IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04/10/2002 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA W.P.NO. 6874 OF 1996 Chellamani .. Petitioner -Vs- 1. The Presiding Officer, Labour Court, Cuddalore,. 2. The Management Tanjore District Co-operative Spinning Mills Limited, Manalmedu, Mahiladurai Taluk, Nagai Quide Milleth District. .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorarified Mandamus as stated therein. For Petitioner : Mr. R. Sankara Subbu For Respondent-1: Mrs.Thenmozhi Sivaperumal,A.G.P. Respondent-2: Mr.R. Ragothaman :J U D G M E N T The petitioner has challenged the award dated 18.12.1995 of the Labour Court in I.D.No.565 of 1992 and sought for reinstatement in service with backwages and other attendant benefits. 2. The petitioner was working as Assistant Fitter under the second respondent since January, 1968. A domestic enquiry was initiated against the petitioner mainly on the allegation that he had wilfully absented himself from duty without any prior intimation and he had disobeyed the order of the Management and he had also abused his superior officers. He was found guilty in the domestic enquiry and was terminated from service on 12.6.1991. Ultimately the matter came to the Industrial Forum and under the impugned award the Labour Court has confirmed the order of punishment. The aforesaid award was under challenge. 3. The Labour Court has come to a conclusion that the domestic enquiry was fair. Even on merit, on the basis of the evidence adduced before the Labour Court, it was concluded that the allegations had been proved against the petitioner. 4. Learned counsel for the petitioner has submitted that in the domestic enquiry even though a defence assistant had been permitted, such defence assistant was not allowed to cross-examine. The Labour Court while considering this aspect, on the basis of the materials on record has come to a conclusion that in fact the delinquent did not avail of the opportunity to cross examine the witnesses in the domestic enquiry. This conclusion is fortified by the fact that the petitioner has not chosen to examine the defence assistant in the proceedings in the Labour Court. In respect of the contention that no opportunity of cross-examination was afforded to the delinquent, the finding is essentially a finding of fact and it cannot be characterised as a perverse conclusion so as to warrant interference in a proceeding under Article 226 of the Constitution. 5. Learned counsel for the petitioner has further submitted that one of the charges was relating to unauthorised absence without prior intimation. He has submitted that the relevant service rules applicable to the petitioner contemplate that a person can go on leave without wages for ten days and accordingly even assuming that the petitioner was absent, such a period of absence should be treated as leave without wages. Even if this contention appears logical to some extent, it is seen that no such contention has been raised either before the enquiry officer in the domestic enquiry or before the labour court and since the contention is being raised for the first time in the writ petition, it is not possible to accept the contention of the petitioner. 6. Learned counsel for the petitioner has also attempted to challenge the finding regarding disobedience of the order of the management and abusing the superior officers. He has submitted that the witness, who has supported the management during the domestic enquiry has not implicated the petitioner in his evidence before the labour court and as such, such conclusion is unwarranted. Even if such a submission is acceptable, the fact remains that the conclusion to the effect that the petitioner had disobeyed the management in the matter relating to work appears to be substantiated and the petitioner cannot be exonerated in full. 7. Learned counsel for the petitioner then submitted that the punishment of termination from services is shockingly disproportionate to the nature of delinquency of the petitioner and the Labour Court has not considered this aspect at all. 8. Law is well settled that even where a person is found guilty of some misdemeanour, the Labour Court has jurisdiction to examine under Section 11-A regarding the propriety of the punishment inflicted upon the delinquent. The Labour Court in this case, does not appear to have adverted to this aspect. Of course, the Labour Court has observed : “ . . . The age mentioned in the service register alone should be taken into consideration and in view of that, it is evident now that the petitioner has crossed superannuation and as such no relief would be granted to the petitioner. Hence no relief could be granted to the petitioner. . . .” This conclusion is indicative of the fact that possibly the labour court would have considered the infliction of other punishments, if the petitioner would not have reached the age of superannuation by the time when the matter came to be decided by the labour court. 9. In normal course, I would have remanded the matter to the labour court to consider the question regarding punishment afresh. However, since the matter has remained pending for a long time, first before the Labour Court and thereafter in this Court, it would not be in the interest of justice to remand the matter at this belated stage. Instead the matter may be finalised in this Court. 10. Though the allegations relating to unauthorised absence from duty and disobedience of the order of the management appear to have been proved to some extent, there appears to be niggling doubt regarding the alleged abusing of the superior officers. Keeping in view the nature of proved allegations, the punishment of termination from service appears to be somewhat disproportionate, particularly keeping in view the fact that there is no allegation that there had been dereliction in duty or any misdemeanour on any past occasion. Since the petitioner had already reached the age of superannuation, as per the records maintained by the management, there is no possibility of actual reinstatement of the petitioner. 11. Having regard to these aspects, I think interest of justice would be served by quashing the punishment of termination and by converting it into retirement. It must be taken that the petitioner has retired at the age when he attained the age of superannuation as per the date reflected in the service register maintained by the management and on such basis, the petitioner should be given the retirement benefits. It is however made clear that no amount would be paid towards wages from the date of dismissal till the deemed date of retirement as per the present order. 12. Subject to the aforesaid observations, the writ petition is disposed of. No costs. Index : Yes Internet : Yes dpk To 1. The Presiding Officer, Labour Court, Cuddalore,. 2. The Management Tanjore District Co-operative Spinning Mills Limited, Manalmedu, Mahiladurai Taluk, Nagai Quide Milleth District. P.K. MISRA, J. Judgment in W.P.No.6874/1996 