IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 21/06/2006
Coram
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
Writ Petition No.5599 of 1998
P. Venkatesan ... Petitioner
-Vs-
1. The Management of Pattukottai
Azhagiri Transport Corporation Ltd.,
(now renamed as Tamilnadu State
Transport Corporation), Vellore.
2. The Presiding Officer,
Labour Court,
Vellore. ...Respondents
This writ petition has been filed under Article 226 of Constitution of
India, praying this Court to issue a writ of Certiorarified mandamus, calling
for the records from the 2nd respondent relating to the award dated 20.11.1996
in I.D.No.443 of 1994 and quash that portion of award holding the petitioner
guilty of the charges and denying the petitioner continuity of service,
backwages and other benefits and to direct the 1st respondent to reinstate the
petitioner with backwages, continuity of service and other benefits and award
costs.
!For Petitioner : Mr.D.Hariparanthaman
For 1st Respondent : Mr.V.R.Kamalanathan
2nd respondent : Court
:ORDER
Prayer in the writ petition is to quash the award dated 20.11.1996 in
I.D.No.443 of 1994 passed by the 2nd respondent and to direct the 1 st
respondent to reinstate the petitioner with backwages, continuity of service
and other benefits and award costs.
2. The facts giving raise to filing of this writ petition are as
follows:
(a) The petitioner was employed as Conductor in the first
respondent Transport Corporation. On 27.3.1992, while the petitioner was on
duty in the bus route 459-A, running between Kuppam and Thirupathur, at 8.00
p.m., near Pachur railway gate, the checking officials got into the bus and at
that time there were 137 passengers and five luggages in the bus. When the
bus reached Natrampalli, which is 3 kms away from Pachur railway gate, the
checking officials found that 49 packets of liquor rolled in a gunny bag at
the left side of the driver’s seat. When petitioner asked the passengers,
nobody claimed ownership of the liquor packets. The petitioner being the
Conductor, lodged a complaint in the Police Station. Later, the Police closed
the case on the ground that they were not able to trace owner of the arrack
packets.
(b) Petitioner was placed under suspension by order dated
28.3.1992, pending disciplinary action. A charge memo dated 3.4.1992 was
issued alleging that the petitioner permitted the driver of the bus to
transport the liquor packets against the rules of the Corporation and the
petitioner was irresponsible in his duties. The said suspension order was
revoked by order dated 21.4.1992. Petitioner submitted his explanation for
the said charge memo stating that there were 137 passengers in the bus though
the passenger capacity of the bus was only 56 and that the alleged occurrence
took place during night hours and the luggage was too small and it could not
be easily noticed due to the crowd in the bus. Petitioner also pointed out,
the allegation is that the petitioner permitted the driver of the bus to
transport the liquor and the report of the Checking Official is contrary to
the allegation, even though the charge sheet is based on the said report dated
27.3.1982. Petitioner further submitted that he made a complaint along with
the Checking Officials that the liquor packets were not claimed by any of the
passengers and the Police, even though registered a case, subsequently dropped
the case on the ground that the offender was not traceable.
(c) The explanation having been found not satisfactory, an enquiry
was ordered by the management and one of the Checking Official was examined
during the enquiry. The Checking Official did not state that the driver
transported the liquor and the petitioner helped the driver in transporting
the liquor. According to the witness, both the driver and the petitioner were
responsible for the unclaimed luggage of liquor packets. The enquiry Officer
gave a finding in a cryptic manner stating that the charges were proved.
Based on the said finding, petitioner and driver were dismissed by the
management by order dated 22.7.1993 even though the crux of the charge is
against the driver of the bus.
(d) The driver of the bus, even though was proceeded against, he
was taken back on service as fresh entrant by the management by way of 1 8(1)
settlement. According to the petitioner, the driver was having only two years
of previous service. Whereas, the petitioner has put in 23 years of service.
It is the further case of the petitioner that the driver appeared to have
involved in a similar case on 13.5.1991 while he was on duty and therefore his
case cannot be equated with that of the petitioner.
(e) Petitioner raised I.D.No.443 of 1994 before the second
respondent as the conciliatory efforts failed. Both sides did not let in
evidence, but the enquiry records were marked by consent. The second
respondent passed an award on 20.11.1996 holding that the charges against the
petitioner are proved in the domestic enquiry as per the records. However,
the Labour Court held that since the driver was reinstated afresh, dismissing
the petitioner from service was arbitrary and discriminatory and directed the
first respondent/management to reinstate the petitioner afresh as was done in
the case of the driver, but denied continuity of service, backwages and other
benefits. The denial of backwages and continuity of service made in the award
is challenged by the petitioner in this writ petition.
