D.Soundarrajan & Ors v. The Presiding Officerlabour CourtCoimbatore & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 1.12.2008Coram:The Honourable Mr.Justice M.JAICHANDRENW.P.No.1888 of 2003&W.P.No.11704 of 2003D.Soundarrajan .. petitioner in W.P.No.1888 of 2003The Management of Tirupur Textiles Ltd.,Post Box No.153, Tirupur 638 603rep. by its Executive Director.. petitioner in W.P.No.11704 of 2003VsThe Presiding Officerlabour CourtCoimbatore .. first respondent in both the writ petitionsThe Management of Tirupur Textiles Ltd.,Post Box No.153, Tirupur 638 603 .. second respondent in W.P.No.1888 of 2003D.Sounderrajan .. second respondent in W.P.No.11704 of 2003W.P.No.1888 of 2003:Prayer: Petition filed seeking for a writ of CertiorarifiedMandamus, to call for the records from the first respondentrelating to the I.D.No.228 of 1998, dated 18.6.2002, and quash thesaid award, dated 18.6.2002, and direct the second respondent toreinstate the petitioner with continuity of service and backwagesand attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.11704 of 2003:Prayer: Petition filed seeking for a writ of Certiorari to call forthe records of the first respondent in I.D.No.228 of 1998, quashthe award, dated 18.6.2002 granting relief of compensation ofRs.1,42,200/- to the second respondent.W.P.No.1888 of 2003: For Petitioner : Mr.V.Ajoy Khose For Respondent : Mr.S.Ravindran for R2W.P.No.11704 of 2003: For Petitioner : Mr.S.Ravindran For Respondent : Mr.V.Ajoy Khose for R2 O R D E RHeard the learned counsel appearing for the petitioner and thelearned counsel appearing for the respondent.2. Since the issues involved in the above writ petitions havearisen out of the same facts and circumstances, a common order ispassed.W.P.No.1888 of 2003:3. The writ petition in W.P.No.1888 of 2003, has been filed bythe petitioner employee challenging the award of the firstrespondent labour Court, dated 18.6.2002, made in I.D.No.228 of1998. The petitioner has stated that he was employed in the secondrespondent Mill from 9.6.1982. He had put in 16 years of continuousservice and his last drawn salary is 3,950/-. The petitioner had anunblemished record of service in the second respondent Mill. Whileso, a false complaint had been lodged against his brothersregarding a joint family property. Based on the said complaint, thepolice was taking criminal action against the members of thepetitioner's family. Therefore, the petitioner had travelled toChennai for moving an anticipatory bail. In such circumstances, thepetitioner was not able to attend to his work in the secondrespondent Mill. Therefore, the petitioner had sent a letter, dated10.12.1997, to the second respondent Mill seeking leave and hadalso sent a telegram, dated 5.1.1998. Since there was no response,he had sent another telegram, dated 1.3.1998, seeking casual leave https://hcservices.ecourts.gov.in/hcservices/ for six days. In spite of his request, the second respondentManagement had effected the publication in the newspaper about thepetitioner's alleged unauthorised absence from 3.12.1997 to22.1.1998. The petitioner had submitted his explanation to the saidpublication. However, an enquriy had been conducted, on 7.12.1998.No witness had been examined in the enquiry. The enquiry officerhad told the petitioner that the second respondent Management wouldimpose a minor punishment, if he pleaded guilty. Therefore, thepetitioner had admitted the charges. However, the enquiry officerhad given his findings holding that the charges against thepetitioner had been proved. 4. It has been further stated that based on the enquiryreport, the Management had sent a show cause notice, dated19.2.1998, proposing to impose the major punishment of dismissalfrom service on the petitioner. The petitioner had submitted hisexplanation. However, the second respondent Management, not beingsatisfied with the explanation, had passed an order, dated28.2.1998, dismissing the petitioner from service. In suchcircumstances, the petitioner had raised an Industrial Disputebefore the first respondent labour Court, in I.D.No.228 of 1998. 5. The learned counsel appearing for the petitioner hadsubmitted that the award of the labour Court, dated 18.6.2002, madein I.D.No.228 of 1998, is illegal, as it had been passed contraryto the provisions of law. Though no evidence had been let in by thesecond respondent Management to prove the charges levelled againstthe petitioner, the enquiry officer had come to the conclusion thatthe charges were proved. The enqury officer had also held that thepetitioner had pleaded guilty to the charges. The enquiry had beenconducted contrary to the principles of natural justice. Eventhough the petitioner had made several requests to the secondrespondent Management to grant him leave due to his familycircumstances, such requests had not been accepted.6. The learned counsel appearing for the petitioner had alsosubmitted that the petitioner had been victimised for the reasonthat he was carrying on trade union activities. Further, theManagement of the second respondent had not justified the majorpunishment of dismissal from his service for the misconduct ofunathorised absence. The punishment imposed on the petitioner isdisproportionate in nature. Hence, it is unsustainable in the eyeof law. W.P.No.11704 of 2003:7. This writ petition has been filed by the petitioner toquash the award of the first respondent labour Court, dated18.6.2002, made in I.D.No.228 of 1998, and for a direction to https://hcservices.ecourts.gov.in/hcservices/ direct the second respondent to reinstate the petitioner, withcontinuity of service, backwages and other attendant benefits andfor costs. 