{"id":141732,"date":"2006-06-21T00:00:00","date_gmt":"2006-06-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-venkatesan-vs-the-management-of-pattukottai-on-21-june-2006"},"modified":"2016-03-31T07:27:57","modified_gmt":"2016-03-31T01:57:57","slug":"p-venkatesan-vs-the-management-of-pattukottai-on-21-june-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-venkatesan-vs-the-management-of-pattukottai-on-21-june-2006","title":{"rendered":"P. Venkatesan vs The Management Of Pattukottai on 21 June, 2006"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">P. Venkatesan vs The Management Of Pattukottai on 21 June, 2006<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDated: 21\/06\/2006 \n\nCoram \n\nThe Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR        \n\nWrit Petition No.5599 of 1998\n\nP. Venkatesan                  ...     Petitioner\n\n-Vs-\n\n1.     The Management of Pattukottai\n        Azhagiri Transport Corporation Ltd.,\n        (now renamed as Tamilnadu State\n        Transport Corporation), Vellore.\n\n2.      The Presiding Officer,\n        Labour Court,\n        Vellore.                        ...Respondents\n\n\n        This writ petition has been filed under Article 226 of Constitution of\nIndia, praying this Court to issue a writ of Certiorarified mandamus,  calling\nfor the records from the 2nd respondent relating to the award dated 20.11.1996\nin  I.D.No.443  of 1994 and quash that portion of award holding the petitioner\nguilty of the charges  and  denying  the  petitioner  continuity  of  service,\nbackwages and other benefits and to direct the 1st respondent to reinstate the\npetitioner  with backwages, continuity of service and other benefits and award\ncosts.\n\n!For Petitioner         :       Mr.D.Hariparanthaman\n\nFor 1st Respondent     :       Mr.V.R.Kamalanathan\n\n     2nd respondent     :       Court\n\n:ORDER  \n<\/pre>\n<p>        Prayer in the writ petition is to quash the award dated 20.11.1996  in<br \/>\nI.D.No.443  of  1994  passed  by  the  2nd  respondent  and to direct the 1 st<br \/>\nrespondent to reinstate the petitioner with backwages, continuity  of  service<br \/>\nand other benefits and award costs.\n<\/p>\n<p>        2.      The  facts giving raise to filing of this writ petition are as<br \/>\nfollows:\n<\/p>\n<p>        (a)     The  petitioner  was  employed  as  Conductor  in  the   first<br \/>\nrespondent Transport  Corporation.   On 27.3.1992, while the petitioner was on<br \/>\nduty in the bus route 459-A, running between Kuppam and Thirupathur,  at  8.00<br \/>\np.m., near Pachur railway gate, the checking officials got into the bus and at<br \/>\nthat time  there  were  137 passengers and five luggages in the bus.  When the<br \/>\nbus reached Natrampalli, which is 3 kms away from  Pachur  railway  gate,  the<br \/>\nchecking  officials  found  that 49 packets of liquor rolled in a gunny bag at<br \/>\nthe left side of the driver&#8217;s seat.  When  petitioner  asked  the  passengers,<br \/>\nnobody claimed  ownership  of  the  liquor  packets.  The petitioner being the<br \/>\nConductor, lodged a complaint in the Police Station.  Later, the Police closed<br \/>\nthe case on the ground that they were not able to trace owner  of  the  arrack<br \/>\npackets.\n<\/p>\n<p>        (b)     Petitioner   was   placed  under  suspension  by  order  dated<br \/>\n28.3.1992, pending disciplinary action.  A  charge  memo  dated  3.4.1992  was<br \/>\nissued  alleging  that  the  petitioner  permitted  the  driver  of the bus to<br \/>\ntransport the liquor packets against the rules  of  the  Corporation  and  the<br \/>\npetitioner was  irresponsible  in  his  duties.  The said suspension order was<br \/>\nrevoked by order dated 21.4.1992.  Petitioner submitted  his  explanation  for<br \/>\nthe  said charge memo stating that there were 137 passengers in the bus though<br \/>\nthe passenger capacity of the bus was only 56 and that the alleged  occurrence<br \/>\ntook  place  during night hours and the luggage was too small and it could not<br \/>\nbe easily noticed due to the crowd in the bus.  