Madras High Court
The Corporation Of Chennai vs R.Nagaraj on 30 April, 2021
WP NO.20499 OF 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30 / 04 / 2021
CORAM:
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
WP NO.20499 OF 2008
The Corporation of Chennai
Rep. by its Commissioner
Ripon Buildings,
Chennai – 3. ... Petitioner
Vs.
1.R.Nagaraj
2.The Presiding Officer
II Additional Labour Court
Chennai – 104 . ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorari, calling for the records in
I.D.No.900 of 2001 on the file of II Additional Labour Court, Chennai, order
dated 28.02.2007 and quash the same.
For Petitioner : Ms.Karthikaa Ashok
For Respondent-1 : Mr.D.Nagasaila
1/12
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WP NO.20499 OF 2008
ORDER
The Award of the Labour Court is under challenge in the present
writ petition.
2.The brief facts are as follows:-
The first respondent was appointed as a Desilting employee on
05.05.1989 on a monthly salary of Rs.2,350/-. He absented himself from duty
from 15.01.1995 till 28.08.1998. Therefore, the petitioner/Corporation issued
a charge memo on 19.05.1999 and the first respondent submitted his
explanation on 25.05.1999. The Enquiry Officer has held that charge Nos.1
and 2 are not proved and charge Nos.3 and 5 are proved. The petitioner /
Corporation issued a second show cause notice and the first respondent
submitted his explanation on 25.10.1999. Not being satisfied with the reply,
the first respondent was terminated from service on 13.01.2000. The appeal
filed against the order of termination was also dismissed. Thereafter, the first
respondent approached the Labour Court, wherein, the Labour Court has
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WP NO.20499 OF 2008
found that the findings of the Enquiry Officer is erroneous in respect of
charge Nos.3 to 5. Since charge Nos.1 and 2 were held not proved, the
Enquiry Officer should have held the consequential charges also not proved.
Basing it reliance on the exhibits marked by parties, it awarded reinstatement
with backwages with continuity of service continuity of service and treat the
period of absence as leave on medical grounds. Against which, the petitioner
is before this Court.
3.Even though various grounds were raised, the main focus of
the petitioner is on granting backwages for the period during which the first
respondent was unauthorisedly absent.
4.It is relevant to note that a charge memo was issued to the first
respondent for absenting himself from 15.01.1995 unauthorisedly. The first
respondent submitted his explanation, which was marked as Ex.A4, wherein
it was stated that due to the injury caused by fire and mental illness, he could
not attend to work. Therefore, he was not in a position to submit the leave
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WP NO.20499 OF 2008
letter in person, but sent it through his wife. Before the Enquiry Officer also,
a statement was made and therefore, the Enquiry Officer has found that the
first respondent had submitted leave letters and therefore, it cannot be held as
unauthorised absence. Further, in respect of non submission of explanation to
the charge memo, the Enquiry Officer has found that it was issued after a
period of three years and therefore, it was not legal.
5.Now that, it has to be ascertain as to whether the Labour Court
has rightly arrived at the conclusion or not?
6.The Labour Court lays its decision based on Exs.W11 and
W12. Ex.W11 is the medical certificate and Ex.W12 is the fitness certificate.
Ex.W11 – medical certificate issued by the Regional Medical Board,
Government General Hospital, Madras – 3, reads as under:
“patient is reportedly have been working in Malaria
Distilling Unit in Corporation of Madras. He is absent
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WP NO.20499 OF 2008
from 15/1/95. He was given medical leave for 1498 days
from 15/1/95 to 26/4/98. One by name Dr.Nagaraj, Asst.
Surgeon, Chenglepet Medical College Hospital, diagnosed as
case of Depression. Now patient is referred to OP for
detailed examination and examined at Psychiatry Ward
and then send him to GH with a report.”
7.Thereafter, a fitness certificate was issued vide Ex.W12 which
reads as under:
“The illness noted in the medical certificate was
found to be not genuine on examination and the leave
availed so far shall not be regularised on medical grounds”
A reading of the fitness certificate goes to show that the illness noted in the
medical certificate was found to be not genuine on examination and the leave
shall not be regularised on medical grounds.
8.Curiously, the finding of the Labour Court was that the leave
shall be regularised on medical grounds contrary to the fitness certificate
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WP NO.20499 OF 2008
issued by the competent Regional Medical Board. The Labour Court has
failed to apply its mind and appreciate the documents in proper perspective.
Therefore, the finding is contrary to evidence and not sustainable.
