IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 09..7..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 2415 of 1999 The Management of Airport Authority of India (International Airports Division) formerly known as the International Airport Authority of India Meenambakkam Chennai - 27 .. Petitioner vs. 1. The Presiding Officer Industrial Tribunal Chennai – 104 2. K. Ramadurai (deceased) 3. Rajalakshmi Ammal (substituted in the place of deceased R2 as per order dated 28.9.2007 in W.P.M.P. No. 18066 of 2006) .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorari calling for the records of the first respondent in I.D. No. 64 of 1992 and quash the Award dated 21.11.1997. For Petitioner : Ms. Narmada Sampath for Mr. R. Parthiban For Respondent 3 : Mr. R. Jaikumar O R D E R Heard the arguments of the learned counsel for the parties and perused the records. 2. This writ petition is filed by the Airport Authority of India, International Airports Division against the Award dated 21.11.1997 passed by the first respondent Industrial Tribunal in I. D. No. 64 of 1992 wherein and by which the first respondent who was https://hcservices.ecourts.gov.in/hcservices/ working as a Beldar was directed to be reinstated with 50% backwages. 3. It is now stated that the second respondent had passed away on 16.6.2006 and on an LR petition being filed, his wife was brought on record as the third respondent vide order of this Court dated 28.9.2007. 4. Pending the writ petition, this Court granted an interim stay on 16.02.1999. Subsequently, by an order dated 25.10.1999, the interim stay was made absolute on condition that the writ petitioner deposits Rs.90,000/- to the credit of I.D. No. 64 of 1992 with the first respondent and on such deposit, a sum of Rs.10,000/- was allowed to be withdrawn by the second respondent. The balance Rs.80,000/- was directed to be invested in Fixed Deposit in State Bank of India, Egmore Branch initially for a period of three years and the workman was also directed to withdraw quarterly interest. It was further ordered that the petitioner Management shall pay Rs.1600/- every month commencing from December 1999 till the disposal of the writ petition. 5. It is now stated by Mrs. Narmada Sampath, learned counsel for the petitioner that the above order has been complied with. The charge against the second respondent was that he had willfully absented himself from duty from 16.5.1987 on medical grounds without submitting proper leave application. He was given a memos dated 25.8.1987 and 03.11.1987. Inspite of the same, he had absconded from duty. It was thereafter, the officers from the Personnel Department of the petitioner Management, accompanied by a Medical Officer, visited his residence on 18.11.1997 and the second respondent was questioned in the presence of his parents regarding his absence for more than six months. As he could not give any satisfactory explanation, a show cause notice dated 12.12.1987 was given to him in terms of Regulation 31(2) of the International Airport Authority of India General Conditions of Service Regulations, 1980 [for short, 'Regulations']. The said regulation reads as follows:- "If an employee remains absent without any intimation prior permission for a period of two months he will to be deemed to have abandoned his job and his services will be terminated without any notice." Since he was absent even beyond that date, it was presumed that he was no longer in the service of the petitioner Management. 6. The workman raised a dispute under Section 2A of the Industrial Disputes Act, 1947 [for short, 'I.D. Act'] which was finally referred for adjudication by the Union of India, Ministry of Labour by an order dated 28.01.1992. The reference order reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "Whether the termination of service of Shri.K.Ramadurai, Boldar by the management of International Airport Authority of India Madras justified. If not, to what relief he is entitled?" 7. The said dispute was taken on file as I.D. No. 64 of 1992. A counter statement was filed by the petitioner setting out the circumstances under which the Regulation 31 was invoked against the deceased second respondent. It was stated that even after the show cause notice, by which he was given a deadline, viz., 18.4.1988, he did not report for work. 8. Before the Tribunal, the deceased workman examined himself as W.W.1 and filed six documents, which were marked as Exs. W.1 to W.6. On the side of the petitioner Management, one Sunit Kishore Soreng was examined as M.W.1 and 13 documents were filed which were marked as Exs. M.1 to M.13. 