent failed to give any
explanation, an enquiry was ordered, after framing of charge, which reads as
under,
“You, while working as Assistant in the Headquarters Collection Audit
Unit, continuously absented from duty from 6.3.1996, resulting in delayed
auditing of the Collection sheet in the said Unit. You have sent leave
applications through two telegrams for 6.3.1996, 7.3.1996 and 8.3.199 6 and
the Assistant Manager, Collection Audit Unit has complained that the said
leave applications have been rejected. Your above action is an offence under
Model Standing Order No.16(e).”
The crux of the charge is that the petitioner failed to attend duty from
6.3.1996 to 8.3.1996. An enquiry was conducted and the charge levelled
against the second respondent was held to be proved. A second show cause
notice was issued on 9.5.1996, for which the second respondent submitted
explanation and after considering the same, the second respondent was
dismissed from service from 5.6.1996 by order dated 4.6.1996. The second
respondent aggrieved by that raised I.D.No.16 of 1997 and the Labour
Court/first respondent herein, awarded reinstatement with continuity of
service and also held that the second respondent is entitled to get 50% of
backwages. The said award of the Labour court is challenged in this writ
petition by the management.
3. The learned counsel for the petitioner argued that the
petitioner’s intimation for leave was rejected by the management and the same
was communicated to the second respondent with a direction to rejoin duty and
the same was proved by the management during enquiry, based on which final
order of dismissal was passed, but the Labour Court, on the basis of not
marking the communication sent to the second respondent, interfered with the
findings of the Enquiry Officer and held that the Enquiry Officer’s report is
bad and consequently set aside the order of dismissal.
4. The learned counsel appearing for the second respondent
submitted that the rejection of leave application was not intimated to the
second respondent and no direction was issued to the second respondent to
rejoin duty and no document to that effect was marked either during enquiry or
in the Labour Court and the Labour Court having come to the conclusion that
the enquiry was not properly conducted and held that the petitioner ought to
have proved the guilt of the second respondent by adducing fresh evidence and
by filing documents before the Labour Court/first respondent and having failed
to do so, it is not open to the petitioner to challenge the award of the
Labour court. The learned counsel also submitted that the charge itself is
only absence for three days and for that the extreme penalty of dismissal is
disproportionate and therefore the Labour Court is justified in interfering
with the award and ordering 50% backwages.
5. I have considered the rival submissions of the learned counsel
appearing for the petitioner as well as the second respondent.
6. The finding of the Labour Court is that the management failed
to send the petitioner to the Medical Board and therefore the second
respondent’s absence cannot be treated as willful absence and that the second
respondent was not served with the order rejecting the leave, by the
management. The failure on the part of the management to file the document to
show rejection of leave was served on the second respondent and the acceptance
of two telegrams for the grant of leave by the management are also the finding
of the Labour Court. It is also found that there was no proof to show that
the second respondent refused to obey the order after receiving the direction
given by the management to rejoin the duty. The Labour Court, after giving
such a finding came to the conclusion that the allegation against the second
respondent is not proved. Further the Labour Court held that even assuming
that the charge is proved, dismissal from service is disproportionate to the
gravity of the delinquency. Failure to send the second respondent before the
Medical Board by the management vitiates the entire proceeding. The second
respondent also could have verified from the management about his leave
application submitted by him. Taking note of the said factual aspect the
Labour court set aside the order of dismissal from service and ordered 50%
backwages with continuity of service.
7. The said factual finding cannot be found illegal in view of
the fact that the rejection of leave was not communicated to the second
respondent by the management and hence the petitioner’s refusal to rejoin duty
cannot be treated as willful disobedience. The failure on the part of the
management to send the second respondent to Medical Board is also fatal to the
case of the management. Since the second respondent also failed to verify as
to whether his leave was sanctioned 50% backwages was denied to him and the
same was also accepted by the second respondent as no appeal was filed against
the said decision.
8. The allegation against the second respondent is absence
without leave for three days. For the said allegation even assuming that it
was proved, dismissal from service is too harsh and it is to be treated as
disproportionate to the gravity of the offence committed by the second
respondent.
