IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 13-11-2009 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.12619 of 2001 The Managing Director, Tamil Nadu State Transport Corporation (Villupuram Division-III) Ltd., Kancheepuram. ... Petitioner Vs. 1. The Presiding Officer, I Additional Labour Court, Chennai. 2. S.K.Ibrahim .. Respondents Prayer: This writ petition is filed under Article 226 of Constitution of India praying this Court to issue a writ of certiorari calling for the records relating to ID.No.175 of 1998 dated 19.12.2000 on the file of the first respondent and quash the same. For Petitioner : Mr.T.Chandrasekaran, Spl. Government Pleader 1st Respondent : Labour Court For 2nd Respondent : Mr.K.M.Ramesh O R D E R
This writ petition is filed by the Tamil Nadu State Transport Corporation (Villupuram Div-III) Ltd., Kancheepuram, challenging the award of the Labour Court made in I.D.No.175 of 1998 dated 19.12.2000 on the file of the first respondent granting an award in favour of the second respondent ordering reinstatement with 50% of back wages with continuity of service.
2. The second respondent was employed as Conductor in the petitioner Transport Corporation and while he was working as Conductor, he absented himself from attending duty from 30.7.1994 to 25.8.1994 without getting prior permission from the Corporation or obtaining any leave for the said period. Charges were framed and the second respondent was directed to submit his explanation. The explanation submitted by the second respondent having been found not satisfactory, domestic enquiry was conducted. The Checking Inspector was examined as management witness and the second respondent also cross-examined the said witness. The Enquiry Officer found that the charges framed against the second respondent were proved. Based on the enquiry report, second show cause notice was issued, for which the second respondent submitted his explanation and the same having been found not satisfactory, the management passed the order of dismissal of the second respondent from 13.6.1995.
3. The second respondent thereafter raised I.D.No.175 of 1998 and the Labour Court by award dated 19.12.2000 gave a finding that the enquiry was conducted in a fair and proper manner, however interfered with the punishment under Section 11A of the Industrial Disputes Act, 1947. The Labour Court also took note of the seven previous instances where the second respondent absented without leave and ordered reinstatement of the second respondent with 50% backwages and continuity of service. Pursuant to the award of the Labour Court, the second respondent was reinstated on 7.4.2001 and he also retired from service on 31.5.2001. Thus, now the second respondent is a retired conductor of the petitioner Transport Corporation.
4. The learned Special Government Pleader appearing for the petitioner Transport Corporation submitted that the Labour Court was not justified in interfering with the punishment under Section 11A of the Industrial Disputes Act, 1947, after giving clear finding that the enquiry was conducted in a fair and proper manner and the second respondent was earlier proceeded for similar charges on seven occasions. The learned counsel also submitted that in any event, the ordering of 50% backwages is unsustainable as the Labour Court has not given any finding to award backwages and the second respondent also has not proved before the Labour Court that he was not gainfully employed for the full period or part of the period in which he was kept out of the employment.
5. The learned counsel for the second respondent submitted that the charge levelled against the petitioner being absence without leave from 30.7.1994 to 25.8.1994, the punishment imposed against the petitioner is too harsh with regard to the gravity of the alleged charge. Taking note of the said fact, the Labour Court in exercise of its jurisdiction under section 11A, found that the punishment imposed is unproportionate and ordered reinstatement with 50% of backwages.
6. I have considered the rival submissions. The charge levelled against the petitioner is only ‘absence without leave’. According to the second respondent, he was not doing well during the period and the said fact was intimated to the department through another conductor as well as by calling the office through telephone. In the enquiry, contrary to the charge memo issued, further period of leave allegedly taken from 7.11.1994 to 12.12.1994, was also said to have been proved without framing any charge. The Labour Court gave a finding that the punishment was imposed because of the charge of absence without leave from 30.7.1994 to 25.8.1994 was found proved and that the second respondent again absented himself from 4.3.1995 onwards. The said finding given by the Labour Court is just and proper as no charge was framed for any subsequent absence by the second respondent.
7. The punishment imposed against the second respondent having been found disproportionate to the charge, the Labour court was right in exercising its jurisdiction under Section 11A of the Industrial Disputes Act, 1947. The proportionality of punishment in a given case can be considered by the Labour Court in appropriate cases. In the decision reported in AIR 2009 SC 2458 (Jagdish Singh v. Punjab Engineering College) the Supreme Court modified the punishment of dismissal in a case of unauthorised absence, taking note of the good track of record of service and imposed the punishment of stoppage of increment for two years and set aside the order of dismissal and ordered reinstatement without backwages and with continuity of service.
8. Here in this case, the absence of the second respondent was for 26 days and therefore the punishment of dismissal is on the higher side as the petitioner was not doing well during the said period, though on seven earlier occasions the second respondent was proceeded for similar charges and he was punished. The Labour Court failed to give any reason for ordering 50% of the backwages. The second respondent’s eligibility to get backwages for the period in which he was out of employment has not been pleaded and established as to whether he was gainfully employed during that period. Hence the Labour Court was not justified in ordering 50% of the backwages while ordering reinstatement with continuity of service.
9. In view of the above, the award of 50% backwages to the second respondent from the date of dismissal till the date of the award of the Labour Court i.e, till 19.12.2000, cannot be sustained and the same is set aside. Since the Labour Court passed the award of reinstatement in favour of the second respondent on 19.12.2000 and the second respondent having been reinstated only on 7.4.2001. I am of the view that denial of entire backwages for five year, six months and six days will meet the ends of justice. The second respondent is entitled to get salary and other benefits from 20.12.2000 along with continuity of service from the date of dismissal.
10. In the result, the writ petition is partly allowed, setting aside the award of the Labour Court with regard to ordering 50% of the backwages from 13.6.1995 till 19.12.2000. It is made clear that the second respondent is entitled to get continuity of service and other benefits except backwages from the date of dismissal till 19.12.2000 and from 20.12.2000 till his retirement he is entitled to get full wages and other benefits. The petitioner Transport Corporation is directed to calculate the said amount payable and pay the retirement benefits, if not paid already, within a period of three months from the date of receipt of copy of this order. There is no order as to costs.
Index : Yes/No Website : Yes/No 13-11-2009 vr To The Presiding Officer, I Additional Labour Court, Chennai. N.PAUL VASANTHAKUMAR, J. vr Pre-Delivery Order in W.P.No.12619 of 2001 13-11-2009