Petitioner also  pointed  out,<br \/>\nthe  allegation  is  that  the  petitioner  permitted the driver of the bus to<br \/>\ntransport the liquor and the report of the Checking Official  is  contrary  to<br \/>\nthe allegation, even though the charge sheet is based on the said report dated<br \/>\n27.3.1982.   Petitioner  further submitted that he made a complaint along with<br \/>\nthe Checking Officials that the liquor packets were not claimed by any of  the<br \/>\npassengers and the Police, even though registered a case, subsequently dropped<br \/>\nthe case on the ground that the offender was not traceable.\n<\/p>\n<p>        (c)     The explanation having been found not satisfactory, an enquiry<br \/>\nwas  ordered  by  the management and one of the Checking Official was examined<br \/>\nduring the enquiry.  The Checking Official  did  not  state  that  the  driver<br \/>\ntransported  the  liquor  and the petitioner helped the driver in transporting<br \/>\nthe liquor.  According to the witness, both the driver and the petitioner were<br \/>\nresponsible for the unclaimed luggage of liquor packets.  The enquiry  Officer<br \/>\ngave  a  finding  in  a  cryptic  manner stating that the charges were proved.<br \/>\nBased on the said  finding,  petitioner  and  driver  were  dismissed  by  the<br \/>\nmanagement  by  order  dated  22.7.1993  even though the crux of the charge is<br \/>\nagainst the driver of the bus.\n<\/p>\n<p>        (d)     The driver of the bus, even though was proceeded  against,  he<br \/>\nwas  taken back on service as fresh entrant by the management by way of 1 8(1)<br \/>\nsettlement.  According to the petitioner, the driver was having only two years<br \/>\nof previous service.  Whereas, the petitioner has put in 23 years of  service.<br \/>\nIt  is  the  further  case  of the petitioner that the driver appeared to have<br \/>\ninvolved in a similar case on 13.5.1991 while he was on duty and therefore his<br \/>\ncase cannot be equated with that of the petitioner.\n<\/p>\n<p>        (e)     Petitioner  raised  I.D.No.443  of  1994  before  the   second<br \/>\nrespondent as  the  conciliatory  efforts  failed.   Both sides did not let in<br \/>\nevidence, but the  enquiry  records  were  marked  by  consent.    The  second<br \/>\nrespondent  passed an award on 20.11.1996 holding that the charges against the<br \/>\npetitioner are proved in the domestic enquiry as per the  records.    However,<br \/>\nthe  Labour Court held that since the driver was reinstated afresh, dismissing<br \/>\nthe petitioner from service was arbitrary and discriminatory and directed  the<br \/>\nfirst  respondent\/management to reinstate the petitioner afresh as was done in<br \/>\nthe case of the driver, but denied continuity of service, backwages and  other<br \/>\nbenefits.  The denial of backwages and continuity of service made in the award<br \/>\nis challenged by the petitioner in this writ petition.\n<\/p>\n<p>        (f)     The  grounds  of attack by the petitioner are that the enquiry<br \/>\nreport is cryptic and  no  further  enquiry\/additional  evidence  was  adduced<br \/>\nbefore  the Labour Court; that there is no analysis of evidence in the finding<br \/>\ngiven by the Enquiry Officer; that there  is  no  proof  that  the  petitioner<br \/>\nhelped  the  driver  in  transporting arrack; that the Charge memo and enquiry<br \/>\nofficer&#8217;s report are contrary to the report of the  checking  inspectors;  and<br \/>\nthat,  the  Enquiry Officer as well as the Labour Court failed to consider the<br \/>\nnumber of passengers viz., 137 and the time  of  occurrence,  which  is  night<br \/>\nhour.\n<\/p>\n<p>        3.      The learned counsel for the petitioner, apart from reiterating<br \/>\nthe  above  grounds contended that the allegation itself is that the driver of<br \/>\nthe bus transported the arrack packets; and when the  petitioner  noticed  the<br \/>\narrack  packets  he  immediately  went  to  the  police  station  and gave the<br \/>\ncomplaint and therefore the petitioner&#8217;s bona fide is proved and if at all the<br \/>\ndriver has transported the arrack, petitioner cannot be held responsible since<br \/>\nit was kept near the driver&#8217;s seat and at  the  most  the  petitioner  can  be<br \/>\ntreated only as negligent in discharge of his duties, for which the punishment<br \/>\nof  dismissal by the management which was modified to the one of reinstatement<br \/>\nwithout backwages and without continuity of service,  is  disproportionate  to<br \/>\nthe gravity  of  the delinquency alleged.  