9. The Honourable Supreme Court in the decision reported in AIR
1997 SC 3387 (Union of India v. G.Ganayutham), in paragraph 28 explained the
proportionality in punishment as under,
“The current position of proportionality in administrative law in
England and India can be summarised as follows:-
(1) To judge the validity of any administrative order or statutory
discretion, normally the Wednesbury test is to be applied to find out if the
decision was illegal or suffered from procedural improprieties or was one
which no sensible decision-maker could, on the material before him and within
the framework of the law, have arrived at. The Court would consider whether
relevant matters had not been taken into account or whether irrelevant matters
had been taken into account or whether the action was not bona fide. The
Court would also consider whether the decision was absurd or perverse. The
Court would not however go into the correctness of the choice made by the
administrator amongst the various alternatives open to him. Nor could the
Court substitute its decision to that of the administrator. This is the
Wednesbury test.
(2) The Court would not interfere with the administrator’s
decision unless it was illegal or suffered from procedural impropriety or was
irrational in the sense that it was in outrageous defiance of logic or moral
standards. The possibility of other tests, including proportionality being
brought into English Administrative Law in future is not ruled out. These are
the CCSU principles.
(3)(a) As per Bugdaycay, Brind and Smith, as long as the Convention is
not incorporated into English Law, the English Courts merely exercise a
secondary judgment to find out if the decision maker could have, on the
material before him, arrived at the primary judgment in the manner he has
done.
(3)(b) If the Convention is incorporated in England making available
in principle of proportionality, then the English Courts will render primary
judgment on the validity of the administrative action and find out if the
restriction is disproportionate or excessive or is not based upon a fair
balancing of the fundamental freedom and the need for the restriction
thereupon.
(4)(a) The position in our country, in administrative law, where no
fundamental freedoms as aforesaid are involved, is that the Courts/ Tribunals
will only play a secondary role while the primary judgment as to
reasonableness will remain with the executive or administrative authority.
The secondary judgment of the Court is to be based on Wednesbury and CCSU
principles as stated by Lord Greene and Lord Diplock respectively to find if
the executive or administrative authority has reasonably arrived at his
decision as the primary authority.
(4)(b) Whether in the case of administrative or executive action
affecting fundamental freedoms, the Courts in our country will apply the
principle of ‘proportionality’ and assume a primary role, if left open, to be
decided in an appropriate case where such action is alleged to offend
fundamental freedoms. It will be then necessary to decide whether the Courts
will have a primary role only if the freedoms under Articles 19, 21 etc., are
involved and not for Article 14.”
In the said Judgment, the Honourable Supreme Court referred its earlier
decisions reported in (1997) 3 SCC 72 = JT 1997 (2) SC 367 ( Indian Oil
Corporation Ltd & Another v. Ashok Kumar Arora) and (1995) 6 SCC 7 49 = JT
1995 (8) SC 65 (B.C.Chaturvedi v. Union of India and Others). In the case of
B.C.Chaturvedi, in paragraph 18, the Supreme Court held as under,
“A review of the above legal position would establish that the
disciplinary authority, and on appeal the appellate authority, being
fact-finding authorities have exclusive power to consider the evidence with a
view to maintain discipline. They are invested with the discretion to impose
appropriate punishment keeping in view the magnitude or gravity of the
misconduct. The High Court/Tribunal, while exercising the power of judicial
review, cannot normally substitute its own conclusion on penalty and impose
some other penalty. If the punishment imposed by the disciplinary authority
or the appellate authority shocks the conscience of the High Court/Tribunal,
it would appropriately mould the relief, either directing the disciplinary/
appellate authority to reconsider the penalty imposed, or to shorten the
litigation, it may itself, in exceptional and rare cases, impose appropriate
punishment with cogent reasons in support thereof.”
9. In the light of the above cited decisions, the award of the
Labour Court cannot be treated as perverse in any manner and the writ petition
filed by the management is liable to the dismissed and accordingly dismissed.
The award of the Labour Court is confirmed. No costs.
To
The Presiding Officer,
Labour Court,
Salem.