IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.12.2009 CORAM THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN W.P.No.12062 of 2003 The Managing Director Tamil Nadu State Transport Corporation (Salem Division II) Ltd., Bharathipuram, Dharmapuri. .. Petitioner Vs. 1. K.V. Krishnan 2. The Presiding Officer, Labour Court, Salem. .. Respondents The Writ Petition has been filed Under Article 226 of the Constitution of India for issuance of a Writ of Certiorari, to call for the records dated 10.06.2002 and made in I.D.No.624/2000 on the file of the Labour Court, salem the second respondent herein and quash the same. For Petitioner : Mr.M.Ravi Bharathi For Respondents : Mr.S.T. Varadharajalu Amicus Curiae ORDER The Tamil Nadu Transport Corporation is agrieved by the award passed by the Tribunal (Labour Court) setting aside the order of dismissal passed by the petitioner and reinstating the first respondent without backwages. 2. The facts of the case are as follows:- The first respondent joined as a driver in the petitioner's Corporation on 1988. While he was on duty, on 04.12.1996, he was involved in an accident and he sustained fracture on his chest. The petitioner Tamil Nadu Transport Corporation suspended him from service from 31.12.1996. The suspension was revoked on 03.12.1997. https://hcservices.ecourts.gov.in/hcservices/ He was permitted to join duty from 07.12.1997. He was allotted duty in Krishnagiri K.G.F. route. The first respondent agreed and said that after taking food he would operate the bus. However, he never reported back. Hence, he was issued a charge memo on 24.02.1997 and enquiry notice was issued on 26.06.1997 fixing the enquiry on 17.07.1997. Inspite of the receipt of the notice, the first respondent did not participate in the enquiry and the exparte enquiry was conducted. The Enquiry Officer gave a finding that the charges against the first respondent were proved as the first respondent absented himself from duty without prior intimation and caused loss to the petitioner/Tamil Nadu Transport Corporation thereby violated rule 14(3) of the Model Standing Order. 3. Based on the enquiry report, the petitioner/Corporation issued second show cause notice on 04.10.1997. In respect of the said show cause notice, no reply came from the first respondent and finally, the first respondent was dismissed from service on 04.11.1997. After the Labour Officer reported failure of the conciliation, initiated by the first respondent, the industrial dispute was raised by the petitioner. 4. The first respondent contended before the Labour Court that he was unable to report to the duty as he sustained injuries in the chest and liver got enlarged because of the injuries. As a result he could not report to the duty. Without taking into consideration of the said fact that he met with an accident, the petitioner suspended him and conducted ex parte enquiry and dismissed him from service. The petitioner's contention was that because of the injuries sustained in the accident and the subsequent hospitalisation, the petitioner could not report to the duty. The petitioner submitted before the Labour Court that the first respondent absented himself unilaterally without reporting to the duty and he was suspended which was subsequently withdrawn. After giving adequate opportunities to the first respondent the enquiry was conducted in which the first respondent did not participate and he invited the order of dismissal. 5. The Labour Court after appreciation of the pleadings and evidence on record, concluded in paragraph 8 of the award, that the enquiry was conducted in a fair and proper manner. Even though the first respondent did not produce any documents, to prove his contention that he was taking treatment he could not produce the documents at the time of enquiry. In paragraph 10 of the award, the Tribunal held that even though absence from duty without intimation, was indiscipline on the part of the first respondent, the dismissal from service was found to be disproportionate. The said finding was given taking into consideration the past record of the first respondent as he did not indulge in any such activities earlier. By virtue of Section 11A of the Industrial Disputes Act, the Labour Court set aside the order of dismissal and reinstated the first respondent without backwages. Aggrieved by that, the https://hcservices.ecourts.gov.in/hcservices/ petitioner/Corporation has approached this Court challenging the said award. 6. Mr.Ravi Bharathi, the learned counsel for the petitioner submitted that the first respondent/employee was dismissed from service because he was absented himself from reporting duty and continued to absent for more than 9 months. Secondly, he has submitted that when the petitioner Corporation imposed punishment, the Labour Court, without any reason, set aside the same and the same is not permissible in law. Thirdly, the learned counsel submitted that enquiry was found to be fair and proper and the Labour Court also found that there was no proof to show that the first respondent was taking treatment at the particular point of time, the Labour Court ought not to have interfered with the punishment. He relied upon the recent judgment of the Supreme Court in New India Assurance Co. Ltd., Vs. Vipin Behari Lal Srivastava reported in AIR 2008 SC 1525 = 2008 3 SCC 446, Tushar D. Bhatt Vs. State of Gujarath & another reported in 2009 STPL (LE) 4142 = 2009 11 SCC 678, L&T Komatsu Ltd., Vs. N. Udayakumar reported in CDJ 2002 SC 1306 = 2008 1 SCC 224, Karnataka Bank Ltd. Vs. A.L Mohan Rao reported in 2006 1 SCC 63, G. Vijayan Vs. the Presiding Officer, Labourt Court, Salem and another reported in CDJ 2007 MHC 3398 = 2007 5 MLJ 1331 to contend that when the workman absented unauthorisedly and the Labour Court found the enquiry was held to be fair and proper, the Labour Court cannot interfere with the punishment. 