Madras High Court
Tamil Nadu State Transport Corporation vs The Presiding Officer on 27 March, 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.03.2012
CORAM
THE HONOURABLE MR. JUSTICE S.NAGAMUTHU
W.P.No.7484 of 2004
Tamil Nadu State Transport Corporation
[Kumbakonam] Limited,
Kumbakonam Railway Station New Road,
Kumbakonam 612 001. ... Petitioner
-Verus-
1.The Presiding Officer,
Labour Court,
Cuddalore.
2.S.Vivekanandan ... Respondents
Petition filed under Article 226 of the Constitution of India praying to issue of a Writ of Certiorari calling for the records relating to I.D.No.74 of 1998 on the file of the 1st respondent and quash the award dated 09.10.2003 passed thereon by the 1st respondent.
For petitioner : Mr.Ravi
For respondent (s) : Mr.K.M.Ramesh for R2
R1 Labour Court
ORDER
Challenge in this writ petition is to the award passed by 1st respondent in I.D.No.74 of 1998 dated 09.10.2003.
2. The facts of the case would be as follows:- The 2nd respondent was working as a conductor in the petitioner / Tamil Nadu Transport Corporation [Kumbakonam] Limited. On 25.11.1996, he was the conductor in the bus plying between Thirunallar and Trichy. At 07.40 a.m., the bus commenced its journey from Thirunallar and at 11.30 a.m., when the bus was passing through a place known as "Poondi", it was intercepted by a team of Checking Inspectors of the petitioner corporation. At that time, totally, there were fifty three passengers in the bus. Out of them, six passengers had boarded the bus at a place known as "Ammapettai". The distance between Ammapettai and Poondi is hardly six kilo meters. During the surprise check up made by the team of Checking Inspectors, it was found that out of fifty three passengers travelling in the bus, fifty one passengers had tickets and two passengers were found without ticket. On enquiry, one passengers told the Checking Inspector that he did not pay any amount and he did not get ticket. Therefore, the Checking Inspector collected the bus fare and also imposed fine. The other passenger told the Checking Inspectors that he had paid Rs.3/- to the 2nd respondent/conductor as soon as he boarded the bus at Ammapettai. He further said that the 2nd respondent having received rupees three did not issue ticket to him to travel upto Thanjavur. The Checking Inspector recorded the statement of the passengers, collected relevant records maintained by the conductor and made a complaint about the same to the management. According to the Checking Inspector, when he enquired the 2nd respondent herein/conductor, he confessed to his guilt. But, he declined to give any written statement. The driver of the bus was present when the conductor and the passenger were examined. He made his signature to be a witness for the above occurrence.
3. Based on the above report of the Checking Inspector, a charge memo was issued to the 2nd respondent on 20.12.1996 levelling as many as five charges. Charge Nos. 1 and 2 relate to the failure of the 2nd respondent to issue ticket to the passenger after having received rupees three towards ticket fare. Charge No.3 relates to the fact that when the cash-bag was examined by the Checking Inspector, there was deficit to the tune of rupees five. Charge No.4 is in respect of denial of the 2nd respondent to receive the mahazar prepared at the spot by the Checking Inspector. Charge No.4 is that by his conduct, the 2nd respondent had brought disrepute to the corporation.
4. The 2nd respondent denied the above charges. Insofar as the charge Nos.1 and 2 are concerned, according to him, the passenger in question did not pay rupees three. He would further state that the passenger like the other passenger had failed to purchase ticket and thus, he was a ticketless traveller. In respect of charge No.3, he submitted that he spent rupees five for his personal expenses and he was under the impression that he could pay the same in the evening when the accounts are settled.
5. Having not satisfied with the said explanation, an enquiry was ordered. Before the enquiry officer, the Checking Inspector was examined and documents were all marked. More particularly, the statement of the passenger was also marked in evidence. But, the passenger was not examined. The driver of the bus was also not examined. Having considered the above evidences placed before him, the enquiry officer found the 2nd respondent guilty under all charges. Thereafter, based on the above findings, the 2nd respondent was dismissed from service.