(f) The grounds of attack by the petitioner are that the enquiry
report is cryptic and no further enquiry/additional evidence was adduced
before the Labour Court; that there is no analysis of evidence in the finding
given by the Enquiry Officer; that there is no proof that the petitioner
helped the driver in transporting arrack; that the Charge memo and enquiry
officer’s report are contrary to the report of the checking inspectors; and
that, the Enquiry Officer as well as the Labour Court failed to consider the
number of passengers viz., 137 and the time of occurrence, which is night
hour.
3. The learned counsel for the petitioner, apart from reiterating
the above grounds contended that the allegation itself is that the driver of
the bus transported the arrack packets; and when the petitioner noticed the
arrack packets he immediately went to the police station and gave the
complaint and therefore the petitioner’s bona fide is proved and if at all the
driver has transported the arrack, petitioner cannot be held responsible since
it was kept near the driver’s seat and at the most the petitioner can be
treated only as negligent in discharge of his duties, for which the punishment
of dismissal by the management which was modified to the one of reinstatement
without backwages and without continuity of service, is disproportionate to
the gravity of the delinquency alleged. Further the learned counsel for the
petitioner submits that the driver of the bus has involved in a previous
incident of the same nature and considering his two years of previous service
he was reinstated afresh by the management by entering into 18(1) settlement
and the same yardstick cannot be applied to the petitioner by the Labour court
since the petitioner has put in 23 years of service and so far as petitioner
is concerned, there is no previous delinquency of this nature. Hence the
learned counsel requested this Court to modify the punishment since the order
of the Labour Court is disproportionate to the delinquency alleged.
4. The learned counsel appearing for the first respondent
submitted that the Labour Court in exercise of its powers under section 11-A
of the Industrial Disputes Act, modified the punishment awarded to the
petitioner, taking note of the 18(1) settlement entered into between the
management and the driver, and the petitioner and driver having been involved
in the same incident, the order passed by the Labour Court appointing the
petitioner afresh, is perfectly legal and valid. The management pursuant to
the order of the Labour Court reinstated the petitioner on 4.4.1997 and the
petitioner cannot claim continuity of service and backwages when the
misconduct alleged against him has been proved in the enquiry.
5. I have considered the submissions of the learned counsel
appearing for the petitioner as well as the first respondent.
6. The report of the Checking inspectors merely states that the
petitioner and the driver of the bus were responsible for the transport of 49
packets of arrack in a gunny bag. The charge memo issued to the petitioner
states that the driver of the bus transported the arrack packets, which was
not noticed by the petitioner, he being the conductor of the bus and he failed
in his duties. The other charges are incidental to the main charge alleged.
In the explanation submitted by the petitioner it is stated that the time of
checking was 8.00 p.m and 137 passengers were travelling in the said bus and
the gunny bag was too small baggage and the same having been placed near the
seat of the driver, the petitioner could not notice the same and immediately
after noticing the same, petitioner went to the police station and gave a
complaint. The Enquiry Officer found that the petitioner and driver of the
bus are responsible for the transport of the arrack packets and by giving
complaint to the Police by the petitioner, the goodwill of the Corporation is
damaged. The Labour Court also confirmed the finding of the Enquiry Officer.
7. Before considering the matter in issue, it is proper to refer
to the allegation, which reads as under,
“You, Thiru Venkatesan, Conductor No.8517, on 27.3.1992, while on duty
in Bus bearing registration No.TN-23-N-0292 – Route No.459-A, proceeding
towards Tiruppathur, near Pachur railway gate, the Checking Inspectors made
inspection and found a gunny bag containing 49 packets of arrack near the
driver’s seat, thereby you, allowed the driver of the bus to smuggle the said
contraband against the rules of the Corporation and failed to discharge the
duty of Conductor.”
8. The point in issue is whether the petitioner has intentionally
or with knowledge, permitted the transport of arrack packets by the driver.
The inability to notice the contraband placed near the driver’s seat is well
established by the fact that 137 passengers were in the bus at the time of
checking and the same is not disputed. The passenger capacity of the bus is
only 56. Therefore the petitioner cannot be blamed for not noticing the said
arrack packets, which were found near the driver’s seat. The driver is the
person allegedly transported arrack packets and the gunny bag was placed very
near to his seat. At the best, petitioner can be blamed for dereliction of
duty in not noticing the luggage found near the driver’s seat, for which the
order of dismissal passed by the management is too harsh, which was rightly
set aside by the Labour Court.