7. As the second respondent did not appear either in person or through advocate, this Court requested Mr. Varadharajalu to assist the Court. The learned counsel supported the award passed by the Tribunal and submitted that it is the admitted fact that the accident occurred on 04.2.1996 and consequently he was admitted in the hospital and was taking treatment. As a follow up, the first respondent was suspended on 08.01.1997 and the same was revoked on 07.02.1997 on which date the first respondent reported to the duty and could not join duty as he was not alright due to the accident. The third factor is that he did not attend duty as subsequently the first respondent met with an accident and was taking treatment in the hospital. Moreover he submitted that the first respondent, furnished the reason as to why inspite of the receipt of notice he could not take part in the enquiry proceedings. Though the petitioner Management knew about the accident, subsequently the first respondent was suspended and was dismissed pursuant to the domestic enquiry conducted by the petitioner. 8. Proceedings were filed before the Labour Officer and the Labour Officer reported failure of the conciliation and the first respondent approached the Labour Court. The Labour Court though held that there was no proof regarding the first respondent health conditions, still the Labour Court under Section 11A of the https://hcservices.ecourts.gov.in/hcservices/ Industrial Disputes Act, interfered with the punishment as the punishment was found to be disproportionate to the charge of absence from duty. Once the Labour Court, exercised its jurisdiction invoking Section 11A of the Act and interfered with the order of punishment, the learned counsel for the first respondent submitted that the finding given by the Labour Court and the punishment based on that finding cannot be set aside by this Court under Article 226. He further submitted before the Labour Court that the first respondent as per Section 11A of the Industrial Disputes Act cannot be permitted to produce any fresh evidence and shall rely on the materials on record which were not relied on during the enquiry. The Labour Court is prohibited from taking any fresh evidence in relation to the matter, in view of the fact that the first respondent was handicapped and therefore he could not produce any documents at the time of enquiry with regard to his treatment. He relied upon the decisions of the Supreme Court in Managing Director, Balasaheb Desai Sahakari S.K. Ltd. Vs. Kashinath Ganapathi Kambale reported in (2009) 2 SCC 288, Pepsu Road Transport Corporation and Rawel Sing reported in 2008-II- LLJ- 625 (SC) = 2008 4 SCC 42, Managing Director, Tamil Nadu State Transport Corporation Limited Vs. the Presiding Officer and another reported in CDJ 2009 MHC 5511 and an unreported judgment of Justice K.Mohan Ram in W.P 1022 of 1998 Tamil Nadu Road Transport Corporation Vs. the Presiding Officer and another to contend that when the Tribunal exercised its jurisdiction and modified the punishment, the same cannot be interfered and the punishment of dismissal from service cannot be inflicted in respect of a single incident of unauthorised absence. The learned counsel further submitted that the judgments relied upon by the counsel for the petitioner related to the case where there were previous incidents of unauthorised absence coupled with other misconducts on the part of the employee and therefore those judgments are not applicable to the facts of this case. Accordingly he submitted that the award of the Labour Court cannot be interfered with. 9. Admittedly, the accident took place on 04.12.1996 and from which date onwards the first respondent did not attend the work and as a result, he was suspended on 08.01.1997 which was revoked on 07.12.1997. The third factor is that he was not reporting for duty subsequent to the accident would show that there was a possibility of the first respondent getting injury in the accident and taking treatment. The presumption is fortified by the statement of the first respondent before the Labour Court that he had sustained injuries in the chest and his liver enlarged because of the injuries. Even though the first respondent challenged the order of dismissal inspite of the fact the he did not participate in the enquiry, he contended before the Labour Court that because of the injuries and the treatment he could not attend the duty and enquiry. The Labour Court rightly held that there was no proof with regard to the treatment taken by the first respondent. As rightly pointed out by https://hcservices.ecourts.gov.in/hcservices/ Mr. Varadharajalu, amicus curiae that there is a prohibition under Section 11A of the Act to let in evidence which was not available before the domestic enquiry. It was stated by the Supreme Court in Krishna Kumar Agrawal and