IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.12.2010 CORAM THE HONOURABLE MR.JUSTICE B. RAJENDRAN W.P.No.20627 of 2003 and W.P.M.P.No.25713 of 2003 ` and W.P.M.P.No.210 of 2004 The Management, Tamilnadu State Transport Corporation, (Coimbatore Division-II) Ltd.,Chennimalai Road, Erode-638 001. ... Petitioner Vs. 1.The Presiding Officer, Labour Court Salem Camp at Erode. 2.J.William Tanies ... Respondents Prayer: The Writ Petition filed under article 226 of the constitution of India praying for a writ of Certiorari calling for the records pertaining to order dated 15.5.2002 passed in I.D.No.755 of 1998 on the file of Labour Court Salem Camp at Erode and quash the same and pass such other further orders. For Petitioner : Mr. T.Chandrasekaran For Respondents: Mr.V.Ajaykhose for R2 O R D E R The Management has come forward with the present writ petition against the order of the Labour Court in awarding the reinstatement order without backwages for an employee who has absented himself without leave. 2. The contention of the petitioner is that the second respondent has deliberately absented himself from attending duty from 25.8.1990 without any authorisation or intimation or any kind of permission and this caused dislocation of the services in operation of the buses which caused difficulty for the public and revenue loss to the petitioner Corporation and inspite of issuance of the charge sheet, he did not submit any explanation. Even after the domestic notice, though the petitioner fixed an enquiry on 26.12.90, he did not appear in person. Ultimately, the enquiry officer after examining the witness and the documentary evidence, found the second respondent guilty. Subsequently, a second show cause notice was also issued. As the reply https://hcservices.ecourts.gov.in/hcservices/ submitted by him was not satisfactory, he was terminated from service by an order dated 9.2.91, with effect from 15.2.1991. Aggrieved against that order, the second respondent preferred an application with the Industrial Dispute Act before the Labour Court, Salem Camp, Erode in I.D.No.755 of 1998 and the Labour Court by order dated 15.5.2002 had passed an order of reinstatement of the second respondent without backwages but with continuity of service and postponement of increment for a period of one year with cumulative effect. 3. Aggrieved by the said order, the petitioner Management has come forward with the present writ petition, on the ground that the 2nd respondent was unauthorisedly absented himself from duty on 25.8.90 without any permission/intimation nor producing any medical certificate and therefore he ought not have been granted reinstatement is the main line of attack by the petitioner. 4. The learned counsel appearing for the second respondent would vehemently contend that taking into consideration that the absence was only for a small period of nearly 30 days, issuing a charge for a mere absence for 30 days, and imposing the said punishment was harsh and merely because a person accepted his absence would not make it a ground for punishing him. In such circumstances, he relied upon the judgement of the Supreme Court in Chairman cum Managing Director, Coal India Limited and another Vs.Mukul Kumar Choudhuri and others reported in (2009) 8 MLJ 460 (SC) wherein it is held that the punishment awarded by the authority including denial of backwages and increment cut for one year is more than enough and the order of reinstatement is valid. He would also contend that he has been reinstated from service as early as in 2003 and he continues in service. In these circumstances, he would only plead that the punishment was very severe and harsh and rightly been modified by the Labour Court and the Labour Court award dated 15.5.2002 is fair and reasonable. 5. Heard both parties. 6. The only point for attack by the Management is that the unauthorised absence for a period of 30 days has been admitted by the second respondent/employee. Under these circumstances, the Labour Court ought not to have cancelled the order of termination and awarded reinstatement. Though the award does not specify for the payment of wages and denial of backwages to him, the reduction in the punishment, by setting aside the mere termination is not legally correct. They would only contend that once an employee accepts the guilt, it is not more necessary for the Management to seek any other thing and even though an exparte order passed, when the second show cause notice was given, he had admitted the offence. Therefore, they would only contend, the Labour Court ought not have set aside the order. 7. In this connection, learned counsel for the second respondent would rely upon the decision of the Supreme Court in Chairman cum Managing Director, Coal India Limited and another Vs.Mukul Kumar Choudhuri and others reported in (2009) 8 MLJ 460 (SC), wherein an employee has absented without leave for a period of six months and https://hcservices.ecourts.gov.in/hcservices/ in that case also, the employee also has accepted the punishment, and the Supreme Court had categorically stated that doctrine of proportionality was a well recognised concept of judicial review in its jurisprudence and ultimately held that the punishment of termination was unduly harsh and excessive and denial of backwages for the entire period by way of punishment would be just and adequate. Paragraph No.26 of the abovesaid judgement held as follows: "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, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess 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 in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorised 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 nor desired to disobey the order of higher authority or violate any of the Company's 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 of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in 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 back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months." 8. It is brought to the notice of this Court the decision of this Court in Union of India, rep. by the Chief Workshop Manager, Southern Railway, Madras Vs.Registrar, Industrial Tribunal, Chennai and another reported in 2010-III-LLJ-349 (Mad), wherein the Hon'ble Single Judge of this Court by relying upon the decision of the Supreme Court in the case of Chairman cum Managing Director, Coal India Limited vs. Mukul Kumar Choudhuri reported (2009) 8 MLJ 460 (SC) dismissed the writ petition. That was a case where the Southern Railway Khalasi who has https://hcservices.ecourts.gov.in/hcservices/ absented from duty for 101 days was removed from service, and the Hon'ble Court holding that the punishment is shockingly disproportionate, has categorically held that normally the absence will have to be viewed strictly and no indulgence should be shown, but 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 which is more sufficient in this case. 9. Taking into consideration that the Tribunal has correctly applied the theory under Section 11-A of the Industrial Disputes Act and awarded punishment of denial of backwages and also cut in the increment for a period of one year, I am of the view that it would be sufficient for an unauthorised absence of 30 days. 10. Under those circumstances, I do not find any reason to interfere with the findings of the Tribunal and following the decision of the Supreme Court and the judgement of this Hon'ble Court, the writ petition is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar aes To The Presiding Officer, Labour Court Salem Camp at Erode. +1cc to Mr.T.Chandrasekaran, Advocate Sr 92051 +1cc to Mr.V.Ajaykhose, Advocate Sr 91869 VD(CO) km/11.1. W.P.No.20627 of 2003 https://hcservices.ecourts.gov.in/hcservices/