IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 15.12.2008 Coram: The Honourable Mr.Justice M.JAICHANDREN W.P.No.934 of 2003 The Management Metropolitan Transport Corporation (Division I) Ltd., Anna Salai Chennai-600 002 ... Petitioner Vs 1. A.Panneer Selvam 2. The Presiding Officer Labour Court, Chennai .. Respondents Prayer: Petition filed under Article 226 of constitution of India, seeking for a writ of Certiorari to call for the records, dated 16.7.2002, made in I.D.No.597 of 1995, on the file of the labour Court, Chennai, the second respondent herein and quash the same. For Petitioner : Mr.G.Munirathnam For Respondents : Mr.D.Hariparanthaman for R1 O R D E R Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the first respondent. 2. The writ petition has been filed against the award of the second respondent labour Court, dated 16.7.2002, made in I.D.No.597 of 1995. 3. It has been stated that the first respondent was dismissed from service, on 21.12.1993. Against the said order of dismissal issued by the petitioner Management, the first respondent had raised an Industrial Dispute before the second respondent labour Court. The first respondent had joined in the service of the petitioner Corporation as a Conductor in the year, 1986. His service was regularised, with effect from 7.11.1988, by an order, dated 12.6.1989. He had applied for leave for three days, from 10.7.1993 to 12.7.1993. He had submitted his leave application for his absence. Subsequently, since he was suffering from Typhoid, he was not able to https://hcservices.ecourts.gov.in/hcservices/ report for duty. On 20.7.1993, the first respondent had sought for leave by issuing a telegram. In such circumstances, the petitioner Corporation had issued a charge memo, dated 27.8.1993, alleging that the first respondent had committed serious misconduct by absenting himself without prior intimation to the Management of the petitioner Corporation and without the necessary authorisation, from 13.7.1993. Therefore, the Management of the petitioner Corporation had directed the first respondent to report for duty, within 3 days and the first respondent was also called upon to submit his explanation, within 7 days, failing which, it was stated that he would be dismissed from service, under Section 11(c) of the Standing Orders of the petitioner Corporation. 4. It has been stated that the first respondent had submitted his explanation, on 7.9.1993, by registered post with acknowledgment due. Subsequently, on 15.10.1993, the petitioner had sought for extension of leave, due to illness. Further, after receiving the charge memo, on 5.11.1993, he had informed the petitioner Corporation that he could not report for duty due to his illness. However, the Management of the petitioner Corporation, without considering the explanation and the request submitted by the first respondent, had dismissed him from service, on 21.12.1993, as per the standing orders applicable to his service. However, the petitioner had furnished a fitness certificate and had sought for permission to join the duty, on 12.2.1994. The petitioner Corporation, without giving any reply to the first respondent, had dismissed him from service. Therefore, the first respondent had raised an Industrial Dispute, before the second respondent, in I.D.No.597 of 1995. 5. It has been further stated that the petitioner Corporation had filed a detailed counter statement, disputing the averments of the petitioner, in I.D.No.597 of 1995. In the counter statement, it was contended that while the first respondent was working as a Conductor in the Saidapet Depot, he had absented himself without prior intimation or notice and without getting the sanction of leave from the Management of the petitioner Corporation, on and from 13.7.1993. As the first respondent was unauthorisedly absenting himself from duty, consecutively, for more than 8 days, the petitioner Corporation was forced to take action against the first respondent, under the certified standing orders. Accordingly, two memos were issued, on 27.8.1993 and 26.10.1993, directing him to submit his explanation for the serious misconduct committed by him. 6. It has been further stated that even though the first respondent had received the charge memos, on 8.9.1993 and 4.11.1993, respectively, he had failed to submit his explanation. Therefore, suitable action was taken against him, under the relevant provisions of the Standing Orders and he was removed from the rolls of the petitioner Corporation, by an order, dated 21.12.1993, with effect from 13.7.1993. The petitioner Corporation had denied that the first https://hcservices.ecourts.gov.in/hcservices/ respondent had requested for 3 days casual leave and he had submitted an application for the said purpose. Further, it is also denied that prior intimation had been made or medical leave application was submitted by the first respondent. Further, the receipt of the telegram, dated 20.7.1993, had also been denied. The petitioner Corporation had also denied that the first respondent had sent a reply, on 5.11.1993, wherein the first respondent had stated that he could not attend to his duty due to his illness. The request made by the first respondent to permit him to join in duty, vide his letter, dated 12.2.1994, is an afterthought and it has been sent only to coverup his misconduct. However, without considering the valid reasons stated by the petitioner Corporation, the second respondent labour Court, by its award, dated 16.7.2002, made in I.D.No.597 of 1995, had set aside the order of dismissal, dated 21.12.1993, issued by the petitioner Corporation and had directed the petitioner Corporation to reinstate the first respondent, with full backwages, continuity of service and all other benefits. 