IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 1.12.2008 Coram: The Honourable Mr.Justice M.JAICHANDREN W.P.No.1888 of 2003 & W.P.No.11704 of 2003 D.Soundarrajan .. petitioner in W.P.No.1888 of 2003 The Management of Tirupur Textiles Ltd., Post Box No.153, Tirupur 638 603 rep. by its Executive Director.. petitioner in W.P.No.11704 of 2003 Vs The Presiding Officer labour Court Coimbatore .. first respondent in both the writ petitions The Management of Tirupur Textiles Ltd., Post Box No.153, Tirupur 638 603 .. second respondent in W.P.No.1888 of 2003 D.Sounderrajan .. second respondent in W.P.No.11704 of 2003 W.P.No.1888 of 2003: Prayer: Petition filed seeking for a writ of Certiorarified Mandamus, to call for the records from the first respondent relating to the I.D.No.228 of 1998, dated 18.6.2002, and quash the said award, dated 18.6.2002, and direct the second respondent to reinstate the petitioner with continuity of service and backwages and attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.11704 of 2003: Prayer: Petition filed seeking for a writ of Certiorari to call for the records of the first respondent in I.D.No.228 of 1998, quash the award, dated 18.6.2002 granting relief of compensation of Rs.1,42,200/- to the second respondent. W.P.No.1888 of 2003: For Petitioner : Mr.V.Ajoy Khose For Respondent : Mr.S.Ravindran for R2 W.P.No.11704 of 2003: For Petitioner : Mr.S.Ravindran For Respondent : Mr.V.Ajoy Khose for R2 O R D E R Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 2. Since the issues involved in the above writ petitions have arisen out of the same facts and circumstances, a common order is passed. W.P.No.1888 of 2003: 3. The writ petition in W.P.No.1888 of 2003, has been filed by the petitioner employee challenging the award of the first respondent labour Court, dated 18.6.2002, made in I.D.No.228 of 1998. The petitioner has stated that he was employed in the second respondent Mill from 9.6.1982. He had put in 16 years of continuous service and his last drawn salary is 3,950/-. The petitioner had an unblemished record of service in the second respondent Mill. While so, a false complaint had been lodged against his brothers regarding a joint family property. Based on the said complaint, the police was taking criminal action against the members of the petitioner's family. Therefore, the petitioner had travelled to Chennai for moving an anticipatory bail. In such circumstances, the petitioner was not able to attend to his work in the second respondent Mill. Therefore, the petitioner had sent a letter, dated 10.12.1997, to the second respondent Mill seeking leave and had also sent a telegram, dated 5.1.1998. Since there was no response, he had sent another telegram, dated 1.3.1998, seeking casual leave https://hcservices.ecourts.gov.in/hcservices/ for six days. In spite of his request, the second respondent Management had effected the publication in the newspaper about the petitioner's alleged unauthorised absence from 3.12.1997 to 22.1.1998. The petitioner had submitted his explanation to the said publication. However, an enquriy had been conducted, on 7.12.1998. No witness had been examined in the enquiry. The enquiry officer had told the petitioner that the second respondent Management would impose a minor punishment, if he pleaded guilty. Therefore, the petitioner had admitted the charges. However, the enquiry officer had given his findings holding that the charges against the petitioner had been proved. 4. It has been further stated that based on the enquiry report, the Management had sent a show cause notice, dated 19.2.1998, proposing to impose the major punishment of dismissal from service on the petitioner. The petitioner had submitted his explanation. However, the second respondent Management, not being satisfied with the explanation, had passed an order, dated 28.2.1998, dismissing the petitioner from service. In such circumstances, the petitioner had raised an Industrial Dispute before the first respondent labour Court, in I.D.No.228 of 1998. 5. The learned counsel appearing for the petitioner had submitted that the award of the labour Court, dated 18.6.2002, made in I.D.No.228 of 1998, is illegal, as it had been passed contrary to the provisions of law. Though no evidence had been let in by the second respondent Management to prove the charges levelled against the petitioner, the enquiry officer had come to the conclusion that the charges were proved. The enqury officer had also held that the petitioner had pleaded guilty to the charges. The enquiry had been conducted contrary to the principles of natural justice. Even though the petitioner had made several requests to the second respondent Management to grant him leave due to his family circumstances, such requests had not been accepted. 6. The learned counsel appearing for the petitioner had also submitted that the petitioner had been victimised for the reason that he was carrying on trade union activities. Further, the Management of the second respondent had not justified the major punishment of dismissal from his service for the misconduct of unathorised absence. The punishment imposed on the petitioner is disproportionate in nature. Hence, it is unsustainable in the eye of law. W.P.No.11704 of 2003: 7. This writ petition has been filed by the petitioner to quash the award of the first respondent labour Court, dated 18.6.2002, made in I.D.No.228 of 1998, and for a direction to https://hcservices.ecourts.gov.in/hcservices/ direct the second respondent to reinstate the petitioner, with continuity of service, backwages and other attendant benefits and for costs. 