IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19-03-2010 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN W.P.No.9011 of 2006 and W.P.M.P.No.9976 of 2006 Tamil Nadu State Transport Corporation (Salem) Ltd., Dharmapuri Region, Rep. by its Managing Director. ... Petitioner. Versus 1.The Presiding Officer, Labour Court, Salem. 2.P.Natarajan ... Respondents. Prayer: Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorari, to call for the records of the first respondent in I.D.No.498 of 2004, dated 20.4.2005, and quash the same. For Petitioner : Mr.M.Ravi Bharathi For Respondents : Mr.V.Manisekaran (R2) for Mr.T.Pappaiah Dharmarajan O R D E R This writ petition has been filed praying for a Writ of Certiorari, challenging the award of the first respondent Labour Court, dated 20.4.2005, made in I.D.No.498 of 2004. 2. It has been stated that the second respondent was working, as a conductor, in the petitioner Corporation. While so, he was absent from his duty, without prior permission, from 17.1.2002. Such unauthorized absence is a misconduct, as per the Section 16(E) of the Model Standing Order of the petitioner Corporation. Therefore, a charge memo, dated 6.2.2002, had been issued to the second respondent. The charge memo sent to the second respondent had returned unserved. In order to provide an opportunity of hearing to the second respondent, an enquiry had been ordered. Enquiry notices, dated 16.4.2002, 4.5.2002, 1.6.2002 and 11.7.2002, had been sent, by registered post, with acknowledgement due. However, the said notices had also been returned unserved. Therefore, a paper publication had https://hcservices.ecourts.gov.in/hcservices/ been made in the newspaper `Thina Thanthi’, dated 4.9.2002, stating that the enquiry would be held, on 10.9.2002. 3. It has been further stated that an enquiry had been held against the second respondent, based on the charge memo, dated 6.2.2002. Since, the second respondent had not attended the enquiry it was conducted exparte and a report had been submitted by the enquiry officer, finding the second respondent guilty of the charges levelled against him. Based on the findings in the enquiry, a second show cause notice, dated 23.12.2002, had been issued, proposing the punishment of dismissal from service, on the second respondent, together with the records relating to the enquiry proceedings. The second show cause notice had also been returned unserved. Once again a paper publication was made in the newspaper `Thina Thanthi’, dated 1.3.2003. However, the second respondent had not reported for duty. Based on the spot enquiry, it was ascertained that the second respondent had been arrested by the police in a murder case, in Crime No.292/89, on the file of Mathikonpalayam Police Station. 4. It was also found that the second respondent had been convicted by the Krishnagiri Sessions Court, in S.C.No.5 of 1991 and he was awarded life sentence, vide judgment, dated 24.11.1994. The appeal filed by the second respondent to the High Court of Judicature at Madras had also been dismissed. As such, the second respondent had been imprisoned in Vellore Central Jail, from 18.1.2002. After taking into account the enquiry report and in view of the life sentence imposed on him, the second respondent had been dismissed from service, vide order, dated 1.7.2003. Thereafter, the second respondent had raised an industrial dispute before the first respondent Labour Court in I.D.No.498 of 2004, challenging the order, dated 1.7.2003, dismissing the second respondent from service. 5. It has been further stated that the second respondent had not challenged the validity of the domestic enquiry. The first respondent Labour Court, based on the evidence available, had come to the conclusion that the unauthorized absence of the second respondent from his duty had been proved. However, the first respondent Labour Court had held that, since, no charge had been framed against the second respondent, with regard to the criminal case, he cannot be dismissed from service on that ground. Hence, the first respondent Labour Court had set aside the order of dismissal and had directed the petitioner Corporation to reinstate the second respondent in service, with continuity of service and without backwages and other benefits. Aggrieved by the order of the first respondent Labout Court, the petitioner Corporation has filed the present writ petition before this Court, under Article 226 of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/ 6. The main contention of the learned counsel for the petitioner Corporation is that when the first respondent Labour Court had held that the enquiry conducted against the second respondent workman was fair and proper and his unauthorized absence had been proved, it was not open to the first respondent Labour Court to set aside the order passed by the petitioner Corporation, on 1.7.2003, dismissing the second respondent from service. 7. The learned counsel had also submitted that the first respondent Labour Court cannot invoke the power, under Section 11-A of the Industrial Disputes Act, 1947, to interfere with the punishment of dismissal from service imposed on the second respondent workman and to direct the petitioner Corporation to reinstate the second respondent workman in service, with continuity of service, without backwages and other attendant benefits. 