Aruldoss v. The General Manager, Southern Railway, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 14.12.2012CORAM:THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.24162 of 2003A.Aruldoss... Petitioner-vs-1.The General Manager, Southern Railway, Chennai – 600 003.2.The Chairman, Railway Board, New Delhi.3.The Presiding Officer, Central Govt. Industrial Tribunal-cum-Labour Court. B-Wing, Shastri Bhavan, 26, Haddows Road, Chennai -6.... Respondents Prayer : The Writ Petition filed under Article 226 of theConstitution of India for issue of Writ of Certiorarified Mandamusto call for the records relating to the impugned award in I.D.No.669of 2001, dated 06.03.2003, passed by the third respondent and quashthe same and direct the respondents 1 & 2 to reinstate thepetitioner in service with all attendant benefits. For Petitioners : Mr.P.RajendranFor Respondents : Mr.J.Hari Krishna for RR1&2O R D E RThe prayer in the writ petition is for issuance of a writ ofCertiorarified Mandamus, to quash the award passed by the CentralGovernment Industrial Tribunal cum Labour Court, (hereinafterreferred to as the 'Labour Court') in I.D.No.669 of 2001, dated06.03.2003 and for a consequential direction to the respondents 1 &2 to reinstate the petitioner in service with all attendantbenefits. https://hcservices.ecourts.gov.in/hcservices/

2. The facts as they emerge from the record fall within a verynarrow compass. The petitioner was initially engaged by therailways as casual labour on daily wages from 1980. He was grantedtemporary status from August 1980 and was subsequently, confirmed asKhalasi with effect from 01.10.1991. While working under thecontrol of the Assistant Mechanical Engineer, Basin Bridge, thepetitioner absented himself from duty unauthorisedly from 06.07.1995to 07.11.1995, without proper authority and without adhering toRailway Medical Rules. A charge sheet dated 29.12.1995, was issuedto the petitioner calling upon him to submit his explanation for thesaid unauthorised absence. The petitioner by his explanation dated19.01.1996 stated that he was suffering from severe jaundice andfever and therefore, he could not attend duty and requested to treatthe period of unauthorised absent as leave due on his account. Thepetitioner enclosed a medical certificate issued by the PrivateMedical Practitioner. The petitioner was referred to the RailwayMedical Officer, who issued a fitness certificate dated 08.11.1995,but declared the period of absence not covered under sick leave asper Railway Medical Leave Rules. The said order was passed underRule 521 of the Railway Establishment Code, Vol.I, which deals withRailway Medical Attendance Leave Rules. The Railway Administrationwas not satisfied with the explanation given by the petitioner andenquiry was conducted and opportunity was given to the petitioner todefend himself. However, the communication sent to the petitionerfrom the enquiry officer has returned with the postal endorsement"addressee not found" and subsequent communication sent, was alsoreturned with the same postal endorsement. Thereafter, the enquiryadvice was pasted in the notice board and another letter was handedover to the petitioner in person under acknowledgment and thepetitioner did not appear. Subsequently, the enquiry was adjournedand the petitioner appeared in the enquiry and admitted the chargeslevelled against him and the enquiry officer submitted a reportaccordingly. The disciplinary authority accepted the report andremoved the petitioner from service with effect from 28.08.1997.The appellate authority as well as revisional authority confirmedthe said punishment. The petitioner raised an industrial disputein I.D.No.699 of 2001, challenging the order of dismissal fromservice. 3. Before the Labour Court, the petitioner examined himself asWW-1, but no documents were marked. On the side of the management,there was no oral evidence, but eight documents were marked asExhibits M1 to M8. The labour Court then decided the question as towhether the punishment of dismissal passed against the petitionerwas justified. After considering the entire facts as well astaking note of the fact that the petitioner was chronic absentee,dismissed the claim petition. Challenging the same, the presentwrit petition has been filed. https://hcservices.ecourts.gov.in/hcservices/

