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MTC v. Presiding Officer - WP.29521 of 2005  RD-TN 2949 (10 September 2007)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10-9-2007
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
W.P.No.29521 of 2005
WPMP No.32330 of 2005
WVMP No.1141 of 2006
Corporation (Chennai) Ltd
Pallavan House, Annasalai
rep. By its Managing Director .. Petitioner vs
1.The Presiding Officer
Labour Court, Chennai
2.V.Sampath .. Respondents Writ petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorari calling for the records of the first respondent in I.D.No.604/97 dated 13.10.2004 and quash the same. For Petitioner : Mr.G.Muniratnam For Respondents : Mr.N.G.R.Prasad for M/s.Row and Reddy ORDER
Challenging an award of the first respondent namely the Labour Court, Chennai, ordering reinstatement of the second respondent in I.D.No.604 of 1997 dated 13.10.2004, the petitioner Metropolitan Transport Corporation (Chennai) Ltd., has brought forth this writ petition before this Court.
2.The Court heard the learned Counsel on either side. The affidavit in support of the petition and also the award under challenge are perused.
3.The admitted facts are as follows: The second respondent pursuant to the recruitment as a temporary Driver in December 1981, was confirmed on 1.5.1983 as a regular employee of the petitioner Transport Corporation. When there was a bifurcation in the transport Corporation, the second respondent was transferred to Dr.Ambedkar Transport Corporation, Madras. He has put in 13 years of service. Following the absence of the second respondent between November 1994 and May 1995, a charge memo was issued. He gave his reply which, according to the management, was not satisfactory. Then, a domestic enquiry was conducted, and findings were given that all the charges levelled against him, were proved. The second show cause notice was issued. Then, he tendered explanation. Not satisfied, his services were terminated. He challenged the same by way of industrial dispute before the first respondent Labour Court in I.D.No.604 of 1997. On enquiry, the Labour Court set aside the order of termination and further ordered reinstatement with 50 of back wages. Aggrieved, the petitioner Transport Corporation has brought forth this writ petition before this Court.
4.In support of the writ petition, the learned Counsel for the petitioner would submit that in the instant case, the second respondent has absented himself for a period of 138 days on different spells, from November 1994 to May 1995; that he had never applied for leave or permission; that when the show cause notice was issued by the management, charges were levelled against him; that during the course of the domestic enquiry, he has categorically admitted as to his absence during the entire period of 138 days; that the reason adduced by him, was that his father had sustained a fracture, and there was nobody to attend on him, and therefore, he could not attend work; that in the later part, he stated that he himself was not doing well and he was hospitalized and hence, he could not attend work; that even without any leave application, he absented from his duty; that his misconduct was not a minor one, but, a major one; that under the circumstances, following the domestic enquiry, the charges levelled against him, were proved; that findings were recorded by the Enquiry Officer; that the second show cause notice was issued; that he tendered his explanation, which was not satisfactory; that thereafter, his services were terminated; that when the Industrial Dispute was raised before the Labour Court, the first respondent herein, it has not considered any aspects of the matter both factual and legal; that without a leave application, a Driver of the Transport Corporation has absented himself for a period of 138 days, which is also an admitted fact; that even before the Enquiry Officer, he has admitted the same as a witness; that much comment was made by the Labour Court to set aside the order on the non-examination of a witness by the management and non-production of records; that while there was an admission by the second respondent Driver himself, it is a concrete piece of evidence; but, the Labour Court has not considered the same; and that under the circumstances, the order of the Labour Court has got to be set aside.
5.In support of his contentions, the learned Counsel relied on a decision of the Supreme Court reported in (2006) 5 SUPREME COURT CASES 137 (NORTH-EASTERN KARNATAKA RT CORPN. V. ASHAPPA).
6.Contrary to the above contentions, the learned Counsel for the second respondent Mr.N.G.R.Prasad, would submit that in the instant case, the order of the Labour Court has got to be sustained; that it is true that the second respondent had absented himself for a period of 138 days, but on different spells covering the period from November 1994 to May 1995; that for these period, the applications have been made asking for leave; that only on entertaining the same, he was permitted to work in the subsequent days, after the first spell of leave was over; that in the instant case, when the matter was pending before the Labour Court, not even one witness was examined on the side of the management to prove their case; but, on the contrary, what was available was the evidence on the side of the second respondent; that even assuming that he has absented from duty during the said period, the punishment of termination of service was excessive and not called for; that the same is disproportionate to the charges levelled against him, and under the circumstances, the order of the Labour Court has got to be sustained.
7.The Court paid its anxious consideration on the submissions made. After doing so, this Court is of the considered opinion that the writ petition does not carry any merit whatsoever.
8.It is not in controversy that the second respondent as a driver, has put in 13 years of service in the Transport Corporation. The case of the management in short, is that even without applying for leave, he absented himself for a period of 138 days. But, from the materials available, it is quite evident that 138 days is not continuous but covering the period from November 1994 to May 1995, and in every month, there is a spell of absence. Had it been true that he has absented himself for a period of 20 days in the month of November 1994, there was no reason for the management to allow him to further work in the next month, and thus, 138 days would cover from every month a spell of absence. Under what circumstance the management allowed him to serve during these period is not explained by the management. On the contrary, the second respondent, an employee, comes forward to state that while he has put forth his leave applications, they were entertained. In such circumstances, when a termination order was issued following a domestic enquiry and the same was challenged before a legal forum, a duty was cast upon the management to justify its conduct; but, not even one witness was examined. It has relied on the evidence of MW1. Much comment was made by the Labour Court on the same. This Court is of the considered opinion that it has been rightly done by the Labour Court. It has also pointed out in paragraph 12 of its order as follows: "M.W.1 did not know who are examined during the domestic enquiry. Nobody was examined on the side of the respondent. The petitioner had worked for 13 years. The petitioner was dismissed from service for the absent without intimation. Copy of the report of the computer section was not filed in this Court. He did not know whether the document was produced during the domestic enquiry."
9.All the above would go to show that it is a case where the management which terminated the services of an employee, did not even adduce initial evidence to substantiate the same; but, they wanted to rely on the evidence of the second respondent employee. It is not in controversy that he absented for a period of 138 days. This 138 days was not continuous, but on different spells covering for about 7 months. So long as no explanation is brought forth by the management to show under what circumstance he was permitted to work in these intervals, this Court has to accept the case of the second respondent that when the leave application was entertained, he was allowed to work. Even assuming that he has absented for 138 days, under the stated circumstances, the punishment of termination of service awarded by the Labour Court, would be disproportionate and hence, the order of reinstatement as one ordered by the Labour Court, has got to be sustained.
10.As far as the wages are concerned, this Court is of the considered opinion that the second respondent is not entitled for 50 of wages during that period of 138 days. Accordingly, that part of the award of the Labour Court is modified, and there will be no wages for the said period of 138 days. With this modification, this writ petition is dismissed. No costs. Consequently, connected WPMP and WVMP are also dismissed. 10-9-2007 Index: yes
1.The Presiding Officer
Labour Court, Chennai
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