High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 09..7..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 2415 of 1999The Management of Airport Authority of India (International Airports Division)formerly known as the International Airport Authority of IndiaMeenambakkamChennai- 27.. Petitionervs.1.The Presiding OfficerIndustrial Tribunal Chennai – 1042.K. Ramadurai (deceased)3.Rajalakshmi Ammal(substituted in the place of deceasedR2 as per order dated 28.9.2007 inW.P.M.P. No. 18066 of 2006).. Respondents Petition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorari calling for the recordsof the first respondent in I.D. No. 64 of 1992 and quash the Awarddated 21.11.1997.For Petitioner: Ms. Narmada Sampath for Mr. R. ParthibanFor Respondent 3: Mr. R. JaikumarO R D E RHeard the arguments of the learned counsel for the parties andperused the records.2.This writ petition is filed by the Airport Authority ofIndia, International Airports Division against the Award dated21.11.1997 passed by the first respondent Industrial Tribunal in I.D. No. 64 of 1992 wherein and by which the first respondent who was https://hcservices.ecourts.gov.in/hcservices/ working as a Beldar was directed to be reinstated with 50%backwages. 3.It is now stated that the second respondent had passedaway on 16.6.2006 and on an LR petition being filed, his wife wasbrought on record as the third respondent vide order of this Courtdated 28.9.2007.4.Pending the writ petition, this Court granted an interimstay on 16.02.1999. Subsequently, by an order dated 25.10.1999,the interim stay was made absolute on condition that the writpetitioner deposits Rs.90,000/- to the credit of I.D. No. 64 of1992 with the first respondent and on such deposit, a sum ofRs.10,000/- was allowed to be withdrawn by the second respondent.The balance Rs.80,000/- was directed to be invested in FixedDeposit in State Bank of India, Egmore Branch initially for aperiod of three years and the workman was also directed to withdrawquarterly interest. It was further ordered that the petitionerManagement shall pay Rs.1600/- every month commencing from December1999 till the disposal of the writ petition.5.It is now stated by Mrs. Narmada Sampath, learned counselfor the petitioner that the above order has been complied with.The charge against the second respondent was that he had willfullyabsented himself from duty from 16.5.1987 on medical groundswithout submitting proper leave application. He was given a memosdated 25.8.1987 and 03.11.1987. Inspite of the same, he hadabsconded from duty. It was thereafter, the officers from thePersonnel Department of the petitioner Management, accompanied by aMedical Officer, visited his residence on 18.11.1997 and the secondrespondent was questioned in the presence of his parents regardinghis absence for more than six months. As he could not give anysatisfactory explanation, a show cause notice dated 12.12.1987 wasgiven to him in terms of Regulation 31(2) of the InternationalAirport Authority of India General Conditions of ServiceRegulations, 1980 [for short, 'Regulations']. The saidregulation reads as follows:-"If an employee remains absent without anyintimation prior permission for a period of twomonths he will to be deemed to have abandoned hisjob and his services will be terminated without anynotice."Since he was absent even beyond that date, it was presumed that hewas no longer in the service of the petitioner Management. 6.The workman raised a dispute under Section 2A of theIndustrial Disputes Act, 1947 [for short, 'I.D. Act'] which wasfinally referred for adjudication by the Union of India, Ministryof Labour by an order dated 28.01.1992. The reference order readsas follows:- https://hcservices.ecourts.gov.in/hcservices/ "Whether the termination of service ofShri.K.Ramadurai, Boldar by the management ofInternational Airport Authority of India Madrasjustified. If not, to what relief he is entitled?"7.The said dispute was taken on file as I.D. No. 64 of1992. A counter statement was filed by the petitioner setting outthe circumstances under which the Regulation 31 was invoked againstthe deceased second respondent. It was stated that even afterthe show cause notice, by which he was given a deadline, viz.,18.4.1988, he did not report for work.8.Before the Tribunal, the deceased workman examinedhimself as W.W.1 and filed six documents, which were marked as Exs.W.1 to W.6. On the side of the petitioner Management, one SunitKishore Soreng was examined as M.W.1 and 13 documents were filedwhich were marked as Exs. M.1 to M.13. 