4. The learned counsel appearing for the petitioner confinedhis argument only as regards the proportionality of penalty andsubmitted that for the charge of unauthorised absence, thepetitioner should not have been removed from service. 5. Per contra, the learned counsel appearing for the Railwayssubmitted that the petitioner was a chronic absentee and it was nota solitary instance, but several charge memos were issued to thepetitioner and in all those charge memos, punishment was imposed,yet the petitioner did not mend his ways and therefore afterconsidering all the facts, the petitioner was dismissed from serviceand the Labour Court after properly appreciating the oral anddocumentary evidence, dismissed the claim petition. In support ofhis contention, the learned counsel placed reliance on the decisionof the Hon'ble Supreme Court in State of Rajasthan and another vs.Mohd. Ayub Naz, (2006) 1 SCC 589. 6. I have considered the submissions on either side and perusedthe materials available on record.7. It is a settled legal position that this Court whileexercising jurisdiction under Article 226 of the Constitution whileconsidering the correctness of an award passed by the labour Courtwill not act as an appellate Court over the said award and re-appreciate the factual findings recorded by the Labour Court. Allthat is required to be seen is as to whether there is any perversityor irrationality in the award. Admittedly, the petitioner has notchallenged the findings of the labour Court on any technical groundsor pointed out any perversity or irrationality. The only contentionraised by the petitioner is with regard to proportionality of thepunishment imposed. 8. It is true under normal circumstances in case ofunauthorised absence, the punishment of dismissal is not imposed.However, the case on hand is different, since it has beenestablished that the petitioner was a chronic absentee. In thedomestic enquiry conducted, the petitioner admitted the charge ofunauthorised absence as contained in the charge memo dated29.12.1995. That apart, before the Labour Court the petitioner'spast conduct was also considered. It is seen from counter statementfiled before the labour Court by the Railways that the petitionerhas been imposed with several punishments for his unauthorisedabsence and it would be worthwhile to take note of the avermentsmade in the counter statement, which is extracted hereinbelow:-16. It is submitted that the petitioner was a regularabsentee and had the habit of taking leave withoutobserving rules. A casual glance of his service registerwill reveal the fact about his past record and that he was https://hcservices.ecourts.gov.in/hcservices/ a chronic absentee and was punished several times for hisact of unauthorised absence and staying away from work,without adhering Railway Leave Rules. His one set ofprivilege pass was withheld during the year 1989 forunauthorised absence of 39 days. Further, he was punishedwith withholding of increment for a period of twelve monthsduring the year 1991 for his unauthorised of about 40 daysand his increment was postponed by 12 months, which isnormally due on 01.10.1990.17. Further, his pay was reduced from Rs.898/- toRs.750/- in the time scale of pay of Rs.750-940 for aperiod of 24 months with effect from 13.12.1992 for hisunauthorised absence of 73 days. Further, his one set ofprivilege pass was withheld as a punishment for hisunauthorised absence of 32 days during 1992.18. Further, his annual increment from Rs.926/- toRs.940/- in scale Rs.750-940 was withheld for a period ofsix months which was due on normal course on 01.10.1995, asa punishment for having absented from duty unauthorisedlyfor a total period of 87 days. 19. Further the petitioner's pay was reduced to thescale of Rs.750 in scale Rs.750-940 for a period of 24months from 13.12.92 for a period of 24 months was furtherextended for a period of 6 months as a punishment forhaving absented from duty for 134 days.20. It is further submitted that the petitioner's paywhich was already reduced to the lowest stage at Rs.750/-in scale Rs.750-940/- for a period of 30 months with effectfrom 13.12.1992 was further extended for a period of 6months, since the petitioner absented from duty for 53 daysfrom 27.12.91 to 17.02.1992, without following Leave Rules.21. It is further submitted that his pay which wasalready reduced to the lowest stage for a period of 36months with effect from 13.12.1992 was further extended fora period of twelve months for having absented from dutyfrom 25.11.1994 to 04.01.1995.22. It is further submitted the petitioner who waspunished on so many occasions for the unauthorised absencehad never changed his caliber and nature and continued tobe absent without showing any improvement, which clearlyproves beyond doubt that he never bothered nor cared forhis job and duty and his family as well. Had he cared forhis family and children, he would have changed his attitudeand would have attended duty regularly.23. Railways which is an public transport department,cannot rely upon a person, who is a chronic absentee forduty, which will affect the movement of passenger trainsand goods train, thereby causing loss to Railway revenueand thereby attracting public criticism. https://hcservices.ecourts.gov.in/hcservices/

9. From the above facts, it is evidently clear that thepetitioner inspite of having been imposed punishment forunauthorised absence did not mend his ways, but continued to repeatthe same delinquency. As held by the Hon'ble Supreme Court in thecase of State of Rajasthan and another, referred supra, absenteeismfrom office for a prolonged period of time without prior permissionby government servants has become a principal cause of indisciplinewhich has greatly affected various government services. 10. In the absence of any material produced before the labourCourt to establish that the punishment is shockinglydisproportionate, the labour Court rightly refused to exercise itsdiscretion under Section 11A of the I.D. Act. The disciplinaryauthority as well as appellate authority are vested with discretionto impose proper punishment keeping in view the magnitude or gravityof misconduct and while exercising the powers of review, Courtscannot normally substitute its own conclusion on the penalty imposedunless its shocks the conscience of the Court. However, in theinstant case what is impugned in this writ petition is an award ofthe labour Court and the labour Court after considering the entirefacts did not find the punishment to be disproportionate rathercommensurate with the repeated misconduct committed by thepetitioner. The labour Court has given reasons in support of theconclusion, which are neither perverse or illegal. Therefore, thisCourt does not propose to interfere with the impugned award.11. In the result, the writ petition being devoid of merits, isdismissed. No costs. Consequently, connected miscellaneouspetition is closed. pbnSd/-Deputy Registrar(J)//True Copy//Sub Asst. RegistrarCopy to:-1.The General Manager, Southern Railway, Chennai – 600 003.2.The Chairman, Railway Board, New Delhi. https://hcservices.ecourts.gov.in/hcservices/

3.The Presiding Officer, Central Govt. Industrial Tribunal-cum-Labour Court. B-Wing, Shastri Bhavan, 26, Haddows Road, Chennai -6.+ 1 cc to Mr. P. Rajendran, Advocate SR No.77142+ 1 cc to Mr. J. Harikrishna, Advocate SR No.76191Order inW.P.No.24162 of 2003CES(CO)SR/20.12.2012.