The Management of Metropolitan Transport Corporation,(Chennai) Ltd. Formerly known as Dr.Ambedkar Transport Corporation Ltd. v. The Presiding Officer,Principal Labour Court

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 28-04-2009CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.21125 of 2004The Management of Metropolitan Transport Corporation,(Chennai) Ltd. Formerly known asDr.Ambedkar Transport Corporation Ltd.Ayanavaram, Chennai-23,Rep. by its Managing Director.. Petitioner.Versus1.The Presiding Officer,Principal Labour Court, Chennai.2.S.Kathavarayan.. Respondent.Prayer:This writ petition is filed under Article 226 of theConstitution of India praying for the issuance of a Writ ofCertiorari, to call for the records of the 1st respondent inI.D.No.328 of 1997, dated 30.4.2003, and quash the same. For Petitioner : Mr.G.Munirathinam For Respondents : Mr.K.Bharathi (R2) R1-Labour courtO R D E RHeard the learned counsel appearing for the petitioner and thelearned counsel appearing for the second respondent. https://hcservices.ecourts.gov.in/hcservices/

2. This writ petition has been filed challenging the award ofthe first respondent Labour Court, dated 30.4.2003, made inI.D.No.328 of 1997.3. It has been stated that the second respondent had beenappointed as a Conductor in the petitioner Corporation, with effectfrom 31.12.1986. While he was on duty at Avadi Depot of thepetitioner Corporation, he had absented himself from duty, from20.11.1993, without prior permission and without leave beingsanctioned. As he was absent for more than 8 consecutive days,disciplinary proceedings had been initiated against him, under Clause11(C) of the Certified Standing Orders of the petitioner Corporation,for unauthorised absence amounting to misconduct. Hence, the secondrespondent was issued with a charge memo, on 6.12.93. The charge memohad been sent to the second respondent's last known address, by aregistered post with acknowledgment due. The envelope sent byregistered post had been returned with the endorsement `Not Foundduring my delivery time'. 4. Subsequently, the charge memo was exhibited on the noticeBoard at the Avadi Depot. The second respondent did not tender anyexplanation to the charge memo, nor had he reported for duty.Therefore, it was deemed that the second respondent had left theservice on his own accord. Accordingly, his name has been removedfrom the rolls by the proceedings issued, on 10.1.1994. Theproceedings had been issued to the second respondent's residentialaddress by registered post with acknowledgment due. The said letterwas returned undelivered by the postal authorities with theendorsement `Not found'. The appeal preferred by the secondrespondent to the Managing Director had also been rejected, on2.9.1996, as no fresh and valid explanation was found forreconsidering the punishment imposed on him. Thereafter, the secondrespondent had raised an industrial dispute before the firstrespondent Labour Court, in I.D.No.328 of 1997, to declare his non-employment, as illegal and to direct the management of the petitionerCorporation to reinstate him, with continuity of service, withbackwages and all other attendant benefits. The first respondentLabour Court had passed the award, dated 30.4.2003, setting aside theorder of dismissal, dated 10.1.1994, directing the management of thepetitioner Corporation to reinstate the second respondent, withcontinuity of service, backwages and all attendant benefits. Thepetitioner Corporation had filed the present writ petitionchallenging the said award, dated 30.4.2003, under Article 226 of theConstitution of India5. The main grounds raised by the learned counsel for thepetitioner are that the first respondent Labour Court had erred insetting aside the order of the petitioner Corporation removing the https://hcservices.ecourts.gov.in/hcservices/ name of the second respondent from its rolls, for the misconduct andunauthorised absence stating that the representations made by thesecond respondent had not been considered by the petitionerCorporation. In fact all the representations made by the secondrespondent were subsequent to the removal of his name from the rollsof the petitioner Corporation. Further, the first respondent LabourCourt ought to have seen that there was no explanation from thesecond respondent to the charge memo issued by the petitionerCorporation. Therefore, it was clear that the second respondent hadabandoned his service in the petitioner Corporation and therefore,there was no need for the issuing of a further notice to the secondrespondent. 6. The first respondent Labour Court had also erred in notconsidering the fact that the second respondent had committed aserious misconduct, under Clause 11(C) of the Certified StandingOrders of the petitioner Corporation by absenting himself from dutyfor more than 8 days, consecutively, without the prior permissionnecessary and without leave being sanctioned in his favour. Eventhough notice had been sent to the second respondent he had notreceived the same. Therefore, the findings of the first respondentLabour Court that the petitioner Corporation had failed to issuenotice to the second respondent and that no opportunity had beengiven to him to explain his case, are erroneous and unsustainable inthe eye of law. The finding of the first respondent Labour Court thatthe termination of the service of the second respondent, by themanagement of the petitioner Corporation, is arbitrary and violativeof Section 25F of the Industrial Disputes Act, 1947, cannot be heldto be valid. Further, even though the second respondent had beenremoved from the rolls of the petitioner Corporation, on 10.1.1994,he had filed the petition, under Section 2A of the IndustrialDisputes Act, only on 10.1.1997, after a lapse of three years. 7. The learned counsel for the petitioner had also submittedthat since there has been an inordinate and unexplained delay on thepart of the second respondent in raising the industrial disputebefore the first respondent Labour Court and as he had not pleadedthat he was unemployed during the period when he was out of service,the first respondent Labour Court had erred in directing the paymentof full backwages to the second respondent.8. The learned counsel had relied on a decision of a DivisionBench of this Court, dated 31.7.2008, made in W.A.No.2010 of 2005,to support his contention that when the workman had never pleadedthat while he was out of service he was not in gainful employment inany other organisation or department, he would not be eligible forbackwages since the employer would not be in a position to meet sucha claim by producing the evidence to the contrary. https://hcservices.ecourts.gov.in/hcservices/

