Madras High Court
The Management vs M.Bharathi Mohan … on 1 July, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P(MD).Nos.26343 of 2019 & 20175 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED ON : 27.06.2025
ORDER PRONOUNCED ON : 01.07.2025
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).Nos.26343 of 2019 & 20175 of 2022
and WMP(MD).No.22781 of 2019
WP(MD).No.26343 of 2019:
The Management
Represented by its General Manager
Tamil Nadu State Transport Corporation(Kumbakonam) Limited
New Railway Feeder Road
Kumbakonam 612 001
Thanjavur District ....Petitioner
Vs
M.Bharathi Mohan ….Respondent
WP(MD).No.20175 of 2022
M.Bharathi Mohan ....Petitioner
Vs
The Management
Represented by its General Director
Tamil Nadu State Transport Corporation(Kumbakonam) Limited
New Railway Feeder Road
Kumbakonam 612 001
Thanjavur District ...Respondent
Prayer in WP(MD).No.26343 of 2019: This Petition filed under Article 226
of the Constitution of India, to issue a Writ of Certiorarified Mandamus
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W.P(MD).Nos.26343 of 2019 & 20175 of 2022
calling for the records relating to the impugned award passed by the Labour
Court, Kumbakonam in I.D.No.93 of 2018 dated 27.09.2019 and quash the
same.
Prayer in WP(MD).No.20175 of 2022: This Petition filed under Article 226
of the Constitution of India, to issue a Writ of Certiorarified Mandamus
calling for the records relating to the award in ID.No.93/18 dated 27.09.2019
passed by the Labour Court, Kumbakonam, quash the same insofar as
denying full wages to the petitioner from the date of dismissal up to
December 2012 and denying 50% backwages from January 2013 to the date
of the award and insofar as not granting the attendant benefits and insofar as
not issuing a Direction for providing light duty in terms of Section 47(1) of
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act 1995 and Section 20(4) of Rights of Persons with
Disabilities Act, 2016 and consequently to direct the respondent to provide
petitioner light duty and to pay full wages from the date of dismissal of
December 2012 and balance 50% backwages from January 2013 to till the
date of reinstatement including PF contribution for the entire period from
02.07.2004 to till the date of re-instatment.
For Petitioner : Mr.P.Balasubramanian
in WP.No.26343 of 2019
:Mr.Ajay Ghoush
For Mr.A.Rahul in WP.No.20175 of 2022
For Respondent : Mr.P.Balasubramanin
in WP.No.20175 of 2022
: Mr.Ajay Ghoush
For Mr.A.Rahul in WP.No.26343 of 2019
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W.P(MD).Nos.26343 of 2019 & 20175 of 2022
COMMON ORDER
These two writ petitions have been filed challenging the award of the
Labour Court dated 27.09.2019 in I.D.No.93 of 2018.
(A)Factual Background:
2.The workman, who was working as a Conductor in the Transport
Corporation Kumbakonam was issued with six charge memos from October
2002 to March 2003 every month for his unauthorized absence. He did not
submit his explanation to any one of the charge memos. The workman was
subjected to domestic enquiry and based upon the enquiry report, an order of
dismissal was passed on 02.07.2004.
3.Challenging the order of dismissal, the workman raised an industrial
dispute before the Labour Court, Kumbakonam under Section 2A(2) of the
Industrial Disputes Act. The Labour Court had arrived at a finding that the
charges as against the workman are proved. However, proceeded to set aside
the punishment of dismissal from service and has imposed a punishment of
postponement of an increment for two years with cumulative effect.
Considering the delay in initiating proceedings, the Labour Court rejected the
request for payment of backwages up to December 2012 and ordered 50% of
backwages from January 2013. Challenging the order of reinstatement and
grant of 50% of backwages from January 2013, the Management has filed
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W.P(MD).Nos.26343 of 2019 & 20175 of 2022
W.P(MD).No.26343 of 2019. The workman has filed WP(MD).No.20175 of
2022 challenging the non-granting of backwages up to December 2012 and
granting of only 50% of backwages from January 2013.
