IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.1.2009 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.13547 of 1999 The Management of Tamil Nadu State Transport Corporation (Kumbakonam Division-II) Limited, rep.by its Managing Director, Periamilaguparai, Collector Office Road, Tiruchirappalli-620 001, formerly known as Dheeran Chinnamalai Transport Corporation Limited. .. Petitioner -vs- 1. The Presiding Officer, Labour Court, Tiruchirappalli. 2. P.Palaniandi .. Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records of the first respondent in I.D.No.113/97, dated 28.10.1998 and quash the same. For Petitioner : Mrs.Narmada Sampath For Respondents : Mr.A.Saravanan for R2 O R D E R The writ petitioner is a state owned Transport Corporation. The present writ petition has been filed against the Award of the first respondent Labour Court in I.D.No.113 of 1997 dated 28.10.1998. By the said Award, the Labour Court had granted the relief of reinstatement with service continuity to the second respondent. But, however, the Labour Court held that the workman was not entitled for any backwages. It also held that he was also liable to be visited with a punishment of stoppage of an increment for a period of one year without cumulative effect. 2. The writ petition was admitted on 10.8.1999 and an interim order was also granted subject to the management complying with Section 17-B of the Industrial Disputes Act, 1947 (for short, 'ID https://hcservices.ecourts.gov.in/hcservices/ Act'). Subsequently, by an order dated 11.10.1999, this Court directed that the management should deposit a sum of Rs.27,000/- to the credit of I.D.No.113 of 1997 and on such deposit, a sum of Rs.10,000/- was directed to be withdrawn without security. The balance sum of Rs.17,000/- was to be invested in a nationalised bank for a period of three years subject to further renewal. A further direction was also given to pay Rs.2195/- to the workman with effect from 1.12.1999. In the order dated 11.10.1999, it was recorded by this Court that the management was not prepared to reinstate the workman. But contrary to the stand taken, the management had reinstated the workman even during the pendency of this writ petition. At the time of filing of the writ petition, the workman was 48 years old and by now he would have even reached the age of superannuation. 3. But, however, Mrs.Narmada Sampath, learned counsel representing Mr.Parthiban, learned counsel for the petitioner submitted that the reinstatement was without prejudice to the outcome of the writ petition. Further even after reinstatement, he was involved in almost four instances of misconduct during the last eight years and, therefore, no indulgence should be shown to the second respondent. If subsequent to the reinstatement, the workman was involved in any misconduct, it is not as if the management is helpless in taking action in terms of the certified standing orders. Therefore, the last contention need not deter this Court from going into the other issues raised herein. 4. It is seen from the records that the workman was working as a Security Guard. On 18.6.1991 while he was on duty from 10.00 p.m. to 6.00 a.m, he was found sleeping by the Assistant Engineer (Technical). Therefore, he was suspended from service. Subsequently, he was reinstated on 03.8.1991 by revoking the order of suspension. After a domestic enquiry was conducted, the charge was found proved and he was dismissed from service. Since an industrial dispute was pending before the Industrial Tribunal, an approval petition was filed under section 33(2)(b) of the ID Act. The Tribunal also granted its approval on 26.2.1996. It was only thereafter the petitioner raised a dispute which was taken on file by the Labour Court as I.D.No.113 of 1997. 5. Before the Labour Court, on behalf of the petitioner management, 17 documents were filed and they were marked as Exs.M.1 to M.17. The workman did not press for a finding on the validity of the domestic enquiry. Therefore, the Labour Court proceeded to decide the dispute on the basis of the available of the documents. The Labour Court held that the evidence let in against the workman is believable and the Assistant Engineer and other technical staff need not make any falsehood as there was no previous enmity between them. Hence, it found that the charges levelled against the second respondent were proved. It observed that when a Security Guard https://hcservices.ecourts.gov.in/hcservices/ himself sleeps while on duty, it brings prejudice to the safety and security of the establishment. 6. But at the same time, the Labour Court found that the workman had been in service from 1981 and he was also confirmed with effect from 01.10.1983. Therefore, at the relevant time, he had put in more than 10 years of service. The past conduct showing certain misconducts on his part had nothing to do with the present nature of the misconduct. If his services are allowed to be terminated, he and his family will be put to a grave economic hardship. In order to give one more opportunity, the Labour Court ordered his reinstatement but, however, deprived full backwages with a direction to stop his increment for one year. 7. Mrs.Narmada Sampath, learned counsel for the petitioner submitted that sleeping while on duty is a grave misconduct and placed reliance upon the judgment of the Supreme Court in Bharat Forge Co.Ltd. -vs- Uttam Manohar Nakate reported in (2005) 2 SCC 489. She placed emphasis on the following passages found in paragraphs 13 and 14, which may be usefully reproduced below:- ''Para 13. The Labour Court, as noticed hereinbefore, in its order dated 21-5-1985 held that the enquiry was proper and the finding of the enquiry officer was not perverse. The learned Labour Court, however, in its order dated 31-7-1985 passed an order of reinstatement with 