8. It has been stated that the second respondent was working as an operator in the petitioner Mill. Since he was in the habit of absenting himself from work, frequently, he was put on notice to be prompt in attending to his daily duties. The second respondent, had joined in the service of the petitioner Mill in the year 1982 and he had undergone training. Even during his training period, he was not regular in his attendance. Therefore, his training period had been extended for a further period of six months. Even thereafter, after he had completed his training, he was irregular in his attendance. Therefore, he had been warned on several occasions. However, since the conduct and the attendance of the second respondent was not satisfactory, he was issued with two show cause notices, on 20.11.1990 and 21.11.1990, charging him with the riotous and disorderly behaviour amounting to a serious misconduct. A domestic enquiry was conducted against the second respondent in which the charges were held to be proved. In view of the seriousness of the misconduct committed by the respondent, on 25.1.1992, a second show notice had been issued to him proposing to impose the punishment of dismissal from service. Even during the pendency of the disciplinary proceedings initiated pursuant to the show cause notices, dated 20.11.1990, and 21.11.1990, the second respondent had indulged in serious acts of violence and disorderly behaviour, including an assault of a co-employee, indulging in making threats and abusing his superior officers and his co- workers, and participating in illegal stay-in-strike, etc. 9. It has been further stated that after the receipt of the second show cause notice, dated 25.1.1992, on 11.2.1992, the second respondent had submitted an explanation, pleading guilty to the various charges levelled against him and he had also made a request that he should be dealt with leniently, due to his family circumstances. He had also stated that he would not behave in such a condemnable manner in future. In view of the pleadings made by the second respondent, the matter was considered sympathetically and the punishment of dismissal from service was deferred and he was allowed to continue in employment. However, even after his undertaking that he would not indulge in any act of misconduct, the second respondent had continued to behave in a disorderly manner and he was absenting himself from work, frequently. During the year 1994, the second respondent had been warned and he was also suspended for his misconduct of unauthorised absenteeism. Even during the subsequent years, he had continued to commit the misconduct of being absent from work. https://hcservices.ecourts.gov.in/hcservices/ 10. It has been further stated that the second respondent, without any intimation to the petitioner, had absented himself from work from 3.12.1997. Therefore, a show cause notice had been issued to him, on 22.12.1997. Again, on 1.1.1998, another show cause notice had been issued to the second respondent stating that his absence from work had resulted in the loss of production to the petitioner Mill and that he should submit his explanation. Both the notices had been returned undelivered. Subsequently, on 10.1.1998, another show cause notice had been issued to the second respondent for his continued absenteeism. The said notice had also been returned undelivered. In such circumstances, a newspaper publication was made, on 24.1.1998, asking him to show cause as to why appropriate action should not be taken against him for his continued absenteeism. 11. It has been further stated that on 30.1.1998, the second respondent had sent a letter to the petitioner stating certain reasons for his absence from work. As the explanation submitted by the second respondent was not satisfactory, an enquiry had been held, on 7.2.1998. The second respondent had participated in the enquiry and had pleaded guilty for the charges levelled against him, In view of the admission of the guilt by the second respondent, the enquriy officer had concluded the enquiry proceedings. On 9.2.1998, the enquiry officer had submitted his findings holding that the charges levelled against the second respondent were duly proved. Considering the seriousness of the misconduct committed by the second respondent, on 19.2.1998, a second show cause notice had been issued to the second respondent proposing the punishment of dismissal from service. The findings of the enquiry officer had been enclosed. In the said show cause notice issued to the second respondent, the past records had also been referred. On 24.2.1998, the second respondent had submitted his explanation stating that he had been compelled to remain absent due to police action and therefore, he had pleaded for leniency being shown in his favour. The petitioner has considered the explanation of the second respondent and having found it to be unsatisfactory, an order, dated 28.9.1998, had been passed, dismissing the second respondent from service. 