others Vs. Jai Kumar Jain and another reported in AIR 1997 SC 300 that the Tribunal should confine itself to the evidence already on record and only when the enquiry was found to be defective the Tribunal could take fresh evidence to decide the merits of the charges. Whereas in this case the Tribunal found that the enquiry was fair and proper and therefore the first respondent/workman was prohibited from taking any fresh evidence and even if any evidence was adduced the same could not be relied upon by the Labour Court. In such a situation the second respondent/ Labour Court could not have given a finding that the first respondent did not give any proof regarding the treatment taken by him. 10. Section 11A of the Industrical Disputes Act 1947 empowers the Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workman. The said discretion of the Labour Court was rightly invoked by the Labour Court, judiciously and set aside the order of dismissal stating that single incident of unauthorised absence would not render dismissal of the first respondent from service and reinstated the first respondent without backwages. 11. The judgment relied upon by the learned counsel for the petitioner in the case of Karnataka Bank Ltd., reported in 2006(1) SCC 63 referred above is about the powers of the disciplinary authority to impose punishment. In that case the delinquent officer colluded with the Branch Manager regarding grant of loan and the delinquent officer admitted all the acts. The punishing authority dismissed the workman which was confirmed by the Labour Court and subsequently reversed by the High Court and on appeal the Supreme Court held that there was a gross misconduct in financial matter. The case on hand is not with regard to the financial mismanagement and it is only an unauthorised absence. Hence this judgment is not applicable to the present case. As far as the judgment reported in AIR 2008 SC 1525 is concerned, the workman therein absented himself for 600 days without any leave application and inspite of notice to rejoin the duty and that as the workman did not attend, he was dismissed and the Supreme Court upheld the order of dismissal. There is another judgment of the Suprme Court in the case reported in CDJ 2007 SC 1306. It was a case of habitual absenteeism Committed by the workman. Taking into the consideration of that fact, the Honourable Supreme Court confirmed the order of dismissal reversing the judgment of the High Court. Similarly, in judgment reported in 2009 STPL (LE) 4142 SC, the workman absented for more than six months coupled with transfer order and giving threatening letter to the superiors and therefore the Honourable Supreme Court upheld the dismissal order. As far as the other judgment CDJ 2007 MHC 3398 is concerned, https://hcservices.ecourts.gov.in/hcservices/ in that case also the previous records of workman was full of punishments for frequent unauthorised absence, that too, following an accident of the bus in which he was driving. Therefore, all the above judgments, would not help the petitioner. In the judgments, reported in 2009 (2) SCC 288, it was held that the Labour Court, while exercising its jurisdiction under Section 11A of the Industrial Disputes Act, 1947, is entitled to consider as to whether the punishment awarded is wholly disproportionate to the charge levelled against the delinquent employee or not. But it is well known that the discretion vested in the Labour Court, must be exercised in Judicious manner. It was also decided in Pepsu Road Transport Corporation reported in 2008-II-LLJ-625 that the order of the Labour Court awarding dismissal of workman for absence for a few days was found to be excessive and the said order was interfered by the Honourable Supreme Court. The above judgment, would demonstrate that a single incident of absence, would not invite the order of dismissal. Apart from that, when the Labour Court had taken into consideration of these facts and as a consequences interferred with the punishment the same cannot be set aside by this Court. As stated earlier, dismissal order for single incident of unauthorised absence was found to be disproportionate. The punishment, as rightly found by the Labour Court, cannot be interfered with by this Court. Apart from that, the Labour Court rightly exercised its jurisdiction in favour of the workman and this Court is unable to interfere with the said findings. 12. The award can be interfered if the Labour Court passed the wrong award in the light of the judgments produced by the learned counsel for the petitioner. Mr.Varadharajalu, amicus curiae is justified in supporting the judgment of the Labour Court and produced very relevant judgments with regard to the powers of the Labour Court and convinced this Court that the order passed by the Tribunal requires no interference. This Court appreciates Mr.Varadharajalu who rendered his service as amicus curiae to sustain the order very effectively. 13. Accordingly, the writ petition is dismissed. However there is no order as to costs. Sd/- Assistant Registrar / True Copy / Sub Assistant Registrar ssj https://hcservices.ecourts.gov.in/hcservices/ To The Presiding Officer, Labour Court, Salem. + One CC to Mr.M.Ravi Bharathi Advocate Sr.66476 + One CC to Mr.S.T.Varadarajulu Advocate Sr.67015 W.P.No.12062 of 2003 MSM(CO) https://hcservices.ecourts.gov.in/hcservices/