IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.06.2011 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NO.31986 OF 2002 S.Selvam .. Petitioner Versus 1.The Presiding Officer Central Government Industrial Tribunal- Cum-Labour Court First Floor, Shastri Bhavan Haddows Road Chennai – 600 006. 2.The Senior Divisional Medical Officer Southern Railway Perambur, Chennai – 600 011. .. Respondents PRAYER: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records on the file of the first respondent relating to the Award dated 20.03.2002 in I.D.No.50 of 2000, quash the same and consequently direct the second respondent to reinstate the petitioner in service with full backwages, continuity of service and all other attendant benefits, award costs. For Petitioner : Ms.Anna Mathew For Respondent-1 : Court For Respondent-2 : Shri.V.P.Rajendran O R D E R This Writ Petition has been filed by the unsuccessful workman, challenging the dismissal of his Claim Petition filed in I.D.No.50 of 2000 dated 20.03.2002, upholding the order of dismissal passed by the respondent No.2 for unauthorised absence for a period of 42 days. https://hcservices.ecourts.gov.in/hcservices/ Facts in brief: 2.The petitioner herein was appointed as a substitute Bungalow Lascar by the respondent No.2. At the time of appointment, the petitioner was asked to undergo a medical fitness test and after satisfying with the certification, an order of appointment has been issued to the petitioner on 24.04.1991. The appointment order specifically mentions that the petitioner is eligible for regular absorption after one year of continuous service subject to the availability of vacancy and other conditions being satisfied. It has been further mentioned therein that the order of appointment was issued with the approval of the competent authority. 3.The petitioner was made to work as a substitute Bungalow Lascar with one Dr.Mrs.Bageerathi Annamalai. The petitioner was absent from 11.12.1993 for a total period of 42 days. In view of the unauthorised absence on the part of the petitioner, a charge memo dated 05.01.1994 was issued under Ex.M-2. Along with the charge memo, a letter of Dr.Mrs.Bageerathi Annamalai was also enclosed requesting the respondent No.2 to take action against the petitioner for his unauthorised absence. The petitioner did not choose to give any reply. Hence, an enquiry was directed to be ordered against the petitioner. 4.Before the Enquiry Officer, the petitioner was asked about the charges framed against him. The petitioner has stated that he agreed with the charges framed. He also stated that since he was sick, he could not attend his duties regularly. The Enquiry Officer, in and by his report dated 11.02.1994 has found that the charges framed against the petitioner have been proved. The petitioner gave a reply on 24.02.1994 to the respondent No.2 stating that as he was suffering from Jaundice, for which he took treatment from Siddha Doctor, he was compelled to take rest and he was forced to stay at home. He further stated in his reply that he was not able to attend the Railway Hospital, Perambur, as he was insisted by his parents not to go there. Therefore, the petitioner had stated that considering the above said facts, he could be excused and in future he would be careful in his duties. The petitioner also enclosed a letter dated 24.02.1994 given by a private Siddha Medical Practitioner acknowledging the illness of Jaundice. Not satisfied with the explanation given by the petitioner and accepting the enquiry report, an order of dismissal was passed by the respondent No.2. The petitioner's further appeal and revision were rejected by the appellate and the revisional authorities respectively. 5.Challenging the said proceedings, the petitioner approached the Central Administrative Tribunal by filing an Original Application in O.A.No.48 of 1995. The Central Administrative Tribunal in and by the order dated 02.04.1996 was pleased to set aside the orders impugned on the ground that the authorities have traversed https://hcservices.ecourts.gov.in/hcservices/ beyond the charges framed, by going into the subsequent period, which was not part of the charge memo. The Honourable Tribunal further found that the revisional authority ought not to have taken into consideration of the past conduct of the petitioner. Accordingly, the orders impugned therein have been set aside and the matter was remitted back to the respondent No.2 for a fresh consideration. 6.The respondent No.2 by the order dated 12.09.1996, placed the petitioner under suspension and thereafter, passed an order of removal on 02.10.1996, holding that the misconduct on the part of the petitioner having been unauthorisedly absent from 11.12.1993 to 05.01.1994 is duly violating Rule 3(1)(iii) of the Railway Services (Conduct) Rules, 1966. Challenging the said order, the petitioner has approached the respondent No.1 herein. 