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2005 DIGILAW 839 (MAD)

O. Krishnan v. The Management of Dheeran Chinnamalai Transport Corporation Limited & Another

2005-06-13

P.K.MISRA

body2005
Judgment :- The present writ petition is directed against the award of the Labour Court dismissing the Industrial Dispute raised by the present petitioner. 2. The petitioner was employed under the respondent Corporation as a Conductor. He had applied for leave from 13.4.94 to 22.4.94. According to the case of the petitioner before the Labour Court, since he had not fully recovered from the ailment, he had sent a telegram to the respondent Corporation praying for extension of leave from 23.4.94 to 20.5.94 and he rejoined duty on 28.5.1994 producing a fitness certificate. However, a charge memo dated 12.5.1994 had been issued calling for explanation for his absence from 23.4.1994 to 12.5.1994. In his explanation dated 19.5.1994, the petitioner has explained about his illness. Subsequently, in the domestic enquiry, it was held that the petitioner was unauthorisedly absent and on the basis of such enquiry report, after issuing a second show cause notice, the petitioner was dismissed from service by order dated 6.4.1995. Such order was challenged before the Labour Court. The Labour Court came to the conclusion that the domestic enquiry had been held in consonance with the principles of natural justice and there is no illegality in such domestic enquiry. It was further held that the order of dismissal was justified and accordingly the industrial dispute was dismissed. Such award is under challenge in the present writ petition. 3. Learned counsel for the petitioner has raised the following contentions :- (1) The Enquiry Officer and the Labour Court did not consider the fact that the petitioner had sent a telegram praying for extension of medical leave and thereafter he had rejoined duty after obtaining a fitness certificate, and therefore, the conclusion arrived at in the departmental proceedings as well as by the Labour Court to the effect that the petitioner was unauthorisedly absent is not sustainable in law. (2) Even assuming that the petitioner was unauthorisedly absent, imposition of punishment of dismissal from service is grossly disproportionate to the nature of delinquency and the Labour Court should have interfered with the order of punishment by invoking the jurisdiction under Section 11-A of the Industrial Disputes Act. 4. (2) Even assuming that the petitioner was unauthorisedly absent, imposition of punishment of dismissal from service is grossly disproportionate to the nature of delinquency and the Labour Court should have interfered with the order of punishment by invoking the jurisdiction under Section 11-A of the Industrial Disputes Act. 4. Learned counsel appearing for the respondent Corporation has submitted that the award passed by the Labour Court, confirming the punishment in the departmental proceedings, is based on discussion of relevant materials on record and in the absence of any illegality, such award should not be interfered with. It has been further submitted that the punishment of dismissal has been passed only after taking into account the previous conduct of the petitioner, and therefore, the punishment cannot be characterised as grossly disproportionate. 5. Coming to the first point, it is submitted by the counsel for the petitioner that a receipt issued by the Telegraph Office indicating about despatch of a telegram had been produced before the enquiry officer as well as before the Labour Court and yet it was erroneously concluded that the petitioner was unauthorisedly absent. The enquiry officer has considered this aspect and came to the conclusion that the mere fact there was a receipt showing despatch of a telegram did not establish the contention raised by the petitioner as the copy of the telegram had not been produced before the enquiry officer. The Labour Court also independently considered the aforesaid aspect and has come to the very same conclusion. The petitioner had merely produced a receipt showing despatch of a telegram but the contents of the telegram are not known. No efforts have been made by the petitioner to obtain a copy of the telegram from the Telegraph Office to strengthen his contention. Since the disciplinary authority and the Labour Court after considering the relevant materials have come to a particular conclusion, which is apparently a finding of fact, it is difficult for the High Court, while exercising jurisdiction under Article 226 of the Constitution of India, to come to a different conclusion. The view taken by the disciplinary authority or the Labour Court cannot be characterised as perverse or based on no evidence, warranting any interference. It is well settled that the High Court, while deciding a writ petition under Article 226, does not sit as an appellate authority over the order of the inferior Tribunal. The view taken by the disciplinary authority or the Labour Court cannot be characterised as perverse or based on no evidence, warranting any