Madras High Court
K.Ezhumalai vs The Managing Director on 1 August, 2023
W.P.No.7801 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.08.2023
CORAM :
THE HONOURABLE MR. JUSTICE M. DHANDAPANI
W.P.No.7801 of 2016
K.Ezhumalai ... Petitioner
Vs.
1.The Managing Director,
M/s.Barathi Mills,
Puducherry.
2.The Labour Court at Pondicherry,
Puducherry. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, to call for the records
and quash the award of the Labour Court at Pondicherry dated 27.06.2014
in I.D.No.34 of 2012 and direct the 1st respondent to reinstate the
petitioner with back wages, continuity of service and all the consequential
benefits.
For Petitioner : Ms.N.S.Tanvi
For Respondents : Mr.A.Tamilvanan
Additional Government Pleader [R1]
Court [R2]
*****
1/10
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W.P.No.7801 of 2016
ORDER
This Writ Petition has been filed seeking for a Writ of Certiorarified
Mandamus, to call for the records and quash the award of the Labour
Court at Pondicherry dated 27.06.2014 in I.D.No.34 of 2012 and direct the
first respondent to reinstate the petitioner with back wages, continuity of
service and all the consequential benefits.
2. The petitioner is the employee of the first respondent mill and he
entered into service in the year 1981. In the year 2004, due to chicken pox,
he was not able to report for duty. He sent leave letter for ten days through
his co-worker, since he was in quarantine. Whileso, on 26.03.2005, he
received an order dated 06.12.2004 from the first respondent mill stating
that the petitioner is demoted to the position of badli worker on the ground
of unauthorised absence from duty. Thereafter, the petitioner had reported
for duty and he was asked to come back a few weeks and in this manner
several months went by. However, he was not allowed to join duty.
Thereafter, he suffered major road accident in the year 2005 and severely
injury, thereby, he had not reported for duty. After recovery, the petitioner
sent another letter dated 30.09.2006 requesting the first respondent mill to
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W.P.No.7801 of 2016
provide employment, but the petitioner did not receive any positive
response from the first respondent mill. However, the first respondent
issued a publication in Dina Thanthi on 08.01.2009 stating that from
27.03.2005, the petitioner was continuously absent from duty. Therefore,
the first respondent mill conducted enquiry on 23.01.2009 and on various
dates. Subsequently, the petitioner received a second show cause notice
dated 28.04.2010 and he sent reply dated 05.05.2010 and explained his
illness before the first respondent mill. However, the first respondent mill
discharged the petitioner from service on 02.08.2010. Aggrieved by the
order of discharge, the petitioner raised an industrial dispute before the
second respondent in I.D. (L).No.34 of 2012 and the second
respondent/Labour Court rejected the same. Challenging the same, the
petitioner filed the above writ petition before this Court.
3. The learned counsel for the petitioner submits that, during the
pendency of the writ petition, the first respondent mill itself was closed in
the year 2020 and they are providing compensation to the employees who
worked with them till the year 2020. However, in the present case, the
petitioner entered the service in the year 1981. After rendering more than
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W.P.No.7801 of 2016
25 years of service, he was discharged from duty in the year 2010 on the
ground that he was unauthorisedly absent from duty from the year 2005
onwards. Even assuming there is any unauthorised absence, the
punishment imposed by the first respondent mill is highly
disproportionate. However, the second respondent/Labour Court without
considering the harsh punishment imposed by the first respondent mill,
refused to interfere with the order of discharge and dismissed the
industrial dispute, which is not sustainable. In support of his contention,
he relied upon the judgment of the Apex Court in the case of Prem Nath
Bali Vs. High Court of Delhi reported in (2015 (16) SCC 415).
4. The learned Additional Government Pleader (Puducherry)
appearing for the first respondent submitted that, though the petitioner
entered service in the year 2001, however, between the years 2003 to
2004, in different spells, he had not attend the duty and for his
unauthorized absence for the particular period, he was discharged from
service. Thereafter, between the year 2005 to 2009, he has not reported
duty, thereby, the first respondent mill initiated department proceedings
and the petitioner received the notice. However, he has not chosen to
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W.P.No.7801 of 2016
adjudicate the issue before the Enquiry Officer. The Enquiry Officer
drawn proven minutes as against the petitioner. Based on the proven
minute, the order of discharge was passed in the year 2010 and the said
facts was elaborately considered by the Labour Court and the Labour
Court dismissed the application, which cannot be interfered with.
5. Further, the learned Additional Government Pleader (Puducherry)
submitted that, though the petitioner claims that he was affected by
chicken pox and subsequently, met with a road accident, however, no
document was marked before the Labour Court for his unauthorised
absence during the said period. In the absence of any documents, no
sympathy can be shown in favour of the petitioner. Accordingly, he prays
for dismissal of the writ petition.