9.The Tribunal, on an analysis of evidence, came to theconclusion that Regulation 31 will not apply to the secondrespondent workman's case as he had sent four Medical Certificates,which were marked as Exs. W.1 to W.4, requesting for Medical leave.The Tribunal also rejected the contention made by the workman thatthe leave cannot be claimed as a matter of right and held that thesecond respondent, after producing Fitness Certificate Ex. W.5, wasnot allowed to report for work and before passing final orders on06.02.1988, no charges were framed against him. The Tribunal,after placing reliance upon the judgment of the Supreme Court inD.K.Yadav v. J.M.A. Industries Ltd. [1993 (3) SCC 259], heldthat since no charges have been framed for his absenteeism and nodomestic enquriy was held, even though his previous history was oneof absenteeism, the termination of the second respondent wasretrenchment within the meaning of Section 2(oo) of the I.D. Act.Since condition precedent found under Section 25F was not compliedwith, the order is illegal and that the punishment of terminationwas shockingly disproportionate. In that view of the matter, itdirected reinstatement with 50% of the backwages.10.Since the entire documents relating to the proceedingbefore the Tribunal were not filed by the parties, the originalrecords were summoned from the Industrial Tribunal and the samewere circulated by the Registry and were also perused. 11.In the oral evidence, the second respondent had admittedthat he had taken treatment for having suffered jaundice but he didnot send any letter that he was not well and he never informed theManagement regarding his illness. In fact, Exs. W.1 to W.4 werestated to be sent by the deceased second respondent only byCertificates of Posting and it was stated by M.W.1, who was theAssistant Manager (Personnel) that the certificates were notreceived by the Management and that the second respondent had notgiven any reply to the show cause notice issued to him. But in https://hcservices.ecourts.gov.in/hcservices/ further cross-examination, he said that the letters addressed tothe Assistant Engineer (Civil Department) might have been receivedin that office but yet they were not sent to the proper authority.12.In any event, the Tribunal brushed aside these aspectsand went on to grant relief solely based upon the judgment of theSupreme Court in D.K. Yadav's case (cited supra). It must beunderstood that D.K. Yadav's case (cited supra) came to besubsequently considered by several decisions of the Supreme Courtand they may be referred to hereunder.13.In Lakshmi Precision Screws Ltd. v. Ram Bahagat [2002 (6)SCC 552], the following passages found in paragraphs 10 to 13 maybe extracted:-Para 10:"Let us, therefore, analyse as to whether thisparticular Standing Order in fact warrants aconclusion without anything further on record or toput it differently — does it survive on its own andthat being a part of the contract of employmentought to govern the situation as is covered in thecontextual facts. This Court in D.K. Yadav casestrictly speaking did not answer the same in acategorical fashion though undoubtedly read into theCertified Standing Order compliance with thedoctrine of natural justice as also the principlesunderlying Article 14 of the Constitution. Theobservations in Yadav seem to be rather apposite onthis score. As such the same are set outhereinbelow: (SCC pp. 267-68)“8. The cardinal point that has to beborne in mind, in every case, is whether theperson concerned should have a reasonableopportunity of presenting his case and theauthority should act fairly, justly, reasonablyand impartially. It is not so much to actjudicially but is to act fairly, namely, theprocedure adopted must be just, fair andreasonable in the particular circumstances ofthe case. In other words application of theprinciples of natural justice that no manshould be condemned unheard intends to preventthe authority from acting arbitrarily affectingthe rights of the concerned person.9. It is a fundamental rule of law that nodecision must be taken which will affect theright of any person without first beinginformed of the case and giving him/her anopportunity of putting forward his/her case. An https://hcservices.ecourts.gov.in/hcservices/ order involving civil consequences must be madeconsistently with the rules of naturaljustice.”Para 11:It is on the basis of the aforesaid however, thisCourt in Yadav upon consideration of the entiregamut of judicial precedents since Anwar Ali4 came tothe conclusion as below: (SCC pp. 268-69, paras 11-12)“11. The law must therefore be now takento be well settled that procedure prescribedfor depriving a person of livelihood must meetthe challenge of Article 14 and such law wouldbe liable to be tested on the anvil of Article14 and the procedure prescribed by a statute orstatutory rule or rules or orders affecting thecivil rights or result in civil consequenceswould have to answer the requirement of Article14. So it must be right, just and fair and notarbitrary, fanciful or oppressive.