Madras High Court
The Management vs The Presiding Officer on 10 July, 2023
W.P.No.6394 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.07.2023
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.No.6394 of 2016
And
W.M.P.Nos.6161 & 6162 of 2018, 8812 & 5689 of 2016
The Management,
Tamilnadu State Transport Corporation (Salem) Ltd.,
Dharmaburi Division,
12, Ramakrishna Road,
Salem – 7
Rep. by its General Manager ... Petitioner
Vs.
1.The Presiding Officer,
Labour Court,
Salem.
2.K.Sabapathi ... Respondents
Prayer:
Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorari calling for the records of the order passed by
the first respondent in I.D.No.108 of 2012 dated 11.09.2014 and
quash the same.
For Petitioner : Mr.R.Babu
For Respondents : Mr.D.Soundar Raj for R2
1/6
https://www.mhc.tn.gov.in/judis
W.P.No.6394 of 2016
ORDER
The petitioner has filed this writ petition seeking issuance of
Writ of Certiorari calling for the records of the order passed by the first
respondent in I.D.No.108 of 2012 dated 11.09.2014 and quash the
same.
2.The facts of the case is that the second respondent was
working as Conductor in the petitioner Corporation and since he did
not report for duty from 11.07.2011 onwards, he was issued with a
charge memo dated 09.08.2011 and after conducting enquiry, the
petitioner issued order of dismissal dated 10.04.2012 to the second
respondent. Challenging the order of dismissal dated 10.04.2012, the
second respondent raised industrial dispute in I.D.No.108 of 2012
before the first respondent and the first respondent vide order dated
11.09.2014 directed the petitioner to modify the absence of the
second respondent as medical leave and to reinstate the second
respondent with continuity of service and with 40% backwages.
Challenging the same, the present writ petition has been filed.
3.The learned counsel appearing for the petitioner submitted
that during the pendancy of this writ petition, the second respondent
retired from service on attaining the age of superannuation on
https://www.mhc.tn.gov.in/judis
W.P.No.6394 of 2016
30.06.2016 and hence there is no question of reinstatement. The
learned counsel further submitted that the Hon'ble Apex Court as well
as this Court have in a catena of judgments held that a person is not
entitled for backwages for the period when he is not in employment
and hence, the second respondent is not entitled for any backwages.
The learned counsel further submitted that though the un-authorized
absence of the second respondent was very well proved during the
enquiry, the same was not properly appreciated by the first respondent
and the first respondent mechanically passed the award.
4.Per contra, the learned counsel appearing for the second
respondent submitted that the second respondent absented from duty
due to illness and medical certificate was produced before the
petitioner Management, however, the petitioner Management did not
consider the same and it was properly appreciated by the Labour
Court. The learned counsel further submitted that unless the award
passed by the Labour Court is perverse or arbitrary, it cannot be
interfered with by this Court under Article 226 of the Constitution of
India. The learned counsel further submitted that for un-authorized
absence, the order of dismissal passed by the petitioner is highly
shocking and disproportionate and the Labour Court rightly passed the
https://www.mhc.tn.gov.in/judis
W.P.No.6394 of 2016
impugned award which warrants no interference.
5.Heard the arguments advanced on either side and perused the
materials available on record.
6.The facts in the present case is not in dispute. Admittedly, the
the second respondent was working as Conductor in the petitioner
Corporation and since he did not report for duty from 11.07.2011
onwards, he was issued with a charge memo dated 09.08.2011 and
after conducting enquiry, the petitioner issued order of dismissal dated
10.04.2012 to the second respondent. The charge against the second
respondent is not corruption or anything else and it is only un-
authorized absence. For un-authorized absence, the order of dismissal
passed by the petitioner is highly shocking and disproportionate and
such facts were properly appreciated by the Labour Court.
7.Coming to the question of backwages, as rightly pointed out by
the learned counsel appearing for the petitioner, the Hon'ble Apex
Court as well as this Court have in a catena of judgments held that a
person is not entitled for backwages for the period when he is not in
employment. However, since the second respondent has already
https://www.mhc.tn.gov.in/judis
W.P.No.6394 of 2016
retired from service on attaining the age of superannuation on
30.06.2016, it is practically impossible for reinstatement and hence,
this Court award 20% backwages to the second respondent. The
second respondent is also entitled for continuity of service.
8.In view of the above, the petitioner is directed to pay 20%
backwages and extend continuity of service and pay all other terminal
benefits to the second respondent. The petitioner shall pay the
amount as ordered above after deducting the amount already paid, if
any, to the second respondent, within a period of eight weeks from the
date of receipt of a copy of this order.
9.The writ petition is accordingly disposed of. No costs.
Consequently, connected miscellaneous petitions are closed.
10.07.2023
pri
Speaking Order/ Non Speaking Order
Index: Yes/ No Internet: Yes/ No
To
1.The Presiding Officer,
Labour Court,
Salem.
https://www.mhc.tn.gov.in/judis
W.P.No.6394 of 2016
M.DHANDAPANI,J.
pri
W.P.No.6394 of 2016
And
W.M.P.Nos.6161 & 6162 of
2018, 8812 & 5689 of 2016
10.07.2023
https://www.mhc.tn.gov.in/judis