7.The respondent No.1 has held that the enquiry has been conducted in a free and fair manner by giving adequate opportunities to the petitioner. However, after rejecting the contention of the respondent No.2 by holding that the Railway Services (Conduct) Rules, 1966 and the other relevant rules are applicable to the petitioner, nonetheless dismissed the Claim Petition on the ground that the petitioner had no lien over the post and not absorbed by the respondent No.2 as a permanent workman. The Labour Court has declined to exercise the discretion under Section 11-A of the Industrial Disputes Act. Challenging the dismissal of the Claim Petition passed by the respondent No.1, the petitioner has come forward to file this present Writ Petition. Submissions of the petitioner: 8.Ms.Anna Mathew, learned counsel appearing for the petitioner submitted that the enquiry conducted by the respondent No.2 is farce. In a departmental proceedings, it is for the department to prove the charges. The onus has been wrongly placed on the petitioner. The Enquiry Officer merely concluded the enquiry by holding that the petitioner has accepted the charges. The procedure contemplated under the Railway Servants (Discipline & Appeal) Rules, 1968 and Railway Services (Conduct) Rules, 1966 have not been complied with. The necessary documents have not been furnished to the petitioner. 9.The learned counsel for the petitioner submitted that the Labour Court has committed an error in not deciding the preliminary issue of a fair and proper enquiry before deciding the Claim Petition on merits. The petitioner was not given sufficient opportunities before the Labour Court. The Labour Court has committed an error in deciding the Claim Petition only on the ground that the petitioner was not a permanent employee having no lien, without appreciating the fact that the procedure contemplated for a temporary employee has to be adopted to the case of the petitioner as well. According to the https://hcservices.ecourts.gov.in/hcservices/ learned counsel, the order of the appointment would make it very clear that the petitioner is eligible for regular absorption after completion of one year and even assuming that he would not be required as a Bungalow Lascar, he has to be considered by transfer as a Peon in the existing vacancies. The learned counsel further submitted that the petitioner has never admitted the charges and an admission has to be unambiguous and uncontroverted. Assailing the order of dismissal passed by the respondent No.2 as confirmed by the first respondent and seeking reinstatement, the learned counsel submitted that in view of the inherent defects in the proceedings, the petitioner will have to be not only reinstated, but also adequately compensated with backwages as well. The learned counsel submitted that by applying the Doctrine of Proportionality also the award of the Labour Court will have to be set aside. In support of the said submissions, the learned counsel has made reliance upon the following judgments: "MOHAN LAL vs. BHARAT ELECTRONICS LTD. [(1981) 3 SCC 225] D.K.YADAV vs. J.M.A.INDUSTRIES LTD. [(1993) 3 SCC 259] NICKS (INDIA) TOOLS vs. RAM SURAT AND ANOTHER [(2004) 8 SCC 222] MAHINDRA AND MAHINDRA LTD. vs. N.B.NARAWADE [(2005) 3 SCC 134] U.P.STATE ROAD TRANSPORT CORPORATION AND OTHERS vs. SHIVAJI [(2006) 13 SCC 637] MANIK SAHADU BORSHE vs. UNION OF INDIA [2005-II-LLJ 63 (BOMBAY)] S.SHANMUGAM vs. PRESIDING OFFICER, LABOUR COURT, VELLORE AND ANOTHER [2005 (1) L.L.N. 404] W.P.NO.23983 OF 2002 DECIDED ON 11.12.2009 W.P.NOS.23044 and 24473 OF 2006 DECIDED ON 12.01.2011" Submissions of the respondent No.2 10.Endeavouring to sustain the order of dismissal, as confirmed by the respondent No.1, the learned counsel appearing for the respondent No.2 submitted that the petitioner admittedly was a casual employee and therefore, the relevant rules as applicable to the temporary employee and permanent employee cannot be made applicable. The job of a Lascar is attached to an Officer. Once an Officer moves out of place, the concerned Lascar also losses his job. The learned counsel further submitted that the order of dismissal has been passed after giving sufficient opportunities to the petitioner. When an enquiry has been conducted in a free and fair manner, which has been approved by the authority having jurisdiction, no interference shall be made by this Court. The learned counsel further submitted that even assuming the petitioner is entitled for reinstatement, the consequential benefits are not automatic. Therefore, the learned counsel submitted that the Writ Petition will have to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 11.Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondents. It is also brought to the knowledge of this Court that the petitioner has been reinstated by the order dated 10.05.2010 as a Substitute Helper subject to the result of the Writ Petition. 