***12. Therefore, fair play in actionrequires that the procedure adopted must bejust, fair and reasonable. The manner ofexercise of the power and its impact on therights of the person affected would be inconformity with the principles of naturaljustice. Article 21 clubs life with liberty,dignity of person with means of livelihoodwithout which the glorious content of dignityof person would be reduced to animal existence.When it is interpreted that the colour andcontent of procedure established by law must bein conformity with the minimum fairness andprocessual justice, it would relievelegislative callousness despising opportunityof being heard and fair opportunities ofdefence. Article 14 has a pervasive processualpotency and versatile quality, equalitarian inits soul and allergic to discriminatorydictates. Equality is the antithesis ofarbitrariness. It is, thereby, conclusivelyheld by this Court that the principles ofnatural justice are part of Article 14 and theprocedure prescribed by law must be just, fairand reasonable.”Para 12:Subsequently as well in Uptron India Ltd. v. ShammiBhan upon reliance on Yadav this Court stated: (SCCpp. 543-44, paras 9-11) https://hcservices.ecourts.gov.in/hcservices/ “9. The general principles of the ContractAct, 1872 applicable to an agreement betweentwo persons having capacity to contract, arealso applicable to a contract of industrialemployment, but the relationship so created ispartly contractual, in the sense that theagreement of service may give rise to mutualobligations, for example, the obligation of theemployer to pay wages and the correspondingobligation of the workman to render services,and partly non-contractual, as the States havealready, by legislation, prescribed positiveobligations for the employer towards hisworkmen, as, for example, terms, conditions andobligations prescribed by the Payment of WagesAct, 1936; Industrial Employment (StandingOrders) Act, 1946; Minimum Wages Act, 1948;Payment of Bonus Act, 1965; Payment of GratuityAct, 1972 etc.10. Prior to the enactment of these laws,the situation, as it prevailed in manyindustrial establishments, was that even termsand conditions of service were often notreduced to writing nor were they uniform innature, though applicable to a set of similaremployees. This position was whollyincompatible to the notions of social justice,inasmuch as there being no statutory protectionavailable to the workmen, the contract ofservice was often so unilateral in characterthat it could be described as meremanifestation of subdued wish of the workmen tosustain their living at any cost. An agreementof this nature was an agreement between twounequals, namely those who invested theirlabour and toil, flesh and blood, as againstthose who brought in capital. The necessarycorollary of such an agreement was thegeneration of conflicts at various levelsdisturbing industrial peace and resultingnecessarily in loss of production and sometimeseven closure or lockout of the industrialestablishment. In order to overcome thisdifficulty and achieve industrial harmony andpeace, the Industrial Employment (StandingOrders) Act, 1946 was enacted requiring themanagement to define, with sufficient precisionand clarity, the conditions of employment underwhich the workmen were working in theirestablishments. The underlying object of theAct was to introduce uniformity in conditions https://hcservices.ecourts.gov.in/hcservices/ of employment of workmen discharging similarfunctions in the same industrial establishmentunder the same management and to make thoseterms and conditions widely known to all theworkmen before they could be asked to expresstheir willingness to accept the employment.11. The Act also aimed at achieving atransition from mere contract between unequalsto the conferment of ‘status’ on workmenthrough conditions statutorily imposed upon theemployers by requiring every industrialestablishment to frame ‘Standing Orders’ inrespect of matters enumerated in the Scheduleappended to the Act. The Standing Orders somade are to be submitted to the CertifyingOfficer who is required to make an enquirywhether they have been framed in accordancewith the Act and on being satisfied that theyare in consonance with the provisions of theAct, to certify them. Once the Standing Ordersare so certified, they become binding upon boththe parties, namely, the employer and theemployees. The Certified Standing Orders arealso required to be published in the mannerindicated by the Act which also sets out theModel Standing Orders. Originally, thejurisdiction of the Certifying Officer waslimited to examining the Draft Standing Ordersand comparing them with the Model StandingOrders. But in 1956, the Act was radicallyamended and Section 4 gave jurisdiction to theCertifying Officer, as also the AppellateAuthority, to adjudicate and decide thequestions, if raised, relating to the fairnessor reasonableness of any provision of theStanding Orders.”Para 13:This Court further in fine in para 25 of the Reportstated as below: (SCC p. 547)“25. In view of the above, we are of thepositive opinion that any clause in theCertified Standing Orders providing forautomatic termination of service of a permanentemployee, not directly related to ‘production’in a factory or industrial establishment, wouldbe bad if it does not purport to provide anopportunity of hearing to the employee whoseservices are treated to have come to an endautomatically.” https://hcservices.ecourts.gov.in/hcservices/

