IMPORTANT POINT
Unauthorized absence must be proven as wilful misconduct by the Management; failure to do so invalidates termination.

JUDGMENT :

M.S. RAMESH, J.

Prayer: Writ Appeal filed under Clause 15 of the Letters Patent Act, to set aside the order dated 03.01.2024 made in W.P. No. 15351 of 2019.

1. Heard Mr.S.Navin Prabhu, learned counsel for the appellant and Mr.M.Aswin, learned Standing Counsel, for the respondent.

2. On the ground that the appellant, who was employed as a Driver in the respondent-Management, had remained unauthorizedly absent since 21.09.2012, charges came to be levelled against him on 01.11.2012 and during the course of inquiry, the Inquiry Officer had held the charges to have been proved against him, through his inquiry report dated 29.01.2013. After issuing a second show cause notice, he was terminated from service on 09.04.2013. The order of termination was challenged before the Labour Court, Salem, in I.D.No. 77 of 2014. The Labour Court had allowed the Industrial Dispute on 18.09.2018 and ordered the Management to reinstate the workman into service. In the award, the period of his absence was directed to be treated as 'no work no pay'. The Labour Court has also ordered the Management to regulate the said period of absence, as well as the period of inquiry between 21.09.2012 and 10.01.2013, as 'medical leave without pay'. However, for the period commencing from 11.01.2013, the Management was directed to pay full backwages to the workman, together with continuity of service. When the Management had challenged the award of the Labour Court before a learned Single Judge of this Court in W.P. No. 15351 of 2019, the Writ Petition came to be allowed and the award of the Labour Court in I.D. No. 77 of 2014, dated 18.09.2018 was set aside, through the order dated 03.01.2024. This order of the Writ Court is put under challenge in the present appeal.

3. The learned counsel for the appellant submitted that the charges levelled against the appellant cannot be sustained, since the appellant had submitted a leave application to the Management, prior to going on leave from 21.09.2012, to which the Management had not responded and therefore, his absence cannot be termed as unauthorized. In these circumstances, he would submit that the order of termination is disproportionate to the charges, which has not been considered by the learned Single Judge.

4. Per contra, the learned Standing Counsel appearing on behalf of the respondent-Management submitted that if at all the appellant claims that he had given a leave application, he ought to have substantiated the same before the Inquiry Officer and it is not now open to him to raise the plea. According to him, the unauthorized absence is a misconduct, which is viewed seriously by the Management and since the appellant was performing an essential duty under public utility service, the imposition of punishment of termination of service was quite proportionate to the levelled charges.

5. We have given our careful consideration to the submissions made by the respective counsels.

6. The Labour Court had analysed the procedure adopted by the Inquiry Officer in the domestic inquiry and by referring to the inquiry proceedings being filled up in a printed format and that the Inquiry Officer had already arrived at a conclusion before giving sufficient opportunities, had held that the inquiry itself was not held in a fair and proper manner and that it is in violation of the principles of natural justice.

7. Furthermore, the Labour Court had taken into consideration that the Management had not denied the ground taken by the workman that they were maintaining a register of receipt of leave applications, which was not produced before the Labour Court and therefore, the Management, having failed to substantiate that they had not received the leave application from the workman, cannot now shift the burden of proof on the workman. It is on this ground that the Labour Court had ordered for reinstatement with backwages, together with continuity of service.

8. When the Labour Court had found that the domestic inquiry was not held