8. It has been stated that the second respondent was workingas an operator in the petitioner Mill. Since he was in the habit ofabsenting himself from work, frequently, he was put on notice to beprompt in attending to his daily duties. The second respondent, hadjoined in the service of the petitioner Mill in the year 1982 andhe had undergone training. Even during his training period, he wasnot regular in his attendance. Therefore, his training period hadbeen extended for a further period of six months. Even thereafter,after he had completed his training, he was irregular in hisattendance. Therefore, he had been warned on several occasions.However, since the conduct and the attendance of the secondrespondent was not satisfactory, he was issued with two show causenotices, on 20.11.1990 and 21.11.1990, charging him with theriotous and disorderly behaviour amounting to a serious misconduct.A domestic enquiry was conducted against the second respondent inwhich the charges were held to be proved. In view of theseriousness of the misconduct committed by the respondent, on25.1.1992, a second show notice had been issued to him proposing toimpose the punishment of dismissal from service. Even during thependency of the disciplinary proceedings initiated pursuant to theshow cause notices, dated 20.11.1990, and 21.11.1990, the secondrespondent had indulged in serious acts of violence and disorderlybehaviour, including an assault of a co-employee, indulging inmaking threats and abusing his superior officers and his co-workers, and participating in illegal stay-in-strike, etc. 9. It has been further stated that after the receipt of thesecond show cause notice, dated 25.1.1992, on 11.2.1992, the secondrespondent had submitted an explanation, pleading guilty to thevarious charges levelled against him and he had also made arequest that he should be dealt with leniently, due to his familycircumstances. He had also stated that he would not behave in sucha condemnable manner in future. In view of the pleadings made bythe second respondent, the matter was considered sympatheticallyand the punishment of dismissal from service was deferred and hewas allowed to continue in employment. However, even after hisundertaking that he would not indulge in any act of misconduct, thesecond respondent had continued to behave in a disorderly mannerand he was absenting himself from work, frequently. During the year1994, the second respondent had been warned and he was alsosuspended for his misconduct of unauthorised absenteeism. Evenduring the subsequent years, he had continued to commit themisconduct of being absent from work. https://hcservices.ecourts.gov.in/hcservices/

10. It has been further stated that the second respondent,without any intimation to the petitioner, had absented himself fromwork from 3.12.1997. Therefore, a show cause notice had been issuedto him, on 22.12.1997. Again, on 1.1.1998, another show causenotice had been issued to the second respondent stating that hisabsence from work had resulted in the loss of production to thepetitioner Mill and that he should submit his explanation. Both thenotices had been returned undelivered. Subsequently, on 10.1.1998,another show cause notice had been issued to the second respondentfor his continued absenteeism. The said notice had also beenreturned undelivered. In such circumstances, a newspaperpublication was made, on 24.1.1998, asking him to show cause as towhy appropriate action should not be taken against him for hiscontinued absenteeism. 11. It has been further stated that on 30.1.1998, the secondrespondent had sent a letter to the petitioner stating certainreasons for his absence from work. As the explanation submitted bythe second respondent was not satisfactory, an enquiry had beenheld, on 7.2.1998. The second respondent had participated in theenquiry and had pleaded guilty for the charges levelled againsthim, In view of the admission of the guilt by the secondrespondent, the enquriy officer had concluded the enquiryproceedings. On 9.2.1998, the enquiry officer had submitted hisfindings holding that the charges levelled against the secondrespondent were duly proved. Considering the seriousness of themisconduct committed by the second respondent, on 19.2.1998, asecond show cause notice had been issued to the second respondentproposing the punishment of dismissal from service. The findings ofthe enquiry officer had been enclosed. In the said show causenotice issued to the second respondent, the past records had alsobeen referred. On 24.2.1998, the second respondent had submittedhis explanation stating that he had been compelled to remain absentdue to police action and therefore, he had pleaded for leniencybeing shown in his favour. The petitioner has considered theexplanation of the second respondent and having found it to beunsatisfactory, an order, dated 28.9.1998, had been passed,dismissing the second respondent from service. 