IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.02.2010 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P.No.30815 of 2007 and M.P.No.1 of 2007 The Managing Director, Metropolitan Transport Corporation Ltd., Pallavan House, Anna Salai, Chennai – 600 002. ... Petitioner Vs. 1.The Presiding Officer, II Additional Labour Court, Chennai – 600 104. 2.P.N.Annasamy ... Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Certiorari or direction in the matter of writ calling for records in I.D.No.216/98 dated 23.11.2005 on the file of the 1st respondent and quash the same and pass such further orders. For Petitioner :Mr.G.Muniratnam For Respondent :Mr.C.Manohar for R2 R1 :Court ORDER The present writ petition is directed against the order passed by the II Additional Labour Court in I.D.No.216/98 dated 23.11.2005 on the ground that the order of removal passed by the petitioner herein was challenged before the II Additional Labour Court after a huge delay of 15 years. 2. Learned counsel appearing for the petitioner submits that though the claim of the 2nd respondent was barred by time, the learned II Additional Labour Court, by ignoring the same, has allowed the I.D.No.216/98 by directing the management/petitioner https://hcservices.ecourts.gov.in/hcservices/ herein to reinstate the 2nd respondent with 50% backwages from the date of removal of the 2nd respondent. 3. The 2nd respondent was employed as a conductor in the erstwhile Pallavan Transport Corporation Ltd., now renamed as Metropolitan Transport Corporation Ltd. When he was working as a conductor, he absented himself from duty without any intimation or prior sanction of leave from 08.07.1983 onwards. Therefore, the Branch Manager of the petitioner has sent a report about the unauthorised absence of the 2nd respondent, by letter dated 18.7.83, and based on the above report, a direction memo dated 25.7.83 was sent directing the 2nd respondent to report for duty within three days from the date of receipt of the memo and to furnish his explanation within seven days from the date of receipt of the memo, failing which, it would be deemed that he had no explanation to offer and he would be deemed to have left the employment on his own accord and as a result, his name would be removed automatically from the rolls of Corporation. Rule 11 (c) of the Certified Standing Orders of the petitioner, as extracted hereunder: If a worker is absent without leave for more than eight consecutive days he shall be deemed to have left the employment unless he gives explanation to the satisfaction of the Management for such absence in which case the period of absence shall be treated as leave without wages. Though the 2nd respondent acknowledged the above said memo, he neither reported for duty nor submitted any explanation, and, therefore, the 2nd respondent's name was removed from the rolls of the Corporation by an order dated 23.8.83, which is in consonance with Rule 11 (c) of the Certified Standing Orders of the petitioner/Transport Corporation. Aggrieved by the above said order of removal from the rolls of Corporation, the 2nd respondent raised an Industrial Dispute in I.D.No.216/98 after a lapse of 15 years, seeking reinstatement of the petitioner in service with backwages, continuity of service and all other consequential benefits, on the sole ground that there was no enquiry conducted before passing an order of dismissal. 4. The main thrust of the argument made by the learned counsel appearing for the petitioner is that there is an enormous and unexplained delay of 15 years in challenging the order of dismissal before the labour court. In support of his submission, learned counsel also relied upon the judgements of Supreme Court in the case of Nedungadi Bank Ltd. v. K.P.Madhavankutty reported in AIR 2000 SCC 839 and in the case of Krishi Utpadan Mandi Samiti v. Pahal Singh reported in 2007-II-LLJ 713. In view of the principle enunciated in the above said judgements, when there has been an unexplained delay of 15 years, the labour Court ought not to have entertained the claim of the respondent in the light of the dictum of the Supreme Court, but, whereas, the labour court has allowed https://hcservices.ecourts.gov.in/hcservices/ the petition. Therefore, he prayed for setting aside the order of the labour court. 5. In reply, learned counsel appearing for the 2nd respondent submits that, for three reasons, the labour court has allowed the claim made by the 2nd respondent. Firstly, the petitioner, before removing the name of the 2nd respondent from the rolls of the Corporation from 23.8.83, the petitioner has not conducted any enquiry. Therefore, the order of removal is violative of Rule 11 (c) of the Certified Standing Orders. Secondly, it was submitted that, immediately after the removal of the name of the 2nd respondent from the rolls of the Corporation, the petitioner should have obtained the approval of the Industrial Tribunal as contemplated under Section 33-2(b) of the Industrial Disputes Act. Admittedly, in this case, the petitioner/Transport Corporation has not obtained the approval as contemplated under Section 33-2(b) of the Industrial Disputes Act. Thirdly, the 2nd respondent, immediately after the removal of his name from the rolls of the Corporation, has sent a detailed representation to the Chairman of the Transport Corporation/petitioner herein, mentioning the violation of Rule 11 (c) of the Certified Standing Orders as well as failure of the petitioner to obtain the approval of the Industrial Tribunal under Section 33-2(b) of the Industrial Disputes Act. Since there was no response whatsoever from the Chairman, Pallavan Transport Corporation, Chennai, he made a detailed representation dated 26.8.83, which was marked as Ex.W.2. After that, a communication dated 