12.Admittedly, the petitioner was absent for a period from 11.12.1993 to 05.01.1994. The petitioner was issued with a charge memo on the ground of unauthorised absence. For the reasons best known to the petitioner, he has not chosen to give a reply. Accordingly, an Enquiry Officer was appointed and an enquiry was conducted. The petitioner participated in the enquiry. During the enquiry, a question was put to the petitioner as to how he actually felt about the charges framed against him. A reply was made by him stating that he agreed. To a further question asking the petitioner about his other remarks for the charges framed, he replied that he was sick and therefore, he could not attend the duties regularly. It is further seen that even before the respondent No.2, after the receipt of the enquiry report, the petitioner has stated that he was sick due to Jaundice and he may be excused. He has further stated that in future he would be more careful in his duties. The Enquiry Officer found that the petitioner has not followed the procedure contemplated by informing the Railway Hospital, Perambur about his sickness. 13.As found by the respondent No.1, the petitioner was given all opportunities before the enquiry. He was permitted to peruse the records and a copy of the letter of Dr.Mrs.Bageerathi Annamalai was also enclosed along with the charge memo. The petitioner was asked as to whether he would like to have any assistance of a third party. Therefore, taking into consideration of the above said facts, the Tribunal was pleased to hold that the enquiry was conducted in a free and fair manner. 14.This Court is of the view that the petitioner cannot have any grievance about the enquiry conducted. It is also the case of the petitioner that he was absent. The only defence raised by the petitioner is that he should be pardoned, as he was sick. In a case where charges have been framed for authorised absence, the onus is very much on the delinquent employee to substantiate his case. Therefore considering the facts of the case, this Court is of the view that the petitioner has not raised anywhere either before the disciplinary authority or before the higher authorities about the fact that the enquiry has not been conducted properly. Hence, this Court holds that the enquiry has been conducted in a free and fair manner. This Court also does not accept the contention of the learned counsel for the petitioner that after holding that the enquiry has been conducted in a free and fair manner, further opportunity should have been given to the petitioner to redress his grievance, as the https://hcservices.ecourts.gov.in/hcservices/ petitioner was fully heard by the Tribunal on merits, by affording adequate opportunities. Whether the charges are proved or not: 15.The charge against the petitioner is that he has unauthorisedly absented himself. The petitioner for the first time before the first respondent, that too in an application seeking filing of the proof affidavit as he was not conversant with English has stated that his brother has informed Dr.Mrs.Bageerathi Annamalai about his absence. Inasmuch as the Tribunal has upheld that the enquiry has been conducted in a free and fair manner, it has rightly eschewed the said statement made for the first time before it. It is further seen that nowhere in the enquiry proceedings, the petitioner has raised such a plea. He has produced a medical certificate for the first time before the respondent No.2. Even thereafter, the petitioner has not stated about the intimation during the period of unauthorised absence before the authorities concerned. 16.On the contrary, the petitioner has accepted the fact that he has unauthorisedly absented himself. It is no doubt true that a sworn statement made by the delinquent employee cannot be construed as an admission. But in the present case on hand, the petitioner has not made any contra statement before the Enquiry Officer. His consistent plea before the authorities was that he was sick and therefore he could not be present for duty. He further explained as to why he could not report the matter to the concerned hospital authorities. In other words, the reply of the petitioner was more of a pleading than of a denial. The judgment relied upon by the learned counsel for the petitioner in S.SHANMUGAM vs. PRESIDING OFFICER, LABOUR COURT, VELLORE AND ANOTHER [2005 (1) L.L.N. 404] does not help the case of the petitioner, as in that case no enquiry was conducted and an order adversely affected the rights of the delinquent officer, has been passed based upon a statement. Therefore, this Court finds that considering the facts and circumstances of the case, the charges framed against the petitioner have been proved. It is further to be seen that the petitioner was aware of the relevant rules, even though he pleaded ignorance, as for the similar occurrence, he was imposed with a minor