Madras High Court
The Managing Director vs The Presiding Officer on 9 October, 2023
2023/MHC/4566
W.A.(MD) No.608 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
and
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
W.A.(MD) No.608 of 2019
and
C.M.P.(MD) No.4963 of 2019
The Managing Director
Tamil Nadu State Transport
Corporation (Kumbakonam
Division II) Limited
Periyamilaguparai, Tiruchirapalli ... Appellant
-vs-
1.The Presiding Officer
Labour Court
Tiruchirapalli
2.N.Tharik Mohammed ... Respondents
Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order, dated 04.07.2018, passed in W.P.(MD) No.8849 of 2016, on the file of
this Court.
For Appellant : Mr.S.C.Herold Singh
For Respondents : R1 – Labour Court
Mr.G.M.Xavier for R2
____________
Page 1 of 8
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.608 of 2019
JUDGMENT
[Judgment of the Court was made by S.M.SUBRAMANIAM, J.]
This writ appeal is directed against the order of the learned Single
Judge, dated 04.07.2018, passed in W.P.(MD) No.8849 of 2016.
2. The appellant is the Managing Director, Tamil Nadu State
Transport Corporation (Kumbakonam Division II) Limited, Periyamilaguparai,
Tiruchirapalli and the second respondent is the workman
3. The second respondent – workman was employed as Junior
Tradesman in the appellant – Transport Corporation. He had developed some
neural ailments and therefore, he went on leave from 23.12.2002 to
22.01.2003. Admittedly, the second respondent remained absent
unauthorizedly, since leave had not been sanctioned by the competent
authority.
4. Learned counsel appearing for the appellant – Transport
Corporation mainly contended that the second respondent was a frequent
unauthorized absentee. Earlier, he remained absent unauthorizedly for three
____________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.608 of 2019
occasions. Thus, he is a chronic offender committing serious misconduct of
unauthorized absence and therefore, the appellant initiated departmental
disciplinary proceedings against him. A charge memo was issued to the
second respondent. He failed to participate in the process of domestic
enquiry. He remained ex parte and the Enquiry Officer conducted ex parte
enquiry and submitted a final report, which was accepted by the Disciplinary
Authority, who in turn imposed the punishment of dismissal from service.
Challenging the order of dismissal from service, the second respondent raised
an industrial dispute in I.D.No.11 of 2008 and the same was allowed by the
Labour Court / first respondent. Challenging the award passed by the first
respondent, the appellant filed the writ petition. The learned Single Judge, by
order dated 04.07.2018, confirmed the award passed by the first respondent
and dismissed the writ petition. Challenging the same, the appellant has filed
this writ appeal.
5. The main contention of the learned counsel for the appellant is
that the second respondent remained absent unauthorizedly for about three
occasions and the appellant had taken a lenient view on the earlier occasions
and finally initiated disciplinary proceedings and by following the procedures
contemplated, imposed the punishment of dismissal from service. Thus, the
____________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.608 of 2019
learned Single Judge ought to have considered the fact that the second
respondent was a chronic absentee and not attended duty on several
occasions, which is a serious misconduct.
6. The Labour Court found that there was no defect in the process
of domestic enquiry conducted by the Enquiry Officer. However, the Labour
Court considered the proportionality of the punishment imposed and
accordingly, granted the relief of reinstatement into service with 25% of
backwages to the second respondent. The learned Single Judge concurred
with the award passed by the Labour Court mainly on the ground that there is
no prima facie error or reason to interfere with the findings of the Labour
Court. The learned Single Judge also considered the issues and found that in
respect of the previous unauthorized absents, the appellant imposed certain
minor punishments. When punishments were already imposed, the said
charges proved cannot be taken into consideration for the purpose of imposing
a major penalty in the subsequent disciplinary proceedings.
7. Apart from the reasons stated by the Labour Court and the
learned Single Judge, if an employee remained absent on medical grounds, it
is the duty of the employer to refer the employee to the Medical Board to
____________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.608 of 2019
ascertain his fitness. If the employer failed to do so, then a factual inference
can be drawn that the employee is fit to join duty. Otherwise the opinion of
the Medical Board has also to be considered for the purpose of taking a
decision.
8. Admittedly, in the present case, the second respondent was not
referred to the Medical Board for medical examination. Thus, the genuinity of
the neural ailments pleaded by the workman was not verified nor the second
respondent was referred to the Medical Board. When the employee is
seriously suffered illness and not in a position to attend the duty and
remained absent unauthorizedly, his representation may be considered for the
purpose of referring him for medical examination by the competent authority.
However, the Labour Court formed an opinion that the domestic enquiry was
not fair and proper.
9. It is brought to our notice that the second respondent was
retired from service on 31.12.2018. Both the Labour Court and the learned
Single Judge granted the relief of reinstatement into service with 25% of
backwages to the second respondent.
____________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.608 of 2019
10. As far as the case on hand is concerned, the second
respondent was suffering from neural ailments and remained absent
unauthorizedly and the genuinity of his illness was not considered by the
employer during the relevant point of time.
11. Learned counsel appearing for the second respondent made a
submission that the second respondent had submitted his medical reports to
the appellant periodically to establish his ailments and the authorities have
not considered the same nor referred the second respondent for medical
examination by the competent Medical Board.
12. In such circumstances, imposing a major penalty of dismissal
from service is disproportionate with reference to the allegations proved
against the employee. No doubt, the allegations of unauthorized absence has
been proved against the second respondent. But, the punishment of dismissal
from service is certainly disproportionate to the gravity of the allegations of
unauthorized absence, since the medical reports produced by the second
respondent had not been considered by the Disciplinary Authority nor he was
referred to the Medical Board for examination. Therefore, considering the
overall circumstances, we do not find any reasonable ground to interfere with
____________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.608 of 2019
the findings of the learned Single Judge, who confirmed the order passed by
the Labour Court.
13. Accordingly, this writ appeal is dismissed. The appellant is
directed to settle all the retirement benefits due to the second respondent
within a period of twelve weeks from the date of receipt of a copy of this order.
No costs. Consequently, connected miscellaneous petition is closed.
[S.M.S., J.] [V.L.N., J.]
09.10.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
krk
To:
The Presiding Officer,
Labour Court,
Tiruchirapalli.
____________
https://www.mhc.tn.gov.in/judis
W.A.(MD) No.608 of 2019
S.M.SUBRAMANIAM, J.
and
V.LAKSHMINARAYANAN, J.
krk
W.A.(MD) No.608 of 2019
and
C.M.P.(MD) No.4963 of 2019
09.10.2023
____________
https://www.mhc.tn.gov.in/judis