50% back wages holding: “… Obviously, this lapse on his part does not show that at any point of time he indulged in gross misconduct which affected adversely the interest of the respondent Company. In the case at hand, the charges regarding sleeping during duty hours, no doubt, appear to be of a grave and serious nature and such sort of tendencies cannot be appreciated and they deserve to be curbed with heavy hands. If such misconducts are viewed with leniency, it will have adverse effect on the peace and tranquillity of the peaceful functioning of the Company, but, in the instant case, we cannot adopt this harsh view. It is because the length of service of the complainant is of longer period of 10 years and for one lapse of this nature it is not proper to sack him from the services. I think, therefore, by imposing lesser punishment it would be better if one more chance is given to him to serve the respondent Company. Viewed from this angle, I think, the punishment of removal imposed upon him by the respondent is absolutely harsh and disproportionate and no reasonable employer would impose such punishment in such circumstances.” https://hcservices.ecourts.gov.in/hcservices/ Para 14. No sufficient or cogent reason, in our opinion, was assigned by the learned Labour Court as to why a lenient view should be taken. The revisional court while allowing the revision application of the appellant and dismissing the revision application of the respondent came to the conclusion that as the misconduct has been proved and relying on the decision of this Court in Bhagubhai Balubhai Patel (1976) 1 SCC 518 where it was opined that a proved misconduct is antithesis of victimisation in the industrial relations, held ..." 8. The learned counsel emphasized that the judgment of the Supreme Court in Colour-Chem Ltd. -vs- A.L.Alaspurkar and others reported in (1998) 3 SCC 192 holding that dismissal of a workman found sleeping while on duty was a disproportionate punishment and if the workman is visited with such a penalty, it would be an act of unfair labour practice, was held to be not an authority on the issue. She also placed reliance upon the following passages found in paragraphs 21 and 22 of the said judgment, which reads as follows:- ''Para 21. Colour-Chem Ltd. -vs- A.L.Alaspurkar and others (1998) 3 SCC 192 was, thus, rendered in the fact situation obtaining therein. It is not an authority for the proposition that in a case where an employee is found to be sleeping during working hours, imposition of punishment of dismissal, despite his past bad record must be held to be disproportionate to the act of misconduct. Para 22. In the instant case although victimisation has been taken to be a ground of complaint, no factual foundation therefor was laid and it was confined to quoting only the legal provisions. No plea of legal victimisation was also taken in the complaint petition." 9. The contention raised by the petitioner management may be well founded and supported by a binding legal precedent. Yet in the present case, when the management initially refused to reinstate the workman but however on their own accord reinstated the workman and allowed him to continue in service for over 10 years after his reinstatement. This factor will certainly go against the management's contention that the second respondent is not worthy of any reinstatement or sympathy. It was contended by Mrs.Narmada Sampath that the management, with a view to extract work and to avoid making monthly payment to an idle worker, had reinstated the worker, that it was without prejudice to the management's contention in challenging the Award, and that cannot be pressed into service against the management. 10. However, this Court is of the view that it is not a case of reinstatement of the worker for few months but for over a https://hcservices.ecourts.gov.in/hcservices/ decade. But it is a case of the workman who had put in more than 10 years of service before his dismissal. Even thereafter when an interim order was passed by this Court for making monthly payments under section 17-B of the ID Act after informing the Court, that they are not prepared to reinstate the workman, the management itself had reinstated him in the very same post of Security Guard and also extracted work from him during the last 10 years. When the management itself decides to condone the lapse, they cannot turn back and take a contradicting stand contending that the workman was ineligible for any relief. In the present case, the Labour Court found that this was a first occasion the workman was found guilty of sleeping while on duty. It had also found that he was having 11 years of service and was not found guilty of a similar misconduct before. The Labour Court after taking into account the overall circumstances held that the workman should be denied backwages and also must be imposed with a penalty of one increment cut. This power is available to the Labour Court under Section 11A of the ID Act. If such a power is exercised in a proper manner by taking into account the subsequent events, this Court may not interfere with such an Award. 11. In the light of the above, the writ petition will stand dismissed. However, there will be no order as to costs. In view of the dismissal of the writ petition, the management is directed to comply with the Award within a period of eight weeks from the date of receipt of a copy of this order. Consequently, all miscellaneous petitions are closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar js To 1. The Presiding Officer, Labour Court, Tiruchirappalli. 2. The Managing Director, Tamil Nadu State Transport Corporation (Kumbakonam Division-II) Limited, Periamilaguparai, Collector Office Road, Tiruchirappalli-620 001. order in W.P.No.13547 of 1999 GG (CO) GSK 23.01.2009. https://hcservices.ecourts.gov.in/hcservices/