IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.11.2008
CORAM
THE HONOURABLE MR. JUSTICE D.MURUGESAN
and
THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH
Writ Appeal No.860 of 2005
and
W.A.M.P.No.1620 of 2005
M/s.State Express Transport
Corporation Limited,
Pallavan Salai, Chennai 600 002.
... Appellant
Vs.
1.The Presiding officer,
Labour Court,
Tirunvelveli.
2.Mr.G.Vijayakumar
... Respondents
Writ Appeal under Clause 15 of Letters Patent, praying to set aside the Order dated 27.10.2004 made in W.P.No.15819 of 1996.
For Appellant : Mrs.Kala Ramesh
For Respondents : Mr.D.Saravanan
for R2
JUDGEMENT
(Judgement of the Court was delivered by
D.MURUGESAN, J.)
The appellant is the Tamil Nadu State Express Transport Corporation Limited. The second respondent was employed as Driver in the appellant Transport Corporation. On 03.11.1990, while he was driving the bus bearing Regn. No.D 830, on the route Bangalore to Tirunelveli, at about 22.00 hours due to his rash, careless and negligent driving, the bus dashed against a van bearing Regn. No. TAC 3769 and as a result of which the driver of the said van died on the spot, the passengers of the said van, driver (second respondent) and the conductor of the bus sustained injuries. The second respondent was issued with a charge-memo on the ground that the accident had occurred only due to his negligence and had brought disrepute to the Corporation and in addition had resulted in loss of life of a person. After due enquiry, he was dismissed from service by order dated 30.05.1992, which was marked as Ex.M.5 before the Labour Court. The Labour Court by award dated 25.03.1996 found that the charges against the second respondent (driver) were not proved and ultimately after setting aside the order of dismissal, directed reinstatement of the second respondent into service with back-wages, continuity of service and other benefits.
2. The said award was questioned by the Transport Corporation in W.P.No.15819/1996 and the learned single Judge by order dated 27.10.2004, this Court dismissed the above said writ petition. Questioning the above said order, the present writ appeal is filed by the Transport Corporation.
3. The learned counsel appearing for the appellant Transport Corporation would submit that both the Labour Court as well as the learned single Judge have erred in coming to the conclusion that the Management has not proved its case by letting in evidence, as to the negligence on the part of the second respondent (driver). In fact, the Rough Sketch marked under Ex.M.3, which was actually prepared by the Officials of the appellant Transport Corporation shows that they had come to a conclusion that the driver of its bus was responsible for the accident merely on the basis that the bus which was found on the wrong side of the right side of the road would indicate that he had driven the bus in a rash and negligent manner, which resulted in the accident. When such evidence is available before the Labour Court, the finding of the Labour Court that there is no evidence on this aspect is totally perverse. Hence, the award of the Labour Court is liable to be set aside by allowing this writ appeal.
4. In the alternate, the learned counsel appearing for the appellant Transport Corporation would submit that in any event, while answering the point No.4, the Labour Court had not given any reason for directing the payment of back wages. She would further submit that though the power of the Labour Court to order back wages is discretionary, such a discretion has to be exercised in terms of Sec.11(A) of the Industrial Disputes Act, by giving proper reasons. In the event no reasons are given, the award in respect of the back wages is liable to be interfered. In support of such submission, the learned counsel for the appellant would rely upon the judgement of the Supreme Court in Hindustan Motors Limited v. Tapan Kumar Bhattacharya and another (2002 AIR SCW 3008) and M.P.State Electricity Board v. Smt.Jarina Bee (2003) 6 Supreme Court Cases 141 and also the judgement of the Division Bench of this Court in W.A.No.2303 of 1999 dated 03.01.2008 (Tamil Nadu State Transport Corporation (Madurai Division II) Limited vs. The Presiding Officer, Principal Labour Court, Madurai and another)
5. We have heard Mrs.Kala Ramesh, learned counsel appearing for the appellant Transport Corporation and Mr.D.Saravanan, learned counsel appearing for the second respondent.
