IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.09.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.20376 of 2009 K.Kailasam .. Petitioner Vs 1 The Presiding Officer Labour Court, Salem 2 The Management Tamil Nadu State Transport Corporation Salem Division 12, Ramakrishna Road Salem 636 007 .. Respondents Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records connected with the award passed by the 1st respondent Labour Court in I.D.No.558 of 2004 dated 19.1.2006, quash the same and also direct the 2nd respondent/management to reinstate the petitioner with continuity in service, backwages and other attendant benefit. For Petitioner :: Mr.S.Arunachalam for Ms.S.Girija For Respondents :: Mr.M.Ravi Bharathi for R2 R1 - Labour Court O R D E R The petitioner has come forward to file the present Writ Petition seeking to challenge an order passed by the Labour Court, Salem in I.D.No.558 of 2004 dated 19.1.2006. By the aforesaid award, the Labour Court declined to grant any relief to the petitioner workman. 2. When the Writ Petition came up on 8.10.2009, Notice of Motion was ordered. Subsequently, it was admitted on 15.7.2010. https://hcservices.ecourts.gov.in/hcservices/ 3. Heard the arguments of Mr.Arunachalam for Ms.Girija, learned counsel for the petitioner and Mr.M.Ravi Bharathi, learned counsel for the 2nd respondent Transport Corporation. 4. The case of the petitioner was that he was working as a Conductor in the 2nd respondent Corporation with effect from 5.4.1978 in Salem Division and he was a permanent worker. He was afflicted with Jaundice and he could not take care of himself. Therefore, he could not attend the duty. When he took treatment, he also informed the management about his illness with appropriate medical certificate. When he got fitness certificate to join and report for work, the same was not given to him. It was during this period, his daughter's wedding also took place. The petitioner with the help of the Member of Legislative Assembly submitted all the records. After the records were received, the petitioner was given duty on 27.3.2002. But, subsequently, on 30.7.2002, his service was terminated. Despite his request, he was not given employment. Therefore, he raised a dispute before the Government Labour Officer, Salem and as he could not bring about mediation, he gave a failure report. On the strength of the failure report, he filed a claim statement before the 1st respondent. The Labour Court took the dispute as I.D.No.558 of 2004 and notice was ordered to the 2nd respondent management. The 2nd respondent management filed a counter statement dated 6.11.2004. 5. Before the Labour Court, no oral evidence was let in on the side of the petitioner and two documents were filed and marked as Ex.W.1 and Ex.W.2. On the side of the 2nd respondent management, 13 documents were filed and marked as Ex.M.1 to Ex.M.13. The Labour Court held that the dispute was raised after two years and even earlier the petitioner's record relating to the attendance was not satisfactory and he suffered the punishment. For the period from 4.11.2001 to 26.3.2002, he had absented himself without any permission and he had not submitted any acceptable document for the absence. Hence, he was denied the relief. 6. A perusal of the documents filed shows that the petitioner was given a charge memo on 20.11.2001 and 16.1.2002. In his reply dated 24.1.2002 marked as Ex.M.4, the petitioner had stated that since he had fixed the marriage for his daughter and he has to distribute the invitations to the relatives, he gave a medical leave letter to the General Manager for availing the leave from 4.11.2001 to 16.12.2001 and his daughter was fixed on 26.11.2001. He reported for duty on 17.12.2001. But he was not given work assignment. Two or three times when he met the Branch Manager, he directed him to approach the General Manager. But when he went to meet the General Manager, he was informed that he has gone to the Camp. He also stated that only because of his daughter's marriage, he has to avail the long leave. https://hcservices.ecourts.gov.in/hcservices/ 7. But the charge against the petitioner was that there was a Circular of the Corporation dated 9.11.2001 that no employee should participate in the illegal strike. But the petitioner having participated in the illegal strike violated the standing order No.19(1)(b). The petitioner having denied the charges, in the enquiry one S.Subramani was examined. He had deposed by stating that the petitioner had absented himself from 4.11.2001, thereby causing inconvenience to the Corporation. It was recorded that the petitioner did not cross-examine the said witness. Subsequently, an Assistant Branch Manager Mr.S.Geevarathinam was examined and he had also stated that despite Circular dated 9.11.2001 directing all the workers to report for duty, the petitioner had remained absent from 4.11.2001 and when a charge memo was sent on 20.11.2001, he did not receive the same. The petitioner's evidence was also recorded in the enquiry wherein he stated that he has no other majors in the house and he had to perform marriage for his daughter and hence, he could not come to work. Subsequently, there was a reception and it had taken sometime for the petitioner to come to work. In cross-examination he had once again reported that due to his daughter's marriage, he could not report for work. It is on the basis of this evidence, the enquiry officer found the petitioner guilty of misconduct. Based upon the said enquiry report, a show cause notice dated 10.7.2002 was given to the petitioner. In the show cause notice, previous misconduct was listed out as Serial Nos.1 to 13. 8. In the present case, the impugned award does not show that the Labour Court even looked into the minutes of the enquiry report filed before it as Ex.M.6. While the management was aggrieved about the petitioner in not reporting for work pursuant to the circular dated 9.11.2001, the petitioner was on leave even from 4.11.2001. Despite circular, he could not report for work only because he had fixed the daughter's marriage. Therefore, this Court directed the learned counsel for the petitioner to produce the original invitation of his daughter's marriage. Accordingly, the learned counsel for the petitioner produced the original as well as the photocopy of the same. It was also taken on file after due notice to the learned counsel for the 2nd respondent. It clearly shows that the petitioner had fixed his daughter's marriage on 26.11.2001 at Ramakrishna Marriage Hall in Kumarapalayam. The petitioner's statement both in his explanation as well as before the enquiry shows that there are no majors in his house except him and he has to distribute the invitations for the marriage, cannot be brush aside, when he has to participate in the marriage with full vigor. The petitioner has also stated that he has given marriage invitation to the Branch Manager well in advance. The marriage invitations were distributed to the friends in the depot. Therefore, they cannot plea any ignorance of the same. When the petitioner gave a deposition in the enquiry, the enquiry officer https://hcservices.ecourts.gov.in/hcservices/ did not even take note of the said explanation. When the matter went before the Labour Court, the Labour Court also denied to take note of the same, but merely stated that the petitioner did not inform about these facts relating to affliction with jaundice in the enquiry. 9. In the present case, the question is whether for the absence from 4.11.2001 to 26.3.2002 for the period of less than 5 months, the petitioner was having any valid defence. When a date is fixed for his daughter's marriage and he gave reason in the enquiry, no employer can find fault with the petitioner's assertion. The only misconduct that the petitioner committed was not to produce the marriage invitation before the Labour Court. But, in his oral evidence and on his written explanation, he has mentioned the facts. When the employer does not take into account the relevant fact, namely his absence during the crucial period of performance of his daughter's marriage, the Labour Court is bound to consider the same. The fact that in an earlier occasion, he was guilty of some other misconduct will be relevant when a proper enquiry is held in respect of the misconduct alleged in the charge memo which led to the enquiry. 10. In such circumstances, if the employer do not take note of the relevant fact and the Labour Court overlooks the said fact, it is open to this Court to interfere with the findings rendered by the 1st respondent Labour Court. This Court is fully convinced that the petitioner was disabled from attending to work during the relevant time and judicial notice can be taken of on the fact that when a person is fixed with the daughter's marriage and charge memo is issued for his unauthorised absence during the said period, the employer cannot feign the ignorance of the same. When these facts were brought to the notice in the enquiry and subsequently to the Labour Court, the Labour Court should have given credence to the said defence taken by the workman. Only in the case where a particular charge is proved, the question of going into the past misconduct will arise. In the present case, the petitioner was disabled from attending the duty. The further fact that in view of the strike, the management worried about the absence of the workers and therefore the circular was issued on 9.11.2001. Even before the said circular, the petitioner had gone on leave with effect from 4.11.2001. 11. In view of the above, this Court is inclined to set aside the impugned award and on the basis of the materials placed and also modifies the award into one of reinstatement with continuity of service and also 50% of the backwages. Since even at the time of filing of the Writ Petition, the petitioner was 57 years old and he would have reached the age of superannuation in the year 2010 itself. Therefore, it is directed that the petitioner shall be paid wages at the rate of 50% from the date of termination till the date of reaching the age of superannuation and also have the terminal benefits paid to him on the basis of the continuity of service https://hcservices.ecourts.gov.in/hcservices/ granted and as if there was no termination. 12. The Writ Petition is allowed and the award of the Labour Court is modified to the extent indicated above. However, there will be no order as to costs. ajr Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1 The Presiding Officer Labour Court, Salem 2 The Management Tamil Nadu State Transport Corporation Salem Division 12, Ramakrishna Road Salem 636 007 + 1 cc to Mrs. S. Girija, Advocate SR No.55492 + 1 cc to Mr. M. Ravi Bharathi, Advocate SR No.55993 KU(CO) SR/16.9.2011 W.P.No.20376 of 2009 https://hcservices.ecourts.gov.in/hcservices/