IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:14.07.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.24197 of 2009 and M.P.No.2 of 2010 The Management of Metropolitan Transport Corporation Ltd., Pallavan House, Anna Salai, Chennai - 600 002. ...Petitioner Vs. 1.The Presiding Officer, Ist Additional Labour Court, Chennai. 2.K.Ramamurthy ...Respondents Writ Petition preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorari, calling for the records in I.D.No.507/2002 on the file of the 1st Additional Labour Court, Chennai and quash the order dated 08.02.2008. For Petitioner : Mr.G.Muniratnam For Respondents : Mr.R.Md.Nazrullah for M/s.T.Fennwalter & Associates for R2 O R D E R The petitioner Corporation is a wholly owned Corporation by the State of Tamil Nadu. They have filed the present writ petition, seeking to challenge an Award passed by the Ist Additional Labour Court, Chennai in I.D.No.507 of 2002 dated 08.02.2008. By the impugned Award, the Labour Court directed reinstatement of the petitioner with continuity of service and all other attendant benefits, but without backwages. 2. The writ petition was admitted on 25.11.2009. Pending the writ petition, this Court granted an interim stay on condition that the petitioner Corporation deposits the amount due to the second respondent within a period of eight weeks. However, the second respondent filed an application in M.P.No.1 of 2010, seeking to vacate the interim order. When that application came up on https://hcservices.ecourts.gov.in/hcservices/ 14.09.2010, this Court vacated the interim stay already granted and dismissed the petition for stay since the petitioner Corporation has not complied with the conditional order passed by this Court and ordered the vacate stay application. 3. In the application filed in M.P.No.2 of 2010, this Court ordered payment of wages under Section 17-B of the Industrial Disputes Act, 1947 at the rate of Rs.1,400/- per month starting from October 2010 to be paid, till the disposal of the writ petition. 4. The facts leading to the case are as follows:- The second respondent was appointed as an Conductor in the petitioner Corporation with effect from 03.06.1985. It was stated that the second respondent got involved in a criminal case for an offence under Section 302 IPC. He and his brother were arrayed as accused. It was stated that the murder was in connection with an election dispute which took place on 21.01.1989. The second respondent was arrested on 27.01.1989 and kept in judicial custody. He was enlarged on bail on 23.02.1989. On coming to know about the pendency of the criminal case, he was placed under suspension by an order dated 03.06.1989. In the mean while, the second respondent was convicted by the Trial Court by a judgment dated 23.11.1991. The second respondent filed a criminal appeal before this Court being Criminal Appeal No.124 of 1991. In that appeal, the second respondent was acquitted by a judgment dated 06.11.2000. 5. However, in the meanwhile, a charge sheet was given to him on 12.06.1989. Thereafter, an enquiry was conducted on 04.01.1990. On the basis of the enquiry, a second show cause notice was issued on 14.05.1990. The second respondent gave his explanation on 30.05.1990. Finally, by an order dated 16.06.1990,he was dismissed from service. In the dismissal order, it was stated that for the period from 27.01.1989 to 21.02.1989, while the second respondent was in jail, he had given a requisition letter for Medical Leave stating that he was sick. Therefore, he had suppressed the real fact. On that basis, he was dismissed from service. 6. It is the case of the second respondent that while, he was in medical leave with effect from 21.01.1989, he was arrested on 27.01.1989. He never denied the fact that he was arrested by the police. However, after the dismissal, a settlement under Section 18(1) of the Industrial Disputes Act was reached between the petitioner and the second respondent on 24.10.1990. As per the said settlement, the petitioner agreed that the second respondent will be appointed and he will be treated as a new entrant for all purposes and the appointment will be from the date on which he joined duty. He will also not be entitled for any benefit in respect of the service rendered by him earlier for claiming continuity of service for any purpose. Based on the settlement, an order of appointment was issued on 24.10.1990. https://hcservices.ecourts.gov.in/hcservices/ 7. It was the stand of the Petitioner Corporation that after the said settlement, the second respondent worked for four months and thereafter, by a letter dated 26.10.1990, the second respondent was informed that he had been terminated from service with effect from 03.06.1989. Therefore, he can come and collect all the dues from the Corporation. It is not clear as to why the petitioner Corporation had passed such an order when they had already issued another appointment order on 24.10.1990, appointing the second respondent to be a fresh entrant and that he had worked pursuant to the said order for four months. However, by an order dated 27.11.1991, the petitioner Corporation informed the second respondent that since he had failed to report for work for more than 8 days starting from 17.01.1991, in terms of Certified Standing Order 11-C, he was removed from service for his continued unauthorized absence. Once again another letter dated 13.01.1992 was sent to the second respondent stating that he had been removed from service with effect from 17.01.1991. 