9. Insofar as the denial of continuity of service and backwages
are concerned, the Labour Court applied 18(1) settlement entered into between
the driver of the bus and the management. The 18(1) settlement was entered
into with the driver taking note of his two years of previous service and he
agreed for re-appointment without continuity of service. Further as rightly
pointed out by the learned counsel for the petitioner, the driver was
previously involved in a similar incident. Whereas, the petitioner never
involved in similar previous incident. Apart from that the petitioner has put
in more than 23 years of service and continuity of service if denied, it will
cause great prejudice to the petitioner. I have already given a finding that
due to overloading of the bus the petitioner could not see the placement of
gunny bag containing arrack packets near the seat of the driver and having
regard to the services rendered by the petitioner for over 23 years, the
denial of continuity of service to the petitioner will cause great hardship to
him as he will lose the incremental benefits and other service benefits
received all along and by re-appointing him afresh petitioner’s salary will be
very much reduced.
10. Therefore, I am of the view that the Labour Court is right in
denying backwages on the principle of “no work no pay” because the petitioner
was out of employment and the denial of continuity of service insofar as
petitioner is concerned, cannot be justified taking note of the unintentional
dereliction of duty, for which the driver of the bus has already been
punished, particularly when the charge is that the driver of the bus carried
the contraband containing 49 packets of arrack.
11. The impugned award insofar as comparing the driver of the bus
with the petitioner, who is a conductor, having regard to the nature of of the
charge for awarding similar punishment is therefore to be treated as perverse
finding. The Honourable Supreme Court in the decision reported in 1982(I) LLJ
54 (Shri J.D.Jain Vs. The Management of State Bank of India and another) in
paragraph 7 held thus,
“In an application for a writ of certiorari under Art.226 of the
Constitution for quashing an award of an Industrial Tribunal, the jurisdiction
of the High Court is limited. It can quash the award, inter alia, when the
Tribunal has committed an error of law apparent on the face of the record or
when the finding of facts of the Tribunal is perverse. In the case before us,
according to the Tribunal, as Kansal was not examined, the evidence before it
was hearsay and as such on the basis thereof the appellant could not be
legally found guilty.”
In the decision reported in 2000 (II) LLJ 902 (Anna Transport Corporation
Ltd., Salem v. Presiding Officer, Labour Court, Coimbatore and Another), this
Court, following the judgments of the Apex Court, in paragraphs 10 to 13 held
thus,
“10. This Court in the exercise of writ jurisdiction under Art.226,
where a petition is filed seeking a relief by way of quashing of award given
by the Labour Court under Sec.11-A of the Industrial Disputes Act, has limited
jurisdiction to demolish the impugned award, where according to this Court,
such award is palpably erroneous.
11. As a general rule, the High Court would not interfere unless
the order of the Labour Court is perverse or not based on any evidence or
grossly illegal or based on a complete misconception of law or that no
reasonable man would come to the conclusion to which the Labour Court has
arrived at.
12. There is no hard and fast rule that it has always to send the
matter back to the Labour Court for appropriate adjudication and for passing
appropriate order in accordance with law, but in order to avoid delayed
justice and for vindication of speedy and appropriate relief, the High Court
may in appropriate cases incorporate its own findings which may appear to be
just and proper.
13. It cannot be an established rule that the High Court ought not
to interfere, while exercising writ jurisdiction, with the discretion
exercised by the Labour Court under Sec.11-A of the act and exercise that
jurisdiction itself. What the Labour Court should do and when there is an
omission on the part of it to do that, the Court, in exercise of the powers
under Art.226 of the Constitution of India, can certainly do. What the Labour
Court may in its discretion do, the High Court too can, under Art.226, if
facts compel it to do so.”
12. Hence, to meet the ends of justice, I modify the punishment
awarded by the Labour Court as to one of reinstatement with continuity of
service without backwages in view of the nature of delinquency said to have
been committed by the petitioner. Had there been limited passengers in the
bus, i.e., within the permissible limit of 56, the management would have been
right in proceeding against the petitioner by imposing severe punishment. In
view of overloading in the bus, petitioner cannot be held responsible for the
alleged delinquency committed by the driver of the bus.
13. In the result, the award of the Labour Court is modified with
a direction to reinstate the petitioner with continuity of service and not as
new entrant, but without backwages. By virtue of the grant of continuity of
service, petitioner’s salary shall be refixed taking note of the incremental
benefits to which he is entitled and his salary shall be notionally fixed and
paid from the date of his reinstatement. It is also made clear that
continuity of service given to petitioner shall be counted for increment and
for all other benefits.
The writ petition is partly allowed as above. No costs.
vr
To
The Presiding Officer,
Labour Court, Vellore.