IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.10.2010
CORAM:
THE HONOURABLE MR.JUSTICE P.JYOTHIMANI
W.P.No.8690 of 2003
K.Murthy .. Petitioner
Vs.
1. The Labour Court
Salem.
2. The Management
Tamil Nadu State Transport Corporation
Salem Division II
Dharmapuri 5. .. Respondents
PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records relating to the award dated 18.3.2002 passed by the first respondent in I.D.No.76 of 1998, to quash the same and to order the second respondent to reinstate the petitioner in service with back-wages and continuity of service and all other attendant benefits.
For Petitioner : Mr.S.Arunkumar
For Respondents : Mr.S.Kanagaraj
for 2nd respondent
ORDER
The writ petition is filed challenging the award dated 18.3.2002 passed by the Labour Court, Salem in I.D.No.76 of 1998 and also for a direction against the second respondent to reinstate the petitioner.
2.1. The petitioner is stated to have been employed under the second respondent as a Conductor. On 16.5.1997, the second respondent issued a charge sheet to the petitioner framing three charges viz., (i) the petitioner has collected lesser fare of ` 1/- from one passenger travelling from Chengapalli to Gopachandram, even though the actual fee is ` 1.50 and had not issued ticket to him; (ii) the petitioner had re-issued the tickets issued to passengers who travelled from Kakkadasam to Thali to five passengers who were travelling from Thali to the destination, viz., Gumalapuram and that by resale of tickets already issued, he has misappropriated ` 10/-; and (iii) there was a shortage of ` 5.90, when cash bag containing the fares collected was checked.
2.2. The petitioner has submitted his explanation denying the charges on 21.5.1997 and a domestic enquiry was conducted, in which the petitioner has participated. It has been the objection of the petitioner that without informing him, the second respondent/management was permitted to be represented by a representative in the domestic enquiry, while that opportunity was not given to the petitioner by the enquiry officer. That apart, it is also stated that the enquiry was not properly conducted; it is in violation of the principles of natural justice; and adequate opportunity was not given to examine the witnesses produced by the second respondent/management.
2.3. It is also stated that the enquiry officer, in his report, has marked the documents which were not produced by the witnesses through the second respondent/management and therefore, the enquiry was not conducted in the manner known to law, since the second respondent/management has not let in any evidence to prove the case against the petitioner. It is also stated that the enquiry officer has relied upon the statements made by the passengers, who were not examined by the second respondent/management, and therefore, the finding of the enquiry officer in his report dated 3.8.1997 submitted to the second respondent/management was perverse.
2.4. Based on the finding of the enquiry officer, the second respondent has issued a show cause notice on 20.8.1997 proposing to impose the punishment of removal, for which a reply was given by the petitioner on 2.9.1997. However, the Disciplinary Authority passed an order on 11.9.1997 dismissing the petitioner from service. It is against that the petitioner has raised an industrial dispute before the Labour Court in I.D.No.76 of 1998. The Labour Court, by order dated 18.3.2002, finding that the domestic enquiry has been conducted in a fair and proper manner and that the punishment of dismissal imposed on the petitioner is justified, dismissed the industrial dispute.
2.5. It is the case of the petitioner that the Labour Court has failed to take note of the fact that the enquiry officer has not conducted the proceedings in the manner known to law and that the Labour Court has overruled the objections raised by the petitioner to the marking of documents Exs.A1 to A10 and A13 to A14 by the second respondent/management on the ground that those documents were not received in evidence in accordance with law.
2.6. It is further stated that the enquiry officer has not properly construed the evidence of the driver (MW3) and therefore, the finding of the enquiry officer in his report (Ex.A16) should have been rejected by the Labour Court and opportunity should have been given to the petitioner to adduce fresh evidence to prove that the charges framed against him by the second respondent/management cannot be sustained.
3. It is the contention of the learned counsel for the petitioner that the second respondent/management has not given sufficient time to the petitioner while enclosing the copy of the report of the enquiry officer to submit his explanation and the entire issue has been predetermined.
4.1. On the other hand, it is the contention of the learned counsel for the second respondent that the report of the enquiry officer was furnished to the petitioner along with the show cause notice dated 20.8.1997, for which the petitioner has, in fact, submitted his explanation on 2.9.1997, based on which the final order of dismissal came to be passed on 11.9.1997 and therefore, the petitioner cannot now complain as if sufficient time was not granted to him. It is his submission that the petitioner has never raised the issue of unfairness in the domestic enquiry.
4.2. Relying upon a judgment of a Division Bench of this Court in Engine Valves Ltd. v. Labour Court, Madras and another, 1991 I LLJ 372, it is contented by the learned counsel for the second respondent/ management that it is not the quantum of the amount misappropriated that is relevant, but it is the conduct of the delinquent.