8. It was thereafter, the second respondent raised a dispute before the Government Labour Officer. When the conciliation ended in failure, he filed a claim statement before the first respondent Labour Court dated 20.08.2002. The said dispute was taken on file as I.D.No.507 of 2002 and notice was ordered to the petitioner Corporation. 9. The petitioner Corporation filed a counter statement dated 16.11.2004. In the counter statement, it was claimed by them that once the second respondent entered into a settlement under Section 18(1) of the Act, he was appointed as a fresh entrant on 24.10.1990. He had also joined duty subsequent to the said settlement. It was thereafter, he was removed from service by relying upon Certified Standing Orders for unauthorized absence from 17.01.1991. The letter sent to him in this regard came back undelivered. There was no illegality in the Corporation having recourse to the termination. 10. Before the Labour Court, no oral evidence was let in on both sides. On the side of the second respondent, 27 documents were filed and marked as Exs.W1 to W27. On the side of the petitioner Corporation, 16 documents were filed and marked as Exs.M1 to M16. 11. The Labour Court found that the second respondent was falsely implicated in the criminal case and he was subsequently acquitted by this Court. Therefore, on that ground, the subsequent dismissal order marked as EX.M15 dated 27.11.991 had to be set aside. It was also held that though the second respondent initially did not inform the Management about the arrest and applied leave on medical grounds, in view of the subsequent settlement entered into under Section 18(1) of the Act, those facts cannot be re-agitated. The only question was subsequent to the said settlement, whether the termination was valid. 12. The Labour Court found that before passing the order, the petitioner Corporation should have given reasonable opportunity to https://hcservices.ecourts.gov.in/hcservices/ the workman before imposing the punishment. Merely relying upon the Standing Order 11(c) will not help the Corporation. In fact even after the settlement, the petitioner could not report for work as the interim order passed by this Court in CMP No.2719 of 1993 in Criminal Appeal No.124 of 1991, had directed the second respondent to reside at Tiruchirapalli and thereafter, he should stay within the town limits of Tiruvellor and report to the Police Station. Therefore, he was unable to join duty. It was on that ground the subsequent order of termination was set aside and he was directed to be reinstated with all benefits but without backwages. 13. The Supreme Court vide its judgment in Mafatlal Narandas Barot v. J.D.Rathod reported in AIR 1966 SC 1364, while dealing with the similar clause found in a Rule framed under the Road Transport Corporation Act, providing for punishment for absence without leave held that such a clause cannot be divorced from principles of natural justice and the person who is sought to be removed by utilizing the said clause must be given a reasonable opportunity of showing case against the said order. 14. Subsequently, the same principle was reiterated by the Supreme Court in L.Robert D’Souza v. Executive Engineer,Southern Railway and another reported in (1982) 1 SCC 645. The Supreme Court held that the absence from duty without leave is an act amounting to misconduct and the employer cannot terminate the services of an employee without conducting an enquiry and following the principles of natural justice. 15. The Supreme Court in Uptron India Limited v. Shammi Bhan and another reported in (1998) 6 SCC 538, held that the discretion conferred on the Management by Clause 17(g) to terminate or not to terminate the services of an employee who overstays the leave has to be based on objective consideration of all the circumstances and material which may be available on records. The employee against whom action on the basis of this provision is proposed to be taken must be given an opportunity of hearing. 16. In D.K.Yadav v. J.M.A.Industries Limited reported in (1993) 2 LLJ 696, the Supreme Court has held that even if the Standing Orders provides for an automatic removal of an employee on account of unauthorized absence, such Standing Orders will become illegal if principles of natural justice are not read into the same. Even in such cases, employees must be heard before an order is passed by the Employer removing the name of the workman from the list. 17. In the light of the above, there is no case made out to interfere with the impugned Award. However, the Management itself had deliberately disobeyed the conditional interim order passed by this Court and such conduct is not expected from a Public Sector Employee who is supposed to be a role model in implementing the orders of the Court without utmost disobedience. https://hcservices.ecourts.gov.in/hcservices/ 18. Hence, the writ petition stands dismissed with costs. The cost quantified at Rs.5,000/- to be paid to the learned counsel for the second respondent. The petitioner Corporation is directed to implement the Award within a period of two months from the date of receipt of a copy of this order. Connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki To The Presiding Officer, Ist Additional Labour Court, Chennai. +1 CC to Mr.G.Muniratnam, Advocate, S.R.No.41992 W.P.No.24197 of 2009 MS(CO) SRA(27/7/2011) https://hcservices.ecourts.gov.in/hcservices/