punishment earlier. Hence, this Court finds that the charges framed against the petitioner are duly proved. Whether the Railway Services (Conduct) Rules, 1966 and the Railway Servants (Discipline & Appeal) Rules, 1968 are applicable to the case of the petitioner or not: 17.Admittedly, the respondent No.2 initiated proceedings against the petitioner under the relevant rules. The order of suspension passed against the petitioner has been made under Rule 5 (1) of the Railway Servants (Discipline & Appeal) Rules, 1968 and the consequential order of dismissal passed by the respondent No.2 was https://hcservices.ecourts.gov.in/hcservices/ also for the violation of the Railway Services (Conduct) Rules, 1966. The Honourable Central Administrative Tribunal also interfered with the orders impugned passed by the authorities on merits, which indicates that the petitioner was treated as a temporary employee, to whom the rules are applicable. When the respondent No.2 itself has followed the rules by framing a charge memo, conducting an enquiry, suspending the petitioner and thereafter imposing the order of punishment, it is not open to it to contend that the petitioner, being a lascar, the rules are not applicable. The issue is no longer res integra and the same has been concluded against the respondent No.2 by this Court in W.P.Nos.23044 and 24473 of 2006 decided on 12.01.2011. The passage dealing with the said issue by the learned single Judge of this Court is apposite: "47.Thus, the above-said paragraph makes it clear that substitutes would be entitled to all rights and privileges as are available to temporary Railway servants from time to time on completion of four months' continuous service. Paragraph 1501 defines temporary Railway servant to mean a Railway servant without a lien on a permanent post in the Railways or any other administration or even in the Railway Board. Temporary Railway service, however, does not include casual labour, including casual labour with temporary status, contract or part-time employee or apprentices. Paragraph 1502 deals with termination of service and period of notice. Sub para (6) of paragraph 1502 contains a non- obstante clause to Clauses 1, 2 and 4 that nonwithstanding anything contained therein, if the Railway Servant or an apprentice is one to whom the provisions of the Industrial Disputes Act, 1947 applies, he shall be entitled to notice or wage in lieu thereof, in accordance with the provisions of the Industrial Disputes Act. The note appended below the said paragraph states, where the temporary Railway servant remained absent on extraordinary leave beyond a limit of five years, for whom no show cause notice is required, as in the case of permanent Railway servant, there is no need for issuance of any notice of termination. The Manual also contains Rules governing the pay and protection." 18.A similar view was also taken by this Court in W.P.No.23983 of 2002 decided on 11.12.2009. https://hcservices.ecourts.gov.in/hcservices/ 19.It is further to be seen that the respondent No.1 itself has rejected the contention of the respondent No.2 by holding that the punishment order made in favour of the petitioner itself, would exemplify the fact that the rules are applicable to him. The petitioner was appointed in pursuant to a medical test conducted. The appointment order was issued with the concurrence of the higher officials. The order also further states that the petitioner will be eligible for a regular absorption. Therefore, the Tribunal taking into consideration of the above said facts, has rejected the contention of the respondent No.2. In this connection, it is useful to refer the judgment of the Honourable Apex Court in TELECOM DISTRICT MANAGER AND OTHERS vs. KESHAB DEB [(2008) 8 SCC 402] which is as follows: "22.He, according to the appellants, has committed a misconduct. His services had been terminated on that ground. But therefore he was entitled to an opportunity of being heard. A regular departmental proceeding should have been initiated against him; the order of termination being stigmatic in nature....." 20.Therefore, from the above said position of law, coupled with the facts involved in the present case on hand, it is too late in the day for the respondent No.2 to contend that the petitioner, not being a temporary or a regular employee, the relevant rules are not applicable. Whether the approach of the Labour Court is correct:- 21.The Labour Court strangely after holding that the rules are applicable to the case of the petitioner, rejected the case of the petitioner on the ground that not being a permanent employee, having no lien for the post, he cannot get the relief. This Court is afraid that the approach of the Labour Court is totally wrong and against the basic principles of law. When the Labour Court was of the view that the rules are applicable to the case of the petitioner, the findings of such a nature