14.In U.P. State Bridge Corporation Ltd. and others v.U.P. Rajya Setu Nigam S. Karamchari Sangh [2004 (4) SCC 268], thefollowing passage found in paragraph 23 may be referred to:-Para 23:"D.K. Yadav is an authority for the proposition thatthe principles of natural justice would have to beread in the standing orders. That was a case wherethere was a standing order similar to CSO L-2.12except that 8 days’ margin was granted within whichthe workman was required to return andsatisfactorily explain the reasons for his absenceor inability to return after the expiry of leave.This view was reiterated in the later decision ofthis Court in Lakshmi Precision Screws Ltd. v. RamBahagat where it was held that the element ofnatural justice was an inbuilt requirement of thestanding orders."15.In Viveka Nand Sethi v. Chairman, J&K Bank Ltd. andothers [2005 (5) SCC 337], the following passage found inparagraphs 22 to 25 may be usefully extracted:-Para 22:"The principle of natural justice, it is trite, is nounruly horse. When facts are admitted, an enquirywould be an empty formality. Even the principle ofestoppel will apply. [See Gurjeewan Garewal (Dr.) v.Dr. Sumitra Dash.] The principles of natural justiceare required to be complied with having regard to thefact situation obtaining therein. It cannot be put ina straitjacket formula. It cannot be applied in avacuum without reference to the relevant facts andcircumstances of the case. (See State of Punjab v.Jagir Singh4 and Karnataka SRTC v. S.G. Kotturappa.)Para 23:The contention raised at the Bar appears to besquarely covered by two decisions of this Courtrelied upon by Mr Alex. In Syndicate Bank Wadhwa, J.speaking for the Division Bench observed: (SCC p. 76,paras 14-15)“14. Two principles emerge from thedecisions: (1) principles of natural justiceand duty to act in a just, fair and reasonablemanner have to be read in the CertifiedStanding Orders which have statutory force.These can be applied by the Labour Court andthe Industrial Tribunal even to relationsbetween the management and workman though basedon contractual obligations; and (2) wheredomestic inquiry was not held or it wasvitiated for some reason the Tribunal or Courtadjudicating an industrial dispute can itself https://hcservices.ecourts.gov.in/hcservices/ go into the question raised before it on thebasis of the evidence and other material onrecord.15. In the present case action was takenby the Bank under clause 16 of the BipartiteSettlement. It is not disputed that Dayanandaabsented himself from work for a period of 90or more consecutive days. It was thereafterthat the Bank served a notice on him callingupon him to report for duty within 30 days ofthe notice stating therein the grounds for theBank to come to the conclusion that Dayanandahad no intention of joining duties. Dayanandadid not respond to the notice at all. On theexpiry of the notice period the Bank passedorders that Dayananda had voluntarily retiredfrom the service of the Bank.”It was further held: (SCC p. 77, para 18)“18. The Bank has followed therequirements of clause 16 of the BipartiteSettlement. It rightly held that Dayananda hasvoluntarily retired from the service of theBank. Under these circumstances it was notnecessary for the Bank to hold any inquirybefore passing the order. An inquiry would havebeen necessary if Dayananda had submitted hisexplanation which was not acceptable to the Bankor contended that he did report for duty but wasnot allowed to join by the Bank. Nothing of thelike has happened here. Assuming for a momentthat inquiry was necessitated, evidence ledbefore the Tribunal clearly showed that noticewas given to Dayananda and it is he whodefaulted and offered no explanation of hisabsence from duty and did not report for dutywithin 30 days of the notice as required inclause 16 of the Bipartite Settlement.”Para 24:The aforementioned legal position was reaffirmed by adecision of a three-Judge Bench in Punjab & Sind Bankwherein it has been held: (SCC p. 217, para 4)“Under this rule the employee is given anopportunity to rejoin duty within a stipulatedtime or explain his position to thesatisfaction of the management that he has nointention of not joining duty, and apresumption will be drawn that the employeedoes not require the job anymore and will stand https://hcservices.ecourts.gov.in/hcservices/ retired from service. Thus, there is nopunishment for misconduct but only to noticethe realities of the situation resulting fromlong absence of an employee from work with nosatisfactory explanation thereto.”In the fact situation obtaining therein it was heldthat there had been sufficient compliance withprinciple of natural justice.Para 25:In Syndicate Bank this Court noticed the decision ofa three-Judge