Further the learned counsel for the<br \/>\npetitioner submits that the driver of the  bus  has  involved  in  a  previous<br \/>\nincident  of the same nature and considering his two years of previous service<br \/>\nhe was reinstated afresh by the management by entering into  18(1)  settlement<br \/>\nand the same yardstick cannot be applied to the petitioner by the Labour court<br \/>\nsince  the  petitioner has put in 23 years of service and so far as petitioner<br \/>\nis concerned, there is no previous delinquency of  this  nature.    Hence  the<br \/>\nlearned  counsel requested this Court to modify the punishment since the order<br \/>\nof the Labour Court is disproportionate to the delinquency alleged.\n<\/p>\n<p>        4.      The  learned  counsel  appearing  for  the  first   respondent<br \/>\nsubmitted  that  the Labour Court in exercise of its powers under section 11-A<br \/>\nof the Industrial  Disputes  Act,  modified  the  punishment  awarded  to  the<br \/>\npetitioner,  taking  note  of  the  18(1)  settlement entered into between the<br \/>\nmanagement and the driver, and the petitioner and driver having been  involved<br \/>\nin  the  same  incident,  the  order passed by the Labour Court appointing the<br \/>\npetitioner afresh, is perfectly legal and valid.  The management  pursuant  to<br \/>\nthe  order  of  the Labour Court reinstated the petitioner on 4.4.1997 and the<br \/>\npetitioner  cannot  claim  continuity  of  service  and  backwages  when   the<br \/>\nmisconduct alleged against him has been proved in the enquiry.\n<\/p>\n<p>        5.      I  have  considered  the  submissions  of  the learned counsel<br \/>\nappearing for the petitioner as well as the first respondent.\n<\/p>\n<p>        6.      The report of the Checking inspectors merely states  that  the<br \/>\npetitioner  and the driver of the bus were responsible for the transport of 49<br \/>\npackets of arrack in a gunny bag.  The charge memo issued  to  the  petitioner<br \/>\nstates  that  the  driver of the bus transported the arrack packets, which was<br \/>\nnot noticed by the petitioner, he being the conductor of the bus and he failed<br \/>\nin his duties.  The other charges are incidental to the main  charge  alleged.<br \/>\nIn  the  explanation submitted by the petitioner it is stated that the time of<br \/>\nchecking was 8.00 p.m and 137 passengers were travelling in the said  bus  and<br \/>\nthe  gunny  bag was too small baggage and the same having been placed near the<br \/>\nseat of the driver, the petitioner could not notice the same  and  immediately<br \/>\nafter  noticing  the  same,  petitioner  went to the police station and gave a<br \/>\ncomplaint.  The Enquiry Officer found that the petitioner and  driver  of  the<br \/>\nbus  are  responsible  for  the  transport of the arrack packets and by giving<br \/>\ncomplaint to the Police by the petitioner, the goodwill of the Corporation  is<br \/>\ndamaged.  The Labour Court also confirmed the finding of the Enquiry Officer.\n<\/p>\n<p>        7.      Before  considering the matter in issue, it is proper to refer<br \/>\nto the allegation, which reads as under,<br \/>\n        &#8220;You, Thiru Venkatesan, Conductor No.8517, on 27.3.1992, while on duty<br \/>\nin Bus bearing  registration  No.TN-23-N-0292  &#8211;  Route  No.459-A,  proceeding<br \/>\ntowards  Tiruppathur,  near  Pachur railway gate, the Checking Inspectors made<br \/>\ninspection and found a gunny bag containing 49  packets  of  arrack  near  the<br \/>\ndriver&#8217;s  seat, thereby you, allowed the driver of the bus to smuggle the said<br \/>\ncontraband against the rules of the Corporation and failed  to  discharge  the<br \/>\nduty of Conductor.&#8221;\n<\/p>\n<p>        8.      