IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 19-08-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.869 of 2001 T.N.Andal .. Petitioner. Versus 1.The Chairman, Tuticorin Port Trust, Tuticorin. 2.The Presiding Officer, Industrial Tribunal, Chennai. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorarified Mandamus, to call for the records from the 2nd respondent connected with the Award, dated 14.6.1999, passed in I.D.No.63 of 1993, which was published in Gazette of India No.43, dated 23.10.1999 and quash the same and consequently direct the first respondent to reinstate the petitioner in service with all consequential and attendant benefits. For Petitioner : M/s.Paul and Paul For Respondent : Mr.S.Yashwanth (R1) O R D E R Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the first respondent. 2. The above writ petition has been filed challenging the award of the second respondent Industrial Tribunal, Chennai, dated 14.6.99, made in I.D.No.63 of 1993, rejecting the petitioner's claim for reinstatement, with all attendant benefits. The petitioner has stated that she had joined in the service of the first respondent Port Trust, on 15.12.1979, as a Lower Division Clerk. She has a blemishless record of service. While so, she had given birth to a female child, on 8.2.86. Thereafter, she had given birth to a second child, on 17.10.87. She had availed Maternity leave of 90 days, https://hcservices.ecourts.gov.in/hcservices/ during the birth of the first child, as per the entitlement. She had availed the leave from 8.2.86 to 8.5.86. Since the first child was suffering from certain ailments, she had applied for extension of leave from 8.5.86 to 7.7.86 and it was sanctioned by the authorities concerned. Subsequent to the expiry of the leave, the petitioner had suffered due to ailments and therefore, she was constrained to apply for further extension of leave from 8.7.86 to 5.10.86, on personal medical grounds. However, on the expiry of the said leave, she could not report back for duty owing to continued medical problems, due to which she had further extended her leave from 6.10.86 to 4.1.87. While so, the first respondent administration had directed the petitioner to report for duty on 5.1.87, on the expiry of the petitioner's leave on 4.1.87. However, the petitioner had to apply for leave for a further period of 30 days from 5.1.87. Since her child continued to be unwell, she was constrained to apply for leave for one year from 5.12.87 to 4.1.88. 3. Meanwhile, the petitioner had given birth to her second child, on 17.10.87. The total leave applied by the petitioner from 8.2.86 to 4.1.88 was 687 days. The entire period of her leave was regularised by the administration, on 13.3.87. Thereafter, the petitioner had applied for leave for two years from 5.1.88 to 4.1.90. Without considering her leave application, on its merits, the first respondent had issued various letters including the letters, dated 27.1.88 and 22.2.88, directing the petitioner to report for duty. In spite of the explanation submitted by the petitioner, explaining the circumstances under which she had to avail the leave, the first respondent had issued a charge memo, dated 20.8.88, levelling charges of unauthorised absence from 5.1.88, for violation of Regulation 20 (2) of the Tuticorin Port Employees (leave) Regulations, 1979, and the petitioner was directed to give her explanation by a letter, dated 20.9.88. The petitioner had submitted an explanation to the charge memo reiterating the circumstances under which she was constrained to seek long leave. Without considering the representation of the petitioner, an enquiry was conducted. The petitioner could not attend the enquiry due to the prevailing domestic situation. The enquiry was concluded exparte and she was found guilty of the charges levelled against her in the charge memo, dated 20.8.88. 4. Based on the enquiry, the petitioner was imposed with the penalty of compulsory retirement from service by an order, dated 27.4.89. The petitioner had submitted an appeal, dated 29.5.89, to the first respondent. However, without appreciating the reasons stated by the petitioner, the first respondent had dismissed the appeal, vide order, dated 28.11.89, confirming the penalty imposed on the petitioner by the order, dated 27.4.89. Thereafter, the petitioner was constrained to raise an industrial dispute and it was referred to the Industrial Tribunal, Chennai, in I.D.No.63 of 1993. In spite of several grounds and issues having been raised, with regard to the conduct of the departmental enquiry, which was in violation of the service rules and the principles of natural justice, the Industrial Tribunal had not interfered with the order of https://hcservices.ecourts.gov.in/hcservices/ punishment imposed on the petitioner, by invoking the power under Section 11A of the Industrial Disputes Act, 1947, to award a lesser punishment, taking into consideration, the facts and circumstances of the case. Since the petitioner had put in only eight years of service, the penalty of compulsory retirement imposed on the petitioner, would tantamount to removal from service, which is disproportionate to the gravity of the misconduct alleged against the petitioner. Thus, the impugned award of the Industrial Tribunal suffers from various infirmities and therefore, it is liable to be set aside. 5. In view of the submissions of the learned counsels appearing for the petitioner as well as for the first respondent and on a perusal of the records available before this Court, it is clear that the petitioner had availed long leave without the authorisation of the first respondent Port Trust, wherein, she was employed. Therefore, the respondent management had issued a charge memo, dated 20.8.88, to the petitioner for unauthorised absence from duty from 5.1.88, as it was in violation of Regulation 20(2) of the Tuticorin Port Employees (Leave) Regulations, 1979. In spite of the explanation submitted by the petitioner, on 20.9.88, the first respondent management, had conducted an enquiry based on the charge memo, dated 20.8.88. However, the enquiry had to be concluded exparte, as the petitioner had not attended the enquiry. Based on the findings in the enquiry, the penalty of compulsory retirement was imposed on the petitioner by an order, dated 27.4.89. The appeal filed by the petitioner, challenging the order, dated 27.4.89, had also been dismissed by an order, dated 28.11.89, passed by the first respondent. Thereafter, the petitioner had raised an industrial dispute before the Industrial Tribunal, Chennai, in I.D.No.63 of 1993. Even though the petitioner had raised the ground of violation of principles of natural justice, it has not been shown as to how the principles of natural justice had been violated during the enquiry proceedings conducted by the first respondent management. In fact, the petitioner had not participated in the enquiry and the enquiry proceedings had been conducted in accordance with the Rules and Regulations applicable to the conduct of such enquiry. 6. It has been contended by the petitioner that the Tribunal while confirming the order of compulsory retirement passed against the petitioner by an order, dated 27.4.89, had not used its discretionary power vested in it, under Section 11A of the Industrial Disputes Act, 1947, to impose a lesser penalty on the petitioner, in the given facts and circumstances of the case. However, the petitioner has not been in a position to show that the second respondent Industrial Tribunal had mislead itself in arriving at its conclusions, while confirming the order the first respondent, dated 27.4.89, imposing on the petitioner the punishment of compulsory retirement from service. When the petitioner had admitted that she had absented herself from duty, unauthorisedly, for a long time, it cannot be said that the first respondent management does not have the power to impose the penalty of compulsory retirement from service on the petitioner. Further, there is nothing shown by the petitioner to https://hcservices.ecourts.gov.in/hcservices/ substantiate her claims that the principles of natural justice had been violated by the first respondent in conducting the enquiry and in imposing the penalty of compulsory retirement from service on the petitioner. Further, there is no cause or reason shown by the petitioner for the imposition of a lesser punishment on the petitioner, either by the first respondent management or by the second respondent Industrial Tribunal. In such circumstances, the writ petition filed by the petitioner is liable to be dismissed, as having no merits. Hence, it is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar csh To The Chairman, Tuticorin Port Trust, Tuticorin. 1 CC To Mr.S.Yashwanth, Advocate, SR NO.46397 1 CC To M/s.Paul and Paul, Advocate, SR NO.46260 Writ Petition No.869 of 2001 sj(co) pmk/22.10.2008. https://hcservices.ecourts.gov.in/hcservices/