Challenging the award of the second respondent/Labour Court, modifying the punishment of dismissal into one of discharge with, a direction to disburse the retirement benefits to the first respondent/workman, TWAD Board is before this Court.
2.Heard the learned counsel appearing on either side and perused the materials placed before this Court.
3.The workman/first respondent had joined the services of the Petitioner/Board as a Water-Boy on 7.5.1969. He was thereafter promoted as Office Assistant on 5.7.1969 and his service was confirmed on 6.4.1971.Due to some illness, the Petitioner could not join the work and he was absent from 2.7.1987.
4.According to the workman, he had suffered due to mental ill-health during the said period and he was taking native treatment and he had requested for re-employment on 01.8.2005. Again by a letter, dated 16.8.2005, addressed to the Superintending Engineer, he had requested for re-employment. Thereafter, the Petitioner had initiated disciplinary proceedings against him for unauthorized absence and passed an order imposing punishment of dismissal from service. The said order was challenged by the workman in I.D.No.101 of 2007.The Labour Court went into the matter and found that the claim made by the workman that he had demanded that he should be given work in the year 1988 was not true. However, taking into account the nature of illness suffered by the workman as well as the delay on the part of the management in taking action against the workman for the unauthorized absence,the Labour Court modified the punishment from one of dismissal from service to one of discharge, observing that the period from 2.7.1987 till date of retirement will not be taken into account for service and the workman will be deemed to have been discharged from service on 2.7.1987. The Labour Court directed the management to disburse the retirement benefits to the first respondent/workman within two months on the premise that the Petitioner been discharged on 2.7.1987. It is this award which is challenged by the Management.
5.The learned counsel for the Petitioner would contend that there is no proof for illness suffered by the workman and that he has absented himself from duty un-authorizedly for more than 18 years. Therefore he is not entitled to any relief as prayed for. It is also claimed by the management that even during the period of service, the petitioner had taken medical leave at least for 9 times on medical certificate. Therefore the Labour Court was wrong in modifying the punishment of dismissal. The Labour Court has analyzed the evidence and has come to the conclusion that even assuming that the charge of unauthorized absence is proved, the punishment of dismissal from service is too harsh and really disproportionate to the proved misconduct. I do not think I should go into the validity of the discretion exercised by the Labour Court, while examining the legality on the award passed by the Labour Court under
Article 226 of the Constitution of India. Moreover, a Division Bench of this Court in Management of the Tamil Nadu State Transport Corporation,(Salem Division), Salem .vs. The Presiding Officer,Labour Court, Salem and another reported in 2013(4) LLJ 418, has observed as follows:
''8.It is a well settled principle of law as laid down by the Honourable Supreme Court and the decisions of this Court, and it is abundantly clear that for charge of un-authorised absence, dismissal is too harsh, unless it is clearly proved that the absence was wilful and he was habitually absenting un-authorizedly with intention to dislocate the work of the employer/Management.''
6.The consistent view of this Court as well as the Honourable Supreme Court is that dismissal from service is harsh punishment for the misconduct of long absentiesm No doubt, true the first respondent/workman absented himself for a very long period. But the Labour Court has taken note of the fact and has discharged the workman w.e.f. 2.7.1987. The Petitioner has only been directed to work out the retirement benefits and pay the same to the first respondent/workman as if he has retired on 2.7.1987. The Labour Court has only taken note of actual situation and has made an attempt to mitigate the plight of the workman. I do not think the award calls for interference by this Court and thus the Writ Petition fails.
7.Accordingly, the Writ Petition is dismissed. Consequently, connected Miscellaneous Petition is dismissed. No costs.