V.Balakrishnan v. The Presiding Officer, Labour Court, Tiruchirapalli

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 8.4.2008CoramTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.13436 of 1998W.P.No.11380 of 2000andW.P.M.P.No. 20427 of 1998 &W.P.M.P.Nos.1673, 1674 of 2000The Management of Tamil State Transport Corporation,(Kumbakonam-Division-II) Ltd.,Periamilaguparai,Tiruchirapalli. ...Petitioner in W.P.No.13436 of 1998 & 2nd respondent in W.P.No.11380 of 2000V.Balakrishnan ...Petitioner in W.P.No.11380 of 2000 & 2nd respondent in W.P.No.13436 of 1998vs.1.The Presiding Officer, Labour Court, Tiruchirapalli. ...1st respondent in both the W.Ps.Petitions filed under Article 226 of the Constitution of Indiapraying for issuance of a writ of certiorari to call for the records ofthe first respondent dated 10.12.1997 made in I.D.No.76 of 1994 and toquash the same.For Petitioner : Mr.R.Parthiban in WP.No.13436/98 & 2nd Resondent in WP 11380.For Petitioner : Mr.G.Purushothaman in WP 11380/2000 & 2nd Respondent in WP 13436/98.COMMON ORDER Heard the arguments of Mr.R.Parthiban, learned counsel appearingfor the State Transport Corporation and Mr.G.Purushothaman for workmanand perused the records. https://hcservices.ecourts.gov.in/hcservices/

2. W.P.No.13436 of 1998 is filed by the State Transport Corporationaggrieved by the award of the first respondent/Labour Court made inI.D.No.76 of 1994 dated 10.12.1997 in so far as the granting of therelief of reinstatement without back wages by the Labour Court.W.P.No.11380 of 2000 is filed by the workman against the very same awardin so far as it denied back wages to him. In view of theinterconnectivity between the two writ petitions, the matters were heardtogether and disposed of by a common order.3. The parties are respectively referred to as the 'management' andthe 'workman'. 4. The workman was working in the management as a driver from10.3.1984 and was absent from 18.10.1991 to 27.1.1992. It was the standof the workman that he went on leave and he has sent a telegramrequesting 15 days' leave and this fact is not denied by the management.However even before the charge memo was framed against the workman hereported for duty, but was refused work. During the pendency ofdomestic enquiry conducted by the management, the workman was restoredto duty without prejudice to the out come of the enquiry. After theconclusion of the enquiry, after giving a show cause notice, the workmanwas dismissed from service by the final order dated 8.12.1992.Thereafter, the workman raised a dispute before the Labour Officer,which finally culminated in an Industrial Dispute and the firstrespondent/Labour Court took up the dispute on its file as I.D.No.76 of1994. 5. Before the Labour Court after a preliminary issue was framedwith reference to the validity of the enquiry, the Labour Court allowedthe parties to record evidence. Though initially it was on thepresumption that the evidence let in related to the conduct of theenquiry, however it transpires that both the parties have let inevidence on merits before the Labour Court both oral and documentary.On the side of the workman 16 documents were filed and they were markedas Ex.W.1 to Ex.W.16. On the side of the management 19 documents werefiled and they were marked as Ex.M.1 to Ex.M.19. On the side of theworkman, he had examined three witnesses, including himself. It issignificant that he also examined the Doctor Johnbosco,who treated him,as W.W.2. On the side of the management, three witnesses were examined.6. Thereafter, the Labour Court made a strange finding that sinceboth the parties have let in evidence, it is unnecessary to go into thequestion of validity of the enquiry. This approach is impermissible andcontrary to the provisions contained under Section 11-A of theIndustrial Disputes Act(hereinafter referred to as the 'Act'). However,at this stage it is unnecessary to go into the said issue.7. When the writ petition was admitted, which was filed by themanagement i.e. W.P.No.13436 of 1998, this Court, by an order dated https://hcservices.ecourts.gov.in/hcservices/

