Allowed

The Managing Director v. a.Dhanasekar

Madras HC4 Aug 2022WP/2949/2019

Case brief

AI extract

What is this about?

The Madras High Court allowed the writ petition dismissing the reinstatement order with back wages. The Court held that suspension pending an enquiry is not a denial of employment. The award was quashed, and the management was directed to reinstate the employee temporarily while initiating a time-bound enquiry.

What did the court decide?

Impugned award set aside; suspension revoked; respondent reinstated to face pending enquiry; Management directed to complete disciplinary enquiry within three months.

The Managing Director Vs a.Dhanasekar — Labour and Industrial Disputes | Madras HC (2022)

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W.P.No.2949 of 2019

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 04.08.2022

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CORAM :

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THE HONOURABLE MR.JUSTICE R.SURESH KUMAR

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Writ Petition No.2949 of 2019 and W.M.P.No.3219 of 2019

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The Managing Director M/s.Mahatma Gandhi Medical College and Research Institute, Pondy Cuddalore Road Pillayarkuppam, Puducherry-605 402.

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…. Petitioner

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-Vs-

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Thiru.A.Dhanasekar No.22, North Street, Nonankuppam Ariyankuppam, Puducherry-605 007.

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…. Respondents

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Prayer : Writ Petition under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari calling for the records of the impugned award dated 22.05.2018 of the Presiding Officer, Industrial Tribunal-cum-Labour Court, Puducherry, I.D.(L) No.46/2015 and to quash the same as ultra vires, arbitrary and non-est in the eyes of law.

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For Petitioner : Mr.L.Swaminathan For Respondents : Mr.J.Divya for Ms.T.Nithya

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W.P.No.2949 of 2019

O R D E R

The prayer sought for herein is for a Writ of Certiorari calling for the records of the impugned award dated 22.05.2018 of the Presiding Officer, Industrial Tribunalcum-Labour Court, Puducherry, I.D.(L) No.46/2015 and to quash the same as ultra vires, arbitrary and non-est in the eyes of law.

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The respondent was working as Lift Operator at the petitioner college, which is a medical college. While so, in view of the contemplation of disciplinary proceedings against the respondent, he was placed under suspension by order dated 16.10.2013 which reads thus,

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“ 1 5/10/2013 m d; W cah; jdpnkyhsh; mth;fshy; c';fSf; F t H';fg;gl;l fojj;jpd; kPjhd ckJ 1 5/10/2013 njjpapl;l tsf;ff; fojk; fpilf;fg;bgw;wJ/ m J eph;thfj;jhy; ftdj;Jld; ghpr Pypf;fg;gl;lJ/ ckJ tpsf;fk; jp U g ;jp m spf;ftpy;iy/ gzpapd; K f ;fpaj;Jtk; f U jp ckJ gzpapd; myl;rpag; nghf;fpw;fhf e Ph ; cldoahf jw;fhypf gzpe Pf;fk; bra;ag;g Lfpw P h;/

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nkw;g o ckJ braYf; F tpsf;fk; Vnj D k ; , U g ; g pd; eph;tfj;jhuhy; mikf;fg;g Lk; tprhuiz mjpfhhp K d ; M $ u hfp tpsf;fk; mspf; Fk;g o ,jd; K :yk; m w pt [ W j ;jg;g Lfpw P h;/

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jw;fhypf gzpe Pf;f fhyj;jpy; e Ph ; fy;Y}hpfs;. tp Ljpfs; kw; Wk; Vida fy;Y}hp kw; Wk; k U j;Jtkid tshfj;jpw; F s ; E i H tJ jilbra;ag ;gl; L s;sJ vd;gJk; ckf; F ,jd; K : yk; m w ptpf;fg;g LfpwJ/ ”

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Pursuant to the same, though the Management was ready to frame charges

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and to conduct enquiry by way of disciplinary proceedings, without facing the same

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W.P.No.2949 of 2019

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the respondent having treated the said order of suspension dated 16.10.2013 as denial of employment, had approached the Labour Court and raised an industrial dispute.

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Having referred by the Government as per their reference order dated 16.07.2015 to adjudicate whether the dispute raised by the respondent against the Management College over the non-employment is justified or not, the Labour Court also, having taken the said dispute as I.D.(L) No.46 of 2015 on the file of the Industrial Tribunal-cum-Labour Court, Puducherry, has passed an award on 22.05.2018. The relevant portion of the awards reads thus;

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“ 18. In the result, the petition is allowed and the industrial dispute raised by the petitioner against the respondent management over non employment is justified and Award is passed directing the respondent Management to reinstate the petitioner in service within one month from the date of this award and further directing the respondent management to pay 25% back wages to the petitioner from the date of suspension till the date of reinstatement with continuity of service and other attendant benefits. No costs.”

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Therefore, the petitioner Management was directed to reinstate the

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respondent within a period of one month from the date of the Award and it was further directed the petitioner Management to pay 25% back wages to the petitioner

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W.P.No.2949 of 2019

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from the date of suspension till the date of reinstatement with continuity of service. Challenging the said award, the present writ petition has been filed by the petitioner Management.