5. As far as the main objection raised by the learned counsel for the petitioner that sufficient time was not given to the petitioner while enclosing the copy of the report of the enquiry officer to submit his explanation, since it was only four days time given as per the petitioner, it is clear that the second respondent has issued a show cause notice on 20.8.1997, enclosing the report of the enquiry officer dated 3.8.1997, calling for further explanation from the petitioner for the proposed punishment of removal from service. The petitioner has, in fact, submitted his explanation on 2.9.1997, copy of which has been produced on the side of the second respondent/management. A reference to the said explanation shows that the petitioner has never raised any objection about the unfairness in the domestic enquiry. In fact, in the said explanation, the petitioner has clearly admitted that he has participated in the domestic enquiry and he has gone through the various documents and the enquiry officer has specifically directed the petitioner to cross-examine various witnesses. However, it is stated that the petitioner wanted to cross-examine the witnesses at a later point of time and it was thereafter, on 11.9.1997, the second respondent has passed the order of dismissal.
6. A reference to the report of the enquiry officer shows that the Ticket Inspector and Checking Inspector have been examined on the side the second respondent/management and they have produced various tickets and receipts which were taken at the time of inspection and when the witnesses were available for cross-examination, the petitioner has not cross-examined them. Thereafter, on the side of the second respondent/ management, the driver of the bus was examined and the driver was also cross-examined by the petitioner. The petitioner, on his side, has produced two witnesses. Therefore, the contention raised on behalf of the petitioner that the management witnesses were not examined for the purpose of proving the case against the petitioner is unsustainable on record and hence, it cannot be said that the domestic enquiry was not conducted in the manner known to law. It is well settled that in the domestic enquiry, it is the management which has to let in evidence to substantiate the case before requesting the delinquent to disprove the charge. On record, as stated above, there is no reason to come to a conclusion that in the domestic enquiry, the enquiry officer has not followed the said procedure.
7. In Engine Valves Ltd. v. Labour Court, Madras and another, 1991 I LLJ 372, a Division Bench of this Court, in respect of the powers of the Labour Court under Section 11A of the Industrial Disputes Act regarding the finding of the misconduct, has held that unless the punishment imposed is disproportionate or shockingly severe to the charges, it is not for the Court to interfere. The Division Bench has held as follows:
“18. The decision of this Court in Management of M.F.L. v. Presiding Officer, I Additional Labour Court, 1990-I-LLJ-298, relied upon by the learned counsel for the respondents only lays down that where the Labour Court has not made a proper exercise of the discretion vested in it under Section 11A of the Act, this court in the exercise of its powers under Article 226 of the Constitution of India can certainly do what the Labour Court failed to do. Having regard to the principles referred to above, we are of the view that the power and discretion conferred under Section 11A of the Act have to be exercised judicially and judiciously and that there should be sufficient indication in the order itself of the fact that the Court exercising powers under Section 11A of the Act was aware of and alive to the norms and requirements of Section 11A of the Act. The Court exercising powers under Section 11A of the Act after finding the misconduct to have been proved is first obliged to advert itself to the question of necessity or desirability to interfere with the punishment imposed by the management and, if the management could not justify the punishment imposed thereafter it must consider the question as to the relief that is to be granted to the employee. In so considering the relief to be granted, the Court has an obligation to consider whether the punishment imposed is disproportionate or shockingly severe to the charges held proved and if so whether a reinstatement has to be ordered or whether any other lesser punishment has to be imposed. A specific finding must be recorded whether it was expedient and proper to reinstate the employee or whether award of compensation in lieu of reinstatement will meet the requirements and ends of justice of the case concerned. Absence of reasons to invoke the power and interfere under provision of Section 11A in a particular case would render the very exercise of powers arbitrary and perverse and the order consequently would stand vitiated.”
8. The finding of the Labour Court that the punishment imposed by the second respondent/management cannot be said to be vindictive, in my considered view, does not require any interference. On the other hand, the Labour Court has explained in detail about every one of charges and held that the finding of the enquiry officer is not improper. Moreover, it is not the quantum of money involved which is relevant. What is to be seen is the conduct of the petitioner. As seen in the charges, the amount involved is trivial, but the conduct of the petitioner in re-issuing the tickets already issued to passengers is serious in nature and cannot be lightly disregarded.
For the foregoing reasons, I am of the considered view that the award of the Labour Court does not require any interference by this Court either on the ground that the finding of the enquiry officer is perverse or that the domestic enquiry was conducted unfairly or that the Labour Court has not exercised its powers and jurisdiction under Section 11A of the Industrial Disputes Act properly. The writ petition fails and the same is dismissed. No costs. Consequently, W.P.M.P.No.663 of 2010 is closed.
sasi
To:
The Presiding Officer
Labour Court
Salem