10.4.2000 granted the relief under Section 17-B to the workman. Themanagement was directed to pay Rs.2507/- commencing from 1.5.2000 tillthe disposal of the writ petition and also directed a sum of Rs.70,000/-to be deposited and out of which, Rs.20,000/- was allowed to bewithdrawn by the workman and the balance of Rs.50,000/- to be investedin a fixed deposit with the State Transport Finance Corporation, withinterest to be drawn periodically. 8. In order to avoid making payment under Section 17-B of the Actand considering the nature of the misconduct committed by the workmanthe management voluntarily reinstated the workman with effect from30.6.2000. The workman is in employment till this date and nothingadverse is brought to the notice of this Court that during this relevantperiod of eight years the workman had committed any further misconduct.9. However, after obtaining the interim relief from this Court, theworkman had chosen to file the writ petition, viz., W.P.No.11380 of2000. Such an action on the part of the workman is impermissiblebecause he cannot avail the benefit of the interim order passed by thisCourt and thereafter, after a considerable period of delay, (i.e.a delayof 3 years), file the writ petition challenging the portion which deniedhim back wages. On this ground, the writ petition filed by the workmandeserves to be dismissed. 10. Mr.Parthiban, the learned counsel appearing for the managementargued that the Courts have taken a view that even an unauthorisedabsence is also a serious misconduct and no sympathy can be shown insuch circumstances. The learned counsel brought to the notice of thisCourt the judgment of the Division Bench of this Court in G.VIJAYAN VS.THE PRESIDING OFFICER, LABOUR COURT, SALEM AND ANOTHER REPORTED IN(2007)5 MLJ 1331 so as to impress this Court that absenteeism is to betreated as a grave misconduct and therefore no sympathy can be shown.11. A careful perusal of the judgment referred to supra shows thatin that case the workman had committed unauthorised absence for aprolonged period, namely, 1987 to 1995 and that he had merely absentedfor 21 times unauthorisedly and therefore, the previous record of theworkman also was taken into consideration. Further, the learned counselfor the management submitted that in the present case also themanagement had submitted before the Labour Court 8 instances ofunauthorised absence.12. The learned counsel also brought to the notice the recentjudgment of the Supreme Court in L& T KOMATSU LTD. VS. N.UDAYAKUMAR(2008) 1 SCC 224 for the very same proposition. There also it is foundthat the workman had unauthorisedly absented for more than 105 days i.e.for a period from 1.8.2000 to 30.4.2001 and also in the previousoccasion he has absented for more than 15 times. In that context theSupreme Court, after referring to several decisions rendered under https://hcservices.ecourts.gov.in/hcservices/ Section 11-A of the Act, came to the conclusion that no sympathy can beshown to the workman in such circumstances. 13. The learned counsel also referred to an unreported DivisionBench judgment of this Court in DHEERAN CHINNAMALAI TRANSPORTCORPORATION VS. THE PRESIDING OFFICER, TRICHY AND ANOTHER made inW.A.No.1414 of 2000 dated 13.4.2006. There also the Division Bench heldthat the workman in that case had habitually absented from 19.7.1978 to26.7.1998 i.e. nearly a period of nearly 20 years and therefore, hisabsence cannot be viewed lightly and therefore, the order of the learnedsingle Judge was set aside by this Court. 14. However, there are two distinguishing features in the presentcase. The first was that the initial absence of the workman was foundto be not without notice by the Labour Court and the fact that theworkman had sent a telegram seeking leave for 15 days was accepted bythe Labour Court. Even before this Court the learned counsel for themanagement had stated that the management had received such a telegram.Further during the course of evidence, the workman, whose evidence wasalso corroborated by the Doctor and another co-employee to the factthat even before the charge sheet, the workman had reported for duty andhe was refused work by the management. Further, in the present case,the alleged absence was only for a period of 51 days and even the 15days, for which he had sought for leave is excluded then it comes toonly 36 days. Apart from that during the domestic enquiry conducted bythe employer the workman was restored to duty and he was in serviceuntil the final orders were passed. Subsequently when the interim orderwas passed by this Court, the management had voluntarily restored theworkman to duty from 30.6.2000 and he has been in service for the last 8years without any blame worthy conduct on his part. These are alldistinguishable features which one has to take into account.15. Looked with these factual backdrop the judgments cited by thelearned counsel for the management can have no direct nexus to the factsof the present case. Under these circumstances, this Court is notinclined to take a different view especially when the Labour Court hadexercised its discretionary power under Section 11-A of the Act torestore the workman to duty and deny him the backwages for the prolongedperiod of dispute. Further this Court by exercising power vested underArticle 226 of the Constitution of India cannot interfere with all kindsof awards by the Labour Court on the basis that a different view can betaken by this Court. Under these circumstances, this Court has nohesitation to dismiss the writ petitions and accordingly, the writpetitions are dismissed. However, under peculiar circumstances of thecase, there is no order as to costs. Consequently, connectedmiscellaneous petitions are closed.16. By the interim order dated 10.4.2000, made in W.P.M.P.No.1673this Court has directed deposit of Rs.50,000/- with the State Transport https://hcservices.ecourts.gov.in/hcservices/ Finance Corporation. In view of both the writ petitions beingdismissed, the workman(Mr.V.Balakrishnan) is entitled to withdraw theamount lying in deposit with the State Transport Fiannce Corporation.17. Mr.G.Purushothaman, the learned counsel for the workman submitsthat even though the workman was restored to duty he has not been paidwages on par with his contemporary and he was treated as a freshentrant. Mr.R.Parthiban, the learned counsel appearing for themanagement submits that that was only an interim arrangement and hencethe management is entitled to treat him as fresh entrant, pending theaward passed by the Labour Court upheld by this Court. 18. The workman cannot be treated as a fresh entrant and he isentitled for all the increments and allowances, arising out of variouswage settlement. The maanagement is hereby directed to compute the wagein terms of the wage settlement between the trade unions and themanagement together with increments and pay the arrears within a periodof two months from the date of receipt of copy of this order.Sd/Asst. Registrar/true copy/Sub Asst.RegistrarMsk ToThe Presiding Officer,Labour Court,Tiruchirapalli.+1 cc to Mr.G.Purushothaman, Advocate, SR.No.20295+1 cc to Mr.R.Parthiban, Advocate, SR.No.19681.Rj (co)krd / 24.4W.P.No.13436 of 1998W.P.No.11380 of 2000