8.5.89 was sent to Transport Minister, Government of Tamil Nadu, which was also marked as Ex.W.3, besides a letter dated 10.03.97 sent by the 2nd respondent's wife to the Chief Minister of Tamil Nadu, which was also marked as Ex.W.4. Therefore, since none of these persons responded to the plight of 2nd respondent, the 2nd respondent raised an Industrial dispute before the Conciliation Officer and the Conciliation failure report dated 13.2.98 is marked as Ex.W.5 and thereafter, the 2nd respondent filed an affidavit, stating that due to his illness and poverty, he was not able to proceed before the Labour Court. Finally, the claim was made before the learned II Additional Labour Court and the learned II Additional Labour Court having seen the violation of Rule 11 (c) of the Certified Standing Orders as well as under Section 33-2(b) of the Industrial Disputes Act, came to the conclusion that the delay has been explained. Taking into account the representation made by the 2nd respondent dated 26.8.83, another representation dated 08.05.1989 made to the Transport Minister and further representation made to the Chief Minister on 10.03.1997 and the Conciliation failure report dated 13.2.1998, the labour court came to the conclusion that the claim of the petitioner should be allowed, as the delay has been explained. Therefore, the violation made by the petitioner in terms of Rule 11 (c) of the Certified Standing Orders as well as under Section 33-2(b) of the Industrial Disputes Act, cannot be https://hcservices.ecourts.gov.in/hcservices/ espoused, so as to deprive the legal benefits to which the 2nd respondent is entitled. Further, it was also brought to the notice of the court that the labour court has passed an award directing the petitioner to reinstate the 2nd respondent in service with 50% of the backwages, which is also not a large amount. In view of the above, prayer was made to dismiss the writ petition. 6. Heard the learned counsel appearing on either side and perused the materials available on record. 7. Admittedly, the 2nd respondent was removed from the rolls of the Corporation by the petitioner by an order dated 23.08.1983. The petitioner should have sought for an explanation and should have conducted an enquiry, which admittedly has not been done as per Rule 11 (c) of the Certified Standing Orders of the petitioner. Further, the second breach committed by the petitioner Corporation is that, they ignored the mandatory duty as contemplated under Section 33-2(b) of the Industrial Disputes Act, which states that after the removal of any workman/employee from the service of the Corporation, the Management/Employer should obtain an approval from the competent authority, namely, Industrial Tribunal in this case. The reasoning given by the labour court while dismissing the argument advanced by the petitioner herein also appears to be correct, on a bare reading of the order as well as the other records made available before this court. Immediately after the removal order passed by the petitioner Corporation, the 2nd respondent has made a detailed representation before the Chairman of the Metropolitan Transport Corporation by praying to consider his case and pass an order on his representation. Till now, the Chairman of the Metropolitan Transport Corporation has not considered the representation made by the 2nd respondent. Thereafter, the 2nd respondent, however, kept quiet for a long time, made a representation dated 08.05.1989 to the Transport Minister and thereafter, the poor 2nd respondent has also sent a detailed representation dated 10.03.1997 to the Chief Minister, but, there was no response. Therefore, the 2nd respondent raised an Industrial Dispute before the Conciliation officer. Unfortunately, the Conciliation officer filed a failure report dated 13.02.1998, which was also marked as Ex.W.5. 8. The learned II Additional Labour Court has considered all the above facts and also relied on the several judgements of the Apex Court reported in 1997(2) L.L.J. Page 519 as well as 1999 AIR SCW page 1051. In the above said cases, the ratio laid down was that mere delay in raising an industrial dispute does not disentitle a workman for the relief sought. Applying the principle enunciated in the above said judgements, the II Additional Labour Court came to the conclusion that the claim made by the petitioner cannot be rejected on the ground of delay, for the reason that the petitioner was not keeping quiet, on the other hand, he made https://hcservices.ecourts.gov.in/hcservices/ representation to the Chairman of the Metropolitan Transport Corporation and also having waited for a long time, the 2nd respondent made a representation to the Minister of Transport as well as Chief Minister and also approached the Conciliation Officer. 9. In this view of the matter, as rightly held by the learned II Additional Labour Court, the argument of the petitioner to dismiss the writ petition on the ground of delay and to set aside the award passed by the Labour Court is not acceptable. Further, the calculation as worked out by the learned counsel appearing on either side on the basis of 50% backwages also not appear to be a huge amount to cause the financial burden on the petitioner Corporation. Therefore, this court is not inclined to grant the relief as sought for in the writ petition. Accordingly, the writ petition is dismissed. No Costs. Consequently, connected M.P.No.1/07 is closed. rkm Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Presiding Officer, II Additional Labour Court, Chennai – 600 104. 2.The Section Officer, VR Section, High Court, Madras.104. + 1 cc to Mr. C. Manohar, Advocate SR No.9207 + 1 cc to Mr. G. Muniratnam, Advocate SR No.9790 VSV(CO) SR/25.3.2010 W.P.No.30815/2007 https://hcservices.ecourts.gov.in/hcservices/