Bench of this Court in D.K. Yadav v.J.M.A. Industries Ltd. whereupon the IndustrialTribunal had placed strong reliance. In D.K. Yadavadmittedly no opportunity was given to the workmanand no inquiry was held. In that situation, it wasobserved: (SCC p. 267, para 8)“8. The cardinal point that has to beborne in mind, in every case, is whether theperson concerned should have a reasonableopportunity of presenting his case and theauthority should act fairly, justly, reasonablyand impartially. It is not so much to actjudicially but is to act fairly, namely, theprocedure adopted must be just, fair andreasonable in the particular circumstances ofthe case. In other words application of theprinciples of natural justice that no man shouldbe condemned unheard intends to prevent theauthority from acting arbitrarily affecting therights of the person concerned.”16.Subsequently, in V.C. Banaras Hindu University and othersv. Shrikant [2006 (11) SCC 42], the Supreme Court in paragraphs57 and 60 of the judgment held as follows:-Para 57:"The matter may, however, be different in a casewhere despite having been given an opportunity ofhearing, explanation regarding his unauthorisedabsence is not forthcoming or despite giving him anopportunity to join his duty, he fails to do so, aswas the case in Punjab & Sind Bank v. SakattarSingh."Para 60:"A provision relating to abandonment of service came upfor consideration yet again in Viveka Nand Sethi v.Chairman, J&K Bank Ltd. before a Division Bench of thisCourt. This Court opined that although in a case of thatnature, principles of natural justice were required to becomplied with, a full-fledged departmental enquiry maynot be necessary, holding: (SCC p. 345, para 20) https://hcservices.ecourts.gov.in/hcservices/ “A limited enquiry as to whether theemployee concerned had sufficient explanationfor not reporting to duties after the period ofleave had expired or failure on his part onbeing asked so to do, in our considered view,amounts to sufficient compliance with therequirements of the principles of naturaljustice.”17.Therefore, in the light of the above discussion, it canbe safely understood that Regulation 31(2) does not becomeautomatically invalid if it is preceded by opportunities granted tothe workman. In the present case, before taking recourse toRegulation 31, the Management had issued the following memos asfound in paragraph 8(iv) of the counter statement filed before theTribunal."1.Memo No. AAM/PERS/PR/KR/10243-45 dt. 19/20-3-87.2.Memo No. AAM/PERS/PF/KR/14196 dt. 23/29-4-87.3.M. Telegram No. 7-08-97.4.Memo No. AAM/PERS/PF/KR/35011-12 dt. 24/25-8-87.5.Memo No. AAM/PERS/PF/KR/50456-57 dt. 3-11-87.6.Memo No. AAM/PERS/PF/KR/59085 dt. 19-12-87.7.Memo No. AAM/PERS/EN 44/BELDAR/2 /KR/19753-54dt. 31.3.88.8.Memo No. AAM/PERS ES 44/BELDAR/2/ KR/39637-8dt. 25/30-5-88."18.Therefore, the Tribunal was entirely wrong in holdingthat either it is a case of retrenchment under Section 2(oo) of theI.D. Act or it is a punitive measure where the punishment isshockingly disproportionate. The exercise of the Tribunal byinvoking Section 11A of the I.D. Act to reinstate the secondrespondent workman may not have been proper. In such facts andcircumstances, considering the length of service put in by theworkman, viz., 9 years, and that he is no more, while the Award ofthe Tribunal is set aside with reference to reinstatement withbackwages, this Court is of the opinion that the workman should begiven a compensation of Rs.1 lakh in lieu of reinstatement.19.Apart from this, it must also be understood that theAward was passed on 21.11.1997 and the writ petition was filed inthe year 1999, viz., 15 months thereafter. Even as per Section17B of the I.D. Act, the workman is entitled for wages from thedate of the writ petition and he was directed to be paid wagesunder Section 17B of the I.D. Act only from December 1999 therebythe workman was deprived of getting wages for a period of 24 monthsdue to the inaction of the Management. This amount even calculatedon the basis of his last drawn wages, works out to nearly Rs. https://hcservices.ecourts.gov.in/hcservices/ 40,000/-. Therefore, the petitioner Management is hereby directedto pay altogether a total sum of Rs.1,40,000/- to the impleadedthird respondent. 20.It is open to the third respondent to move the IndustrialTribunal to withdraw the sum of Rs. 80,000/- already in deposittogether with accrued interest, if any. The balance Rs.60,000/-is hereby directed to be paid by the petitioner Management to thethird respondent within a period of eight weeks from the date ofreceipt of a copy of this order. 21.The writ petition will stand allowed to the extentindicated above. However, there will be no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.griToThe Presiding OfficerIndustrial Tribunal Chennai – 104+ 1 CC To Mr.R.Parthiban, Advocate SR NO.36371+ 1 CC To Ms.Fenn Walter Associates, Advocate SR NO.35962W.P. No. 2415 of 1999MS(CO)SRA(31/07/2008)