Madras High Court
K.Venkatachalam vs The Management on 7 August, 2024
Author: M.S.Ramesh
Bench: M.S. Ramesh
2024:MHC:3089
W.A.No.1901 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.08.2024
CORAM :
THE HONOURABLE MR. JUSTICE M.S. RAMESH
AND
THE HONOURABLE MR. JUSTICE C.KUMARAPPAN
W.A.No.1901 of 2024
K.Venkatachalam ...Appellant
Vs.
=
The Management,
Tamil Nadu State Transport
Corporation (Salem) Limited,
No.12, Ramakrishna Road,
Salem – 637 007. ...Respondent
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent Act, to
set aside the order dated 03.01.2024 made in W.P.No.15351 of 2019.
For Appellant : Mr.S.V.Navin Prabhu
For Respondent : Mr.M.Aswin
Standing Counsel
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Page 1 of 10
W.A.No.1901 of 2024
JUDGMENT
(Judgment of the Court was made by M.S.RAMESH, J.)
Heard Mr.S.Navin Prabhu, learned counsel for the appellant and
Mr.M.Aswin, learned Standing Counsel, for the respondent.
2. On the ground that the appellant, who was employed as a Driver
in the respondent-Management, had remained unauthorizedly absent
since 21.09.2012, charges came to be levelled against him on 01.11.2012
and during the course of inquiry, the Inquiry Officer had held the charges
to have been proved against him, through his inquiry report dated
29.01.2013. After issuing a second show cause notice, he was terminated
from service on 09.04.2013. The order of termination was challenged
before the Labour Court, Salem, in I.D.No.77 of 2014. The Labour Court
had allowed the Industrial Dispute on 18.09.2018 and ordered the
Management to reinstate the workman into service. In the award, the
period of his absence was directed to be treated as 'no work no pay'. The
Labour Court has also ordered the Management to regulate the said
period of absence, as well as the period of inquiry between 21.09.2012
and 10.01.2013, as 'medical leave without pay'. However, for the period
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commencing from 11.01.2013, the Management was directed to pay full
backwages to the workman, together with continuity of service. When the
Management had challenged the award of the Labour Court before a
learned Single Judge of this Court in W.P.No.15351 of 2019, the Writ
Petition came to be allowed and the award of the Labour Court in
I.D.No.77 of 2014, dated 18.09.2018 was set aside, through the order
dated 03.01.2024. This order of the Writ Court is put under challenge in
the present appeal.
3. The learned counsel for the appellant submitted that the charges
levelled against the appellant cannot be sustained, since the appellant had
submitted a leave application to the Management, prior to going on leave
from 21.09.2012, to which the Management had not responded and
therefore, his absence cannot be termed as unauthorized. In these
circumstances, he would submit that the order of termination is
disproportionate to the charges, which has not been considered by the
learned Single Judge.
4. Per contra, the learned Standing Counsel appearing on behalf of
the respondent-Management submitted that if at all the appellant claims
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that he had given a leave application, he ought to have substantiated the
same before the Inquiry Officer and it is not now open to him to raise the
plea. According to him, the unauthorized absence is a misconduct, which
is viewed seriously by the Management and since the appellant was
performing an essential duty under public utility service, the imposition of
punishment of termination of service was quite proportionate to the
levelled charges.
5. We have given our careful consideration to the submissions
made by the respective counsels.
6. The Labour Court had analysed the procedure adopted by the
Inquiry Officer in the domestic inquiry and by referring to the inquiry
proceedings being filled up in a printed format and that the Inquiry
Officer had already arrived at a conclusion before giving sufficient
opportunities, had held that the inquiry itself was not held in a fair and
proper manner and that it is in violation of the principles of natural
justice.
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7. Furthermore, the Labour Court had taken into consideration that
the Management had not denied the ground taken by the workman that
they were maintaining a register of receipt of leave applications, which
was not produced before the Labour Court and therefore, the
Management, having failed to substantiate that they had not received the
leave application from the workman, cannot now shift the burden of proof
on the workman. It is on this ground that the Labour Court had ordered
for reinstatement with backwages, together with continuity of service.
