IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.04.2010 CORAM THE HONOURABLE MR.JUSTICE T.RAJA W.P.No.32462 of 2004 & W.V.M.P.No.928 of 2005 & W.P.M.P.Nos.39328 of 2004 & 12378 of 2005 The Tamil Nadu State Transport Corporation (Salem) Ltd., Salem, Rep. by its Managing Director ... Petitioner Vs. 1.The Presiding Officer, Labour Court, Salem. 2.G.Murugan ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorari, to call for the records of the 1st respondent in I.D.No.346 of 2002 dated 16.12.2003 and to quash the same. For petitioner : Mr.D.Gopinathan for Mr.M.Ravibharathi For R2 : Mr.N.M.D.Nazirullah for Mr.K.V.Shanmuganathan ORDER The present Writ Petition is filed by the Tamil Nadu State Transport Corporation (Salem) Ltd., Salem as against the award dated 16.12.2003, passed by the 1st respondent/the Presiding Officer, Labour Court, Salem, in I.D.No.346 of 2002, directing the respondent to reinstate the workman into service within three months with continuity of service and other benefits, but without backwages. 2. The brief facts of the petitioner's case are as follows:- The 2nd respondent/workman was appointed as a Driver on daily wage basis on 01.07.1994 in the service of the Tamil Nadu State https://hcservices.ecourts.gov.in/hcservices/ Transport Corporation (Salem) Ltd., Salem. After joining the service of the Transport Corporation on daily wage basis, the 2nd respondent/workman went on leave from 26.05.1995 to 28.05.1985 without giving any leave application. Once again, the 2nd respondent/workman went on leave without prior permission from 31.05.1995 till 16.11.1995. In view of his long absence and not reporting for duty, the petitioner Transport Corporation has sent a show cause notice to the 2nd respondent/workman to give his explanation as to why action should not be taken against him for his unauthorised absence. The 2nd respondent/workman, after receiving the charge memos dated 06.07.1995, 24.08.1995 and 12.09.1995 did not even send any reply. 3. Therefore, the petitioner Transport Corporation ordered to hold a domestic enquiry in accordance with the principles of natural justice. The 2nd respondent/workman, after receiving notice of the domestic enquiry, participated fully in the said domestic enquiry, and the Enquiry Officer, after completion of the enquiry, submitted his report holding that the charges were proved against the 2nd respondent/workman. After submission of the report, a 2nd show cause notice was also issued on 09.10.1995 calling upon the 2nd respondent/workman to show cause as to why further action should not be taken for his misconduct proved by the findings of the Enquiry Officer. 4. The 2nd respondent/workman submitted his explanation to the 2nd show cause notice. Having seen that there was no merit in the explanation offered by the 2nd respondent/workman, the disciplinary authority having seen that the 2nd respondent/workman was employed only as a daily wager and even before getting regularised in the service of the Transport Corporation went on leave without prior permission, passed an order dated 16.01.1996, dismissing the 2nd respondent/workman from service. 5. The 2nd respondent/workman, aggrieved by the order of dismissal from service, raised an Industrial Dispute and the 1st respondent/the Presiding Officer, Labour Court, Salem, after considering the case of both sides, passed an award in I.D.No.346 of 2002, dated 16.12.2003, directing the Transport Corporation to reinstate the 2nd respondent/workman into service within three months with continuity of service and other benefits, but without backwages on the ground that the punishment imposed on the 2nd respondent/workman was not justified. Aggrieved by the said order, the present Writ Petition has been filed. 6. The learned counsel appearing for the petitioner submits that the Labour Court, while exercising the power under Section 11(A) of the Industrial Disputes Act, has gone beyond the jurisdiction to order reinstatement of the 2nd respondent/workman with continuity of service and all other benefits without backwages without taking into https://hcservices.ecourts.gov.in/hcservices/ account the fact that the 2nd respondent/workman was appointed only as a Driver on daily wage basis on 01.07.1994, but, he went on leave from 26.05.1995 to 28.05.1995. But, once again he remained absent without submitting any leave application from 31.05.1995 till 16.11.1995. Further, when show cause notice was given to the 2nd respondent/workman to answer the charges made against him, the workman did not even bother to submit his explanation. 7. The Labour Court failed to consider the fact that the 2nd respondent/workman did not come forward to submit his explanation. Even without finding any justifiable reason, the Labour Court has wrongly set aside the order of dismissal from service and directed the petitioner Transport Corporation to reinstate the 2nd respondent/workman in service. Therefore, the said order cannot stand the scrutiny of the Court. On that basis prayed for dismissal of the award passed by the 1st respondent/the Presiding Officer, Labour Court, Salem. 