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Judgment
D. Murugesan, J.—The Petitioner is the Management of Tamil Nadu State Transport Corporation (Coimbatore Division II) Limited, Salem.
The 2nd respondent was issued with a charge memo dated 17.10.1995 for the alleged misconduct of unauthorized absence from 16.9.1995 to
4.12.1995. An enquiry was conducted into the charge and ultimately, he was dismissed from service with effect from 11.6.1996. He raised an
industrial dispute u/s 2-A(2) of I.D. Act which was adjudicated in I.D. No. 1/1997 on the file of Labour Court, Salem. By award dated
13.6.1997, the Labour Court found that the enquiry was fair and proper. On merits, the Labour Court found that charges were not established and
passed the award for reinstatement with continuity of service together with 50% of back-wages. Questioning the award, the Management has
preferred the above Writ Petition.
Mr. V.R. Kamalanathan, learned counsel appearing for the petitioner-Management has submitted that though the 2nd respondent-Workman
claimed that he met with an accident on 15.9.1995 and suffered injuries on his right hand, he was admitted in the hospital and therefore, he was
unable either to communicate to the Management or to apply leave, he reported duty only on 4.12.1995 and no materials were placed by the 2nd
respondent as to why he did not either apply for leave or intimate the same to the Management. In the absence of any materials to the said effect,
the Labour Court ought not to have directed reinstatement with continuity of service together with 50% of back-wages.
On the other hand, Mr. D. Hariparanthaman, learned counsel appearing for the 2nd respondent-workman, has submitted that it is not in dispute
that the 2nd respondent met with an accident and that he was admitted in the hospital and suffered injuries on his right hand and for the said reason
only he did not attend the duty. When the above fact is not in dispute, no further evidence is required as the facts of this case would themselves
speak. He would therefore submit that the absence cannot be considered as unauthorized.
The question that arises for consideration is as to whether the Labour Court had properly exercised its discretion u/s 11-A of I.D. Act on the
facts and circumstances of the case.
The scope of Section 11-A of I.D. Act came up for consideration before the Supreme Court in various judgments.
a) In Hindustan Machine Tools Limited, Bangalore v. Mohammed Usman and Anr. 1983 2 LLN 655 the Supreme Court in para 1 held as
follows:
... Section 11-A confers power on the Labour Court to evaluate the severity of misconduct and to assess whether punishment imposed by the
employer is commensurate with the gravity of misconduct. This power is specifically conferred on the Labour Court u/s 11-A. If the Labour Court
after evaluating the gravity of misconduct held that punishment of termination of service is disproportionately heavy in relation to misconduct and
exercised its discretion, this Court in the absence of any important legal principle, would not undertake to re-examine the question of adequacy or
inadequacy of material for interference by Labour Court. We are, therefore, disinclined to interfere with the order passed by the Labour Court.
b) In Jitendra Singh Rathor v. Shri Baidyanath Ayurved Bhavan Limited and Anr. 1984 1 L.L.N. 649, the Supreme Court in para 4 held as
follows:
Under Section 11-A advisedly wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circum- stances of
the case. The High Court under Article 227 of the Constitution does not enjoy such power though as a superior Court, it is vested with the right of
superintendence. The High Court is indisputably entitled to scrutinize the orders of the Subordinate Tribunals within the well accepted limitations
and, therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance
with law and directions, if any. The High Court is not entitled to exercise the powers of the Tribunal and substitute an award in place of one made
by the Tribunal as in the case of an appeal where it lies to it.
c) In Christian Medical College Hospital Employees Union and Anr. v. Christian Medical College Vellore Association and Ors. 1988 1 LLN 9,
the Supreme Court in para 14 held as follows:
...Section 11A which has been introduced since then into the Act which confers the power on the Industrial Tribunal or the Labour Court to
substitute a lesser punishment in lieu of the order of discharge or dismissal passed by the Management again cannot be considered as conferring an
arbitrary power on the Industrial Tribunal or the Labour Court. The power u/s 11A of the Act has to be exercised judicially and the Industrial
Tribunal or the Labour Court is expected to interfere with the decision of a management u/s 11A of the Act only when it is satisfied that the
punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. The Industrial Tribunal or the
Labour Court has to give reasons for its decision. The decision of the Industrial Tribunal or of the Labour Court is again, as already said, subject to
judicial review by the High Court and this Court.
d) In Indian Overseas Bank v. Indian Overseas Bank Staff Canteen Workers Union and Anr. 2002 2 LLN 930 the Supreme Court in para 17
held as follows:
... the findings of fact recorded by the Tribunal could not be disturbed for the mere reason that the findings were based on material or evidence not
sufficient or credible in the opinion of the Writ Court to warrant those findings as long as they were based upon some material which were relevant
for the purpose or even on the ground that there was another view which could be reasonably and possibly taken.
e) As has been held by a Division Bench of this Court in the judgment reported in G. Jayaraman v. Chief General Manager State Bank of India,
Madras and Anr. 2001 2 LLN 460 the jurisdiction under Article 226 of the Constitution of India is designed to correct jurisdictional errors or
patent error of law or decisions arrived at in an arbitrary manner.
Coming to the facts, for sustaining the stand of the 2nd respondent-workman, though the workman had produced in the enquiry the documents
as to his admission in the hospital and he was under treatment, no materials either documentary or oral was produced to explain that he was also
not in a position to inform the Management of his absence or to apply for leave. The workman had relied upon only the explanation offered by him
to the show cause notice as to his treatment in the hospital. Though this Court cannot go into the adequacy of evidence, in my opinion, except the
explanation offered by the workman, there are no evidence to show that he could not apply for leave. On the facts and circumstances of this case,
it would be incumbent on the workman not only to satisfy as to the date on which he was admitted in the hospital, the date on which he was
discharged and for what reason he could not actually either intimate the Management as to the his failure to report duty or to apply for leave.
Merely because, the workman is in hospital, that cannot be presumed in all cases that he was not in a position to intimate the Management of the
reason for his absence without leave or permission or even at least an intimation. There is absolutely no evidence in this regard. That apart the
Workman was imposed punishment on two occasions earlier for the same type of misconduct. Considering the above, the discretion exercised by
the Labour Court u/s 11A of the Act, in my view, is arbitrary and without any justification.
The power of the Labour Court exercising the discretion vested in Section 11A of the Act came up for consideration before a learned single
Judge of this Court in the judgment reported in Anna Transport Corporation v. Labour Court 1998 1 LLN 710. This Court has found that the
discretion u/s 11A of the Act is not meant to be equated to charity. In my opinion, exercise of discretion by the Labour Court is without any basis
and material evidence. Such exercise of discretion is unsustainable as the same is without any basis or reason. On the above grounds, the award of
the Labour Court is unsustainable.
In view of the above, the Writ Petition is allowed and the impugned award is set aside. No costs.