Madras High Court
The Management vs 2 The Presiding Officer on 13 September, 2023
W.A. No.2634 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.09.2023
CORAM:
THE HONOURABLE MR. JUSTICE S. VAIDYANATHAN
and
THE HONOURABLE MR. JUSTICE K.RAJASEKAR
W.A. No.2634 of 2023
The Management
Tamil Nadu Government Transport Corporation
Bharathipuram
Dharmapuri District Appellant
v
1 J. Kishan Singh
2 The Presiding Officer
Labour Court
Salem Respondents
Writ Appeal filed under Clause 15 of the Letters Patent challenging the
order dated 12.04.2022 passed in W.P. No.31645 of 2015.
For appellant Mr. K. Raja
Standing Counsel
For R1 Mr. Vasanthanayagan
R2 Labour Court
JUDGMENT
(delivered by S. VAIDYANATHAN, J.)
For the sake of better understanding, the appellant, the first respondent
and the second respondent will be adverted to as the Transport Corporation,
the workman and the Labour Court, respectively.
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W.A. No.2634 of 2023
2 The facts leading to the filing of this writ appeal could be
succinctly stated thus:
2.1 The workman joined as a Conductor in the Transport Corporation
in the year 1979. While he was working in the Palacode Branch, since he
absented himself from 14.07.2007 sans prior permission, he was issued with a
charge memo dated 26.07.2007 followed by three enquiry summonses dated
16.07.2008, 27.08.2008 and 07.10.2008, all of which, got returned with an
endorsement “door locked”.
2.2 Hence, the Enquiry Officer, vide report dated 12.11.2008, set the
workman ex parte and held that the charges were proved. The Enquiry
Officer's report was forwarded to the workman along with a show cause notice
dated 28.02.2009.
2.3 In response, the workman submitted his reply dated 11.05.2009
stating that since his elder son met with an accident on 14.07.2007, he could
not report for duty, pursuant to which, the Transport Corporation addressed a
communication dated 30.09.2009 to the workman requiring him to join duty at
once, which was also returned unserved and hence, the said communication
was pasted in the notice board. Since the workman did not respondent to any
of the letters, he was dismissed from service on 21.12.2009.
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W.A. No.2634 of 2023
2.4 Challenging the dismissal order and seeking continuity of service,
backwages and all other attendant benefits, the workman raised an industrial
dispute being I.D. No.73 of 2011.
2.5 The Labour Court, on an analysis of the evidence on record, more
so, the antecedents of the workman, viz., absenteeism on twenty occasions
sans prior permission and the punishment inflicted therefor, held, vide award
dated 26.02.2015, that the workman does not deserve sympathy and
accordingly, dismissed the industrial dispute.
2.6 The workman assailed the aforesaid award of the Labour Court
by filing W.P. No. 31645 of 2015, in which, the Single Bench, vide order
dated 12.04.2022, finding that the Sergeant of the Transport Corporation who
was sent by the Transport Corporation to find out the genuineness of the
reasons assigned by the workman for his absenteeism and who had given his
report (Ex.M.5), was not examined before the Labour Court and that the
dismissal order was passed one year later from the date of the Enquiry
Officer's report, set aside the award of the Labour Court. Further, the Single
Bench, finding that the punishment of dismissal from service is
disproportionate to the charges and that the workman had reached the age of
superannuation on 31.12.2012, exercising the powers under Article 226 of the
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W.A. No.2634 of 2023
Constitution of India, reduced the punishment of dismissal from service into
one of stoppage of increment for a period of two years with cumulative effect,
by itself, instead of remanding the matter to the Labour Court, as it would lead
to further delay.
2.7 The aforesaid order passed by the Single Bench is appealed
against before us by the Transport Corporation.
3 Heard both sides and perused the materials available on record.
4 At the outset, this Court deems it appropriate to have a look at the
reasons based on which the Labour Court came to the conclusion that the
workman is not entitled to any relief.
4.1 According to the workman, his elder son met with a vehicular
accident on 14.07.2007, in which, he got both his legs fractured; he (son) had
to be admitted in hospital for treatment; he (workman) had to stay in
Coimbatore for mobilising a sum of Rs.4 lakhs for hospital expenses; further,
adding to his woes, his younger son also lost his digesting capacity and he had
to take care of him by admitting him in hospital; because of these two reasons,
he could not report to duty and he informed the Transport Corporation of his
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W.A. No.2634 of 2023
need to avail leave over phone and telegram. However, be it noted, no iota or
shred of evidence, either documentary or oral, was let in by him to buttress the
above stand of his.
4.2 Smelling a rat, the Transport Corporation sent a Sergeant to the
workman's house to find out the genuineness in the reasons assigned by the
workman for not reporting to duty. The Sergeant who had gone to the
workman's house, was informed the same reasons by the workman for not
reporting to duty. The Sergeant had further observed in his report (Ex.M.5)
that the workman was constructing a three-storeyed house in Pannathur and
owing to that reason only, he abstained from reporting to duty.
4.3 Subsequently, the Transport Corporation, in order to afford an
opportunity to the workman, sent a letter to him asking him to join duty which
was returned and hence, the same was pasted in the Transport Corporation's
notice board.
4.4 The Labour Court, observing that only in order to construct
house, the workman had absented from duty by citing a false excuse that he
had to take care of his ailing sons and that he had no intention of reporting to
duty at all, concluded that he is not entitled to any relief.
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W.A. No.2634 of 2023
5 As observed in paragraph 2.6, supra, non-examination of the
Sergeant was one of the reasons that weighed in the mind of the Single Bench
to set aside the award of the Labour Court. Even assuming that Ex.M.5, the
report of the Sergeant, has got to be ignored, it is to be noted that the
workman's absenteeism has been proved in the enquiry and the workman also,
on his part, has not let in any evidence to show that he evinced interest to
report to duty.
6 No doubt, when the punishment imposed is shockingly
disproportionate, the Court is empowered to reduce the punishment and there
can be no quarrel with regard to this. But, if the punishment modified by the
Single Bench is allowed to stand, the workman would be entitled to other
benefits too, viz., continuity of service, etc., which means that he will be
placed on a higher pedestal for the purpose of receiving terminal and other
benefits, which, in the opinion of this Court, the workman does not deserve,
given the gravity of his misconduct.
7 In such perspective of the matter, the punishment of dismissal
from service imposed by the Transport Corporation, which has been modified
by the Single Bench into one of stoppage of increment for two years with
cumulative effect, is converted into one of compulsory retirement with effect
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W.A. No.2634 of 2023
from the date of the dismissal order i.e., 21.12.2009. Further, it is made clear
that the workman is entitled to get only Pension, Gratuity and his share of
Provident fund for the actual period of service rendered by him from 1979 to
21.12.2009, being the date of his dismissal, and the pensionary and Gratuity
benefits shall be calculated based on his last drawn pay.
In the result, this writ appeal stands disposed of accordingly.
(S.V.N., J.) (K.R.S., J.)
13.09.2023
cad
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W.A. No.2634 of 2023
S. VAIDYANATHAN, J.
and
K. RAJASEKAR., J.
cad
To
The Presiding Officer
Labour Court
Salem
W.A. No.2634 of 2023
13.09.2023
https://www.mhc.tn.gov.in/judis
