IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.04.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.22323 of 2010 and M.P.No.1 of 2010 The Management of Metropolitan Transport Corporation Ltd., Pallavan House, Pallavan Salai, Chennai-600 002. ..Petitioner Vs. 1.S.Gnanamurthy 2.The Presiding Officer, I Additional Labour Court, Chennai-600 104. ...Respondents This writ petition is preferred under Article 226 of the Constitution of India, praying for the issue of a writ of certiorari to call for the records pertaining to the Award dated 24.3.2010 made in I.D.No.863 of 2001 on the file of the second respondent herein and to quash the same. For Petitioner : Mr.M.Chidambaram For Respondents : Mr.V.Ajoy Khose for R-1 O R D E R The petitioner is a State Owned Transport Corporation. They have filed the present writ petition, seeking to challenge the Award of the second respondent First Additional Labour Court, Chennai made in I.D.No.863 of 2001 dated 24.03.2010. By the impugned Award, the second respondent directed reinstatement of the first respondent with service continuity, backwages and all other attendant benefits. 2. Heard the arguments of Mr.M.Chidambaram, learned counsel for the Petitioner/Transport Corporation and Mr.V.Ajoy Khose, learned counsel appearing for the first respondent/Workman. 3. The first respondent, herein was working as a Driver in the petitioner Corporation. He joined duty in the year 1983. During the year 1996, he was affected with heart ailment. Therefore, he requested for leave on medical grounds from 07.11.1996 to 04.01.1997 with proper https://hcservices.ecourts.gov.in/hcservices/ application supported by medical certificate. His leave was not rejected by the petitioner Corporation. Subsequently, since his condition did not improve, he continued the leave. His application for leave was not accepted by the authorities. He sent the same by post with Certificate of Posting. However, the petitioner by a memo dated 05.07.1997 charge sheeted the workman for unauthorised absence. The petitioner gave his explanation. Not satisfied with the explanation, a Departmental enquiry was conducted. Inspite of the fact the first respondent was on continued medical leave, enquiry was proceeded. The first respondent participated in the enquiry on 13.10.1998. The first respondent was questioned by the Enquiry Officer. As he did not possess all the relevant documents, he requested for an adjournment and the enquiry was postponed. But on the adjourned date, as his health condition got further deteriorated, he could not participate in the enquiry held on 28.01.1998. But notwithstanding the same, the enquiry was completed. On the basis of the report submitted by the Enquiry Officer dated 17.11.1998, the second show cause notice was given to the first respondent on 28.01.1999. The petitioner gave his explanation on 18.02.1999. Without accepting his explanation, the petitioner terminated the services of the first respondent by an order dated 12.03.1999. 4. The first respondent, thereafter, filed a petition before the Labour Officer – II, Chennai under the Industrial Disputes Act. Since the Conciliation Officer could not bring about mediation,, he gave his failure report dated 10.08.2000. On the strength of the failure report, the first respondent filed a claim statement dated 28.11.2001. The said dispute was taken on file by the second respondent as I.D.No.863 of 2001 and notice was issued to the petitioner Corporation. 5. The petitioner Corporation filed a counter statement dated 12.02.2002. Before the Labour Court, the first respondent Workman examined himself as W.W.1 and on his side, 13 documents were filed and marked as Exs.W1 to W13. On the side of the petitioner Corporation, one Janarthanan was examined as M.W.1 and on their side, 14 documents were filed and they were marked as Exs.M1 to M14. 6. The Labour Court on an analysis of evidence placed before it came to the conclusion that the leave request of the first respondent was not properly considered and principles of natural justice was violated. The contention of the first respondent that he was sick and could not attend duty was accepted. Therefore, it set aside the termination order dated 12.03.1999 and directed reinstatement of the workman with continuity of service, backwages and all other attendant benefits. It is this Award which is under challenge. 7. The contention of the petitioner Corporation was that the first respondent did not produce any leave letter and medical Certificate till the date of charge sheet and he had admittedly absented himself from 07.11.1996 without due notice. The Model Standing Order 16(E) provides for removal of a person if he had absented himself beyond 10 days. The first respondent had also absented himself in the enquiry https://hcservices.ecourts.gov.in/hcservices/ without any justification. Ex.W12 Medical Certificate was produced after the charge memo. 8. On notice from this Court, the first respondent had filed a counter affidavit dated 16.02.2011. Since the petitioner did not file the entire enquiry proceedings and documents filed before the second respondent Labour Court, the first respondent filed the entire typed set of papers dated 02.04.2011 containing all the relevant documents which were filed before the Labour Court. 