IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.02.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.16434 of 2000 K.Sukumaran ... Petitioner Vs 1.The Presiding Officer, Labour Court, Coimbatore. 2.The Management of Mahakavi Bharathiar Transport Corporation Ltd., now renamed as Tamil Nadu State Transport Corporation (Coimbatore Division) Udhagamandalam, Nilgiris District. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorarified mandamus, calling for the records from the first respondent pertaining to the order dated 06.01.1999 passed by the first respondent in I.D.No.160/96 on preliminary issue and the award dated 15.04.1999 passed by the first respondent in I.D.No.160/96, quash the same and consequently direct the second respondent to reinstate the petitioner with continuity of service, backwages and other attendant benefits. For petitioner : Mr.V.Ajay Khose For Respondents : Mr.T.Chandrasekaran for R2 O R D E R
Heard both sides.
2. This writ petition is filed by the Workman against the Award dated 15.04.1999 as well as the preliminary order dated 06.01.1999 passed by the first respondent/Labour Court, Coimbatore made in I.D.No.160 of 1996.
3. The claim of the petitioner was that his dismissal order dated 11.12.1995 was illegal and he be reinstated with backwages.
4. The second respondent filed a counter statement dated 02.01.1997 refuting the stand of the petitioner.
5. Before the Labour Court, while the workman had filed three documents, which were marked as Exs.W1 to W3, on the side of the second respondent, 11 documents were filed and they were marked as Exs.M1 to M11.
6. The petitioner was working as a Conductor in the second respondent Corporation. While he was working as a Conductor in the route bus from Ooty to Bangalore, on 08.10.1995, the petitioner had issued tickets to passengers. Whileso, one of the passengers had asked for 11 tickets for Mysore. When he issued 11 tickets and demanded money, one passenger from the group told him that by mistake he had asked for 11 tickets instead he needed 10 tickets. Therefore, they paid fare only for 10 tickets. The said ticket was kept to be issued to some other passenger with necessary corrections, which was also informed to the Driver. On the way to Mysore, the bus was checked at Gundalpet by the checking staff. They suspected that he had re-issued the ticked by making correction and gave it to another passenger.
7. A charge memo was given to the petitioner and he was placed under suspension on 12.10.1995. The charge against the petitioner was that he had reissued a ticket to a passenger thereby indulged in an Act involving dishonesty and created loss to the Corporation. In the departmental enquiry, one of the checking staff was examined, whereas, the Driver was not examined. Neither the ticket was produced nor any passenger was examined in the enquiry. The petitioner after being found guilty of the charges was dismissed from service.
8. The petitioner raised a dispute which was taken up by the first respondent Labour Court as I.D.No.160 of 1996. A preliminary issue was raised before the Labour Court. The Labour court by its order dated 06.01.1999 upheld the validity of the enquiry. The Labour Court extensively dealt with the contentions raised by the petitioner and found that witnesses were examined in the enquiry and documents were marked through them. The petitioner had cross examined them and he was also furnished with a copy of the proceedings including the enquiry report. It was only after a second show cause notice, the punishment order came to be issued. In that view of the matter, the Labour court held that the petitioner cannot be allowed to complain over the nature of the proceedings conducted against him.
9. After the preliminary order, the Court went into the merits of the case and found that the petitioner was guilty of the charges. It analysed the evidence completely and found that the findings do not warrant any interference. On the question of penalty, the Court came to the conclusion that it does not require any interference. In paragraph 10, the court had observed as follows:-
“10. …However this Court is of the view that the same is not applicable to his case as it is distinguishable on facts. Unlike in the case cited, in the present case the charge levelled against the petitioner is dishonest intention in dealing with the proper of the employer. The misconduct proved against the petitioner being major misconduct, unless there is very strong and justifiable reason to interfere with the punishment imposed on the petitioner the court should normally decline and should be slow to interfere with the same. On the ground of security of the public money and in the interest of the successful running of the public undertaking. In the opinion of this court, the person who had to deal with public money must be honest and above board and if such person commits any act of dishonesty in doing so the misconduct committed by the petitioner can certainly said to be loss of confidence and an offence involving moral turptitude as such the impugned action cannot be said to be arbitrary, unreasonable and unjustified, but is liable to be upheld.”
10. It is against both the preliminary order and the final order, the writ petition came to be filed. The writ petition was admitted on 26.09.2000. On notice from this Court, a counter affidavit dated Nil (April 2007) was filed.
11. Mr.Ajay Khose, learned counsel for the petitioner/Workman contended that the order of the Labour Court requires interference. In this context, the petitioner relied upon a constitution bench judgment of the Supreme Court in The Management of Travancore Titanium Products Ltd., v. Their Workmen reported in 1970 II LLJ 1. He placed reliance upon the following passage found in page 3:
“Mr.Pai for the appellant attempted to argue that the failure of the appellant to give three clear days’ notice of the intended enquiry was more technical than substantial. According to Mr.Pai, Pillai had notice of two and half days and that, Mr.Pai suggests, should be taken to be substantial compliance with the requirement of the relevant standing order. We are not impressed by this argument. Since the standing order insists upon notice of three clear days being given to the workman, failure to comply with the standing order does introduce an infirmity in the proceedings.”
Therefore, he stated that the standing order in this case was not fully followed.
12. Thereafter, the learned counsel placed reliance upon the judgment of the Supreme Court in Anil Kumar v. Presiding Officer and others reported in 1986 I LLJ 101. Reliance was placed upon the following passage found in paragraph 5:
“5. We have extracted the charges framed against the appellant. We have also pointed out in clear terms the report of the Enquiry Officer. It is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the Enquiry Officer has a duty to act judicially. The Enquiry Officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not credit-worthy.”
