Madras High Court
R. Shanmugam vs The Presiding Officer on 23 August, 2023
W.A. No. 2188 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.08.2023
CORAM
THE HON'BLE MR. JUSTICE S. VAIDYANATHAN
AND
THE HON'BLE MR. JUSTICE K. RAJASEKAR
W.A. No. 2188 of 2023
R. Shanmugam ..Appellant
Vs.
1. The Presiding Officer,
Principal Labour Court,
Vellore.
2. The Management of
M/s. Tamil Nadu Industrial Explosive
Limited, Tel Post,
Vellore – 600 059. ..Respondents
Prayer: Writ Appeal as against the order dated 19.06.2018 passed in
W.P. No. 8326 of 2011.
For Appellant :: Mr.S.T. Varadarajulu
For Respondents :: Mr.Abdul Wahab for
M/s.K.V. Subramanian Associates for
R2
JUDGMENT
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W.A. No. 2188 of 2023
(Delivered by S. Vaidyanathan,J.)
The present writ appeal is directed against the order of the learned
Single Judge dated 19.06.2018 dismissing the writ petition filed by the
employee and thereby confirming the award passed by the Labour Court.
2. The gist of facts which resulted in the filing of this writ appeal
is as hereunder:
The appellant had joined the service of the 2nd respondent
Management as a casual labourer on 14.11.1988 and thereafter, hewas
posted as Danger Area worker with effect from 14.05.1989. His services
were confirmed as per order dated 10.07.1989. Since the appellant absented
himself unauthorisedly on certain occasions, charges memos were issued.
Three separate charge memos were issued for three different periods of
absence for which no explanation was given by the employee. However, in
order to give an opportunity to the employee, an enquiry officer was
appointed and separate enquiry proceedings were conducted in respect of
each charge memo issued. The enquiry officer found that the charges
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W.A. No. 2188 of 2023
levelled against the appellant were proved and second show cause notice
was issued to the employee proposing the punishment of dismissal from
service and the appellant was asked to submit his written explanation. Not
being satisfied with the explanation given by the appellant and that the
appellant had been imposed with punishments for such misconduct earlier,
he was imposed with the punishment of dismissal from service. Challenging
his termination, the appellant had raised an industrial dispute before the 1 st
respondent Labour Court in I.D. No. 251 of 2004. The 1st respondent
Labour Court, after adverting to all the materials placed on record and after
considering the arguments and submissions made on behalf of the employee
and the Management, by award dated 12.05.2009, dismissed the industrial
dispute. The award passed by the Labour Court was questioned by the
employee before this Court in W.P. No. 8326 of 2011 and by the order
under challenge, the learned Single Judge,dismissed the writ petition, giving
rise to the instant writ appeal.
3. Heard both sides.
4. From a perusal of the award of the Labour Court, it is seen that
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W.A. No. 2188 of 2023
the Labour Court has observed that there was categorical evidence by
M.W.1 that the appellant/employee had absented himself without any
permission on all those days mentioned in the charge memos and that such
unauthorised absence would constitute misconduct in terms of standing
orders applicable and this Management witness was not cross-examined by
the employee. Besides, the employee, during the domestic enquiry, in all the
three enquiries, had himself admitted that he was unauthorisedly absent on
all those days mentioned in each charge memo. He had further stated that
as he was falling ill frequently, he was taking treatment, and apologised for
his absence. This admission of the employee was also considered by the
Enquiry Officer while giving his report. Taking note of the totality of
circumstances, the order of dismissal from service had been passed by the
employer. The Labour Court further opined that the medical certificate
produced before it was not at all produced before the Enquiry Officer and
hence, the evidence tendered for the first time cannot be accepted. The
relevant portion of the award of the Labour Court with regard to the above
aspect is extracted hereunder:
“The petitioner as WW1 has stated in the chief examination that
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W.A. No. 2188 of 2023
whenever he takes leave, he will take the leave only after giving
the leave application. Such a case has also not been put forth
during the Enquiry proceeding. During cross examination WW1
says that in the domestic enquiry regarding the charge
memorandum under Ex.M20, he has stated that since he was not
well, he could attend the deuty and he has filed a Medical
Certificate also before the Enquiry Officer. It is to be noted that
he has deposed that he has stated before the Enquiry Officer that
he was not well and it has been brought on record. If really he
has given such a certificate, he ought to have mentioned it in the
petition itself. As already stated, Ex.M25 is the explanation given
by the petitioner for second show cause notice on the basis of the
Enquiry reports. He has not stated in Ex.M25 that whenever he
absents himself or takes leave he will give leave applications. He
has also not stated in Ex.M25 that he has given a Medical
Certificate before the Enquiry Officer and that has not been
brought on record. So such evidence for the first tie, during
enquiry before this Court cannot be accepted.”
The Labour Court, taking note of the gravity of the misconduct, more
so, taking into account the extenuating and aggravating circumstances
prevailing in the present case, found that the punishment imposed cannot be
held to be disproportionate to the gravity of the charges.
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W.A. No. 2188 of 2023
5. Since the Labour Court has rendered a finding of fact, the
learned Single Judge has categorically held that the punishment imposed by
the employer cannot be held to be arbitrary and confirmed the award of the
Labour Court. The learned Single Judge had also observed in paragraph
No.13 that the employee had suffered previous punishments and had not
shown any improvement and his retention in servivce would not be in the
interest of the industry and that it would also usher indiscipline in the
workforce employed by the industry. Unless the finding of the Labour Court
is vitiated on the ground of perversity, the learned Single Judge held that the
award does not call for any interference. The learned Single Judge had also
observed in paragraph No.13 that the employee admittedly was an habitual
absentee and therefore, cannot be shown any indulgence by the Court.
6. We find that there are no reasons to interfere with the order of
the learned Single Judge which confirmed the award of the Labour Court.
Hence, the writ appeal stands dismissed. It is made clear that for the actual
number of years of service rendered, the employee is entitled to PF and
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W.A. No. 2188 of 2023
Gratuity, upto the date of dimsissal and the same shall be released by the
employer, if not already done. No costs.
(S.V.N.J.) (K.R.S.J.)
nv 23.08.2023
To
1. The Presiding Officer,
Principal Labour Court,
Vellore.
2. The Management of
M/s. Tamil Nadu Industrial Explosive
Limited, Tel Post,
Vellore – 600 059.
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W.A. No. 2188 of 2023
S. VAIDYANATHAN,J.
AND
K. RAJASEKAR,J.
nv
W.A. No. 2188 of 2023
23.08.2023
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