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Heard Mr.L.Swaminathan, learned counsel for the petitioner Management, who would submit that, the dispute raised by the respondent employee before the Labour Court was that he has been placed under suspension by order dated 16.10.2013 and therefore it is a denial of job to him. The Industrial Tribunal also treated it as denial of job and concluded as if that the job was denied to him and awarded reinstatement with 25% back wages.

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According to the learned counsel for the petitioner, the fact remains that it was only a suspension pending contemplation of the disciplinary proceedings against the respondent workman. Therefore, following the said suspension order charges would be framed and the disciplinary action would have to be faced by the respondent. However, without facing such a disciplinary action, he has rushed to the labour court by raising an industrial dispute treating the suspension order itself as a denial of employment and that was wrongly construed by the Labour Court also and accordingly the award which is impugned herein was passed by the Labour Court.

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Learned counsel would submit that, the petitioner Management is ready and willing to conduct the enquiry and complete the same in accordance with law and in

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the meanwhile even the petitioner Management is ready to revoke the order of suspension and give him the job, which he held already, pursuant to which he has to face the disciplinary proceedings which would be concluded within a time frame that may be stipulated by this Court, by following the procedures established under law.

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Per contra, the learned counsel for the respondent worker has submitted that instead of making a straight denial of work to the respondent, they passed an order of suspension and as the order of suspension is for a longer period, without having given any opportunity to participate in the enquiry or disciplinary proceedings against the respondent since the respondent was denied the job, he had no other option except to raise an industrial dispute which was referred by the Government to the Industrial Tribunal as a dispute to be decided and accordingly it was decided in favour of the respondent workman, where reinstatement with 25% back wages was allowed. Therefore, it was a very balanced award passed by the Labour Court and hence does not require any interference from this Court, she contended.

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I have heard the learned counsel for both sides and have perused the materials available on record.

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The order dated 16.10.2013 is issued by the petitioner management against the respondent. If we look at the same, it is only a suspension order and during the

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suspension period, no doubt the petitioner cannot be permitted to come for the job and therefore, during the pendency of the disciplinary proceedings, if the respondent had been placed under suspension it cannot be treated as denial of employment. Therefore in this regard, the labour Court, in the considered opinion of this Court, has gone into the wrong premises and has passed the Award as if that the suspension itself is denial of work and thereby the award was passed to take the respondent by way of reinstatement with 25% back wages.

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Insofar as the period where the respondent is placed under suspension, he is entitled to get subsistence allowance. Therefore, the question of awarding any back wages that too with 25% back wages does not arise. Moreover, because of the industrial dispute raised by the respondent workman and the same was pending before the industrial tribunal, the petitioner management could not proceed further to complete the disciplinary proceedings, which they intended to initiate against the respondent.

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In that view of the matter, this Court feels that the impugned award does not stand in the legal scrutiny. Therefore, it is liable to be set aside, of course with a direction to the petitioner management to immediately initiate the disciplinary proceedings by framing definite charges and after giving due opportunity to the respondent, it shall be completed within a time frame that may be stipulated by this

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Court. Till such time, the suspension order can be revoked against the respondent and he has to be given the job till the final orders are passed in the disciplinary proceedings.

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In that view of the matter, this Court is inclined to dispose of this writ petition with the following order.

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That the impugned award is set aside. As a sequel, there shall be a direction to the petitioner management to revoke the suspension order dated 16.10.2013 and the respondent workman shall be reinstated so that the disciplinary proceedings shall be immediately initiated against the respondent by framing definite charges.

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After following the procedures established under law, due opportunity shall be given to the respondent workman for producing evidence both oral and documentary evidence and after giving such opportunity, based on the Enquiry Officer's report, second opportunity shall also be given to him. Thereafter, it is open to the petitioner Management to take a decision depending upon the enquiry officer's report and accordingly the finality with regard to the respondent's continuance in the petitioner Management or not can be decided.

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The needful as indicated above shall be undertaken by the petitioner Management within a period of three months from the date of receipt of a copy of this order. However, the

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suspension order since has to be revoked, the same shall be revoked and the respondent workman shall be reinstated within two weeks from the date of receipt of a copy of this order.

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It is also made clear that since a time bound order is passed, only three months time is given to complete the enquiry as indicated above, the respondent workman shall extend his fullest cooperation to the Enquiry Officer without seeking any unnecessary adjournment.

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With the above directions, this writ petition is disposed of. No costs.

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Consequently, connected miscellaneous petition is closed.

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04.08.2022

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Index : Yes/No Internet : Yes/No KST

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R. SURESH KUMAR, J.

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KST

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The Managing Director v. a.Dhanasekar

Case brief

What is this about?

What did the court decide?

The Managing Director v. a.Dhanasekar

Case brief

What is this about?

What did the court decide?

What the court decided

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Parties & counsel

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