7. Aggrieved by the said award of the second respondent labour Court, dated 16.7.2002, the Management of the petitioner Corporation had preferred the present writ petition, under Article 226 of the Constitution of India. 8. No counter affidavit has been filed on behalf of the first respondent. 9. The learned counsel appearing for the petitioner had submitted that the award of the labour Court, dated 16.7.2002, made in I.D.No.597 of 1995, is contrary to law, weight of evidence and the probabilities of the case. The labour Court had failed to note that the first respondent was absent from duty, consecutively, for more than 8 days, on and from 30.7.1993, without prior permission or sanction of leave and therefore, the action of the first respondent warranted his dismissal from service, as per the certified standing orders applicable to his service. 10. The learned counsel appearing for the petitioner had also submitted that the labour Court had failed to note that as per the certified standing orders of the petitioner Corporation, if a workman absented himself from duty for more than 8 consecutive days, without prior permission or sanction of leave, it would amount to abandonment of service. Hence, the petitioner Corporation had been forced to take suitable disciplinary action against the first respondent, as per the standing orders. 11. The learned counsel appearing for the petitioner had also submitted that the first respondent was served with the charge memo, dated 27.8.1993, directing him to submit his explanation. However, he had failed to submit the explanation and therefore, he was removed from the rolls of the petitioner Corporation, on 21.12.1993, with https://hcservices.ecourts.gov.in/hcservices/ effect from the date of his unauthorised absence i.e., from 13.7.1993. Further, the first respondent had not requested for any medical leave and he had also not sent any telegram, on 20.7.1993, seeking for leave, as stated by him. The first respondent had not sent the letter, dated 12.2.1994, with the medical certificate, along with the fitness certificate, to inform about his illness. The first respondent had failed to submit any explanation within the time specified. Therefore, he was dismissed from service, as per the standing orders of the petitioner Corporation. The labour Court had failed to consider the Exhibits M.1 to M.4, filed on behalf of the petitioner Corporation. The labour Court had failed to note that the petitioner Corporation had dismissed the first respondent, as per the standing orders and therefore, it would not attract Section 25(F) of the Industrial Disputes Act, 1947. 12. The learned counsel appearing for the petitioner had also submitted that the second respondent labour Court had failed to note that the petitioner Corporation had followed the principles of natural justice, by giving the opportunity to the first respondent to put forth his case, before passing the order of dismissal. The second respondent labour Court had also failed to note that no enquiry was necessary when the action had been taken, as per the standing orders, for the abandonment of service. Therefore, the award of the labour Court, dated 16.7.2002, made in I.D.No.597 of 1995, is unsustainable in law. 13. Per contra, the learned counsel appearing for the first respondent employee had submitted that the second respondent labour Court had passed the impugned award after taking into consideration the evidence available on record. The labour Court was right in holding that the order of dismissal passed by the Management of the petitioner Corporation, dismissing the first respondent from service, is illegal and void. The labour Court had come to the findings that the removal of the first respondent from service amounts to retrenchment, as defined under Section 2(OO) of the Industrial Disputes Act, 1947, and thus, it is in violation of the provisions of Section 25(F) of the Industrial Disputes Act, 1947. Therefore, the non-employment of the first respondent is unjust and that the petitioner is entitled to be reinstated in service, with full backwages, continuity of service and all other attendant benefits. 14. The learned counsel appearing for the first respondent employee had further submitted that the labour Court had found, from Exhibit W.2., dated 7.9.1993, that the first respondent had applied for 3 days casual leave. Therefore, the contentions of the petitioner Management, that the first respondent was absent without prior intimation, is not acceptable. The labour Court had also found that, as per clause 11(c) of the model standing orders, if a worker is absent without leave for more than 8 consecutive days, he shall be deemed to have left the employment, unless he gives an explanation to https://hcservices.ecourts.gov.in/hcservices/ the satisfaction of the Management for such absence. However, the model standing orders is not applicable to the present case, as it is not the case of the petitioner Management that the first respondent had absented without leave for more than 8 consequent days. 15. The learned counsel appearing for the first respondent employee had submitted the labour