B.Manimaran v. The Presiding OfficerLabour Court Vellore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09.02.2012CORAM:THE HON’BLE MR. JUSTICE K.CHANDRUW.P.No.29180 of 2007B.Manimaran.. PetitionerVs.1.The Presiding OfficerLabour Court Vellore2.The ManagementM/s.C.M.C.HospitalArcot Road, Vellore .. Respondents Prayer :Petition under Article 226 of the Constitution of Indiapraying for a Writ of Certiorari calling for the records and papersfrom the files of the 1st Respondent relating to I.D.No. 141 of 2004and quash its impugned Award dated 21.05.2007 in so far as it hasrejected the claim of the Petitioner for reinstatement in servicewith back wages with continuity of service and with all otherattendant benefits; to award costsFor Petitioner :: Mr.K.M.Ramesh For Respondent-2 :: Mr.Sanjay Mohan for M/s.Ramasubramanian AssociatesO R D E RThe Writ Petition is filed by the petitioner, who was employed bythe 2nd respondent Hospital at Vellore. In this Writ Petition, thepetitioner has come forward to challenge an award passed by the 1strespondent Labour Court, Vellore in I.D.No.141 of 2004 dated21.05.2007. By the impugned award, the Labour Court in lieu ofreinstatement computed a sum of Rs.1 Lakh to be paid to him. Notsatisfied with the other claims, the rest of the claim made in theclaim statement was dismissed by the Labour Court. The Writ Petitioncame to be filed challenging that portion of the award in notgranting the relief of reinstatement with backwages and otherattendant benefits. https://hcservices.ecourts.gov.in/hcservices/

2.The Writ Petition was admitted on 5.9.2007. Even beforefiling the Writ Petition, the petitioner received the amount of Rs.1Lakh without prejudice to his claiming relief before this Court. Theamount has been admittedly paid by the 2nd respondent and received bythe petitioner, as evidenced from the letter dated 30.8.2007addressed to the management and a copy of which is found enclosed inpage 33 of the typed set of papers.3.It is seen from the records that the petitioner was given acharge memo dated 9.4.1997 alleging that he had absented himself fromwork without leave or permission for more than 8 consecutive days.The dates on which he absented were communicated in the memo, whichare as follows:"16.9.1996 to 20.9.1996, 25.9.19968.10.1996, 9.10.1996, 15.10.1996 to 18.10.1996,22.10.1996 to 31.10.1996,6.11.1996 to 9.4.1997."The petitioner in response to the charge memo sent a representationdated 24.4.1997 stating that he has borrowed Rs.15,000/- from moneylenders, agreeing to pay the same within one years. He was able topay the interest only and not the principal. Therefore, the moneylenders have engaged certain persons to threaten the petitioner torecover the amount. Though he made demand that he will the amountsin instalments, he could not escape from their threat. Since he wasafraid of getting hurt by those persons, he could not come to workand he tendered apology for not coming to work. Notwithstanding thesaid explanation, a charge memo cum suspension was given to him.4. Thereafter, an enquiry was directed to be held by thePersonnel Officer of the Hospital. In the enquiry held, Mrs.PramilaJesudasan, Incharge of the Personnel Officer was examined asmanagement's witness and the documents relating to his absence weremarked. When it was questioned, the petitioner in the enquiry stuckby his earlier explanation as the reasons for his absence. Theenquiry officer by the report dated 23.7.1997 held guilty of thecharges. On the basis of the enquiry report, a further explanationwas called for. The petitioner, agreeing with the mistake committedby him, sought for one more opportunity to lead fresh life.Thereafter by an order dated 8.10.1997, the petitioner was dismissedfrom service. https://hcservices.ecourts.gov.in/hcservices/

5. As at that time an industrial dispute was pending before theIndustrial Tribunal, an Approval Petition was filed by themanagement. The Industrial Tribunal took up the application filedunder Section 33(2)(b) of the Industrial Disputes Act as A.P.No.87 of1997. By an order dated 26.5.1998, the Industrial Tribunal grantedapproval for dismissing the workman. 6. It was thereafter, the petitioner raised the industrialdispute before the Government Labour Officer at Vellore. The saidConciliation Officer after due notice to the management could notbring about mediation between the parties and gave a failure reportdated 22.1.2004. On the strength of the failure report, thepetitioner filed a claim statement dated 29.5.2004. 7. The Labour Court registered the dispute as I.D.No.141 of 2004and issued Notice to the management. The management filed a writtenstatement of defence dated 27.9.2004. Since the workman did notraise an issue about the validity of the domestic enquiry, there wasno occasion for the Labour Court to consider the same.Notwithstanding the same, it received the proof affidavit from theworkman dated 16.11.2005, unmindful of the procedure adopted. Insuch circumstances, this led to the management filing an applicationin I.A.No.281 of 2006 seeking the Labour Court to eschew theextraneous evidence received by the Labour Court contrary to theprovision under Section 11-A of the Industrial Disputes Act, whichclearly states that the Labour Court in such circumstances shallconfine its adjudication on the materials available on record. As towhat constitute the materials on record, the management Court reliedupon the judgment of the Supreme Court in NEETA KAPLSIH VS. THEPRESIDING OFFICER, Labour Court AND ANOTHER REPORTED IN 1999 (1) SCC517.8. The Labour Court has removed the proof affidavit filed by theworkman for being considered. It was, thereafter, the arguments werebased upon the domestic enquiry proceedings filed by the Managementand the same were marked as Exs.M1 to M19. The documents were markedby consent. The labour Court held that the charges levelled againstthe workman were clearly proved. Even his past conduct shows that onseveral previous occasions, as per Ex.M1, he has committed severalmisconduct. Therefore, on the proved misconduct, the Labour Courtwas not inclined to grant any relief of reinstatement but confinedthe relief to one of compensation and arrived at a sum of Rs.1 lakhas compensation. This was based upon the fact that he has worked for10 years and his approximate wage was Rs.1,938/- p.m. This awarddated 21.05.2007 is the subject matter of this Writ Petition. https://hcservices.ecourts.gov.in/hcservices/