is totally unwarranted. Admittedly, an enquiry was conducted against the petitioner as per the rules and after providing sufficient opportunities, the charges were held to be proved. Therefore, the Labour Court ought not to have been given such a finding, which has got no relevance to the dispute pending before it. Hence, this Court is of the view that the Railway Services (Conduct) Rules, 1966 and The Railway Servants (Discipline & Appeal) Rules, 1968 are very much applicable to the case of the petitioner and merely because the petitioner is a lascar, he cannot be dismissed as per the whims and fancies of the employer as held by this Court on the earlier occasions. https://hcservices.ecourts.gov.in/hcservices/ Doctrine of Proportionality and inference by the High Court when the punishment is disproportionate: 22.The next issue to be considered in the present case on hand is that of the quantum of punishment that ought to have been passed by the respondents. Considering the facts of the case it is very clear that it is the constant and specific case of the petitioner that only due to the illness, he was unable to attend his work. This Court finds considerable force in the submissions made by the learned counsel for the petitioner that there is nothing on record to substantiate that the petitioner was not ill. The petitioner has also produced the medical certificate in support of his contention. The admission of the petitioner is only to the unauthorised absence, but the same cannot be construed to hold that he was not sick. It is common knowledge that an illiterate person would normally approach the Siddha Doctor for taking treatment for Jaundice. It is also common in this part of the world that people from different strata of the society would approach the native doctors and people well versed with the medicinal herbs for treatment towards Jaundice. There is also no reference to the medical certificate produced by the petitioner in the order passed by the respondent No.2. 23.Considering the above said undisputed facts leading to the factual scenario, the Labour Court ought to have exercised the power under Section 11-A of the Industrial Disputes Act, 1947. Here is a case of an illiterate employee who pleaded before the authorities about his inability to attend work due to his illness. Being a public authority who is supposed to be a model employer, the respondent No.2 ought to have considered the said request and imposed a lesser punishment. As rightly contended by the learned counsel for the petitioner Ms.Anna Mathew, there is no reference in the order passed by the respondent No.2 about the appropriate punishment for the charges proved against the petitioner. The order of dismissal merely states that the unauthorised absence would amount to violation of Rule 3(1)(iii) of the Railway Services (Conduct) Rules, 1966. Further, Rule 3(1)(iii) of the Railway Services (Conduct) Rules, 1966 has no application at all in the present case on hand. Perhaps, what could be applied to the present case on hand is Rule 3(1)(ii) as it stipulates that every railway servant shall at all times maintain the devotion to duty. The said rules are general in nature and there is no indication about the corresponding punishment for their violation. 24.The Labour Court is envisaged with the primary duty to find out as to whether the discretion available under Section 11-A of the Industrial Disputes Act, 1947 can be exercised or not. While exercising the said discretion, the respondent No.1 ought to have https://hcservices.ecourts.gov.in/hcservices/ been taken into consideration, the nature of misconduct of the parties and the manner in which the enquiry proceedings have been conducted. The jurisdiction of the respondent No.1 is rather wide. Considering the charges levelled against the petitioner, this Court is of the view that the respondent No.1 ought to have considered the exercise of the power under Section 11-A of the Industrial Disputes Act, 1947. 25.Considering the scope of Section 11-A of the Industrial Disputes Act, 1947, the Honourable Apex Court in LIFE INSURANCE CORPORATION OF INDIA vs. R.SURESH [(2008) 11 SCC 319] has held as follows: "32.Indisputably again, the jurisdiction must be exercised having regard to all relevant factors in mind. In exercising such jurisdiction, the nature of the misconducts alleged, the conduct of the parties, the manner in which the enquiry proceeding had been conducted may be held to be relevant factors. A misconduct committed with an intention deserves the maximum punishment. Each case must be decided on its own facts. In given cases, even the doctrine of proportionality may be invoked. 33.In fact this Court in Union of India v. J. Ahmed [(1979) 2 SCC 286] opined that negligence by itself may not be held to be a misconduct. The Court stated: (SCC p.293, para 11) “11. … It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance