IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15-07-2011 CORAM THE HON'BLE Mr. JUSTICE N. PAUL VASANTHAKUMAR Writ Petition No.14084 of 2011 The Management of M/s.Asian Bearings Ltd., Berigai Road, Balathur, Hosur – 635 125. ... Petitioner Vs. 1. The Presiding Officer, Labour Court, Salem. 2. A.L.Chokkalingam ... Respondents Writ petition filed under Article 226 of the Constitution of India to issue a writ of Certiorari calling for the records connected with the award dated 29.9.2009 made in I.D.No.87 of 2001 on the file of the first respondent and quash the same. For Petitioner : Mr.John for M/s.T.S.Gopalan & Co. O R D E R The prayer in the writ petition is to quash the award of the Labour Court in I.D.No.87 of 2011 dated 29.9.2009 setting aside the order of oral termination of the services of the second respondent on 31.12.1997 and direct the petitioner to pay a sum of Rs.1,91,760/- as compensation in lieu of reinstatement in service, considering the circumstances of the case. 2. In the claim petition filed by the second respondent, it is stated that he was employed in the petitioner management from 4.5.1984 as a Fitter and he was given permanent appointment by order dated 19.7.1987 with effect from 1.8.1987. The second respondent was paid a salary of Rs.4,200/- per month. On 29.9.1997 the second respondent took half a day leave and again on 30.9.1997 he sent a telegram seeking medical leave as he was not doing well. After recovering from his illness when he reported for duty on 15.10.1997, the second respondent was not permitted to join duty and no order was also given to the petitioner. When the second respondent requested for permission to join duty, he was https://hcservices.ecourts.gov.in/hcservices/ informed by the Management (Personnel Manager) that a criminal complaint is pending in Bagalur Police Station and the same was reported by the Inspector of Police and the second respondent was directed to approach after the case was over. He was neither given any letter nor suspension order/charge memo. On 11.1.1998 also the second respondent met the Assistant Special Officer, viz., one Rajendran, who informed that on 31.12.1997 the management ordered not to permit the second respondent until further orders and the gatekeeper of the factory refused permission to allow the second respondent inside the premises. On 28.11.1997 itself the second respondent sent a letter and no reply having been received for 15 months, he issued counsel notice on 11.5.1999. The management failed to give any reply to the said counsel notice also. 3. On 4.8.1999 the second respondent raised a dispute before the Labour Officer, Krishnagiri. The conciliation notice was sent to the management by the Labour Officer. When the matter was pending before the Labour Officer for conciliation, the management issued a notice on 12.10.1999 which was received by the second respondent on 17.10.1999 and the second respondent replied on 23.10.1999. In the reply the second respondent stated that he having been orally terminated, conducting of enquiry was not proper and the enquiry proposed on 27.10.1999 was adjourned by the management. Again on 22.11.1999 a notice of enquiry was issued stating that on 4.12.1999 the enquiry will be conducted at Hosur. The second respondent appeared and raised his objection. After noticing the objection, the enquiry was adjourned to 29.12.1999. The date of further enquiry was fixed as 28.11.2000, however, the management representative was not available due to his illness and therefore the enquiry was adjourned on 29.11.2000. On 29.11.2000, the second respondent requested for adjournment of the enquiry to 26.12.2000, which was also granted. The second respondent gave a letter stating that without enquiry or passing order he was not allowed to work and therefore he should be restored to service and be paid salary till 26.12.2000 and thereafter only he will be in a position to attend the enquiry. No reply was given for the said request and therefore the petitioner raised the above industrial dispute on 22.1.2001 which was numbered as I.D.No.87 of 2001. 