High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 10.02.2009CoramThe Honourable Mr. Justice K. CHANDRUW.P. No.196 of 2000andW.M.P. No.7449 of 2001 The Management,Chennai Metropolitan WaterSupply and SewerageBoard,1, Pumping Station Road,Chennai – 600 002. ... Petitioner ..Vs..1. The Presiding Officer, Principal Labour Court, Chennai.2. M.D. Ponmozhi... RespondentsPetition under Article 226 of The Constitution of India,praying to issue a writ of Certiorari, to call for the records onthe file of the Principal Labour Court, Chennai in I.D. No.234 of1995 and quash the said award passed therein on 15.2.1999.For Petitioner : Mr. B. Shanthakumar For Respondents : Mr. Karthick Rajan for R2 https://hcservices.ecourts.gov.in/hcservices/ O R D E RHeard Mr. B. Shanthakumar, learned counsel appearing forChennai Metropolitan Water Supply and Sewerage Board and Mr.KarthickRajan, learned counsel appearing for the second respondent-workmanand perused the records. 2. The petitioner- Chennai Metropolitan Water Supply andSewerage Board (For short "Metro Water") filed the present writpetition, challenging the award dated 15.2.1999 passed in I.D. No.234of 1995. By the aforesaid award, the first respondent-Labour Courtdirected reinstatement of the second respondent in service with fullbackwages, continuity of service and other attendant benefits. 3. The writ petition was admitted on 7.1.2000. Pending thewrit petition, this Court directed the Metro Water to comply withSection 17B of the Industrial Disputes Act, Subsequently, when thematter came up on 7.11.2001, it was represented that a sum ofRs.1,02,764/- has been deposited by the petitioner with the Registrarof this Court. Out of the said sum, the second respondent waspermitted to withdraw a sum of Rs.50,000/- and the remaining sum ofRs.52,764/- was directed to be invested in a fixed deposit with theIndian Bank, High Court Extension Counter initially for a period ofthree years with periodical renewal and the second respondent waspermitted to withdraw the quarterly interest from the said amount. 4. Apart from this, the petitioner was also directed to paya sum of Rs.2,379/- per month to the second respondent starting from1st December, 1999 till the disposal of the writ petition. At thetime of passing of the said order, since there were arrears ofpayment under Section 17B of the Industrial Disputes Act fromDecember, 1999 to November, 2001, the same was also directed to bepaid to the workman in a lumpsum.5. The short question that arises for consideration iswhether the impugned award suffers from any irregularity orillegality, which calls for an interference by this Court exercisingjurisdiction under Article 226 of the Constitution of India. 6. It is the admitted stand of the petitioner that when theywant to issue a charge memo for unauthorized absence against thesecond respondent in terms of Regulation 6 of CMWSS Board Employees(Discipline and Appeal) Regulations,1978, it was sent by RegisteredPost with Acknowledgment Due. But the same was returned undelivered.Even the copy of the charge memo, which was sent to the Area Engineerfor personal service, could not be served on the second respondent,since the second respondent had vacated the premises by then. He was https://hcservices.ecourts.gov.in/hcservices/ removed from service by the petitioner.7. The second respondent raised an industrial dispute beforethe Labour Officer and the said Officer could not bring aboutmediation, he approached the Labour Court and filed a claim statementalong with the failure report. The said claim statement was taken onfile as I.D. No.234 of 1995. Notice was issued to the petitioner-Metro Water. The petitioner filed a counter statement dated nil.(August.1995). Before the Labour Court, on behalf of the secondrespondent, five documents were filed and they were marked as Ex.W1to W5 and he had also examined himself as W.W.1. The petitioner-Management filed six documents and they were marked as Ex.M1 to M6and on behalf of the petitioner-Management, one Vijayakumar wasexamined as M.W.1.8. In paragraph 10 of the counter statement filed by thepetitioner-Management before the Labour Court, it is stated thatsince they could not serve the second respondent either by post orpersonally and hence a public notice was issued in two Tamil dailieson 13.1.1994 in "Thina Thanthi" and "Thina Malar", directing thesecond respondent to appear for an enquiry on 20.1.1994. Since thesecond respondent did not appear for the enquiry on the said date,the enquiry was conducted and pursuant to the same, he was dismissedfrom service with effect from 4.3.1994. In paragraph 11 of the saidcounter, it is stated that the second respondent was evading serviceand according to Regulation 10(4)(b) of CMWSS Employees (Disciplineand Appeal) Regulation, 1978, if communication becomes impossible,the charge sheeted employee can be removed from service without anyfurther compliance and thus, they justified the removal of thesecond respondent. 9. The Labour Court framed two issues. With reference tothe first issue regarding non employment, the Labour Court came tothe conclusion that non-employment was unjustified. Since the majorcontention before the Labour Court was regarding mode of service ofthe charge memo, the Labour Court dealt with the rival contentions atlength and recorded its finding in paragraph 11 as follows:-"The very fact the petitioner failed to reportfor work after the suspension was revoked andreinstated in service would go to show that onlyin view of his mental condition he was unable toreturn to duty, which he could not have donevoluntarily and in fit physical condition. Thenotices and letters sent by the respondent to thepetitioner's address at Chennai could not beserved to him, since it appears that he was notdoing regular work and subsistence allowance paidto him was not sufficient he shifted his residenceto the native place at North Arcot, the address of https://hcservices.ecourts.gov.in/hcservices/ which was admittedly furnished by him and enteredaccordingly in his service register. But theletters and orders reinstating the petitioner inservice were not sent to his address at nativevillage. Further since the petitioner wassuffering from mental depression due to his familydispute, loss of property and loss of job etc.,and since the letters and orders could not be sentto his address in native village, his non-appearance for enquiry with regard to hisunauthorised absence despite he was