9. The Tribunal, on an analysis of evidence, came to the conclusion that Regulation 31 will not apply to the second respondent workman's case as he had sent four Medical Certificates, which were marked as Exs. W.1 to W.4, requesting for Medical leave. The Tribunal also rejected the contention made by the workman that the leave cannot be claimed as a matter of right and held that the second respondent, after producing Fitness Certificate Ex. W.5, was not allowed to report for work and before passing final orders on 06.02.1988, no charges were framed against him. The Tribunal, after placing reliance upon the judgment of the Supreme Court in D.K.Yadav v. J.M.A. Industries Ltd. [1993 (3) SCC 259], held that since no charges have been framed for his absenteeism and no domestic enquriy was held, even though his previous history was one of absenteeism, the termination of the second respondent was retrenchment within the meaning of Section 2(oo) of the I.D. Act. Since condition precedent found under Section 25F was not complied with, the order is illegal and that the punishment of termination was shockingly disproportionate. In that view of the matter, it directed reinstatement with 50% of the backwages. 10. Since the entire documents relating to the proceeding before the Tribunal were not filed by the parties, the original records were summoned from the Industrial Tribunal and the same were circulated by the Registry and were also perused. 11. In the oral evidence, the second respondent had admitted that he had taken treatment for having suffered jaundice but he did not send any letter that he was not well and he never informed the Management regarding his illness. In fact, Exs. W.1 to W.4 were stated to be sent by the deceased second respondent only by Certificates of Posting and it was stated by M.W.1, who was the Assistant Manager (Personnel) that the certificates were not received by the Management and that the second respondent had not given any reply to the show cause notice issued to him. But in https://hcservices.ecourts.gov.in/hcservices/ further cross-examination, he said that the letters addressed to the Assistant Engineer (Civil Department) might have been received in that office but yet they were not sent to the proper authority. 12. In any event, the Tribunal brushed aside these aspects and went on to grant relief solely based upon the judgment of the Supreme Court in D.K. Yadav's case (cited supra). It must be understood that D.K. Yadav's case (cited supra) came to be subsequently considered by several decisions of the Supreme Court and they may be referred to hereunder. 13. In Lakshmi Precision Screws Ltd. v. Ram Bahagat [2002 (6) SCC 552], the following passages found in paragraphs 10 to 13 may be extracted:- Para 10: "Let us, therefore, analyse as to whether this particular Standing Order in fact warrants a conclusion without anything further on record or to put it differently — does it survive on its own and that being a part of the contract of employment ought to govern the situation as is covered in the contextual facts. This Court in D.K. Yadav case strictly speaking did not answer the same in a categorical fashion though undoubtedly read into the Certified Standing Order compliance with the doctrine of natural justice as also the principles underlying Article 14 of the Constitution. The observations in Yadav seem to be rather apposite on this score. As such the same are set out hereinbelow: (SCC pp. 267-68) “8. The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person. 9. It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An https://hcservices.ecourts.gov.in/hcservices/ order involving civil consequences must be made consistently with the rules of natural justice.” Para 11: It is on the basis of the aforesaid however, this Court in Yadav upon consideration of the entire gamut of judicial precedents since Anwar Ali4 came to the conclusion as below: (SCC pp. 268-69, paras 11- 12) “11. The law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. * * * 12. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this Court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable.” Para 12: Subsequently as well in Uptron India Ltd. v. Shammi Bhan upon reliance on Yadav this Court stated: (SCC pp. 543-44, paras 9-11) https://hcservices.ecourts.gov.in/hcservices/ “9. The general principles of the Contract Act, 1872 applicable to an agreement between two persons having capacity to contract, are also applicable to a contract of industrial employment, but the relationship so created is partly contractual, in the sense that the agreement of service may give rise to mutual obligations, for example, the obligation of the employer to pay wages and the corresponding obligation of the workman to render services, and partly non-contractual, as the States have already, by legislation, prescribed positive obligations for the employer towards his workmen, as, for example, terms, conditions and obligations prescribed by the Payment of Wages Act, 1936; Industrial Employment (Standing Orders) Act, 1946; Minimum Wages Act, 1948; Payment of Bonus Act, 1965; Payment of Gratuity Act, 1972 etc. 10. Prior to the enactment of these laws, the situation, as it prevailed in many industrial establishments, was that even terms and conditions of service were often not reduced to writing nor were they uniform in nature, though applicable to a set of similar employees. This position was wholly incompatible to the notions of social justice, inasmuch as there being no statutory protection available to the workmen, the contract of service was often so unilateral in character that it could be described as mere manifestation of subdued wish of the workmen to sustain their living at any cost. An agreement of this nature was an agreement between two