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Judgment
D. Hariparanthaman, J.—The Petitioner joined the first Respondent-Corporation as Driver in 1981. He applied for medical leave on
04.09.1995 and 05.09.1995. He was granted leave for two days. As he was not able to report to duty on 06.09.1995, he sent a telegram to the
first Respondent for extension of leave. Thereafter, he sent medical certificates dated 03.09.1995, 20.09.1995 and 10.10.1995. In the medical
certificate dated 03.09.1995, leave was recommended for 17 days. In the medical certificate dated 20.09.1995, leave was recommended for 20
days. In the medical certificate dated 10.10.1995, leave was recommended for 12 days. Thereafter, he reported to duty on 23.10.1995, along
with physical fitness certificate. But the controller refused to give him duty, stating that unless the Branch Manager permits him, he could not allot
him duty. Hence, he wrote a letter dated 24.10.1995, to the General Manager about the aforesaid facts and complained that he was not provided
duty, when he reported to duty with fitness certificate.
While so, he was issued a charge-sheet dated 22.09.1995, alleging that he was unauthorizedly absent from 06.09.1995. The Petitioner sought
for the report, based on which the charge-sheet was issued. He was not placed under suspension.
In the mean time, an enquiry was ordered. He participated in the enquiry and in the enquiry, Mr. Sethuraman, Selection Grade Checking
Inspector was examined as the only witness. No. documents were marked on the side of the Corporation. The Petitioner cross-examined the
witness. Thereafter, the Petitioner deposed before the enquiry. He was not cross-examined. The Petitioner stated the aforesaid facts and marked
as exhibits, a xerox copy of the telegram, the xerox copies of the medical certificates and the xerox copy of the physical fitness certificate.
The enquiry officer submitted his findings dated 08.12.1995, holding that the charges were established. Based on the findings, he was dismissed
from service by an order dated 27.05.1996. Thereafter, he raised an Industrial dispute before the conciliation officer regarding his non-
employment. After the conciliation ended in failure, he took up the matter before the second Respondent-Labour Court and the same was taken
on file in I.D. No. 128/1998.
The Petitioner examined himself as a witness before the Labour Court and documents W1 to W20 were marked. The first Respondent did not
let in evidence and did not mark any documents. The Labour Court heard both sides and passed the award dated 01.03.2005 in I.D. No. 128/98,
holding that the charges were established and interfered with the punishment by awarding reinstatement with continuity of service without
backwages.
The Petitioner was reinstated in service on 11.09.2005, pursuant to the award. The first Respondent has not questioned the award.
The Petitioner has sought to question the award, insofar as depriving him backwages and other benefits by filing this writ petition.
The first Respondent has not chosen to file counter statement.
Heard Ms. Geetha, learned Counsel appearing for the Petitioner and Mr. R. Janaki Ramulu, learned Counsel appearing for the first Respondent.
The learned Counsel for the Petitioner has made the following submissions:
The Petitioner did not question the fairness of the enquiry that preceded the dismissal order. According to the learned Counsel for the Petitioner,
the matter was argued on merits and it was the case of the workman that there was absolutely No. evidence for his unauthorized absence. It is
submitted that the department did not produce any document in domestic enquiry. It is not their case that the request of the Petitioner for extension
of leave through telegram was rejected. No. such letter was marked in the enquiry.
On the other hand, the Petitioner gave evidence and his version was not controverted by way of cross-examination. When the department
failed to establish the charges, the enquiry officer held that the charges were established, without giving any reasons.
Before the Labour Court the first Respondent did not produce the enquiry record and did not let in any evidence.
The Petitioner alone filed all the records that were furnished by the first Respondent during enquiry.
Based on the aforesaid materials, the Labour Court came to the conclusion that the charges were established by exercising its power u/s 11(A)
of the Industrial Disputes Act.
According to the learned Counsel for the Petitioner that the second Respondent-Labour Court failed to take into account, the aforesaid
relevant facts, while rendering its findings. The relevant facts are sending telegram and thereafter, the medical certificates and the same was not
disputed by the first Respondent. The first Respondent did not reject the request for leave and No. communication was sent to him that leave was
not sanctioned. These relevant factors were not taken note by the second Respondent and therefore, the findings of the second respondent that the
charges were established was perverse.
The learned Counsel for the Petitioner further submits that the second Respondent has proceeded erroneously that the Petitioner ought to have
applied for leave even before he proceeded on leave. It is also held by the second Respondent that the medical certificate should be counter signed
by the medical officer of the Corporation, otherwise the Petitioner is not entitled for leave.
