Madras High Court
M.Irusappan vs Presiding Officer on 7 July, 2023
W.P.No.20363 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.07.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.20363 of 2013
M.Irusappan ... Petitioner
Vs.
1.Presiding Officer,
Labour Cour,
Puducherry
2.The President,
Kanuvapettai Co-operative Milk Producers Society,
Kanuvpet,
Puducherry ... Respondents
PRAYER: Writ Petition is filed under Article 226 of Constitution of
India praying to issue Writ of Certiorari calling for the records of the
portion of the award, passed by the first respondent herein made in
ID.No.3 of 2010 dated 19.03.2012 insofar as non-granting of back wages
and imposed the punishment of one increment cut with cumulative effect
and quash the same.
For Petitioner : Mr.R.Parthiban
For Respondents
R1 : Labour Court
For R2 : M/s.G.Sumithra
ORDER
This writ petition has been filed challenging the award
passed by the first respondent in ID.No.3 of 2010 dated 19.03.2012,
https://www.mhc.tn.gov.in/judis
W.P.No.20363 of 2013
thereby ordered to reinstate the petitioner into service without backwages
and also imposed punishment to cut one increment with cumulative
effect.
2. The petitioner was appointed as Milk Measurer in the
second respondent Society during the year 1989. In the second
respondent, beside the petitioner, Secretary and Clerk were working. The
petitioner made several representations for non payment of any bonus
Uniform and Education-aided fund. Therefore, he made representation on
21.01.2009 to the second respondent and the second respondent did not
take any steps to consider his request. Therefore, in inimical terms, the
second respondent Society started harassing the petitioner on many
occasions. Finally on the complaints from the members of the Society,
the petitioner was suspended from service on 25.02.2009. Thereafter, he
was served with charge memo dated 18.03.2009 and 03.04.2009. On the
basis of the charge memo, a domestic enquiry was conducted, in which
milk vendors were examined. However, enquiry officer found charges
were proved and on the strength of the enquiry report, he was terminated
https://www.mhc.tn.gov.in/judis
W.P.No.20363 of 2013
from service on 23.05.2009. Therefore, the petitioner raised industrial
dispute before the first respondent and the first respondent found that the
petitioner being employee of the second respondent, failed to discharge
his duty properly due to overload, which he had intimated to the second
respondent which was marked as Ex.P1. Therefore, misconduct
committed by the petitioner is not such grave in nature that does not
warrant punishment of dismissal awarded by the respondent Company
which is disproportionate one and hence, the petitioner can be reinstated
without any backwages. Further concluded that the petitioner had
violated the allocation of work of cleaning, which is given to him and as
such, Labour Court awarded punishment to cut one increment with
cumulative effect.
3. The learned counsel for the petitioner would submit that
once the Labour Court found that the punishment imposed by the second
respondent is disproportionate one, the Labour Court ought to have
awarded reinstatement along with backwages.
https://www.mhc.tn.gov.in/judis
W.P.No.20363 of 2013
4. The learned counsel for the second respondent submitted
that immediately after passing the award, the petitioner was reinstated
into service and now he got retired. That apart, all the charges framed
against the petitioner were proved and the Labour Court rightly held that
the punishment of termination was disproportionate to the proven
charges and as such, provided punishment to cut off one increment with
cumulative effect. However, the petitioner was admittedly not working
from the date of his termination till the reinstatement. Therefore, he is not
entitled for any backwages.
5. Heard, the learned counsel appearing on either side.
6. The only point for consideration in this writ petition is that
whether the petitioner is entitled for backwages during the period of
termination or not?. In this regard, the learned counsel for the petitioner
relied upon the judgment of the Hon'ble Supreme Court of India in the
case of Rama Kant Misra Vs. The State of UP and others rendered in
Civil Appeal No.1531 of 1980 dated 21.10.1982. The workman was
https://www.mhc.tn.gov.in/judis
W.P.No.20363 of 2013
removed from service and upto High Court his order of removal was
confirmed. Aggrieved by the same, the workman preferred appeal before
the Hon'ble Supreme Court of India and the Hon'ble Supreme Court of
India held that the alleged misconduct consisting of use of indiscreet or
abusive or threatening language occurred on November 1971, meaning
thereby that he had put in 14 years of service. The respondent
Management has not shown that there was any blameworthy conduct of
the appellant during the period of 14 years' service he rendered prior to
the date of misconduct and the misconduct consists of language,
indiscreet, improper or disclosing a threatening posture. Therefore, the
Hon'ble Supreme Court of India set aside the punishment of removal
from service and imposed punishment of withholding of two increments
with future effect and management was directed to reinstate the workman
with all the benefits including backwages.
7. He also relied upon the judgment of the Hon'ble Supreme
Court of India in the case of Colour Chem Ltd Vs. A.L.Alaspurkar and
Others reported in (1998) 3 SCC 192, in which the Hon'ble Supreme
https://www.mhc.tn.gov.in/judis
W.P.No.20363 of 2013
Court of India after confirming the order of reinstatement and ordered
backwages of 40% till reinstatement in respect of one workman and 50%
backwages in respect of another workman. In fact, before the first
respondent, the workman cited the very same judgment of the Hon'ble
Supreme Court of India wherein it is held that the punishment of
dismissal imposed would be shockingly disproportionate if inflicted for
minor misconduct and after considering past record. In the case on hand
also, the petitioner was joined as Milk Measurer in the year 1989. After
period of twenty years, he was served with charges. On perusal of the
charges, they are also very flimsy such as he failed to wash the vessels
properly, misbehaved with superior officers. In fact, the petitioner
marked Ex.P1 before the first respondent requesting the second
respondent that he may be relieved from the work of cleaning the office
premises and to make alternative arrangement for cleaning the office
premises and permit him to do the work of measurement of milk only.
8. Admittedly, the petitioner was appointed as Milk Measurer.
Therefore, the Labour Court rightly held that the punishment imposed on
https://www.mhc.tn.gov.in/judis
W.P.No.20363 of 2013
the petitioner was disproportionate and ordered for reinstatement. Insofar
as the backwages, till his twenty years of service, there was no complaint
against the petitioner with regards to misconduct or any charge.
Therefore, for very flimsy charges, capital punishment of dismissal from
service was imposed and as such, the petitioner is entitled for 50% of
backwages for the period from the date of his removal from service i.e.
23.05.2009 till his reinstatement into service.
9. With the above direction, this writ petition is disposed of.
There shall be no order as to costs.
07.07.2023
Internet: Yes
Index: Yes/No
Speaking/Non-speaking order
lok
https://www.mhc.tn.gov.in/judis
W.P.No.20363 of 2013
G.K.ILANTHIRAIYAN, J.
lok
To
1.Presiding Officer,
Labour Cour,
Puducherry
2.The President,
Kanuvapettai Co-operative Milk Producers Society,
Kanuvpet,
Puducherry
3. The Public Prosecutor,
High Court, Madras.
W.P.No.20363 of 2013
07.07.2023
https://www.mhc.tn.gov.in/judis