9. The contention raised by the workman before this Court wasthat for a trivial misconduct, harsh punishment cannot be given andthe punishment is disproportionate and the Labour Court ought to haveinterfered with the penalty in exercise of its power under section11-A of the Industrial Disputes Act. In support of his contention,the learned counsel for the petitioner places reliance upon thejudgment of the Supreme Court in SCOOTER INDIA LIMITED, LUCKNOW VS.LABOUR COURT, LUCKNOW AND OTHERS reported in AIR 1989 SC 149.10. The decision relied upon by the petitioner workman has got norelevance for 'unauthorised absence'. It is related to the enmitybetween the workman and the Management and the rude behaviour of theworkman which led to his dismissal and the Labour Court interferedwith the penalty and granted reinstatement to the workman therein toan extent of 75%. The High Court in exercise of power under Article226 of the Constitution of India, refused to interfere with the same.Thereafter, on appeal, the Supreme Court confirmed the order of thelabour Court and the High Court of Allahabad. It is not clear as tohow the said decision will have a bearing in the case on hand. Onthe other hand, on the question of absence and whether for a rudemisconduct, any indulgence can be shown, came to be considered by theSupreme Court in more than one decision. The Supreme Court vide itsjudgment in L&t KOMATSU LTD. VS. N.UDAYAKUMAR reported in (2008) 1SCC 224, has observed as follows:"8. So far as the question whether habitual absenteeismmeans the gross violation of discipline, it is relevant totake note of what was stated by this Court in Burn & Co. Ltd.v. Workmen AIR 1959 SC 529:"5. .... There should have been an application forleave but Roy thought that he could claim, as a matterof right, leave of absence though that might be withoutpermission and though there might not be any applicationfor the same. This was gross violation of discipline.Accordingly, if the Company had placed him undersuspension that was in order. On these findings, itseems to us that the Tribunal erred in holding that itcould not endorse the Company's decision to dispensewith his services altogether. In our opinion, when theTribunal upheld the order of suspension it erred indirecting that Roy must be taken back in his previouspost of employment on the pay last drawn by him beforethe order of suspension."9. In LIC of India v. R.Dhandapani (2006) 13 SCC 613, itwas held as follows:"It is not necessary to go into detail regarding thepower exercisable under Section 11-A of the Act. The powerunder said Section 11-A has to be exercised judiciously and https://hcservices.ecourts.gov.in/hcservices/ the Industrial Tribunal or the Labour Court, as the case maybe, is expected to interfere with the decision of a managementunder Section 11-A of the Act only when it is satisfied thatpunishment imposed by the management is wholly and shockinglydisproportionate to the degree of guilt of the workmanconcerned. To support its conclusion the Industrial Tribunalor the Labour Court, as the case may be, has to give reasonsin support of its decision. The power has to be exercisedjudiciously and mere use of the words 'disproportionate' or'grossly disproportionate' by itself will not be sufficient.In recent times, there is an increasing evidence of this,perhaps well-meant but wholly unsustainable, tendency towardsa denudation of the legitimacy of judicial reasoning andprocess. The reliefs granted by the courts must be seen to belogical and tenable within the framework of the law and shouldnot incur and justify the criticism that the jurisdiction ofthe courts tends to degenerate into misplaced sympathy,generosity and private benevolence. It is essential tomaintain the integrity of legal reasoning and the legitimacyof the conclusions. They must emanate logically from thelegal findings and the judicial results must be seen to beprincipled and supportable on those findings. Expansivejudicial mood of mistaken and misplaced compassion at theexpense of the legitimacy of the process will eventually leadto mutually irreconcilable situations and denude the judicialprocess of its dignity, authority, predictability andrespectability.(See Kerala Solvent Extractions Ltd. v.A.Unnikrishnan (1994) 1 Scale 631)."11. In view of the above said circumstances, this Writ Petitionis dismissed. No costs. Sd/-Asst. Registrar/true copy/Sub Asst. Registrar.ajr/gm https://hcservices.ecourts.gov.in/hcservices/ ToThe Presiding OfficerLabour Court Vellore1 cc To Mr. K.M.Ramesh, Advocate Sr 8823W.P.No.29180 of 2007kgk[co]gp/20.2