8. When the Labour Court had found that the domestic inquiry was
not held in a fair and proper manner, the Management cannot take a
stand before this Court that the workman had failed to substantiate his
case before the Inquiry Officer. When the inquiry was not held in a fair
and proper manner, the duty shifts on the Management to let in evidence
before the Labour Court and produce necessary materials to disprove the
workman's case. A specific stand was taken by the workman that the
Management was maintaining a register of receipt of applications seeking
for leave, which claim was not disputed by the Management. In this
background, the stand taken by the workman, that he had given a leave
application to the Management, gains significance and the burden of
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disproving such a stand, would be on the Management by producing the
register of leave applications, which they had failed. Thus, there are no
infirmities in the findings of the Labour Court in passing the award of
reinstatement, which was based on the evidences available before it.
9. All these aspects were not brought to the notice of the learned
Single Judge when the Writ Petition filed by the Management was
allowed. Now that we are in confirmity with the findings of the Labour
Court, the consequential order of the learned Single Judge cannot be
sustained.
10. This apart, while deciding a case of misconduct of unauthorized
absence, it would also be relevant to consider the question as to whether
the absence on the part of the workman was wilful or because of
compelling circumstances. The Hon'ble Supreme Court, in the case of
Krushnakant B.Parmar Vs. Union of India and Another reported in
(2012) 3 SCC 178, had held that when the absence is in compelling
circumstances, the same may not be treated as wilful absence. The
relevant portion of the decision reads as follows:-
“17. If the absence is the result of compelling
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circumstances under which it was not possible to
report or perform duty, such absence cannot be
held to be wilful. Absence from duty without any
application or prior permission may amount to
unauthorised absence, but it does not always mean
wilful. There may be different eventualities due to
which an employee may abstain from duty,
including compelling circumstances beyond his
control like illness, accident, hospitalisation, etc.,
but in such case the employee cannot be held guilty
of failure of devotion to duty or behaviour
unbecoming of a government servant.
18. In a departmental proceeding, if
allegation of unauthorised absence from duty is
made, the disciplinary authority is required to
prove that the absence is wilful, in the absence of
such finding, the absence will not amount to
misconduct.”
11. As held in the above decision, when a charge of unauthorized
absence from duty is levelled against a workman, the Disciplinary
Authority is required to establish that such an absence was wilful and in
the contrary, the same will not amount to a misconduct. In the instant
case, the Management had failed to discredit the claim of the workman
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that he had given a leave application before absenting himself from work
and thus, his absence from 21.09.2012 cannot be termed to be wilful and
thus, the consequential charge of misconduct cannot be sustained.
12. Though we are inclined to accept the decision of the Labour
Court, insofar as it orders for reinstatement with continuity of service, as
well as for regulating the period of unauthorized absence and the
subsequent period between 21.09.2012 and 10.01.2013 as medical leave
without pay, we are not in agreement with the award of full backwages
for the period commencing from 11.01.2013, during which period also,
the appellant herein had not performed his ordinary duties in the post of a
Driver. On the other hand, the backwages payable to the appellant would
only commence from the date of the award i.e., from 18.09.2018.
13. In the result, the Writ Appeal stands partly allowed and the
order of the learned Single Judge dated 03.01.2024 passed in
W.P.No.15351 of 2019, is set aside. Consequently, the award of the
Labour Court dated 18.09.2018 passed in I.D.No.77 of 2014, is modified
and the respondent-Management shall forthwith reinstate the appellant
herein back into service, if not already reinstated, with effect from the
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date of his termination, i.e. 09.04.2013, together with continuity of
service, but without any backwages. The period of non-employment shall
be regulated as 'medical leave without pay'. The appellant would also be
entitled for payment of full backwages from the date of award i.e., from
18.09.2018 onwards. Such orders for reinstatement and backwages shall
be passed by the respondent, atleast within a period of eight weeks from
the date of receipt of a copy of this judgment. No costs.
[M.S.R., J] [C.K., J]
07.08.2024
Index:Yes
Neutral Citation:Yes
Speaking order
hvk
To
The Management,
Tamil Nadu State Transport
Corporation (Salem) Limited,
No.12, Ramakrishna Road,
Salem – 637 007.
https://www.mhc.tn.gov.in/judis
M.S.RAMESH, J.
and
C.KUMARAPPAN, J.
hvk
07.08.2024
https://www.mhc.tn.gov.in/judis