(B)Submissions of the learned counsels appearing on either side:
4.According to the learned counsel appearing for the Management, the
workman had remained unauthorizedly absent for several days in October,
November, December, January, February and March 2003. Six charge memos
were issued to the workman. The workman had neither responded to the
charge memos nor attended duty. The workman has not submitted any leave
letter. When the workman complained about his ill-health, he was referred to
the medical board. It is further contended that the workman had obtained an
order of interim stay from the High Court challenging the order referring him
to Medical Board.
5.Though the workman participated in the enquiry, he has not let in any
evidence. The workman has not even submitted his explanation for the
proposed punishment. In such circumstances, the Management did not have
any other option, than to impose the punishment of dismissal from service.
6.The learned counsel for the Management further submitted that when
the Labour Court has arrived at a specific finding that the enquiry has been
conducted in a fair manner and the charges as against the workman are
proved, the Labour Court ought not to have interfered in the quantum of
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W.P(MD).Nos.26343 of 2019 & 20175 of 2022
punishment. For passing an order of modification of punishment, cogent
reasons have to be provided. However, no reasons are forthcoming from the
order of the Labour Court.
7.The learned counsel for the Management further submitted that 52
misconducts have been pointed out in the second show cause notice issued to
the workman proposing to impose the punishment of dismissal from service.
Out of the said 52 misconducts, 28 of them relate to unauthorised absence. In
such circumstances, it is clear that the workman is a habitual absentee and
therefore, the Labour Court ought not to have sympathized with the
workman.
8.In the light of the previous conduct and punishment imposed upon
the workman, the imposition of punishment for dismissal from service is not
disproportionate. Though the Labour Court is empowered to modify the
punishment, in the light of the findings that the workman is found guilty and
past conduct is not satisfactory, the Labour Court ought not to have
interfered in the quantum of punishment.
9.The learned counsel for the Management had further submitted that
the Labour Court was not right in awarding 50% of backwages from January
2013. It ought to have confirmed the order of dismissal with effect from
02.07.2004. Hence, he prayed for setting aside the award of the Labour Court
and to restore the punishment imposed by the Management.
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W.P(MD).Nos.26343 of 2019 & 20175 of 2022
10.Per contra, the learned counsel appearing for the
workman/conductor submitted that the workman met with an accident and
sustained injuries while he was in duty. He became unfit for the post of
Conductor. Since alternative light duty was not provided, he had filed a writ
petition seeking Mandamus. An order was passed directing the Management
to consider his representation. Thereafter, alternative light duty was provided
to him only for a period of one month in August 2002. Since light duty was
rejected thereafter, the workman was forced to file an contempt petition
wherein another direction was issued to provide him light duty from
13.03.2003 onwards.
11.The learned counsel for the workman further submitted that instead
of providing light duty, six charge memos were issued for the alleged
unauthorized absence. When the enquiry proceedings were pending, the
workman was referred to the Medical Board, Thanjavur, from there he was
referred to Government Medical College, Chennai. When the Medical report
was pending, the Workman was dismissed from service on 02.07.2004.
Therefore, the findings of the Labour Court that he was unauthorizedly absent
between October to March 2003 is not factually correct. The learned counsel
for the petitioner further submitted that the Government General Hospital,
Chennai certified that he is unfit for the post of Conductor. Therefore,
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W.P(MD).Nos.26343 of 2019 & 20175 of 2022
challenging the dismissal order, he filed a writ petition. Since the authority
has granted approval for dismissal order, the writ petition was closed with
liberty to raise an industrial dispute. Therefore, there is no delay in raising the
industrial dispute. The Labour Court ought to have reinstated the workman
with full backwages and all other attendance benefits. Hence, he prayed for
allowing the writ petition filed by the workman.