8. In reply, the learned counsel appearing for the 2nd respondent submits that the Labour Court, while considering the case of the 2nd respondent/workman, having seen that the order of dismissal from service against the 2nd respondent/workman was disproportionate to the proved charges, has exercised its power under Section 11(A) of the Industrial Disputes Act by modifying the punishment of dismissal from service into one of reinstatement with continuity of service and other benefits, but without backwages. In his further submission, he has also brought to the notice of this Court, a Judgment of this Court passed in W.P.No.18429 of 2000, dated 19.02.2010 to show that the order of dismissal passed by the Petitioner's Transport Corporation is contrary to the Judgment mentioned above. In fact, the said Judgment of this Court has considered the case of an employee, a Driver who worked for 20 years and after 20 years when the delinquent employee went on leave without properly submitting his leave application, the Labour Court has taken a lenient view to modify the order of dismissal from service, and taking into account 20 long years of service rendered by the delinquent employee, came to the conclusion that the order of removal from service for a long leave without prior permission cannot be considered to be grave and the punishment awarded cannot be said to be a reasonable punishment and on that basis modified the punishment of removal into one of reinstatement without backwages. But, in the present case, the 2nd respondent/workman was a daily wager engaged as a Driver on 01.07.1994. Even before his service was regularized, the 2nd respondent/workman, even without submitting any regular leave application, proceeded on leave from 26.05.1995 till 28.05.1995 and once again he remained absent for a long time from 31.05.1995 till 16.11.1995. Therefore, the petitioner Transport Corporation having seen the conduct of the 2nd respondent/workman, thought it fit to give him a chance by issuing a show cause notice. But, unfortunately, the 2nd respondent/workman did not come forward to submit his explanation https://hcservices.ecourts.gov.in/hcservices/ as to why he went on leave for the above said period. 9. However, a domestic enquiry was conducted, and though the 2nd respondent/workman participated in the said enquiry, he was not able to satisfy the Enquiry Officer. Therefore, the Enquiry Officer submitted his report holding that the charges levelled against the 2nd respondent were proved. On the basis of the findings of the Enquiry Officer, the disciplinary authority issued a 2nd show cause notice calling upon the 2nd respondent/workman to submit his explanation as to why the punishment of removal from service should not be imposed to which a detailed explanation was submitted by the 2nd respondent/workman, but the same was not found satisfactory and therefore, the disciplinary authority passed the final order of dismissal from service. The said order when challenged by raising an Industrial Dispute before the Labour Court, the Labour Court has not even considered the fact the 2nd respondent/workman was a daily wager appointed on 01.07.1994 and therefore was not was justified in proceeding on leave for a long time from 31.05.1995 till 16.11.1995, that too without prior permission of the petitioner. 10. The other contention of the learned counsel appearing for the workman that the 2nd respondent/workman should be shown indulgence as has been shown by this Court in order dated 19.02.2000 made in Writ Petition No.18429 of 2000, cannot be considered by this Court for the simple reason that in Writ Petition No.18429 of 2000, the delinquent employee worked for 20 years and by taking into account the long service of 20 years rendered by the employee, the Labour Court has shown some indulgence by ordering re-instatement without backwages. But, in the present case, the 2nd respondent/workman was a newly recruited person on 01.07.1994 and is a daily wager and even before his services were regularised, he proceeded on long leave and remained absent without submitting any leave application. Therefore, the conduct of the workman does not deserve any indulgence from this Court. Hence the impugned order passed by the Labour Court does not carry merits and accordingly the same is quashed and the Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar smn To The Presiding Officer, Labour Court, Salem. https://hcservices.ecourts.gov.in/hcservices/ + 1 cc to Mr.M.Ravi Bharathi,Advocate,SR.23812 + 1 cc to Mr.K.V.Shanmuganathan,Advocate,SR.23845 W.P.No.32462 of 2004 GG(CO) EM/27.5.10 https://hcservices.ecourts.gov.in/hcservices/