9.In a similar circumstance, the Hon'ble Supreme Court in
STATE OF ODISHA AND OTHERS VS. GANESH CHANDRA SAHOO
[CIVIL APPEAL NO.9514 OF 2019 DATED 10.01.2010] has held that the
certificate issued by the Doctor, who has not treated the patient, shall not be
relied on.
10.In yet another judgment in NEW INDIA ASSURANCE CO.
LTD., VS. VIPIN BEHARI LAL SRIVASTAVA [CIVIL APPEAL NO.5213
OF 2006 DATED 21.02.2008] the Hon'ble Supreme Court has held as
under:-
“18.Mere sending of an application for grant of leave
much after the period of leave was over as also the date of
resuming duties cannot be said to be a bona fide act on the
part of the workman. The Bank, as noticed hereinbefore, in
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WP NO.20499 OF 2008
response to the lawyer's notice categorically stated that the
workman had been carrying on some business elsewhere.
19.We cannot accept the submission of Mr. Mathur
that only because on a later date an application for grant of
medical leave was filed, the same ipso facto would put an
embargo on the exercise of the jurisdiction of the Bank from
invoking clause 2 of the bipartite settlement.
20.It may be true that in a case of this nature, the
principles of natural justice were required to be complied
with the same would not mean that a full-fledged
departmental proceeding was required to be initiated. A
limited enquiry as to whether the employee concerned had
sufficient explanation for not reporting to duties after the
period of leave had expired or failure on his part on being
asked so to do, in our considered view, amounts to sufficient
compliance of the requirements of the principles of natural
justice."
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WP NO.20499 OF 2008
11.The case of the first respondent is that he was treated in the
Institute of Mental Health, Kilpauk, Chennai, whereas, the fitness certificate
which he relied on was issued by the Assistant Surgeon of Chenglepet
Medical College and Hospital, dated 27.04.1998, certifying him as fit to join
duty, whereas he continued to get treatment till August 1998. The certificate
marked as Ex.W11 is dated 28.08.1998 and the fitness certificate issued by
the Regional Medical Board was dated 06.11.1998, which means the first
respondent could have continued to be under treatment or under observation
till 06.11.1998 and therefore, the certificate obtained from the Assistant
Surgeon of Chenglepet Medical College and Hospital does not appear to be
genuine.
12.It is relevant to note that only because an employee submits
the leave letters continuously, he is entitled to medical leave. As per the
leave rules, the medical leave shall be sanctioned on production of medical
certificate. The leave letter on medical grounds shall accompany a medical
certificate.
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WP NO.20499 OF 2008
13.In the instant case, it is stated that the first respondent has
submitted leave letters, but none of the leave letters were marked nor the
records were called for, by the Court, but simply a reference was taken from
Ex.M6. As discussed above, the leave letters, which were not accompanied
by the medical certificate and which was not sanctioned, will not
automatically entitle the employee to medical leave. In so far as this issue is
concerned, the finding of the Labour Court is based on no evidence and also
contrary to evidence. Therefore, the finding of the Labour Court that the first
respondent is entitled to reinstatement with continuity of service with
backwages is perverse.
14.Even though the award of the Labour Court can be set aside
in its entirety, a perusal of the records placed before the Court goes to show
that the enquiry proceedings were not conducted in a fair and proper manner.
The enquiry report is not based on any material, and only as per the
explanation submitted by the first respondent. The Enquiry Officer has not
discussed the reasons, based on the evidence, he has expressed his personal
opinion. Above all, the disciplinary authority has issued a show cause notice
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as to why the findings of the Enquiry Officer need not be accepted and he can
differ the same before passing the final orders. But strangely, the show cause
notice contained the proposed punishment which means the Authority has
pre-determined the issue. Therefore, on these grounds, the order of dismissal
has to be set aside. Even though the Labour Court has arrived at a conclusion
on different reasons, without considering the relevant materials, the order of
dismissal imposed on the first respondent is liable to be set aside, on other
grounds.
15.Accordingly, the Award dated 28.02.2007 passed in
I.D.No.900 of 2001 by the II Additional Labour Court, Chennai is modified
into one of reinstatement without continuity of service and the first
respondent is entitled to be reinstated as fresh entrant. The Writ Petition is
partly allowed. No costs.
30 / 04 / 2021
Index : Yes/No
Internet : Yes/No
TK
https://www.mhc.tn.gov.in/judis/
WP NO.20499 OF 2008
To
The Presiding Officer
II Additional Labour Court
Chennai – 104 .
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WP NO.20499 OF 2008
M.GOVINDARAJ, J.
TK
WP NO.20499 OF 2008
30 / 04 / 2021
https://www.mhc.tn.gov.in/judis/