12. It has been further stated that the second respondent had challenged the said order dismissing him from service before the fist respondent labour Court, in I.D.No.228 of 1998. By a preliminary order, dated 19.12.2001, the first respondent labour Court had held that the domestic enquiry conducted against the second respondent was fair and proper. During the enquiry, the main contention of the second respondent was that he was victimised for the trade union activities and that the Factory Manager of the petitioner Mill had shown illwill towards him due to a land dispute https://hcservices.ecourts.gov.in/hcservices/ concerning the second respondent's family. However, during the course of his cross examination, the second respondent had admitted that he had not espoused the cause of the workmen for the past 16 years and that during the pendency of the disciplinary proceedings, he had not pleaded that he was victimised for his trade union activities. The first respondent labour court had passed an award, dated 18.6.2002, holding that the plea of the second respondent, that he was victimised for his trade union activities, cannot be accepted and that it had been conclusively proved that the second respondent had been unauthorisedly absent from work without the permission of the Management of the petitioner Mill, amounting to misconduct. The first respondent labour Court had also considered the past records of the second respondent and had held that the charges against the second respondent were proved and that the order passed by the petitioner, dismissing the second respondent from service, cannot be interfered with. However, based on misplaced sympathy, the first respondent labour court had held that in view of the 16 years of service rendered by the second respondent, he should be given monetary compensation. Accordingly, the first respondent labour court had directed the petitioner to pay a sum of Rs.1,42,200/- to the second respondent. In such circumstances, the petitioner has filed the present writ petition before this Court challenging the award of the labour Court, dated 18.6.2002, made in I.D.No.228 of 1998. 13. The learned counsel appearing for the petitioner had submitted that the award of the first respondent labour Court is a clear case of abuse of discretionary powers vested in it by Section 11-A of the Industrial Disputes Act, 1947. In spite of the first respondent labour Court holding that the punishment of dismissal issued against the second respondent was justified, it had directed the petitioner Mill to pay a sum of Rs.1,42,200/, as compensation to the second respondent for his service rendered in the petitioner Mill, based on misplaced sympathy. Therefore, the award of the first respondent labour Court is arbitrary, contrary to Section 11- A of the Industrial Disputes Act, 1947, illegal and void. 14. The learned counsel appearing on behalf of the Management of Tirupur Textiles Ltd., had placed before this Court a decision of the Supreme Court in CHAIRMAN AND MD, V.S.P. and others Vs. GOPARAJU SIR PRABHAKARA HARI BABU (2008-II-LLJ-645 (SC)), wherein the Supreme Court had held that the High Court cannot set aside a well reasoned order of punishment, after all the procedural requirements had been fulfilled, on the ground of sympathy. 15. He had also relied on a decision of a Division Bench of this Court in VIJAYAN, G. Vs. PRESIDING OFFICER, LABOUR COURT AND ANOTHER (2007 (3) LLJ 546), wherein it had been held that on the factual situation arising in the said case, the punishment of https://hcservices.ecourts.gov.in/hcservices/ dismissal from service imposed on the workman, for his frequent absence from duty, was not shocking to the conscience of this Court warranting interference in respect of the quantum of punishment. 16. In view of the submissions made by the learned counsels appearing for the parties concerned and on a perusal of the records available, this Court is of the considered view that sufficient grounds had not been made out to set aside the award of the labour Court, Coimbatore, dated 18.6.2002, made in I.D.No.228 of 1998. The labour Court had considered the evidence available on record and had come to the conclusion that the domestic enquiry conducted against the employee by the employer was fair and proper. The labour Court had also held that the employee had admitted the charges levelled against him for his unauthorised absence and the consequent loss of production. The labour Court had also taken into consideration the past records of the employee before coming to its conclusions. Further, the labour Court had invoked its discretionary power, under Section 11-A of the Industrial Disputes Act, 1947, to award a sum of Rs.1,42,200/- as compensation, instead of reinstating him in service, due to the strained relationship existing between the Management of the Mill and the employee. Since the award of the labour Court, dated 18.6.2002, made in I.D.No.228 of 1998, cannot be held to be perverse or based on no evidence, or arbitrary or capricious in nature, this Court is not inclined to interfere with the said award. Hence, the writ petitions stand dismissed. No costs. lan Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To: The Presiding Officer labour Court Coimbatore 1 cc to Mr.D.Hariparandaman, Advocate, SR.67427 1 cc to Mr.T.S.Gopalan, Advocate, SR.67335 nm (co) dv/7.1. W.P.No.1888 of 2003 & W.P.No.11704 of 2003 https://hcservices.ecourts.gov.in/hcservices/