IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.02.2010
CORAM:
THE HON'BLE MR.JUSTICE K.CHANDRU
W.P.NO.19108 OF 2000
The Tamil Nadu State Transport Corporation
(Kumbakonam Division-II) Limited
(Formerly known as Dheeran Chinnamalai
Transport Corporation Ltd.,)
Periyamilaguparai,
Tiruchirapalli 620 001.
Rep. by its Managing Director ... Petitioner
Versus
1.The Presiding Officer
Industrial Tribunal
Chennai.
2.A.Rajendran ... Respondents
PRAYER: Writ petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari calling for the records of the 1st respondent in his order dated 06.12.1999 and made in Approval Petition No.55/96 in I.D.No.62/82, quash the same.
For Petitioner : Mr.R.Parthiban
For Respondent-2 : Mr.V.Krishnamoorthy
for Dr.J.Daniel
O R D E R
Heard the submissions made on either side.
2.The petitioner is the State Transport Corporation. They have filed the present writ petition seeking to challenge the order dated 06.12.1999 of the first respondent-Tribunal passed in Approval Petition No.55/96.
3.The writ petition was admitted on 15.11.2000. At the time of admission, no interim order was granted. When the matter came up on 14.08.2002, the learned counsel for the petitioner-Corporation took time to ascertain as to whether the Management will reinstate the second respondent pending further orders on the writ petition. However, on 16.09.2002, this Court was informed that the petitioner-Corporation is willing to reinstate the second respondent and such reinstatement will take place within two weeks without prejudice, is the contention raised by the petitioner-Corporation. The petitioner-Corporation was also directed to deposit a sum of Rs.1,00,000/- (Rupees One lakh only) to the credit of Approval Petition No.55/96 in I.D.No.62/1982 with the first respondent-Tribunal which in turn was directed to invest the same in Indian Bank, High Court Extension Counter and the second respondent was directed to withdraw the quarterly interest on such deposit. Subsequently, when the matter came up on 18.12.2006, this Court was informed that the said amount has already been deposited, which was also further directed to be reinvested.
4.On notice from this Court, the second respondent filed a counter affidavit dated 29.01.2001 justifying the order passed by the first respondent-Tribunal.
5.The facts leading to the present case are as follows:
(i) The second respondent was engaged as a Conductor by the petitioner-Corporation. He was suspended by an order dated 14.12.1994, which was followed by a charge memo. Even during the pendency of the charge memo dated 20.12.1994, the petitioner was released from suspension and restored to duty.
(ii) Subsequently, after getting his explanation, an enquiry was conducted and the Enquiry Officer, by his report dated 13.02.1995, found the petitioner guilty.
(iii) Thereafter, a show cause notice was issued to the second respondent and after getting his explanation, by an order dated 30.04.1996, he was dismissed from service.
(iv) Even as on the date, the dispute regarding bonus of the second respondent was pending before the first respondent-Tribunal in I.D.No.62/82.
(v) The petitioner-Corporation filed a petition for approval of the dismissal of the second respondent under Section 33(2)(b) of the Industrial Disputes Act. The said petition was taken on file as Approval Petition No.55/96 and notice was issued to the second respondent.
(vi) Before the first respondent-Tribunal, the petitioner-Corporation filed 19 documents, comprising the enquiry proceedings, which were marked as Exhibits M1 to M19. By consent, it is on the basis of these materials, the Court refused to grant approval.
(vii) Though the charge against the second respondent was collecting fair and not issuing tickets, the Tribunal held that the enquiry against the second respondent was not properly conducted. The driver of the bus had given a statement, which was also marked in the enquiry, without the driver being examined. But however, his report has relied upon the said report and therefore, the Tribunal held that marking of document, without examining the author the document, will vitiate the entire proceedings. Though the Management of the petitioner-Corporation before the Tribunal contended that the evidence of the Checking Inspector itself is enough and it is not necessary to rely upon any other evidence, in the present case, the Tribunal held not only non-examination of driver M.Chinnasamy was patent, but also on the date of incident namely on 13.12.1994, 39 numbers of the public including one Headmaster of a Panchayat Union School by name Ahmed Yussain sent a report to the General Manager narrating the sequence of event that happened on that day and the blame was also put on the Checking Inspector by name Yaguff. This was also not considered by the Management.
(viii) The Labour Court rejected the argument that the Checking Inspector’s evidence alone is enough. The Labour Court held that not only the Checking Inspector’s evidence is contra to the evidence of DW2 to DW4 who were examined, were not cross examined by the petitioner-Corporation and in respect of DW1 and DW2, only one suggestion was put in and inasmuch as the defence evidence was not considered, the findings are found perverse. Therefore, both on the ground that the enquiry was unfair and since the documents were marked without author of the evidence, the defence evidence went uncontroverted. It is in that view of the matter, the approval was refused.
6.If the present contention of the petitioner-Corporation is to be accepted that a person, who collected money, but does not issue ticket and the Management has lost such confidence, there was no reason as to why the Management permitted the second respondent to continue in service for the past ten years.
7.The learned counsel for the petitioner-Corporation placed heavy reliance upon the judgment of the Supreme Court in CHOLAN ROADWAYS LTD. VS. G.THIRUGNANASAMBANDAM reported in 2005 (1) LLN 633 wherein, it was held that jurisdiction under Section 33(2)(b) of the Industrial Disputes Act is very limited, beyond that Labour Court cannot embark upon an appreciation of evidence and then held that there was no evidence. He also relied upon the very same judgment to state that in such cases, it is not necessary to examine the passengers as the Checking Inspector’s evidence itself is sufficient. There is no quarrel over the proposition of law laid down by the Supreme Court. The question is whether the said judgment can be made applicable to the present case.
8.As found earlier, the Tribunal found that the substantial evidence was taken into account, without there being a formal proof and also the defence evidence remains uncontroverted by not cross examining those witnesses. The Enquiry Officer also made a mistake in not approving the defence evidence. Such a power under Section 33(2)(b) of the Industrial Disputes Act is very much available to the Labour Court and the parameters of Section 33 of the Industrial Disputes Act has been held in catena of cases, which has also been referred in Cholan Roadways’ case (cited supra). In paras 27 and 28 of the said judgment reference was made to State of Haryana’s case and A.T.Mane’s case. But in both cases, it was found that the non-examination of the passengers cannot be fatal to the stand of the Corporation. But in the present case, the issue is totally different. The second respondent himself brought defence witness and therefore, there is obligation on the part of the petitioner-Corporation to consider the defence evidence, without which any finding rendered can only be termed to be a perverse finding. It is also to be noted that the Cholan Roadways’ case involved a negligent driving by the driver. In that context, the Supreme Court after referring to the evidence of persons who are not direct witnesses also pressed into theory of res ipsa loquitur as found in para 24. Such a contingency do not arise in a case of a Conductor when there is misconduct specifically arise the burden lies on the petitioner-Corporation to prove.
9.In the light of the above, there is no legality or infirmity in the order passed by the Tribunal and considering the fact that the second respondent is in service, it is not a fit case to grant the relief sought for by the petitioner-Corporation. Hence, the writ petition stands dismissed. No costs.
TK
To
The Presiding Officer
Industrial Tribunal
Chennai