12.The learned counsel for the workman had relied upon a judgment of
the Hon'ble Supreme Court reported in 2012 (3) SCC 178 (Krushnakant
B.Parmar Vs. Union of India & another) to contend that in cases of
allegation of unauthorized absence, the disciplinary authority has to prove
that the absence was wilful. If the absence was not wilful, it would not
amount to misconduct. He relied upon a Division Bench judgment of our
High Court in WA(MD).Nos.2145 of 2023 and 669 of 2023 (The
Management, Tamil Nadu State Transport Corporation, Villupuram
Division III Ltd., Kancheepuram Vs. The Presiding Officer, Principal
Labour Court, High Court Campus, Chennai and others) dated 15.03.2023
to contend that if the present charges are not proved, the past conduct cannot
be relied upon for imposing the punishment. Hence, he prayed for allowing
the writ petition filed by the workman.
13.Heard both sides and perused the material records.
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W.P(MD).Nos.26343 of 2019 & 20175 of 2022
(C)Discussion:
14.The allegation as against the workman is that he had remained
unauthorisedly absent between October 2002 to March 2003. Whether the
absence was unauthorized and if so, whether it was wilful has to be decided.
15.The petitioner has sustained injuries while he was on duty on
29.02.2000. This Court by an order dated 18.06.2002 in WP.No.21261 of
2002 had directed the Management to consider the request of the workman
for providing alternative duty. Since the said order was not complied with, the
workman has filed the Contempt Petition No.203 of 2003. In the said
contempt proceedings, the Managing Director of the Transport Corporation
has filed a counter pointing out that he had allotted light work to the
workman from 02.08.2002 to 31.08.2002 subject to the recommendation of
the Medical Board for further extension. Since the workman did not get
appropriate medical certificate for further extension, alternative duty was not
ordered. However, when the Corporation received contempt notice,
immediately, an order was passed on 13.03.2003, providing alternative light
duty to the workman subject to the condition that he should produce the letter
of recommendation from the Medical Board.
16.The averments in the above said counter affidavit would clearly
reveal that the Corporation has passed an order providing alternative light
duty to the petitioner only for a period of one month between 02.08.2002 to
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31.08.2002. However, the charge memos were issued to him alleging that he
was unauthorisedly absent from October 2002 to March 2003. A letter was
addressed by the Management to the workman on 26.03.2004 to appear
before the Medical Board at Thanjavur. This letter referred to the order of
High Court. On 01.05.2004, the Medical Board in Thanjavur has referred the
workman to Government Hospital, Chennai for MRI scan. This was
communicated by the Medical Board, Thanjavur to the petitioner on
17.06.2004. The Medical Board in Government Hospital, Chennai has
certified on 17.08.2004 that he is advised to go for a light duty and not to
involve in strenuous activities. However, even before a report was received
from the Medical Board, the workman was dismissed from service on
02.07.2004. Therefore, it is clear that, though the petitioner was continuously
sending representations to refer him to Medical Board, he was belatedly
referred to the Medical Board and without waiting for the report from the
Medical Board, an order of dismissal has been issued.
17.Challenging the dismissal order dated 02.07.2004, the workman had
filed WP.No.3954 of 2005. While the writ petition was pending, the authority
has granted approval for dismissal on 08.05.2009 invoking Section 33(2)(b)
of Industrial Disputes Act. Citing the approval granted by the authority, the
writ petition was dismissed on 01.12.2011 granting liberty to the workman to
approach the Labour Court. Thereafter, the petitioner has raised an industrial
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W.P(MD).Nos.26343 of 2019 & 20175 of 2022
dispute on 08.01.2013. In fact, the approval for dismissal was granted only in
2009 and the writ petition was disposed of only in 2011. Therefore, the
findings of the Labour Court that there was 8 years delay in raising an
industrial dispute is not legally sustainable.
18.When the Management has not provided alternative duty to the
workman and contempt proceedings were initiated, it is clear that the absence
was not unauthorised and it was not willful. The charge memo reflected that
he had not attended the duty of Conductor. There is no allegation that he
avoided alternative light duty. The counter filed by the Management in the
contempt proceedings in Contempt Petition.No.203 of 2003 reveals that the
alternative light duty was provided for only one month in August 2022 and
thereafter, the next order was passed only on 13.03.2003. Therefore, the
period between 01.09.2002 to 13.03.2003 cannot be considered to be an
unauthorised absence. Only for this period, those charge memos have been
issued. In such circumstances, the Labour Court without properly
appreciating the dates and events has arrived at an erroneous finding that the
charges as against the workmen have been proved.
