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Judgment
M. Chockalingam, J.—This order shall govern these two writ petitions namely W.P.No.37087/2005 at the instance of the management and
W.P.No.34858/2005 at the instance of the employee.
Both these writ petitions have arisen this way:
The petitioner in WP No. 34858/2005 was taken to service as an Assistant Technician on 30.3.1981. While he was serving, a charge memo was
served on him that he has committed theft of articles belonging to the respondent Transport Corporation, on 4.4.1997. He was suspended from
service on 19.4.1997. He gave his explanation. A domestic enquiry was conducted, during which he did not appear. The Enquiry Officer gave the
report that the charge levelled against him, was proved. Then, a second show cause notice was issued to the petitioner-employee. Following the
same, he was dismissed from service by an order dated 25.9.1997. A criminal case was also registered by the police, and he was charge sheeted.
The said case was pending on the file of the Judicial Magistrate''s Court No. III, Salem, in C.C.No.489/97 for the charge of theft, which ended in
acquittal. Further, the original charge was clubbed with another charge that he had absented from duty from 2.2.1997 to 13.4.1997 unauthorizedly
without any permission or leave. A charge memo was given, and explanation was called for. The explanation when tendered, was not found
satisfactory. A domestic enquiry was also ordered; but, he did not attend the enquiry. Both the charges, at the time of the passing of the order,
were clubbed together, and he was terminated from service. The said order of termination was challenged by him before the Labour Court, Salem,
in I.D.No.374/2002. On enquiry, the Labour Court set aside the order of termination dismissing him from service, and also directed the
management to reinstate the petitioner into service with continuity of service, but without back wages and without other benefits. Aggrieved over
the same, the management has brought forth W.P.No.37087/2005. After the impugned order was passed, a communication was served upon the
employee to produce all the necessary educational certificates and also other certificates for the purpose of verification so as to give him the post of
Technician as the new appointee. The non-compliance of the award of the Labour Court is the subject matter of challenge in WP No. 34858/2005
at the instance of the employee.
Advancing his arguments on behalf of the petitioner management in WP No. 37087/2005, the learned Counsel would submit that the Labour
Court has not considered the evidence proper; that it has taken an erroneous view in ordering reinstatement of the employee with continuity of
service; that in the instant case, two charges were levelled against him out of which one was for theft; that the Labour Court much relied on the
order of acquittal recorded by the Criminal Court; that the criminal case and the domestic enquiry are entirely different; that merely because he was
acquitted of the charge before the criminal Court, there is no necessity that he should be absolved with the liability in the domestic enquiry; that
there were sufficient evidence to hold that he has committed so, and thus, the charge is proved; that apart from that, he has absented himself for a
long time without permission or leave; that these factors were not properly considered by the Labour Court; but, an erroneous view has been
taken, and thus, the order of reinstatement by the Labour Court was not in accordance with law, and hence, it has got to be set aside.
The learned Counsel for the petitioner in WP No. 34858/2005, who is the second respondent in WP No. 37087/2005, would submit that in the
instant case, there were two charge memos served upon him; that in both matters, explanations were tendered; that at the time of the enquiry, he
did not also appear, and thus, proper opportunity was not given to him; but, orders have been passed; that at the time of awarding punishment,
both charges were clubbed together, which should not have been done; that it is a case where opportunity was denied to an employee; and that it
was well considered by the Labour Court. Added further the learned Counsel that in the instant case, the judgment of the Criminal Court would
clearly indicate that there was thorough lack of evidence; that it was a case where benefit of doubt was given; that under the circumstances, the
Labour Court looked into the matter and found that the judgment of the Criminal Court has got to be taken into consideration, and thus, the charge
remained unproved; that the other charge was in respect of the absent; that so far as the absent was concerned, he explained his illness; but, that
was not considered by the Enquiry Officer; that the Labour Court has taken a view that it is a fit case where reinstatement should be ordered, but
without back wages since he has absented himself without leave or promotion; and that under the circumstances, the order of the Labour Court
has got to be sustained.
Added further the learned Counsel that in the instant case, once the Labour Court has passed an order, without implementing the same, the
management has given him a communication that he should produce the certificates for the purpose of verification, and he should be given a new
entry which was against the order of the Labour Court; that even the same was challenged before this Court by the management; that there was no
question of making a deviation from the order which was neither set aside nor stayed; and that under the circumstances, the management has got to
be directed to strictly follow the order of the Labour Court as one challenged before this Court.
The Court paid its anxious consideration on the submissions made.
This Court is of the considered opinion that the writ petition filed by the management, does not carry any merit whatsoever. It is not in
controversy that the employee who is the second respondent in WP No. 37087/2005, filed by the management, was working as an Assistant
Technician from 1981. According to the management, there was an incident of theft on 4.4.1997, and following the same, a charge memo was
issued. Though he tendered explanation earlier, the materials would indicate that he did not appear on the date of enquiry due to his illness. But,
with so haste the Enquiry Officer proceeded with the matter and came to the conclusion that the charges were proved. This Court is of the
considered opinion that once on a particular day, the matter was posted for enquiry, and the delinquent could not appear due to the valid reasons,
there was no compelling circumstances for the Enquiry Officer to proceed hastily and pass an order hurriedly. Apart from that, as far as the charge
of theft was concerned, parallel proceedings were going on in the Criminal Court. But, the domestic enquiry was not kept in abeyance, nor was it
stayed; but, the Enquiry Officer proceeded with the matter immediately and passed the order. As regards the Criminal Court''s judgment, the
Criminal Court has acquitted him, as rightly pointed out by the learned Counsel for the employee, not only on the basis of the benefit of doubt, but
also the fact that there was lack of evidence. Under the circumstances, the Labour Court was perfectly correct in taking into consideration the
order of acquittal by the Criminal Court also.
Apart from the above, in the instant case, another charge was levelled against him that he absented from duty for a particular period. According
to the employee, he was under illness, and thus, he could not be present; but, that was not considered, and even at the time of the enquiry, he was
absent. Once following the Enquiry Officer''s report, both these charges and the findings were clubbed together and an order of termination was
served upon him within a short span of time, the Labour Court has considered the positions both factual and legal, and found that he has absented
himself, and a lenient view has got to be taken. As far as the charge of theft was concerned, it had no basis to be accepted. Under the
circumstances, reinstatement was to be ordered with continuity of service, but without back wages during the relevant period, when he absented
from service. Thus, the contentions put forth by the learned Counsel for the management, in the opinion of this Court, do not carry merit, and
hence, the order of the Labour Court has got to be sustained. Accordingly, it is sustained.
Now, at this juncture, it is pertinent to point out that once the Labour Court has passed an award, and it was being challenged by the
management, neither stay nor suspension was granted, nor was it set aside. Under the circumstances, the management has issued a communication
to the employee for the production of certificates for the purpose of verification in order to give him a new entry from 16.5.2005. Now, the order
of the Labour Court is sustained. In such circumstances, the communication what has already been served upon him and being challenged here, has
got to be necessarily quashed. Accordingly, it is quashed.
In the result, W.P.No.37087/2005 filed by the management, is dismissed sustaining the order of the Labour Court. W.P.No.34858/2005 filed
by the employee, is ordered. The management is directed to give effect to the order of the Labour Court what is sustained herein, as expeditiously
as practicable, preferably within a period of eight weeks from the date of the receipt of a copy of this order. No costs. Consequently, connected
WPMPs are closed.