Madras High Court
The Management Of vs The Presiding Officer on 6 June, 2023
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 06.06.2023
CORAM
THE HONOURABLE MR. JUSTICE V. LAKSHMINARAYANAN
W.P.No. 12533 of 2014
And
M.P.No. 1 of 2014
The Management of
LUK India Private Limited
Hosur
Represented by its Senior Manager – IR
Mr.P.Srinivasan ... Petitioner
..Vs..
1. The Presiding Officer
Labour Court,
Salem.
2. M.C.Krishnan ... Respondents
PRAYER: Petition under Article 226 of the Constitution of India, praying
for the issue of a Writ of Certiorari calling for the records of the first
respondent in I.D.No. 250 of 2005 and quash its award dated 02.12.2013.
***
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2
For Petitioner :: Mr.G.Anand Gopalan
for M/s. T.S.Gopalan &Co.,
For 2nd Respondent :: Mr.K.M.Ramesh
for Mr. K.Bharathi
ORDER
The second respondent was an employee with the writ petitioner. He
had joined service on 04.05.1987. He was a permanent employee between
1989 to 06.06.2002.
2. The cause of action for the present proceeding is that the
second respondent was absent from 05.02.2002 to 11.03.2002. A show
cause notice was issued on 12.03.2002 by the writ petitioner. The same was
returned as “undelivered”. Hence, an enquiry was instituted. An Advocate
was appointed as an Enquiry Officer. The enquiry notice sent by the
Enquiry Officer on 28.03.2002 was also returned as “undelivered”. Yet
again in order to give an opportunity to the writ petitioner, a publication was
made in a newspaper, calling upon the petitioner to be present on
07.05.2002 for enquiry. Even for that notice, there was no response by the
second respondent. Being left with no other option, the enquiry proceedings
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were held ex-parte and the enquiry officer found the second respondent
guilty under Clause 17(e) of the certified standing orders of the writ
petitioner.
3. Clause 17(e) relates to an employee being habitually absent
without authorisation. The Enquiry Officer submitted a report finding the
second respondent as guilty as charged. The said report was accepted by the
Management and it was decided to impose the punishment of dismissal.
4. On 15.05.2002, a second show cause notice was sent, which
was also returned as “undelivered”. Therefore, the show cause notice was
published in Dinamalar on 28.05.2002. On 04.06.2002, an explanation was
given by the second respondent. He had states that he was unable to attend
due to health reasons. The second respondent did not produce any medical
certificate or any other tangible evidence supporting the same.
Consequently left with no other option, he was dismissed from service.
5. It is pertinent to point out here that after his dismissal, on
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29.10.2002, the second respondent wrote to the writ petitioner seeking for
release of gratuity in favour of AK122 Dharmapuri District National
Engineering Employees Thrift and Credit Society. He had borrowed monies
from the Thrift Society. In the application for payment of gratuity, it was
specifically stated that he had been terminated from service on 05.06.2002.
6. Despite the specific statement he was terminated, he signed the
said application for payment of gratuity on 21.11.2002. After receipt of the
gratuity amount, the second respondent approached the Labour Officer
under Section 2(a) of the Industrial Disputes Act, which ended in failure on
23.03.2003. A report had been filed on 04.07.2005 and thereafter, he filed a
petition in I.D.No. 250 of 2006 before the first respondent.
7. The first respondent allowed the petition and directed
reinstatement without backwages with continuity of service only on the
ground that having worked for 15 years, the period between 05.02.2002 to
11.03.2002, was condonable and an opportunity would be given to the
second respondent to get back into the service of the writ petitioner.
Challenging the same, the present Writ Petition has been filed.
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8. I heard Mr.Anand Gopalan, learned counsel for the writ
petitioner and Mr.K.M.Ramesh for Mr.K.Bharathi, learned Senior Counsel
for the second respondent.
9. I have gone through the award passed by the first respondent.
10. It is pertinent to point out here that the second respondent did not
let in any evidence challenging the validity of the enquiry report. In fact, he
did not enter the witness box at all. He had marked only one document,
which is the conciliation failure report. On the contrary, all the records that
preceded the enquiry report and the enquiry report were filed by the
Management. The charge that it was an exparte enquiry and therefore,
should not be given much credence, does not appeal to me. No one
prevented the second respondent from attending the enquiry. He kept away
on his own free will and accord and it is not open to the employee to walk in
and out at any time he pleases.
11. The Certified Standing Orders of the petitioner is very clear.
Habitual absence without any authorisation invites consequences. Despite
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being aware of the same, he stayed away from employment. Apart from this
fact, the most crucial factor which goes against the second respondent is that
he applied for refund of gratuity. In the application made by him, he has
specifically stated that he was terminated from service on 05.06.2002. The
aspect of acquiescence had not been considered by the Labour Court. The
Labour Court had also not considered the fact that the second respondent
had not thought it fit to grace the witness box in order to rebut the case of
the writ petitioner. He had decided to remain exparte not only in the enquiry
proceedings but literally remained exparte even before the Labour Court.
12. Mr. Anand Gopalan, learned counsel for the petitioner invited
my attention to a Judgement of the Supreme Court in Prabhakar Vs. Joint
Director and another (2015) 15 SCC 1. In the said Judgment, it had been
held that the acquiescence would apply even to Industrial Disputes under
Section 2(a) of the Industrial Disputes Act, 1947. The failure to consider the
aforesaid aspects including the principles of acquiescence render the order
illegal and it is liable to be interfered by this Court.
13. Accordingly,I set aside the said order. The Writ Petition is
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allowed. No costs. Consequently, connected Civil Miscellaneous Petition is
closed.
06.06.2023
vsg
Index: Yes/No
Internet: Yes/No
Speaking / Non Speaking Order
To
The Presiding Officer
Labour Court,
Salem.
V. LAKSHMINARAYANAN, J.,
vsg
https://www.mhc.tn.gov.in/judis
W.P.No. 12533 of 2014
And
M.P.No. 1 of 2014
06.06.2023
https://www.mhc.tn.gov.in/judis