4. The said industrial dispute was resisted by the management by filing counter statement contending that the second respondent along with other co-workers involved in eve-teasing case and a complaint was given by one M.Sundaramoorthy, based on which a criminal case was registered on 29.9.1997 against the second respondent and others under Sections 306, 506(II) and 509 IPC and the second respondent absconded with effect from 30.9.1997 without turning to work or applying for leave. On 3.10.1997 the second respondent sent a telegram seeking leave for one month, which was not sanctioned. The second respondent filed https://hcservices.ecourts.gov.in/hcservices/ Crl.O.P.No.13938 of 1997 on 8.10.1997 before this Court seeking anticipatory bail, which was granted. The second respondent surrendered himself before the Judicial Magistrate Court, Hosur, on 14.10.1997 and he was released on bail. The second respondent was directed to report for duty by telegram dated 6.9.1997, but he did not report for duty and therefore he was treated as unauthorised absentee. On 28.11.1997 the second respondent sent a letter stating that he will report for duty, however he did not turn up. On 2.12.1997 the management sent a telegram directing the second respondent to report for duty along with his explanation for his unauthorised absence, for which also there was no reply. On 11.5.1999 the second respondent sent a notice stating that he was not allowed to work. The management proposed to conduct an enquiry and sent a notice/show cause notice on 12.10.1999. The second respondent did not attend the enquiry stating that the enquiry is pending before the Labour Officer, Krishnagiri. The second respondent has taken two years time to sent legal notice seeking employment, which shows his conduct in abandoning the post. The second respondent was not dismissed or terminated and he himself abandoned work due to the criminal case registered against him and the criminal proceedings are not concluded. The management also made a plea that it is prepared to prove the charges by letting in evidence before the Labour Court. The parties were permitted to adduce evidence and exhibits on both sides were also marked. 5. The Industrial Dispute raised by the second respondent was partly allowed by the Labour Court by awarding compensation of Rs.1,91,760/- to the second respondent in lieu of reinstatement and the same is challenged in this writ petition by the management. 6. The learned counsel appearing for the petitioner Management submitted that the second respondent was never terminated and the second respondent abandoned himself from not attending to work and for the enquiry notice issued also the second respondent failed to appear and therefore the Labour Court was not justified in ordering compensation. 7. When the matter was posted for admission on 17.6.2011, the learned counsel appearing for the petitioner management was directed to verify and report about the criminal appeal filed before this Court in Crl.A.No.236 of 2005 against the order of conviction and sentence imposed against the second respondent. On 21.6.2011 the learned counsel after verifying with the Registry, fairly submitted that in the said criminal appeal, the second respondent was acquitted by this Court by judgment dated 15.3.2011. https://hcservices.ecourts.gov.in/hcservices/ 8. I have considered the submissions made by the learned counsel for the petitioner management and also perused the award passed by the Labour Court. 9. The Labour Court framed specific issues viz., whether the second respondent was not allowed to report for duty on 31.12.1997, or whether the second respondent has himself abandoned work as alleged by the management. 10. The management witness RW-1 stated that since a criminal case was registered against the second respondent herein on the death of a co-worker Sundaramoorthy, the second respondent did not report for duty from 30.9.1997. The said witness admitted that the second respondent applied for leave for one month on 30.9.1997. The said leave application is marked as Ex.R-8. The leave was applied by the second respondent due to the registration of the criminal case as per Ex.R-6 FIR in Crime No.270 of 1997 on the file of Bagalur Police Station and not on the basis of his ill-health. 