The learned Counsel for the Petitioner has questioned the aforesaid findings of the Labour Court and she has characterised the same as
perverse.
On the other hand, the learned Counsel for the first Respondent submits that there is No. infirmity in the findings of the second Respondent and
he has sought for dismissal of the writ petition.
I have considered the submissions made on either side.
The first Respondent ought to have produced entire records before the second Respondent-Labour Court to substantiate the dismissal order.
On the other hand, they did not produce any record. The documents that were furnished to the Petitioner by the first Respondent were produced
by the Petitioner before the Labour Court.
It is not disputed that the Petitioner sent a telegram. The Petitioner also subsequently sent medical certificates and they were marked as exhibits
in the enquiry. The Petitioner gave deposition in the enquiry, stating the aforesaid facts. But the Petitioner was not cross-examined and his version
was not controverted.
As rightly contended by the learned Counsel for the Petitioner, the enquiry officer ought to have accepted the uncontroverted version of the
Petitioner and particularly, when the version is supported by documentary evidence.
In this regard the following passage in para Nos. 9 & 12 from the judgment of this Court in Management of Jeeva Transport Corporation
Limited (Represented by its Managing Director), Erode v. Presiding Officer, Industrial Tribunal of Tamil Nadu and Anr. reported in 2002 (2)
L.L.N 704, relied on by the Petitioner is extracted hereunder and the same is squarely applicable to the facts of the case.
Further reference is made to another judgment of the same learned Judge in W.P. No. 11316 of 1984, dated 21 April 1995, Pattukottai Azagiri
Transport Corporation Limited v. Shanmugavel. In that case, a witness who was examined on the side of the worker was not cross-examined and
the learned Judge had observed that the said circumstance was rightly taken into account by the Tribunal to hold that the enquiry officer''s report
was vitiated by perversity.
It is also seen that a witness was examined on the side of the worker and he had not been subjected to cross-examination. This would strike at
the root of the propriety of the enquiry report and the nature of the enquiry before the enquiry .
The Petitioner could not be found fault for his absence, when he sent telegram and also medical certificates. Making application before
proceeding on leave would arise only in normal circumstances and not for medical leave. In the case of medical leave is concerned, employee
could intimate the same by way of telegram or letter supported by medical certificates.
Admittedly, in this case, the Petitioner sent telegram and the medical certificates. It is not the case of the first Respondent that they did not
accept those materials and they directed him to appear for work by refusing to sanction leave. No. such communication was sent to the Petitioner.
No. such material was produced in the enquiry or before the Labour Court. In those circumstances, it could not be held that the Petitioner was
unauthorizedly absent.
Further more, it is the categorical case of the Petitioner that when he reported to duty with fitness certificate on 23.10.1995, he was denied
work stating that disciplinary action was already initiated. It was stated that unless the Branch Manager permits him, he could not be given duty.
This was complained by the Petitioner in his letter to the General Manager. The said letters were marked as Exs.10 to 15 before the Labour
Court. During the pendency of the departmental action, the Petitioner was not placed under suspension. When he reported to duty with fitness
certificate, he was not given duty on 23.10.1995. Therefore, the absence is for the period only from 06.09.1995 to 22.10.1995. For the aforesaid
period, he produced medical certificates and he sent telegram about his illness. But those relevant facts were not considered in the findings of the
enquiry officer.
Unfortunately, the Labour Court also did not consider the relevant materials and on the other hand held that the Petitioner should have applied
for leave and he should have gone on leave only after sanction of leave. This cannot be applied in the case of medical leave. The second
Respondent also held that the Petitioner should have obtained counter signature in the medical certificate from the medical officer of the
Corporation. These reasons given by the second Respondent for holding the charges as proved, make the findings of the second Respondent
perverse.
The second Respondent also proceeded that the workman should have reported duty, when his leave was rejected. But the said finding is not
based on any material evidence, as there was No. letter produced by the first Respondent intimating the workman that leave was refused and
directing him to report duty.
The first Respondent stated in paragraph No. 5 of its order that the Management gave a reply telegram directing him to report duty. No. such
telegram was produced in the enquiry or in the Labour Court. It is not known as to how the Labour Court came to such a conclusion.
Hence, I am of the view that the findings of the Labour Court that the Petitioner was unauthorized absent is contrary to the materials on record.
In these circumstances, I am inclined to quash the impugned award dated 01.03.2005, insofar as holding that charges are proved and depriving
backwages and other benefits. The first Respondent is directed to pay backwages and other attendant benefits within a period of eight weeks from
the date of receipt of a copy of this order.
Accordingly, the writ petition is allowed with the aforesaid direction. No. costs.