interference. It is well settled that the High Court, while deciding a writ petition under Article 226, does not sit as an appellate authority over the order of the inferior Tribunal. The High Court is not concerned about the correctness or otherwise of the decision itself, but is more concerned with the decision making process. In the present case, as observed by the Labour Court, the disciplinary authority had followed the principles of natural justice and concluded the domestic enquiry in a fair manner. The Labour Court, on independent consideration, has come to the very same conclusion. In the absence of any perversity affecting such decision, it is difficult for the High Court to come to any different conclusion. Accordingly, such contention raised by the petitioner cannot be accepted. 6. The second submission of the counsel for the petitioner to the effect that punishment of dismissal is grossly disproportionate to the nature of delinquency, namely, unauthorised absence, even though prima facie attractive, does not bear closer scrutiny. It is of course true that there are some decisions either of the Supreme Court or this Court wherein the order of punishment for unauthorised absence for a few days have been held to be grossly disproportionate. In the present case, however, apart from the unauthorised absence, for which disciplinary proceedings were been initiated, the disciplinary authority has relied upon the fact that on previous occasions also the petitioner had remained unauthorisedly absent. The disciplinary authority had also considered the fact that there has been several other punishments imposed upon the petitioner on numerous occasions and considering all these aspects, the disciplinary authority had come to the conclusion that the person was to be dismissed. The Labour Court, on independent consideration, has also come to the very same conclusion and has held that the punishment of dismissal was justified in the peculiar facts and circumstances of the case. In the absence of any patent illegality in such orders, it is difficult for the High Court to come to any different conclusion and to interfere with the punishment. 7. In the absence of any patent illegality in such orders, it is difficult for the High Court to come to any different conclusion and to interfere with the punishment. 7. Learned counsel appearing for the petitioner has placed particular reliance upon the decision of the Supreme Court reported in (2004) 4 SCC 560 (SHRI BHAGWAN LAL ARYA v. COMMISSIONER OF POLICE, NEW DELHI AND OTHERS). In the said case, the person was found absent for more than two months on medical grounds on sanction of leave. Under such circumstances, it was held that dismissal on the ground of absence was excessive and disproportionate. 8. As already indicated, in the present case, apart from the unauthorised absence of the petitioner for more than a month on the particular occasion, there was absence from duty on three other occasions and the petitioner himself was punished for several other misdemeanours. The facts of the present case being entirely different, the ratio of the aforesaid decision of the Supreme Court cannot be made applicable. 9. Learned counsel for the petitioner has also placed reliance upon the decision of the learned single Judge of this Court reported in 2004 (2) L.L.N. 1075 (S. SUBRAMANIYAN v. PRESIDING OFFICER, LABOUR COURT, SALEM AND ANOTHER). In the said case, the order of termination was on account of unauthorised absence. However, the Labour Court found that termination was illegal, but, instead of reinstating the employee, the Labour Court directed for payment of compensation in lieu of reinstatement. When the matter was agitated before the High Court by the concerned employee, it was observed by the learned single Judge that once it was found that termination was unjustified, the refusal of the Labour Court to reinstate the employee was illegal and accordingly, the award of the Labour Court was modified by the High Court. 10. In the present case, the ratio of the said decision cannot be made applicable in view of the clear finding that there was no illegality in the termination itself. 11. Learned counsel for the respondent, on the other hand, has placed reliance upon several decisions of this Court as well as other Courts wherein the order of termination on the ground of unauthorised absence has been upheld. It is not necessary to refer to all those decisions. 11. Learned counsel for the respondent, on the other hand, has placed reliance upon several decisions of this Court as well as other Courts wherein the order of termination on the ground of unauthorised absence has been upheld. It is not necessary to refer to all those decisions. As already indicated, in the facts and circumstances of the present case and particularly keeping in view the discussion made by the Labour Court, it cannot be said that any illegality has been committed, and therefore, the writ petition is bound to be dismissed. 12. In the result, the writ petition is dismissed. However, there would be no order as to costs.