6. Heard the learned counsel for the petitioner and the learned
Additional Government Pleader (Puducherry) appearing for the first
respondent and perused the materials available on record.
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W.P.No.7801 of 2016
7. Admittedly, the petitioner entered service in the year 1981. In the
year 2004, he was demoted on the ground that he was unauthorisedly
absent from duty for different spells between 2003 to 2005. However,
subsequently, from the year 2005 onwards, he had not reported duty,
thereby, disciplinary proceedings were initiated and the same is ended in
the order of discharge. However, the initial issue arises for consideration is
whether for unauthorised absence, the punishment imposed by the first
respondent proportionate or not.
8. The whole case hinges on the proportionality of the punishment
imposed on the workman as there is no dispute on factual aspects.
Normally, this Court would not interfere with the punishment imposed on
the delinquent unless it is shown to be arbitrary, perverse, illegal and the
punishment imposed on the delinquent shocks the conscience of this
Court, as this Court is guided by the ratio laid down in Prem Nath Bali
Vs. High Court of Delhi (2015 (16) SCC 415). So long as the punishment
imposed is not disproportionate to the charges framed against, the Courts
normally would not interfere with the punishment.
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W.P.No.7801 of 2016
9. It has been the consistent view of the Courts that, it is always
within the domain of the appointing authority to decide on the punishment
to be imposed on the delinquent, which should be proportionate to the act
of the delinquent. Only when the punishment is disproportionate and
shocking to the conscience, should the courts interfere with the same in
exercise of powers under Article 226 of the Constitution. In Prem Nath
Bali Vs. High Court of Delhi reported in (2015 (16) SCC 415), the
Hon'ble Supreme Court held as under :-
20. It is a settled principle of law that once the charges
leveled against the delinquent employee are proved then
it is for the appointing authority to decide as to what
punishment should be imposed on the delinquent
employee as per the Rules. The appointing authority,
keeping in view the nature and gravity of the charges,
findings of the inquiry officer, entire service record of
the delinquent employee and all relevant factors
relating to the delinquent, exercised its discretion and
then imposed the punishment as provided in the Rules.
21. Once such discretion is exercised by the appointing
authority in inflicting the punishment (whether minor or
major) then the Courts are slow to interfere in the
quantum of punishment and only in rare and
appropriate case substitutes the punishment and only in
rare and appropriate case substitutes the punishment.
Such power is exercised when the Court finds that the
delinquent employee is able to prove that the
punishment inflicted on him is wholly unreasonable,
arbitrary and disproportionate to the gravity of the
proved charges thereby shocking the conscious of the
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W.P.No.7801 of 2016
Court or when it is found to be in contravention of the
Rules. The Court may, in such cases, remit the case to
the appointing authority for imposing any other
punishment as against what was originally awarded to
the delinquent employee by the appointing authority as
per the Rules or may substitute the punishment by itself
instead of remitting to the appointing authority.
(Empasis Supplied)
10. In the present case, the allegation made against the petitioner is
not corruption or insubordination or any other major allegation, but the
allegation levelled only relates to unauthorized absence.
11. Though it is the case of the Management that the petitioner had
not placed any documents before the Labour Court to establish that he had
suffered chicken pox and also met with an accident, even inspite of the
same, it is to be pointed out that the proportionality of the punishment to
the charges levelled against the petitioner is on the higher side and
definitely it shocks the conscience of this Court and, therefore, the order
of dismissal is wholly perverse and disproportionate. However, this
material aspect has not been considered by the Labour Court while
dismissing the dispute raised by the petitioner, which requires to be
interfered with.
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W.P.No.7801 of 2016
12. However, in the factual matrix it is also to be noted that the Mill
has since closed and no useful purpose would be served in giving any
relief such as reinstatement with some punishment attached to it. In the
aforesaid circumstances, exercising the inherent jurisdiction vested in this
Court under Article 226 of the Constitution, this Court is inclined to
modify the punishment of dismissal from service and in place of ordering
reinstatement with any strings attached to it by way of punishment, this
Court directs payment of a lumpsum compensation to the petitioner by the
Management as the same would meet the ends of justice.
13. Accordingly, this Court, modifies the punishment of dismissal
from service and in lieu thereof, invoking its inherent powers under
Article 226 of the Constitution, directs the first respondent mill to pay a
lumpsum closure compensation to the petitioner as has been paid to
similarly placed persons like the petitioner, within a period of eight (8)
weeks from the date of receipt of a copy of this order.
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W.P.No.7801 of 2016
M.DHANDAPANI, J.
sp
14. Accordingly, the Writ Petition is allowed in part with the
aforesaid observations and directions. There shall be no order as to costs.
01.08.2023
Index : Yes / No
Speaking order / Non-speaking order
Neutral Citation Case : Yes / No
sp
To
The Labour Court at Pondicherry.
W.P.No.7801 of 2016
https://www.mhc.tn.gov.in/judis