6. Challenging the said order of dismissal dated 18.11.1997, the 2nd respondent raised an industrial dispute in I.D.No.74 of 1998 before the Labour Court, Cuddalore. In the claim statement, he raised an issue that the enquiry was not held fairly and properly. But, the labour court found that the enquiry was held fairly and properly. That finding has become final. Therefore, the labour court further proceeded to examine the records of the enquiry officer and finally came to the conclusion that except charge No.4, all other charges have not been proved. The labour court, therefore, directed reinstatement of the 2nd respondent without back wages, but with a punishment of stoppage of increment for two years with cumulative effect. The 2nd respondent workman is not aggrieved by the said award of the labour court. But, the petitioner management has come up with this writ petition challenging the award of the labour court.
7. In this writ petition, it is contended that the award of the labour court in holding that the charges, except charge No.4, have not been proved is patently error and perverse. The learned counsel for the petitioner would take me through the award of the labour court vis-a-vis the evidences let in before the enquiry officer to substantiate his contention that the findings of the labour court was perverse. The learned counsel would further point out that the labour court has found fault with the non- examination of the passenger. Thus, according to the learned counsel, it is an erroneous approach in law. For the said proposition, the learned counsel would rely on a judgement of the Hon'ble Supreme Court in State of Haryana and antoher v. Rattan Singh, (1977) 2 Supreme Court Cases 491.
8. The learned counsel for the petitioner would further submit that the rule of hearsay is not strictly applicable to the domestic enquiry. He would further add that from out of the evidences of the enquiry officer coupled with the statement made by the passenger, it has been clearly established that the 2nd respondent guilty of all the charges. In support of his contention, the learned counsel would rely on a judgement of the Hon'ble Supreme Court in J.D.Jain v. Management of State Bank of India, (1982) 1 Supreme Court Cases 143. Therefore, the award of the labour court needs interference at the hands of this court and the punishment of dismissal from service imposed by the disciplinary authority needs to be restored, the learned counsel for the petitioner contended.
9. Per contra, the learned counsel for the 2nd respondent stoutly oppose the writ petition. According to him, the findings of the labour court on a disputed question of fact cannot be interfered with by this court in a casual manner as the jurisdiction of the High Court(s) while examining the correctness of the award of the labour court is very limited.
10. The learned counsel would further submit that an award of the labour court could be quashed in a writ proceedings when it is found that the labour court has committed an error of law apparent on the face of the record or when the finding on fact by the labour court is perverse.
11. The learned counsel would also point out that in this case the award of the labour court is well considered wherein the labour court had elaborately discussed about the evidence available on record to come to a conclusion that the management has failed to prove the charges, except charge No.4. Since the said finding on facts is neither perverse nor is there any error apparent of law, according to the learned counsel, the award of the labour court in the instant case does not require any interference at the hands of this court at all.
12. The learned counsel would also point out that because of the non examination of the passenger of the bus, the statement made by the said witness cannot be treated as substantive evidence. He would further submit that though the said evidence is not hit by hearsay rule that, by itself, will not be sufficient to prove the disputed facts. The learned counsel would further submit that the evidence of the Checking Inspector will not go to prove that the passenger paid rupees three to the 2nd respondent and for that the petitioner did not issue ticket. The learned counsel would also submit that the award of the labour court does not require any interference at the hands of this court.
13. I have considered the above submissions and also perused the records very carefully.
14. Before going into the factual aspects of the matter, let us have a look into the legal principles involved in the instant case. It is the settled law that the power of this court under Article 226 of the Constitution of India for quashing the award of the labour court/industrial tribunal is very limited. For this purpose, the learned counsel for the 2nd respondent would refer to J.D.Jain's case, cited supra, wherein in paragraph 11, the Hon'ble Supreme Court has held as follows:-
"11. In an application for a Writ of Certiorari under Article 226 of the Constitution for quashing an award of an Industrial Tribunal, the jurisdiction of the High Court is limited. It can quash the award, inter alia, when the Tribunal has committed an error of law apparent on the face of the record or when the finding of facts of the Tribunal is perverse. In the case before us, according to the Tribunal, as Kansal was not examined, the evidence before it was hearsay and as such on the basis thereof the appellant could not be legally found guilty."
