IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.2.2010
CORAM
THE HONOURABLE MR. JUSTICE K. CHANDRU
WRIT PETITION NO.18429 OF 2000
Union of India rep. by the
Chief Workshop Manager,
Carriage and Wagon Works
Southern Railway
Madras 600 003. ... Petitioner
Vs.
1. The Registrar
Industrial Tribunal, Tamil Nadu
Chennai.
2. P.N.Balasundaram ... Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari calling for the records from the file of the Industrial Tribunal, Tamil Nadu, Chennai, the impugned award in I.D.3/2000, dated 12.7.2000 vide Notification No.L/41012/246/99/IR (B1), dated 2.8.2000 and quash the same.
For Petitioner : Mr. Vellaichamy
For Respondent No.2 : Mr. Nazarulla
O R D E R
Heard Mr.Vellaichamy, the learned counsel for the petitioner-Railways.
2. The writ petition is filed by the petitioner challenging the award passed by the first respondent-Industrial Tribunal made in I.D.No.3/2000, dated 12.7.2000.
3. The writ petition was admitted on 1.11.2000. Pending the writ petition, this Court granted an order of interim stay subject to the condition that the petitioner-Railways will comply with the conditions of Section 17-B of the Industrial Disputes Act. Subsequently, when the matter came up on 23.9.2002, the petitioner-Railways informed this Court that they are complying with the conditions imposed by this Court. In that view of the matter, the interim stay was made absolute and the application to vacate the stay was also rejected.
4. The facts leading to this filing of the writ petition are as follows.
The second respondent, who was employed as a Khalasi in the petitioner-Railways was working in the Spring Shop/ Carriage and Wagon Works at Perambur since 4.10.1978. The petitioner had absented himself from duty for 101 days starting from 11.1.1996 to 4.12.1996. He was given a charge memo, after getting an explanation and after conducting a departmental enquiry, the petitioner was removed from service by an order dated 29.5.1998. Thereafter, the petitioner preferred an appeal on 30.06.1998 and by order dated 27.11.1998, the Appellate Authority disposed of the same by holding that the penalty imposed is adequate. Thereafter, the second respondent filed a Mercy Appeal dated 20.10.1999 before the Revising Authority and the same was rejected by order dated 10.02.1999.
5. The second respondent, having failed in his attempt to discharge the penalty order, raised an industrial dispute before the Regional Labour Commissioner (Central), Chennai. Thereafter, conciliation proceedings were held before the Special Officer and on his sending a Failure Report, the Government of India, Ministry of Labour, by order dated 15.12.1999, referred the dispute for adjudication by the first respondent-Tribunal. The reference that was made to the first respondent-Tribunal was whether the action of the management in terminating the services of the second respondent with effect from 29.5.1998 was justified, and if not, to what relief, he is entitled to.
6. The Tribunal took up the dispute as I.D.No.3/2000 and ordered notice to the petitioner-Railways. The second respondent filed his claim statement to which the petitioner-Railways filed a counter statement. Before the Industrial dispute, on behalf of the petitioner-Railways, 25 documents were filed and they were marked as M1 to M25 by consent of parties. With reference to the preliminary issue regarding the validity of the enquiry, the Tribunal came to the conclusion that the enquiry was fair and proper. With reference to the finding that whether the petitioner was absent, the Tribunal came to the conclusion that he was absent without leave. Though the Tribunal made a technical difference between the period mentioned in the charge sheet and the actual days of absence by the second respondent, however, on the question of penalty, having regard to the long service put in by the second respondent and also he comes from very poor family and taking into account the circumstances of his family position and financial status, the Tribunal held that the dismissal was shockingly disproportionate.
7. The petitioner has put in 20 years of service by then. Therefore, it is a fit case where he should be reinstated. But however, the Tribunal, for the misconduct committed by the second respondent, deprived the entire backwages and the period was to be treated as leave on loss of pay or any other leave. It is this award dated 12.7.23000, which is the subject matter of the writ petition.
8. Though Mr.Vellaichamy, the learned counsel for the petitioner contended that the absence will have to be viewed strictly and no indulgence should be shown, but in the present case, the Tribunal, taking into the overall circumstances of the case, held that the punishment of removal was shockingly disproportionate and therefore, in the exercise of power under Section 11-A of the Industrial Disputes Act, interfered with the proportionality of the punishment, but at the same time in order to balance the interest of both sides, it had deprived backwages for the entire period.
9. In this context, it is necessary to refer to the judgment of the Supreme Court in Chairman-cum-Managing Director, Coal India Ltd., and another vs. Mukul Kumar Choudhuri and Others reported in 2009 (4) LLN 751. In that case, the Bench of the Supreme Court headed by P.Sathasivam, J., also dealt with the cases of absence and finally analysed the scope for interference under Section 11-A of the Act. Paragraph-26 of the said judgment reads as follows:-
” 26. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision-maker to quantify punishment once the charge of misconduct stands proved, intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied, while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment like circumstances ? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances an exclude irrelevant matters before imposing punishment. In a case like the present or where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention not desired to disobey the order of higher authority or violate any of the company Rules and Regulations but the reason was purely personal and beyond his control and as a matter of fact, he sent his resignation, which was not accepted, the order removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the respondent No.1 is denied backwages for the entire period by way of punishment for the proved misconduct of ‘unauthorized absence’ for six months.”
10. Applying the above ratio propounded by the Supreme Court to the present case, it is not a fit case where this Court should interfere with the order passed by the Tribunal. Further, after the impugned award was passed, the petitioner has reached the age of superannuation. Hence, the writ petition stands dismissed. The petitioner-Railways is directed to comply with the award in its entirety within a period of eight weeks from the date of receipt of a copy of this order. No costs.
kb
To
The Registrar
Industrial Tribunal, Tamil Nadu
Chennai