13. The learned counsel also relied upon a judgment of the Division Bench of this Court in Parry & Co. Ltd v. Deputy Commissioner of Labour and Anr. reported in 1996 (1) LLJ 169. That was a case arose under Tamilnadu Shops and Establishments Act, 1947. Considering the nature of power with the Appellate Authority, any judgment rendered in the Act may equally apply to the proceedings under the I.D.Act. In that case, it was held that if a material witness was not examined, then it can be presumed that Enquiry Officer had recorded a finding without material evidence. In the present case, in was argued that in as much as the Labour Court was in the know of things but did not examine the witness, the award is liable to be set aside.
14. The learned counsel also placed reliance upon an unreported judgment of this Court in W.P.No.11316 of 1984 (Pattukkottai Azhagiri Transport Corporation Ltd. v. V.Shanmugavel) dated 21.04.1995. M.Srinivasan,J. (as he then was) in that judgment had observed as follows:
“The Tribunal has found that the finding of the Enquiry Officer is perverse in as much a crucial fact that the evidence of WW-1, the worker concerned has not been examined. That is a relevant circumstance and the Tribunal has rightly taken the view that the finding of the Enquiry Officer is vitiated. Consequently, the Tribunal is justified in refusing to grant the approval as prayed for by the petitioner under Sec.33-2B of the Industrial Disputes Act. ”
Therefore, the learned counsel argued that the petitioner’s evidence was not at all considered by the Enquiry Officer and that this factor will vitiate the impugned Award.
15. The counsel further relied upon another decision of the Division Bench of this Court in A.V.Krishnamurthy v. Government of Tamilnadu and Others reported in 1985 (1) LLJ 46. In that case by placing reliance upon paragraph 6, the counsel submitted that the respondent Corporation failed to prove that the petitioner was actuated by corrupt motive and hence, it calls for an interference.
16. The Counsel further placed reliance upon the judgment of the Supreme Court in State of Uttar Pradesh v. Shatrughan Lal and another reported in (1998) 6 SCC 651, wherein, it was held that if copies of the reports were not furnished, that would be a factor vitiating the enquiry.
17. The counsel also placed reliance upon the judgment of this Court in Management, Cheran Transport Corporation v. Presiding Officer, Industrial Tribunal reported in 2004(2) LLN 1059, wherein it was held that if the chargesheeted workman’s evidence or on his explanation, he was not cross-examined, then the stand taken by such workman would stand unrebutted. Therefore, the Labour Court ought to have taken into account the explanation furnished by the workman.
18. The counsel also placed reliance upon a judgment of the Supreme Court in Bijlani M.V. v. Union of India and others reported in (2006) 2 LLJ 800. In paragraph 17, it was observed as follows:-
“17. It is true that the jurisdiction of the Court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant fact. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had no been charge with.”
19. Finally, the learned counsel placed reliance upon an unreported judgment of the Division Bench in W.A.No.2906 of 2002 dated 01.09.2009 (Cholan Roadways Corporation v. The Presiding Officer, Labour Court Cuddalore). In that case, this Court held that failure on the part of the employer to produce necessary materials to establish their case is vital and in such cases, the Labour Court should interfere with the action of the Employer.
20. On these legal precedents, the learned counsel submitted that the impugned Award is liable to be set aside.
21. Per contra, Mr.T.Chandrasekaran, learned counsel for the transport Corporation submitted that it is a well considered award and does not call for any interference that too in a petition under Article 226 of the Constitution of India.
22. After a perusal of the impugned Award, this Court is of the view that the preliminary order passed by the Tribunal dated 06.01.1999 does not call for interference as the enquiry has been conducted fairly and properly. On the other hand ,in so far as the impugned award is concerned, as rightly contended by the learned counsel for the petitioner, the statement given by the workman was not tested on his being cross-examined by the Management. There is gainsaying that the only acceptable evidence available was the evidence given by the checking staff. When the material evidence was not taken note of by the Enquiry Officer, the Labour Court ought to have interfered with that finding as held by the legal precedents set out above. Only in cases where charges were held to be proved on legally acceptable evidence, the question of going into the proportionality of the punishment will arise.
23. In the present case, in as much as the award of the Labour Court suffers from material irregularity and non-application of mind, the impugned final award will stand set aside. The matter in I.D.No.160 of 1996 will stand remitted to the first respondent Labour Court for fresh disposal. The Labour Court shall study the case after the stage of preliminary enquriy and then pass appropriate orders on merits and in accordance with law. Since the dispute is of the year 1996 and it is already 14 years old, the Labour Court shall give preference to dispose of the ID, in any event shall dispose of the same within a period of three months from the date of receipt of a copy of this order, after giving due notice to the parties. Both parties are directed to give full co-operation.
24. The writ petition stands allowed to the extent indicated above. No costs.
09.02.2010
Index: Yes/No
Internet :Yes/No
Note to Registry : If any records have been received in I.D.No.160 of 1996, the office is directed to despatch it to the Labour Court within one week from today.
To
1.The Presiding Officer,
Labour Court,
Coimbatore.
2.The Management of Mahakavi
Bharathiar Transport Corporation Ltd.,
now renamed as Tamil Nadu State
Transport Corporation (Coimbatore Division)
Udhagamandalam,
Nilgiris District.
K.CHANDRU,J.
Svki
Pre-Delivery order in W.P.No.16434 of 2000
09.02.2010