The Management of VI Spl.117,Kamadhenu Primary AgriculturalCo-operative Bank LimitedKalavai, Vellore District v. The Presiding Officer Labour Court, Vellore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:10-4-2008CORAMTHE HON'BLE MR.JUSTICE K. CHANDRUW.P.Nos.5080 and 36607 of 2002The Management of VI Spl.117,Kamadhenu Primary AgriculturalCo-operative Bank LimitedKalavai, Vellore District repby its Secretary... Petitioner in W.P.No.5080 of 2002 and the 2nd respondent in W.P.NO.36607 of 2002vs1. The Presiding Officer Labour Court, Vellore ... 1st respondent in both thewrit petitions2. V. Ranganathan... 2nd respondent in W.P.No.5080 of 2002 & petitioner in WP 36607/02Prayer in W.P.No.5080 of 2002: Writ Petition filed under Article 226 ofthe Constitution of India praying this Court to issue a Writ ofCertiorari to call for the entire records relating to the award dated9.7.2001 made in I.D.No.160 of 1995 on the file of the first respondentand quash the same.Prayer in W.P.NO.36607 of 2002: Writ Petition filed under Article 226 ofthe Constitution of India praying this Court to issue a Writ ofCertiorarified Mandamus to call for the records of the 1st respondentaward dated 9.7.2001 I.D.No.160 of 1995 and quash the same with respectto the denial of back wages to the petitioner alone and consequentlydirect the 2nd respondent to pay the back wages to the petitioner fromthe date of dismissal.Petitioner in W.P.No.5080 :Mr.Prabakaran forof 2002 and R2 in Mr.M. SathyanarayananW.P.NO.36607 of 2002petitioners in W.P.No. : Mr.V. Velumani36607/02 & 2nd respondent in W.P.NO.5080 of 2002 COMMON ORDERBoth these writ petitions have been filed challenging the Awardpassed by the first respondent, labour Court in I.D.No.160/95 dated https://hcservices.ecourts.gov.in/hcservices/

9.7.2001. In the first writ petition W.P.No.5080 of 2002 filed by TheManagement of VI Spl.117,Kamadhenu Primary Agricultural Co-operativeBank, the writ petition seeks to challenge the award insofar as itdirected reinstatement of the workman without back wages. In thesecond writ petition W.P.No.36607 of 2002, the workman (V. Ranganathan)challeges the very same Award insofar as it denied the back wages forthe period of non-employment.2. During the pendency of the writ petition, on an applicationtaken out by the workman, this Court passed an order to make paymentunder Sec.17-B of Industrial Disputes Act from February 2002 till thedisposal of the writ petition. An alternative was also suggested bywhich the Management can also reinstate the workman without prejudiceto the rights of the parties. Though the Management was willing to reemploy the workman, the workman insisted as a pre-condition that heshould be given in writing that he will be paid the normal wages asbeing paid to the other clerks.3. In reply to the legal notice, the Management informed that theywill pay only the last drawn wages. This resulted in a contemptapplication, which was not pursued. 4. The fact of the matter was that the workman has not restored toduty after being offered employment pursuant to the interim order ofthis Court.5. Mr. Prabakaran, learned counsel for petitioner in W.P.No.5080of 2002 and Mr.V. Velumani learned counsel for respondent inW.P.No.36607 of 2002, in both the writ petitions strenuously contendedthat the workman was continuously absent with one excuse or other rightfrom February 1993 to July 1993. The Management sent a registeredletter to the workman to report within 21 days and even thereafter, theworkman continued to remain absent. The workman under the pretext thatsubsistence allowance was not paid to him, did not participate in theenquiry and before the Labour Court, made it an issue that the entireenquiry was vitiated. 6. The Lower Court took the view that because of non payment ofsubsistence allowance, the workman did not participate in the enquiryand in the absence of any prejudice, such a contention was cannot beallowed.7. The Labour Court held that there was no procedural irregularityin the ex-parte enquiry and also charge of misconduct was supported bysufficient evidence. On the question of penalty, the labour Court heldthat during the period of absence for certain period, the workman washaving ill-health and medical leave has been sanctioned. But it heldthat the indifferent attitude of the workman in not informing theManagement about his absence so that the Management could have madealternative arrangements, cannot be considered to be a grave misconductso as to warrant his dismissal and at the same time, he should beimposed with some penalty. In view of the matter, the Labour Court heldthat the Management should have imposed a lenient punishment instead ofrendering a capital punishment of dismissal. The Labour Court held that https://hcservices.ecourts.gov.in/hcservices/ reinstating the workman without back wages can be a sufficient deterrentand therefore, in that view of the matter, by exercising the power underSec.11-A of the Industrial Disputes Act, directed his reinstatement butwithout back wages.8. Mr. Prabakaran learned counsel for the management submitted thatthe unauthorised absence cannot be dealt with lightly. In support ofthat contention, he also brought to the notice of this Court thejudgement of the Supreme Court reported in 2007 (8) Supreme 303 (M/s L&TKomatsu Ltd vs N. Udayakumar). On the strength of the judgment, theaward of the Labour Court should be set aside. He also submitted thatthere was no disproportionality in the punishment imposed on the workman.9. Per contra, Mr.J. Saravanavel learned counsel for the workmantook this Court to the facts of the case cited supra and stated that inthat case it was not of single absenteeism but there was 15 suchprevious instances. In paragraph -11 of the judgment cited supra, theSupreme Court indicated that while exercising under Sec.11-A, the LabourCourt should take into account not only the gravity of misconduct andalso the existence of any mitigating circumstances, which requirereduction of sentence.10. In the present case, the Labour Court held that though theabsence of the workman was not fully justified, but during the aforesaidperiod, the workman was also suffering due to ill-health, which wassupported by medical evidence and therefore, leniency could be shownwith regard to punishment of dismissal.11. The Labour Court also deprived the entire back wages, which itthought will be a sufficient deterrent for future lapses on the part ofthe workman. Therefore, I do not think it is a fit case that this Courtis called upon to interfere with the Award passed by the Labour Court.12. Under such circumstances, both these writ petitions aredismissed. No costs. 13. With reference to the conduct of the parties during thependency of these writ petitions, this Court is notrecording anyfinding and it is left to the parties to establish that they haveimplemented the Award of the Labour Court or the interim order passed bythis Court in an appropriate proceedings. But nevertheless the Award ofthe Labour Court shall be implemented within a period of two months fromthe date of receipt of copy of this order.Sd/Asst. Registrar/true copy/Sub Asst.Registrarsr https://hcservices.ecourts.gov.in/hcservices/ ToThe Presiding OfficerLabour Court, Vellore+2 cc to Mr.J.Saravanavel, Advocate, SR.No.20137.+1 cc to Mr.A.S.Thambusamy, Advocate, SR.No.20058.+1 cc to Mr.M.Sathyanarayanan, Advocate, SR.No.20028.Sji (Co)krd / 21.4W.P.Nos.5080 and 36607 of 2002