reinstated inthe circumstances is justifiable."10. In this context, it is necessary to refer to theRegulation 14.3 of CMWSS Employees (Discipline and Appeal)Regulation, 1978 with reference to the mode of service of notice andother process on employee of Metro Board and it reads as follows:-"Every order, notice, and other process madeor issued under these rules shall be served inperson on the Board servant concerned or sent tohim by registered post with acknowledgments due orif such person is not found by leaving it at hislast known place of residence or by giving ortendering it to an adult member of his family orif any of the means aforesaid is not availablethen by affixing it in some conspicuous part ofhis last known place of residence."11. A perusal of Regulation 14.3 clearly shows that if themode of postal service is not effective, then it contemplates givingnotice to a adult member of the family, failing which it provides fornotice by affixure. When Regulation provides a particular procedureto be followed, it is not open to the Metro Water to follow its ownprocedure.12. The Labout Court was correct in holding that the methodof service was not proper. In the present case, even the so calledpersonal service by Area Engineer could not be done because of wantof residential address was disbelieved by the Labour Court. TheLabour Court found that the service records showed that the workmanhad notified the new address and it was also found in the serviceregister. 13. The second contention that the Regulation provided fordispensation of an enquiry in terms of Section 10(2)(b) of CMWSSEmployees (Discipline and Appeal) Regulation, 1978 cannot be pressedinto service. Though the argument of the learned counsel appearingfor Metro Board is attractive, Regulation 10(2)(b) of CMWSS Employees(Discipline and Appeal) Regulation, 1978 will apply only when it is https://hcservices.ecourts.gov.in/hcservices/ found impracticable to complete service on an employee. The paperpublication by the Metro Water is diametrically opposed to themanner of service of notice on an employee. Besides, the LabourCourt also disbelieved the stand of the Metro Water that it was nothaving the proper address of the workman as he had never left theaddress with the Authorities. On the contrary, the Labour Courtrecorded a finding that the new address was furnished by the secondrespondent and entered in the service register. The Labour Courtalso found that the workman was not mentally well for some time.Hence he was absent for some time for which dismissal from servicewas not proper. 14. When a similar question came up for consideration in thematter of interpreting a similar Regulation relating to FoodCorporation of India, this Court in A. ANANDAN v. THE CHAIRMAN, FCI &OTHERS in W.P. No.36779 of 2006 dated 4.9.2006 in paras 12 and 13held as follows:-"12. Regulation 75(iii) clearly states thatif any employee for whom notice is sent byregistered post returned unserved, it should bepublished in the local/regional languagenewspaper and in addition to that, an All IndiaNewspaper as appropriate and upon suchpublication only, it can be deemed to have beenpersonally served on such employee. Nowhere therespondent FCI had complied with the Regulation75(iii) of the Regulations. The only option opento the FCI is to publish either in the local orin the regional language newspaper and All IndiaNewspaper and it does not talk about publicationin any English newspaper, which is neither thelocal nor regional language. Therefore, thefault is on the FCI taking advantage of thedeemed service provided under Regulation 75(iii)of the Regulations. The basis on which the showcause notice was issued and the removal order donot exist, as admittedly, the publication wasdone only in English newspaper.13. Then the next question arises as towhether the circumstances of the present casewarranting the disciplinary authority to besatisfied that it was not reasonably practical tohold an enquiry in the manner provided under theRegulations. In fact, as can be seen from thepassage found in the dismissal order extractedabove, the only ground on which Regulation 63(ii)was invoked and that it is not possible tocommunicate the petitioner either in person or by https://hcservices.ecourts.gov.in/hcservices/ post. That cannot be a ground to dispense withthe enquiry because Regulation 75 of theRegulations provides that if an order is not ableto be communicated, it provides for a method andmode of service of other means and as foundearlier, that method or mode was not followed inthe present case. Secondly, it is not the casewhere it was reasonably practical to hold anenquiry because there was no such activities ofterrorising, threatening or intimidatingwitnesses, who may give evidence against theemployees and there was no atmosphere of creatingviolence as found in Tulsi Ram Patel's case(cited supra). Even the factors found in AjitKumar Nag's case as found in paragraph 53 of thesaid judgment extracted above, the workman takingan unruly mob resulting in damage to property andassaulting hospital staff does not exist in thepresent case. Even in Ajit Kumar Nag's case, theSupreme Court has cautiously held that exerciseof extraordinary power in exceptionalcircumstances cannot be said to be arbitrary,unreasonable or mala fide."The said decision was also confirmed by a Division Bench headed byA.P. SHAH, CJ. (as he then was) in W.A. No.1420 of 2007 dated6.3.2008. 15. In the light of the above, the writ petition standsdismissed. Since the the writ petition was dismissed and the awardbeing confirmed by this Court, the second respondent is permitted towithdraw the amounts lying in deposit with Indian Bank, High CourtExtension Counter and claim the balance amount from the petitioner-Metro Water. The petitioner-Metro Water shall give effect to theaward passed by the Labour Court within eight weeks from the date ofreceipt of a copy of this order. In other respects, the writpetition stands dismissed. Consequently, the connected W.M.P. isalso dismissed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarssa. https://hcservices.ecourts.gov.in/hcservices/ To1.The Presiding Officer,Principal Labour Court,Chennai.2.The Section Officer, Accounts Section High Court of madras, Madras.3.The Manager M/s.Indian Bank, High Court of Madras, Madras.1 CC To Mr.B.Pugalendhi, Advocate, SR NO.55731 CC To Mr. B. Shanthakumar , Advocate, SR NO.5610W.P. No.196 of 2000 andconnected W.M.P.Mrd(co)pmk/3.3.2009.