19.The Hon'ble Supreme Court in a judgment reported in 2012(3) LLN
116 (SC) (Krushnakant B.Parmar Vs. Union of India & another) in
Paragraph Nos. 18 and 19 has held as follows:
“18. In a Departmental proceeding, if allegation of
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unauthorised absence from duty is made, the disciplinary authority
is required to prove that the absence is wilful, in absence of such
finding, the absence will not amount to misconduct.
19. In the present case the Inquiry Officer on appreciation of
evidence though held that the appellant was unauthorisedly absent
from duty but failed to hold the absence is wilful; the disciplinary
authority as also the Appellate Authority, failed to appreciate the
same and wrongly held the appellant guilty.”
19.In view of the judgement of the Hon'ble Supreme Court, it is clear
that though the workman was absent during the period covered under the
charge memo, it was only due to the fact that the Management has not
provided alternative light duty as per directions of the High Court. Therefore,
the absence was not wilful. Hence, the findings of the Labour Court that the
charges as against the petitioner stood proved is not legally sustainable.
20.The learned counsel appearing for the Management had submitted
that the past conduct of the workman would clearly reveal that he is in the
habit of remaining unauthorisedly absent and in such circumstances, the
punishment of dismissal from service need not be interfered with.
21.The Hon'ble Division Bench of our High Court in a judgment
reported in W.A.Nos.2145 of 2022 and 669 of 2023 (The Management,
Tamil Nadu State Transport Corporation, Villupuram Division III Ltd.,
Kancheepuram Vs. The Presiding Officer, Principal Labour Court, High
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W.P(MD).Nos.26343 of 2019 & 20175 of 2022
Court Campus, Chennai and others) dated 15.03.2023 in Paragraph No.3
has held as follows:
“3. Learned Single Judge came to the conclusion that once
the charges are not proved, as has been held by the Labour Court,
imposing the punishment based on earlier punishment suffered by
the employee, that too, major punishment of removal from service
may not be correct. We are also of the view that the past record
can be looked into provided the present charges are proved. When
the present charges are not proved, past record cannot be relied
upon for inflicting punishment.”
22.In view of the judgment of the Hon'ble Division Bench, it is clear
that when the charges in the present enquiry are not proved, the question of
considering the past conduct of the workman would not arise. Only if the
charges are proved, the past misconduct and the punishment imposed therein
can be looked into for the purpose of fixing the quantum of punishment.
Therefore, the said contention raised by the Management is liable to be
rejected.
23.When the charges as against the workman have not been proved and
the workman was challenging his dismissal order before the High Court, the
Labour Court was not right in denying the full backwages from the date of
dismissal. There is no fault on the part of the workman in belatedly
approaching the Labour Court. Therefore, the Labour Court ought to have
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W.P(MD).Nos.26343 of 2019 & 20175 of 2022
granted full backwages from the date of dismissal till the date on which the
approval was granted by the authority under Section 33 (2)(b) of the
Industrial Disputes Act. Thereafter, the workman would be entitled to 50% of
the backwages from 09.05.2009 till the date of superannuation.
(D)Conclusion:
24.In view of the above said deliberations, the following orders are
passed:
a)WP(MD).No.26343 of 2019 stands dismissed.
b)WP(MD).No.20175 of 2022 is partly allowed. The workman would
be entitled to full backwages for the period between 03.07.2004 and
08.05.2009. From 09.05.2009 till the date of superannuation, the workman
would be entitled to 50% of the backwages.
25.In fine, both the writ petitions stand disposed of on the above said
directions. No costs. Consequently, connected miscellaneous petition is
closed.
01.07.2025.
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
msa
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W.P(MD).Nos.26343 of 2019 & 20175 of 2022
R.VIJAYAKUMAR, J.
msa
Pre-delivery order made in
W.P.(MD).Nos.26343 of
2019 & 20175 of 2022
01.07.2025
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