6. We have considered the submissions made on either side and the law is by now well settled that the award of the Labour Court could be interfered with only in the event that the findings of the Labour Court are totally perverse and that such findings are without any evidence. It is equally well settled that when the award was passed on appreciation of evidence, this Court could not interfere in such findings venturing into re-appreciation of evidence and come to a different conclusion. As far as the award is concerned, the negligence put forth against the second respondent was not accepted by the Labour Court on the ground that the Eye-witness viz., the cleaner of the van, who was admittedly taken to the police station and a statement was also recorded from him, but not supported the case of the Transport Corporation to prove the negligence on the part of the second respondent. The only other evidence let in by the appellant Transport Corporation before the Court, is Ex.M.3 Rough Sketch drawn by the Officials of the appellant Transport Corporation and Ex.M.3 Rough Sketch would show that the bus was standing on the right side of the road. This piece of evidence was also appreciated by the Labour Court and it has ultimately found that the accident took place at 10.30 p.m. on 03.11.1990 but, the officials of the appellant transport corporation had gone to the place of occurrence only at about 6.30 a.m. on the next day. Further, the explanation offered by the second respondent (driver) viz., the right side front wheel of the bus went two feet from the road and he heard a noise unexpectedly and the bus was pulled on the right side of the road. This version of the second respondent was accepted by the learned Judge, Labour Court. On the contrary, no evidence was let in by the Transport Corporation to show that the right side front wheel of the bus was in in tact and was not broken as put forth by the second respondent. Therefore, the Labour Court did not accept the negligence on the part of the second respondent (driver) in driving the bus which resulted in the accident. Such appreciation of evidence had not therefore rightly been interfered with by the learned single Judge of this Court. In these circumstances, we are declined to accept the submissions put forth by the learned counsel for the appellant transport corporation, as it would amount to reapplication of evidence.
7. Coming to the next submission regarding direction for payment of back-wages, the learned counsel appearing for the appellant Transport Corporation would submit that the payment of back wages is not automatic and the labour Court should have been assigned reasons while ordering payment of back wages is concerned, the law is now well settled as referred to by the learned counsel appearing for the appellant Transport Corporation.
8. The Apex Court had now settled the law viz., the payment of back wages is not automatic and it depends upon the circumstances and in the event the Labour Court or this Court orders payment of back wages, it must assign reason for ordering back wages, in other words, the discretionary powers on awarding back wages should be exercised with great care and caution supported by materials.
9. A Division Bench of this Court in S.Sivaraj V. The Managing Director, Tamil Nadu Forest Plantation Corporation Limited, Tiruchirappalli and others reported in 2007 (5) CTC 579 to which one of us (D.Murugesan, J.) is a party has held that whenever an order of dismissal is set aside and reinstatement is ordered, it not a rule of thumb that in every case where reinstatement is ordered, the payment of back wage is a natural consequence. The Apex Court in Banshi Dhar v. State of Rajasthan and antoher, 2007(1) SCC 324 has observed that no hard and fast rule can be laid down in regard to the grant of back wages and each case has to be determined on its own merits. The above law laid down by the Apex Court is reiterated in the subsequent decision in Muir Mills Unit of NTC (U.P.) Ltd. v. Swayam Prakash Srivastava and another, 2007(1) SCC 491 . Hence, the order directing back wages depends on facts of each case.
10. It has therefore to be considered, whether the award in regard to entire back wages in the given case is justifiable. However, the learned counsel appearing for the second respondent had submitted that in Hindustan Motors Limited v. Tapan Kumar Bhattacharya and another (2002 AIR SCW 3008), 2002 SCW 3008 the Supreme Court directed that the back wages should be paid at the rate of 50% instead of full and had fairly conceded that the second respondent is ready and willing to accept the back wages at the rate of 50%. In view of the above said submissions, there is no controversy over the payment of back wages as it is the stand of the appellant Transport Corporation by way of alternate submission that instead of payment of 100% of back wages, second respondent could be paid only 50% of back wages.
11. In view of the above position in law and on considering facts and circumstances of this case, the writ appeal is disposed of confirming the award of the Labour Court for reinstatement of the second respondent but, restricting the order of payment of back wages to 50% of the total back wages. No costs. Consequently, connected miscellaneous petitions are closed.
kmk
To
1.The Presiding officer,
Labour Court,
Tirunvelveli