The point in issue is whether the petitioner has intentionally<br \/>\nor  with  knowledge,  permitted the transport of arrack packets by the driver.<br \/>\nThe inability to notice the contraband placed near the driver&#8217;s seat  is  well<br \/>\nestablished  by  the  fact  that 137 passengers were in the bus at the time of<br \/>\nchecking and the same is not disputed.  The passenger capacity of the  bus  is<br \/>\nonly 56.   Therefore the petitioner cannot be blamed for not noticing the said<br \/>\narrack packets, which were found near the driver&#8217;s seat.  The  driver  is  the<br \/>\nperson  allegedly transported arrack packets and the gunny bag was placed very<br \/>\nnear to his seat.  At the best, petitioner can be blamed  for  dereliction  of<br \/>\nduty  in  not noticing the luggage found near the driver&#8217;s seat, for which the<br \/>\norder of dismissal passed by the management is too harsh,  which  was  rightly<br \/>\nset aside by the Labour Court.\n<\/p>\n<p>        9.      Insofar  as  the denial of continuity of service and backwages<br \/>\nare concerned, the Labour Court applied 18(1) settlement entered into  between<br \/>\nthe driver  of  the  bus and the management.  The 18(1) settlement was entered<br \/>\ninto with the driver taking note of his two years of previous service  and  he<br \/>\nagreed for  re-appointment  without continuity of service.  Further as rightly<br \/>\npointed out by  the  learned  counsel  for  the  petitioner,  the  driver  was<br \/>\npreviously involved  in  a  similar  incident.   Whereas, the petitioner never<br \/>\ninvolved in similar previous incident.  Apart from that the petitioner has put<br \/>\nin more than 23 years of service and continuity of service if denied, it  will<br \/>\ncause great  prejudice to the petitioner.  I have already given a finding that<br \/>\ndue to overloading of the bus the petitioner could not see  the  placement  of<br \/>\ngunny  bag  containing  arrack  packets near the seat of the driver and having<br \/>\nregard to the services rendered by the  petitioner  for  over  23  years,  the<br \/>\ndenial of continuity of service to the petitioner will cause great hardship to<br \/>\nhim  as  he  will  lose  the  incremental  benefits and other service benefits<br \/>\nreceived all along and by re-appointing him afresh petitioner&#8217;s salary will be<br \/>\nvery much reduced.\n<\/p>\n<p>        10.     Therefore, I am of the view that the Labour Court is right  in<br \/>\ndenying  backwages on the principle of &#8220;no work no pay&#8221; because the petitioner<br \/>\nwas out of employment and the denial  of  continuity  of  service  insofar  as<br \/>\npetitioner  is concerned, cannot be justified taking note of the unintentional<br \/>\ndereliction of duty, for  which  the  driver  of  the  bus  has  already  been<br \/>\npunished,  particularly  when the charge is that the driver of the bus carried<br \/>\nthe contraband containing 49 packets of arrack.\n<\/p>\n<p>        11.     The impugned award insofar as comparing the driver of the  bus<br \/>\nwith the petitioner, who is a conductor, having regard to the nature of of the<br \/>\ncharge  for awarding similar punishment is therefore to be treated as perverse<br \/>\nfinding.  The Honourable Supreme Court in the decision reported in 1982(I) LLJ<br \/>\n54 (Shri J.D.Jain Vs.  The Management of State Bank of India and  another)  in<br \/>\nparagraph 7 held thus,<br \/>\n        &#8220;In  an  application  for  a  writ  of certiorari under Art.226 of the<br \/>\nConstitution for quashing an award of an Industrial Tribunal, the jurisdiction<br \/>\nof the High Court is limited.  It can quash the award, inter  alia,  when  the<br \/>\nTribunal  has  committed an error of law apparent on the face of the record or<br \/>\nwhen the finding of facts of the Tribunal is perverse.  In the case before us,<br \/>\naccording to the Tribunal, as Kansal was not examined, the evidence before  it<br \/>\nwas  hearsay  and  as  such  on  the  basis thereof the appellant could not be<br \/>\nlegally found guilty.&#8221;\n<\/p>\n<p>In the decision reported in 2000 (II)  LLJ  902  <a href=\"\/doc\/1028631\/\">(Anna  Transport  Corporation<br \/>\nLtd., Salem v.  