8. It had also been submitted that the first respondent Labour Court had erred in taking the view that there was no charge against the second respondent workman for having been involved in the criminal case and that the second respondent had explained the reasons for his unauthorized absence. The first respondent Labour Court was not right in coming to the conclusion that the punishment of dismissal from service, imposed on the second respondent was disproportionate in nature. 9. The learned counsel appearing on behalf of the petitioner Corporation had relied on the decision, reported in State of Punjab and others V. Sukhwinder Singh (2008 STPL (LE) 40194 SC), wherein, it had been held that public interest must overweigh private considerations. Therefore, repeated absenteeism was found to be sufficient to impose the punishment of dismissal from service on the employee. He had also relied on a decision, reported in Divisional Manager, Rajasthan S.R.T.C. Vs. Kamruddin (2009 STPL (LE) 42104 SC), wherein, it had been held that when the domestic enquiry was found to have been conducted, fairly, the power of the Labour Court to interfere with the quantum of punishment imposed on the workmen, by the employer, based on the findings of the domestic enquiry should be exercised, judiciously. 10. Per contra, the learned counsel appearing on behalf of the second respondent had submitted that the first respondent Labour Court has the power to modify the punishment imposed on the workman, by the Corporation, under Section 11-A of the Industrial Disputes Act, 1947. Eventhough the enquiry conducted by the petitioner Corporation, with regard to the charges levelled against the second https://hcservices.ecourts.gov.in/hcservices/ respondent workman, could not be faulted, the first respondent Labour Court had clearly found that the punishment of dismissal from service imposed on the second respondent workman was disproportionate in nature. Further, the first respondent Labour Court had found that there was no charge against the second respondent workman, with regard to his involvement in the criminal case. 11. It has also been found that, in the explanation submitted by the second respondent, the second respondent’s absence from duty had been sufficiently explained. Therefore, the first respondent Labour Court had rightly modified the punishment of dismissal from service, imposed on the second respondent by the petitioner Corporation and had directed the petitioner Corporation to reinstate the second respondent in service, with continuity of service, without backwages and other attendant benefits. As such, the writ petition filed by the petitioner Corporation is devoid of merits and therefore, it is liable to be dismissed. 12. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the second respondent and on a perusal of the records available, and in view of the decisions cited above, this Court is of the considered view that the award of the first respondent Labour Court, dated 20.4.2005, made in I.D.No.498 of 2004, cannot be sustained. The first respondent Labour Court had invoked the power, under Section 11-A of the Industrial Disputes Act, 1947, to modify the punishment imposed on the second respondent workman, without having proper reasons to do so. 13. Once the first respondent Labour Court had found that the absence of the second respondent from duty was unauthorised and that the second respondent had been involved in a criminal case, in which he was sentenced for life, by the Sessions Court, Krishnagiri, in S.C.No.5 of 1991, it is not proper for the first respondent Labour Court to take a sympathetic view in favour of the second respondent workman, by passing an award directing the petitioner Corporation to reinstate the second respondent workman in service, with continuity of service. 14. The award passed by the first respondent Labour Court, on 20.4.2005, seems to be based on misplaced sympathy in favour of the second respondent workman. Further, when the enquiry conducted by the petitioner Corporation, with regard to the charges levelled against the second respondent workman, was held to be fair and proper and when the charges levelled against the second respondent workman were https://hcservices.ecourts.gov.in/hcservices/ grave in nature, it would not be open to the first respondent Labour Court to invoke the power, under Section 11-A of the Industrial Disputes Act, 1947, to interfere with the punishment imposed on the second respondent workman, by the petitioner Corporation. In such circumstances, the award of the Labour Court, dated 20.4.2005, made in I.D.No.498 of 2004, is set aside. Accordingly, the writ petition stands allowed. No costs. Consequently, connected writ petition miscellaneous petition is closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar csh To The Presiding Officer, Labour Court, Salem. +1 CC to Mr.M.Avibharathi Advocate, Sr.18253 +1 CC to M/s. V.ManiSekaran Advocate, Sr.18252 W.P.No.9011 of 2006 AKR (CO) BMD 31/03/2010 https://hcservices.ecourts.gov.in/hcservices/