unequals, namely those who invested their labour and toil, flesh and blood, as against those who brought in capital. The necessary corollary of such an agreement was the generation of conflicts at various levels disturbing industrial peace and resulting necessarily in loss of production and sometimes even closure or lockout of the industrial establishment. In order to overcome this difficulty and achieve industrial harmony and peace, the Industrial Employment (Standing Orders) Act, 1946 was enacted requiring the management to define, with sufficient precision and clarity, the conditions of employment under which the workmen were working in their establishments. The underlying object of the Act was to introduce uniformity in conditions https://hcservices.ecourts.gov.in/hcservices/ of employment of workmen discharging similar functions in the same industrial establishment under the same management and to make those terms and conditions widely known to all the workmen before they could be asked to express their willingness to accept the employment. 11. The Act also aimed at achieving a transition from mere contract between unequals to the conferment of ‘status’ on workmen through conditions statutorily imposed upon the employers by requiring every industrial establishment to frame ‘Standing Orders’ in respect of matters enumerated in the Schedule appended to the Act. The Standing Orders so made are to be submitted to the Certifying Officer who is required to make an enquiry whether they have been framed in accordance with the Act and on being satisfied that they are in consonance with the provisions of the Act, to certify them. Once the Standing Orders are so certified, they become binding upon both the parties, namely, the employer and the employees. The Certified Standing Orders are also required to be published in the manner indicated by the Act which also sets out the Model Standing Orders. Originally, the jurisdiction of the Certifying Officer was limited to examining the Draft Standing Orders and comparing them with the Model Standing Orders. But in 1956, the Act was radically amended and Section 4 gave jurisdiction to the Certifying Officer, as also the Appellate Authority, to adjudicate and decide the questions, if raised, relating to the fairness or reasonableness of any provision of the Standing Orders.” Para 13: This Court further in fine in para 25 of the Report stated as below: (SCC p. 547) “25. In view of the above, we are of the positive opinion that any clause in the Certified Standing Orders providing for automatic termination of service of a permanent employee, not directly related to ‘production’ in a factory or industrial establishment, would be bad if it does not purport to provide an opportunity of hearing to the employee whose services are treated to have come to an end automatically.” https://hcservices.ecourts.gov.in/hcservices/ 14. In U.P. State Bridge Corporation Ltd. and others v. U.P. Rajya Setu Nigam S. Karamchari Sangh [2004 (4) SCC 268], the following passage found in paragraph 23 may be referred to:- Para 23: "D.K. Yadav is an authority for the proposition that the principles of natural justice would have to be read in the standing orders. That was a case where there was a standing order similar to CSO L-2.12 except that 8 days’ margin was granted within which the workman was required to return and satisfactorily explain the reasons for his absence or inability to return after the expiry of leave. This view was reiterated in the later decision of this Court in Lakshmi Precision Screws Ltd. v. Ram Bahagat where it was held that the element of natural justice was an inbuilt requirement of the standing orders." 15. In Viveka Nand Sethi v. Chairman, J&K Bank Ltd. and others [2005 (5) SCC 337], the following passage found in paragraphs 22 to 25 may be usefully extracted:- Para 22: "The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. [See Gurjeewan Garewal (Dr.) v. Dr. Sumitra Dash.] The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. (See State of Punjab v. Jagir Singh4 and Karnataka SRTC v. S.G. Kotturappa.) Para 23: The contention raised at the Bar appears to be squarely covered by two decisions of this Court relied upon by Mr Alex. In Syndicate Bank Wadhwa, J. speaking for the Division Bench observed: (SCC p. 76, paras 14-15) “14. Two principles emerge from the decisions: (1) principles of natural justice and duty to act in a just, fair and reasonable manner have to be read in the Certified Standing Orders which have statutory force. These can be applied by the Labour Court and the Industrial Tribunal even to relations between the management and workman though based on contractual obligations; and (2) where domestic inquiry was not held or it was vitiated for some reason the Tribunal or Court adjudicating an industrial dispute can itself https://hcservices.ecourts.gov.in/hcservices/ go into the question raised before it on the basis of the evidence and other material on record. 