Presiding Officer, Labour Court, Coimbatore and Another),<\/a> this<br \/>\nCourt,  following the judgments of the Apex Court, in paragraphs 10 to 13 held<br \/>\nthus,<br \/>\n        &#8220;10.    This Court in the exercise of writ jurisdiction under Art.226,<br \/>\nwhere a petition is filed seeking a relief by way of quashing of  award  given<br \/>\nby the Labour Court under Sec.11-A of the Industrial Disputes Act, has limited<br \/>\njurisdiction  to  demolish  the impugned award, where according to this Court,<br \/>\nsuch award is palpably erroneous.\n<\/p>\n<p>        11.     As a general rule, the High Court would not  interfere  unless<br \/>\nthe  order  of  the  Labour  Court is perverse or not based on any evidence or<br \/>\ngrossly illegal or based on  a  complete  misconception  of  law  or  that  no<br \/>\nreasonable  man  would  come  to  the conclusion to which the Labour Court has<br \/>\narrived at.\n<\/p>\n<p>        12.     There is no hard and fast rule that it has always to send  the<br \/>\nmatter  back  to the Labour Court for appropriate adjudication and for passing<br \/>\nappropriate order in accordance with  law,  but  in  order  to  avoid  delayed<br \/>\njustice  and  for vindication of speedy and appropriate relief, the High Court<br \/>\nmay in appropriate cases incorporate its own findings which may appear  to  be<br \/>\njust and proper.\n<\/p>\n<p>        13.     It cannot be an established rule that the High Court ought not<br \/>\nto   interfere,  while  exercising  writ  jurisdiction,  with  the  discretion<br \/>\nexercised by the Labour Court under Sec.11-A of  the  act  and  exercise  that<br \/>\njurisdiction itself.    What  the  Labour Court should do and when there is an<br \/>\nomission on the part of it to do that, the Court, in exercise  of  the  powers<br \/>\nunder Art.226 of the Constitution of India, can certainly do.  What the Labour<br \/>\nCourt  may  in  its  discretion  do, the High Court too can, under Art.226, if<br \/>\nfacts compel it to do so.&#8221;\n<\/p>\n<p>        12.     Hence, to meet the ends of justice, I  modify  the  punishment<br \/>\nawarded  by  the  Labour  Court  as to one of reinstatement with continuity of<br \/>\nservice without backwages in view of the nature of delinquency  said  to  have<br \/>\nbeen committed  by  the  petitioner.  Had there been limited passengers in the<br \/>\nbus, i.e., within the permissible limit of 56, the management would have  been<br \/>\nright in  proceeding against the petitioner by imposing severe punishment.  In<br \/>\nview of overloading in the bus, petitioner cannot be held responsible for  the<br \/>\nalleged delinquency committed by the driver of the bus.\n<\/p>\n<p>        13.     In  the result, the award of the Labour Court is modified with<br \/>\na direction to reinstate the petitioner with continuity of service and not  as<br \/>\nnew entrant,  but  without backwages.  By virtue of the grant of continuity of<br \/>\nservice, petitioner&#8217;s salary shall be refixed taking note of  the  incremental<br \/>\nbenefits  to which he is entitled and his salary shall be notionally fixed and<br \/>\npaid from the date  of  his  reinstatement.    It  is  also  made  clear  that<\/p>\n<p>continuity  of  service given to petitioner shall be counted for increment and<br \/>\nfor all other benefits.\n<\/p>\n<p>        The writ petition is partly allowed as above.  No costs.\n<\/p>\n<p>vr<\/p>\n<p>To<\/p>\n<p>The Presiding Officer,<br \/>\nLabour Court, Vellore.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court P. Venkatesan vs The Management Of Pattukottai on 21 June, 2006 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 21\/06\/2006 Coram The Hon&#8217;ble Mr.Justice N.PAUL VASANTHAKUMAR Writ Petition No.5599 of 1998 P. Venkatesan &#8230; Petitioner -Vs- 1. The Management of Pattukottai Azhagiri Transport Corporation Ltd., (now renamed as Tamilnadu State Transport [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-141732","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>P. 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