9. The learned counsel for the petitioner had also relied on adecision, reported in Indian Oxygen Employees' Union V. State ofTamil Nadu & Anr. (1992 (I) LLJ 583), to show that the workman wouldloose his lien on employment, as a result of his unauthorisedabsence, as provided under the Standing Orders of the petitionerCorporation and therefore, he would not be a workman, under Section 2(s) of the Industrial Disputes Act, 1947, and as a consequence noreference could be made, under Section 10(1) of the Act. 10. Per contra the learned counsel appearing on behalf of thesecond respondent had submitted that the award of the firstrespondent Labour Court, dated 30.4.2003, is in accordance with law.The first respondent Labour Court had rightly held that when thesecond respondent was serving as a conductor in the petitionerCorporation his daughter had disappeared from his house. Therefore,he was under severe psychological stress and mental agony andtherefore, he could not report for duty from 20.11.1993. However,when the second respondent had reported for duty during the firstweek of January 1994, he was prevented from joining in duty by themanagement of the petitioner Corporation. Thereafter, the secondrespondent had written several letters explaining the circumstancesunder which he was absent from work, from 20.11.1993. Withoutconsidering the explanation submitted by the second respondent, themanagement of the petitioner Corporation had abruptly terminated theservice of the second respondent, without notice and without holdingan enquiry. Therefore, the termination of the second respondent fromservice, by the petitioner Corporation, is arbitrary and illegal.11. In view of the submissions made by the learned counsel forthe petitioner, as well as the second respondent and on a perusal ofthe records available, this Court is of the considered view that thepetitioner has not shown sufficient cause or reason to interfere withthe award of the Labour Court, dated 30.4.2003, made in I.D.No.328 of1997.12. It is clear that the petitioner Corporation had removed thesecond respondent from its rolls on the allegation that the secondrespondent had absented himself, unauthorisedly, without priorpermission and and without leave having been granted to him, withoutconducting an enquiry. The representations said to have been sent bythe second respondent, explaining the reasons for his absence, hadnot been considered by the management of the petitioner Corporation.Further, it is seen that the second respondent, by an affidavit filedbefore this Court, in W.V.M.P.No.1777 of 2004, had stated that he wasnot gainfully employed during the period when he was out of service.The said claim of the second respondent had not been refuted by thepetitioner Corporation either by way of a counter or a reply. https://hcservices.ecourts.gov.in/hcservices/

13. In such circumstances, the contention of the learned counselfor the petitioner Corporation, that the first respondent LabourCourt had erred in coming to the conclusion that the secondrespondent workman was eligible to get full backwages for the periodwhen he was out of employment, cannot be countenanced. Accordingly,the writ petition filed by the petitioner Corporation is liable to bedismissed, as it is devoid of merits. Hence, it is dismissed. Nocosts. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcshToThe Presiding Officer,Principal Labour Court, Chennai.1 cc To Mr.G.Munirathinam, Advocate, SR.188821 cc To Mr.K.M.Ramesh, Advocate, SR.18515W.P.No.21125 of 2004vsv(co)pmk.15.5.2009