12. It has been further stated that the second respondent hadchallenged the said order dismissing him from service before thefist respondent labour Court, in I.D.No.228 of 1998. By apreliminary order, dated 19.12.2001, the first respondent labourCourt had held that the domestic enquiry conducted against thesecond respondent was fair and proper. During the enquiry, the maincontention of the second respondent was that he was victimised forthe trade union activities and that the Factory Manager of thepetitioner Mill had shown illwill towards him due to a land dispute https://hcservices.ecourts.gov.in/hcservices/ concerning the second respondent's family. However, during thecourse of his cross examination, the second respondent had admittedthat he had not espoused the cause of the workmen for the past 16years and that during the pendency of the disciplinary proceedings,he had not pleaded that he was victimised for his trade unionactivities. The first respondent labour court had passed an award,dated 18.6.2002, holding that the plea of the second respondent,that he was victimised for his trade union activities, cannot beaccepted and that it had been conclusively proved that the secondrespondent had been unauthorisedly absent from work without thepermission of the Management of the petitioner Mill, amounting tomisconduct. The first respondent labour Court had also consideredthe past records of the second respondent and had held that thecharges against the second respondent were proved and that theorder passed by the petitioner, dismissing the second respondentfrom service, cannot be interfered with. However, based onmisplaced sympathy, the first respondent labour court had held thatin view of the 16 years of service rendered by the secondrespondent, he should be given monetary compensation. Accordingly,the first respondent labour court had directed the petitioner topay a sum of Rs.1,42,200/- to the second respondent. In suchcircumstances, the petitioner has filed the present writ petitionbefore this Court challenging the award of the labour Court, dated18.6.2002, made in I.D.No.228 of 1998. 13. The learned counsel appearing for the petitioner hadsubmitted that the award of the first respondent labour Court is aclear case of abuse of discretionary powers vested in it by Section11-A of the Industrial Disputes Act, 1947. In spite of the firstrespondent labour Court holding that the punishment of dismissalissued against the second respondent was justified, it had directedthe petitioner Mill to pay a sum of Rs.1,42,200/, as compensationto the second respondent for his service rendered in the petitionerMill, based on misplaced sympathy. Therefore, the award of thefirst respondent labour Court is arbitrary, contrary to Section 11-A of the Industrial Disputes Act, 1947, illegal and void. 14. The learned counsel appearing on behalf of the Managementof Tirupur Textiles Ltd., had placed before this Court a decisionof the Supreme Court in CHAIRMAN AND MD, V.S.P. and others Vs.GOPARAJU SIR PRABHAKARA HARI BABU (2008-II-LLJ-645 (SC)), whereinthe Supreme Court had held that the High Court cannot set aside awell reasoned order of punishment, after all the proceduralrequirements had been fulfilled, on the ground of sympathy. 15. He had also relied on a decision of a Division Bench ofthis Court in VIJAYAN, G. Vs. PRESIDING OFFICER, LABOUR COURT ANDANOTHER (2007 (3) LLJ 546), wherein it had been held that on thefactual situation arising in the said case, the punishment of https://hcservices.ecourts.gov.in/hcservices/ dismissal from service imposed on the workman, for his frequentabsence from duty, was not shocking to the conscience of this Courtwarranting interference in respect of the quantum of punishment. 16. In view of the submissions made by the learned counselsappearing for the parties concerned and on a perusal of the recordsavailable, this Court is of the considered view that sufficientgrounds had not been made out to set aside the award of the labourCourt, Coimbatore, dated 18.6.2002, made in I.D.No.228 of 1998. Thelabour Court had considered the evidence available on record andhad come to the conclusion that the domestic enquiry conductedagainst the employee by the employer was fair and proper. Thelabour Court had also held that the employee had admitted thecharges levelled against him for his unauthorised absence and theconsequent loss of production. The labour Court had also taken intoconsideration the past records of the employee before coming to itsconclusions. Further, the labour Court had invoked itsdiscretionary power, under Section 11-A of the Industrial DisputesAct, 1947, to award a sum of Rs.1,42,200/- as compensation, insteadof reinstating him in service, due to the strained relationshipexisting between the Management of the Mill and the employee. Sincethe award of the labour Court, dated 18.6.2002, made in I.D.No.228of 1998, cannot be held to be perverse or based on no evidence, orarbitrary or capricious in nature, this Court is not inclined tointerfere with the said award. Hence, the writ petitions standdismissed. No costs.lan Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To:The Presiding Officerlabour CourtCoimbatore1 cc to Mr.D.Hariparandaman, Advocate, SR.674271 cc to Mr.T.S.Gopalan, Advocate, SR.67335nm (co)dv/7.1.W.P.No.1888 of 2003&W.P.No.11704 of 2003