11. It is the specific case of the second respondent, who deposed as PW-1 before the Labour Court that he was not allowed to report for duty from 31.12.1997 and he was orally terminated from service. Ex.P-2 is the order dated 31.12.1997 issued by the Deputy Manager (Personnel) to the Manager-GD/Assy. and Manager-EM not to allow the second respondent and other four workers for duty till further instructions from the Personnel Department. Ex.R-9 is the telegram dated 16.10.1997 sent by the management to the second respondent's Pudukkottai address. Ex.P-9 is the proof that the second respondent's address is at Palavanthangal - Chennai. Therefore the Labour Court on appreciation of the facts, came to the conclusion that the telegram sent to the second respondent's Pudukkottai address could not have been received by him. The Labour Court based on Ex.P-2 gave a finding that the management passed orders not to allow the second respondent to join duty. 12. The decisions cited by the learned counsel appearing for the petitioner management reported in (2006) 1 SCC 589 (State of Rajasthan v. Mohd. Ayub Naz) and 2005 (2) LLJ 1034 (Viveka Nand Sethi v. Chairman, J&K Bank Ltd.) are not relevant to the facts of this case. In the said cases, the workman deliberately not attended the domestic enquiry. In this case, the petitioner management through Ex.P-2 directed not to allow the second respondent to report for duty. The contents of Ex.P-2 reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "Dt.31/12/97 To 1. Manager-GD/Assy. 2. Manager-E.M. Kindly do not allow the following workmen for duty till further instructions from Personnel Dept., 1) 1640 A.Selvaraju - Grinding 2) 1679 A.Jayakumar | 3) 1690 A.Manthiramurthy | Assembly 4) 1709 K.Nagarajan | 5) 1286 AL.Chockalingam – Mech.Maint. N.RAJENDRAN DY.MANAGER – PERSONNEL." 13. In the light of the above findings the Labour Court further held that the abandonment of the second respondent from his services is not proved. The second respondent is a permanent employee and his services were confirmed on 1.8.1997. The Labour Court ultimately held that since the petitioner company is under lock out as per Exs.R-14 to R-20, the second respondent is not entitled for reinstatement, but entitled for compensation as the management prevented the second respondent from attending to the work. 14. In the claim statement it is stated that the second respondent's salary was Rs.4,200/- per month, whereas in the counter statement it is stated that the second respondent's last drawn salary was Rs.3,995/-. The said amount of Rs.3,995/- being an admitted amount, the Labour Court thought it fit to pay four year's salary as compensation in lieu of reinstatement and a sum of Rs.1,91,760/- is ordered to be given. The management has not placed any evidence to show that the said four years salary cannot be calculated for arriving at the compensation amount. 15. The grant of compensation in lieu of reinstatement on the facts and circumstances of a given case is permissible as per the decision of the Honourable Supreme Court reported in the decision reported in (1986) 4 SCC 337 (O.P.Bhandari v. Indian Tourism Development Corporation Ltd.). In paragraph 7 the Supreme Court held thus, "7. ...... The Court, if satisfied that ends of justice so demand, can certainly direct that the employer shall have the option not to reinstate provided the employer pays reasonable compensation as indicated by the https://hcservices.ecourts.gov.in/hcservices/ court." In the decision reported in 2003 (3) LLJ 930 (Management of Sundaram Industries Ltd. v. Presiding Officer, Labour Court and Another) this Court considering the facts and circumstances of the said case that the workman therein was having ten years of remaining service, ordered payment of four years salary in lieu of reinstatement. Thus, the award of four years salary in lieu of reinstatement as compensation is perfectly in order. 16. The Labour Court factually found through Ex.P-2 that the second respondent was prevented from attending duty and in exercise of its powers conferred under Section 11A of the Industrial Disputes Act, 1947, and taking note of the lock out of the management, has chosen to award a sum of Rs.1,91,760/- as compensation (four years salary) in lieu of reinstatement. There is no perversity in the said award passed by the Labour Court warranting interference under Article 226 of the Constitution of India. There is no merit in the writ petition and consequently the writ petition is dismissed in limine. No costs. Connected M.P.No.1 of 2011 is also dismissed. vr Sd/- Deputy Registrar //True Copy// Sub Asst. Registrar To The Presiding Officer, Labour Court, Salem. + 1 cc to M/s T.S. Gopalan & Co, Advocate SR No.42260 RS(CO) SR/22.7.2011 Order in W.P.No.14084 of 2011 https://hcservices.ecourts.gov.in/hcservices/