9. The first respondent in his counter affidavit, had voluntarily made the following undertaking: "7. I state that since the charges levelled against me were held not proved and also since the dismissal order was held to be not justified and set aside, the Labour Court is correct and justified in granting me reinstatement with full backwages particularly when I have been suffering without employment from the date of dismissal. In any event, in order to get peace and put a quietus to the issue once for all and in order to avoid further litigation and delay, I am willing to forego 50% of backwages, if the petitioner management is willing to reinstate me with continuity of service, 50% backwages and also if the management gives me correct pay fixation and pays both employer and employee PF Contribution for the entire period of non-employment." 10. The only question that has to be decided is whether the impugned Award requires any interference by this Court. 11. In the present case, though the workman did not participate in the enquiry, but subsequent to the second show cause notice, he had mentioned that due to his continued illness, he could not attend the enquiry. He had also produced Ex.W12 series Medical Certificate and Fitness Certificate before the Labour Court and also deposed in support of the same, which was also accepted by the Labour Court. 12. The learned counsel for the petitioner Corporation, Mr.M.Chidambaram, referred to the judgment of the Supreme Court in J.K.Synthetics Ltd., v. K.P.Agrawal and another reported in (2007) 2 SCC 433, for the purpose of contending that there cannot be an automatic reinstatement. Even if such reinstatement is made, there must be specific reasons for grant of backwages. In the present case, the Court below had granted backwages as a matter of course. 13. Mr.V.Ajoy Khose, learned counsel for the first respondent contended that the petitioner realising the legal position in this regard had voluntarily come forward to forego 50% of backwages inspite of the fact that the finding of the Labour Court was in his favour. https://hcservices.ecourts.gov.in/hcservices/ 14. He also placed reliance upon the judgment of the Supreme Court in Chairman cum Managing Director, Coal India Limited and another v. Mukul Kumar Choudhuri and others reported in (2009) 8 MLJ 460 (SC) for contending that the doctrine of proportionality is a well recongised concept of judicial review and if punishment was unduly harsh and excessive, the Court can interfere with the punishment. In that case, the Supreme Court held that mere denial of backwages is a sufficient punishment. 15. The learned counsel for the first respondent also referred to the judgment of the Supreme Court in Gujarat Agricultural University v. All Gujarat Kamdar Karmachari Union reported in 2009-IV-L.L.J.382(SC) for contending that even in case of daily wage labourers, reinstatement was ordered with 50% of the backwages. 16. He further referred to the decision of this Court in Union of India, rep. by the Chief Workshop Manager, Southern Railway v. Registrar, Industrial Tribunal, Chennai and another reported in 2010- III-L.L.J-349 (Mad), wherein the Award of the Tribunal regarding interference with the penalty on the ground that dismissal was shockingly disproportionate to the misconduct was upheld by this Court and the Award was held to be valid in law. 17. In the light of the factual matrix involved as well as binding legal precedents, this Court is unable to interfere with the finding of fact recorded by the Labour Court as well as the relief of reinstatement and continuity of wages ordered. Though there are two views possible on the quantum of backwages payable, since the first respondent himself has come forward to forego 50% of the backwages, the Award will stand suitably modified. 18. Accordingly, the writ petition is partly allowed. The Award of the Labour Court in I.D.No.863 of 2001 dated 24.03.2010 will stand modified to one of re-instating the first respondent with continuity of service but 50% of the backwages. However, while fixing the wage of the first respondent, the petitioner Corporation shall make correct pay fixation including PF contribution for the said period. The petitioner Corporation is directed to implement the Award within a period of 8 weeks from the date of receipt of of a copy of this order without fail. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki https://hcservices.ecourts.gov.in/hcservices/ To The Presiding Officer, I Additional Labour Court, Chennai-600 104. +1cc to Mr.M.Chidambaram, Advocate Sr 28569 +1cc to MR.V.Ajoy Khose , Advocate Sr 29219 KJ(CO) km/3.5. W.P.NO.22323 of 2010 https://hcservices.ecourts.gov.in/hcservices/