Court had also found that no reasonable opportunity was given to the first respondent before he was terminated from service by the order passed by the Management of the petitioner Corporation. It was clear from the cross-examination of M.W.1 that the proceedings under Exhibit M.2 was only a warning and not a departmental enquiry. Since it had been admitted that the petitioner was removed from service without conducting any enquiry, the order passed by the petitioner Management, on 21.12.1993, is arbitrary, contrary to the principles of natural justice and void. Further, the labour Court had also found that till the petitioner was removed from service, the petitioner Management had not found any fault in the working of the first respondent. The petitioner had applied for 3 days casual leave due to his illness, which had been sanctioned by the petitioner Management. Thereafter, since the petitioner was suffering from typhoid fever, he had applied for medical leave, on medical advice, by a Telegram, dated 20.7.1993, as found from Exhibit M.2. 16. The learned counsel appearing for the first respondent employee had also stated that, though the petitioner had submitted his explanation by way of Exhibit W.2, the petitioner Corporation had not taken note of the explanation given by the first respondent. Without considering the request of the first respondent and without taking note of the reason for his absence, the petitioner Management had proceeded by issuing a charge memo, under Exhibit W.3. Immediately thereafter, the petitioner had submitted his explanation, on 5.11.1993, as found in Exhibit W.4. Even thereafter, the Management did not comply with the request of the petitioner and instead terminated him from service. Hence, the writ petition is devoid of merits and liable to be dismissed. 17. The learned counsel appearing for the petitioner had relied on the decision of a Division Bench of this Court in INDIAN OXYGEN EMPLOYEES' UNION Vs. STATE OF T.N. & ANR (1989 I LLJ 583), wherein it had been held that if a workman absented himself from duty without leave or permission for more than 10 consecutive days he shall be deemed to have left the service without due notice, in accordance with the standing orders applicable to him. Since the workman had lost his lien on the employment, as a result of his absence, he is not a workman, under Section 2(s) of the Industrial Disputes Act, 1947, and therefore, no reference can be made, under Section 10(1) of the Industrial Disputes Act, 1947. 18. However, the said decision of this Court relied on by the https://hcservices.ecourts.gov.in/hcservices/ learned counsel appearing for the petitioner Corporation is not applicable to the facts and circumstances of the present case, as it has not been proved that the first respondent workman had lost his lien on his employment by abandoning his service. 19. In view of the submissions made by the learned counsels appearing for the parties concerned, this Court is of the considered view that the petitioner Corporation had not shown sufficient cause or reason for this Court to interfere with the award of the labour Court, dated 16.7.2002, made in I.D.No.597 of 1995. The second respondent labour Court had come to its conclusions based on the evidence available on record. 20. It is not in dispute that the Management of the petitioner Corporation had not conducted an enquiry against the first respondent, before he was terminated from service. No opportunity was given to him to putforth his case with regard to the charge of unauthorised absence, alleged against him. In fact, the Management of the petitioner Corporation had contended that there was no necessity for conducting an enquiry, since the first respondent had abandoned the service, in accordance with 11(c) of the standing orders applicable to the petitioner Corporation. However, it is clear that the petitioner Corporation has not been in a position to show that the first respondent workman had abandoned his service by being absent from duty for 8 days consecutively. The petitioner Corporation has not shown that the award of the labour Court is perverse or that it is based on no evidence. This Court does not reappraise the evidence that was available before the labour Court while exercising its jurisdiction, under Article 226 of the Constitution of India. Even if it is found that the labour Court could have come to a different conclusion, based on the evidence available before it, it is not for this Court to hold that the conclusions arrived at by the labour Court is perverse and unsustainable in law. 21. The labour Court had clearly found that no enquiry had been conducted against the first respondent before he was terminated from service. In spite of the fact that he had requested the petitioner Corporation to grant him leave due to his ill health, the petitioner Management had not considered the same. Since the petitioner Management could not show that the first respondent had abandoned his service, there was no good reason for the Management of the petitioner Corporation to terminate the service of the first respondent workman. In such circumstances, the writ petition is liable to be dismissed. Hence, it is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ lan 1.The Presiding Officer Labour Court, Chennai 2 ccs To Mr.D.Hariparanthaman, Advocate, SR.70196, 63171 W.P.No.934 of 2003 SSN(CO) SRA(22/12/2008) https://hcservices.ecourts.gov.in/hcservices/