15. In the present case action was taken by the Bank under clause 16 of the Bipartite Settlement. It is not disputed that Dayananda absented himself from work for a period of 90 or more consecutive days. It was thereafter that the Bank served a notice on him calling upon him to report for duty within 30 days of the notice stating therein the grounds for the Bank to come to the conclusion that Dayananda had no intention of joining duties. Dayananda did not respond to the notice at all. On the expiry of the notice period the Bank passed orders that Dayananda had voluntarily retired from the service of the Bank.” It was further held: (SCC p. 77, para 18) “18. The Bank has followed the requirements of clause 16 of the Bipartite Settlement. It rightly held that Dayananda has voluntarily retired from the service of the Bank. Under these circumstances it was not necessary for the Bank to hold any inquiry before passing the order. An inquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the Bank or contended that he did report for duty but was not allowed to join by the Bank. Nothing of the like has happened here. Assuming for a moment that inquiry was necessitated, evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in clause 16 of the Bipartite Settlement.” Para 24: The aforementioned legal position was reaffirmed by a decision of a three-Judge Bench in Punjab & Sind Bank wherein it has been held: (SCC p. 217, para 4) “Under this rule the employee is given an opportunity to rejoin duty within a stipulated time or explain his position to the satisfaction of the management that he has no intention of not joining duty, and a presumption will be drawn that the employee does not require the job anymore and will stand https://hcservices.ecourts.gov.in/hcservices/ retired from service. Thus, there is no punishment for misconduct but only to notice the realities of the situation resulting from long absence of an employee from work with no satisfactory explanation thereto.” In the fact situation obtaining therein it was held that there had been sufficient compliance with principle of natural justice. Para 25: In Syndicate Bank this Court noticed the decision of a three-Judge Bench of this Court in D.K. Yadav v. J.M.A. Industries Ltd. whereupon the Industrial Tribunal had placed strong reliance. In D.K. Yadav admittedly no opportunity was given to the workman and no inquiry was held. In that situation, it was observed: (SCC p. 267, para 8) “8. The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the person concerned.” 16. Subsequently, in V.C. Banaras Hindu University and others v. Shrikant [2006 (11) SCC 42], the Supreme Court in paragraphs 57 and 60 of the judgment held as follows:- Para 57: "The matter may, however, be different in a case where despite having been given an opportunity of hearing, explanation regarding his unauthorised absence is not forthcoming or despite giving him an opportunity to join his duty, he fails to do so, as was the case in Punjab & Sind Bank v. Sakattar Singh." Para 60: "A provision relating to abandonment of service came up for consideration yet again in Viveka Nand Sethi v. Chairman, J&K Bank Ltd. before a Division Bench of this Court. This Court opined that although in a case of that nature, principles of natural justice were required to be complied with, a full-fledged departmental enquiry may not be necessary, holding: (SCC p. 345, para 20) https://hcservices.ecourts.gov.in/hcservices/ “A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance with the requirements of the principles of natural justice.” 17. Therefore, in the light of the above discussion, it can be safely understood that Regulation 31(2) does not become automatically invalid if it is preceded by opportunities granted to the workman. In the present case, before taking recourse to Regulation 31, the Management had issued the following memos as found in paragraph 8(iv) of the counter statement filed before the Tribunal. "1. Memo No. AAM/PERS/PR/KR/10243-45 dt. 19/20-3- 87. 2. Memo No. AAM/PERS/PF/KR/14196 dt. 23/29-4-87. 3. M. Telegram No. 7-08-97. 4. Memo No. AAM/PERS/PF/KR/35011-12 dt. 24/25-8- 87. 5. Memo No. AAM/PERS/PF/KR/50456-57 dt. 3-11-87. 6. Memo No. AAM/PERS/PF/KR/59085 dt. 19-12-87. 7. Memo No. AAM/PERS/EN 44/BELDAR/2 /KR/19753-54 dt. 31.3.88. 8. Memo No. AAM/PERS ES 44/BELDAR/2/ KR/39637-8 dt. 25/30-5-88." 18. Therefore, the Tribunal was entirely wrong in holding that either it is a case of retrenchment under Section 2(oo) of the I.D. Act or it is a punitive measure where the punishment is shockingly disproportionate. The exercise of the Tribunal by invoking Section 11A of the I.D. Act to reinstate the second respondent workman may not have been proper. In such facts and circumstances, considering the length of service put in by the workman, viz., 9 years, and that he is no more, while the Award of the Tribunal is set aside with reference to reinstatement with backwages, this Court is of the opinion that the workman should be given a compensation of Rs.1 lakh in lieu of reinstatement. 19. Apart from this, it must also be understood that the Award was passed on 21.11.1997 and the writ petition was filed in the year 1999, viz., 15 months thereafter. Even as per Section 17B of the I.D. Act, the workman is entitled for wages from the date of the writ petition and he was directed to be paid wages under Section 17B of the I.D. Act only from December 1999 thereby the workman