For a charge of unauthorised absence, dismissal of a worker is too harsh, the Madras High Court has said.
Justice N. Paul Vasanthakumar was passing an order on a writ petition filed by the Tamil Nadu State Transport Corporation (Villupuram Division-I), Villupuram, seeking to quash an order of the Joint Commissioner of Labour (JCL), (Conciliation), Chennai, in a matter relating to the dismissal of an employee.
R. Jayaraman's services as a driver were regularised from April 1997. The management said he unauthorisedly absented himself from duty from August 21, 2002. After an enquiry and second show-cause notice, he was terminated from service on September 9, 2003.
As an industrial dispute was pending before the JCL (Conciliation), Chennai, the management filed an application under the Industrial Disputes Act for approving the dismissal order.
Simultaneously, the driver was paid Rs. 5,667.50 being a month's wages. He objected stating that one month's wages paid was not the correct wages, among other grounds. Thereafter, the management paid a further Rs. 292, the disputed amount.
The workman said as per the statutory provision, one month's wages had to be paid in full and the approval petition made before the JCL. The JCL rejected the approval petition. Hence, the present writ petition.
The corporation submitted that the wages paid were correct. However, the health allowance and arrears of variable dearness allowance, which had not been declared then, could not be included in the one month's wages paid. When that was found, the corporation voluntarily tendered the sum.
Driver's counsel S. Vaidyanathan submitted that the worker had breathing difficulty owing to congestion in the lungs/pulmonary tuberculosis, which was also a contagious disease, and could not attend duty as he was obtaining treatment.
Dismissing the petition, Mr. Justice Paul Vasanthakumar, said applying decisions cited by Mr. Vaidyanathan to the facts of the case and having regard to the JCL's factual finding, namely less payment of one month's wages, he was of the view that the JCL's findings refusing to give approval for dismissal was legally valid as the conditions stipulated in Section 33 (2) (b) of the Industrial Disputes Act were not fulfilled.
Citing court decisions, he said, in any event, dismissal of a worker for unauthorised absence was not proportionate, particularly when there was a defence that he was suffering from a contagious disease.
He directed the management to reinstate the driver in service with continuity of service and 50 per cent back wages and other benefits agreed to by him in his counter.