15. Keeping in mind the aforesaid limitations on the power of this court, let us now go into the other aspects of the matter. In the very same judgement, the Hon'ble Supreme Court has held that strict rules of evidence are not applicable in a domestic enquiry. Further, in Rattan Singh's case, cited supra, the Hon'ble Supreme Court has held that there is no allergy to hearsay evidence provided it has reasonable nexus and credibility. In paragraph 4 of the said judgement, the Hon'ble Supreme Court has laid down as follows:-
"4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair-play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgement vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passengers from American jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence - not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a ending is certainty available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground."
16. With the above legal back ground, let us now move on to the facts of the case. The fact that on the date of occurrence, six passengers boarded the bus at Ammapettai bus stop is not in dispute. Out of them, four passengers had received ticket after paying charges is also not in dispute. The distance between Ammapettai and Poondi is hardly six kilo meters. As it is evident from the evidences available on record, at Poondi, the Checking Inspectors intercepted the bus and checked the passengers. It is also not in dispute that during such checking, two passengers, who boarded the bus at Ammapettai were found without tickets. One passenger told the Checking Inspector that he did not pay any amount to the conductor and he did not receive ticket. Therefore, he was fined by the Checking Inspector. The last passenger was also found without ticket. It is not disputed by the 2nd respondent. According to the petitioner management, the passenger paid amount for purchasing ticket. But, the 2nd respondent, who received the amount, did not issue ticket. This is the only disputed question of fact. Regarding this, the labour court has analysed both, oral and documentary, evidences to come to the conclusion that the management has failed to prove the charges by establishing the fact that the passenger paid the amount towards fare, but in turn the 2nd respondent did not issue ticket. This is essentially a finding on a disputed fact. As has been held by the Hon'ble Supreme Court in J.D.Jain's case, cited supra, such finding on fact cannot be interfered with by this court in this writ proceedings, unless it is shown to this court that there is either error apparent on record or such finding on fact is perverse. As has been consistently held by the Hon'ble Supreme Court, if it is a finding on no evidence, certainly, such finding will be called as perverse and on that basis, the finding will be interfered with by this court. But, if it is a finding on some evidence and if such evidence has been appreciated by the labour court, this court cannot lightly interfere with the same by reappreciating the entire evidence so as to substitute its own conclusion in the place of the conclusion arrived at by the labour court.
17. In this case, the learned counsel for the 2nd respondent would submit that there is not only an error apparent on record, but also the finding of the labour court is perverse. The learned counsel would submit that the labour court has found fault with the management in not examining the passenger. This approach is an error apparent on the face of the record, according to the learned counsel for the petitioner. It is only to substantiate this contention, the learned counsel relies on the judgement of the Hon'ble Supreme Court in Rattan Singh's case, cited supra. A perusal of the said judgement would go to show that the Hon'ble Supreme court has reiterated the law that hearsay evidence is not allergic to domestic enquiry, but the nexus and credibility should established. It is also stated that the essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Here, one of the rules of natural justice, is to afford sufficient opportunity. Such opportunity is not an empty formality and it should be effected. In Rattan Singh's case, cited supra, a point was taken that in similar circumstances, the passenger, who travelled in the bus without ticket, was not examined. It was on that ground the courts below had held that the charges had not been proved. But, the Hon'ble Supreme Court held that the evidence of the Checking Inspector was very much available, which is substantive. The said evidence of the Checking Inspector is corroborated by the other circumstances. The Hon'ble Supreme Court did not say that the statement made by the Checking Inspector itself would be substantive to prove the disputed question of fact. But, in this case, the disputed fact is not as to whether the passenger travelled without ticket or not. That is of course an admitted fact. But the disputed fact is as to whether the passenger paid amount or not to the conductor towards bus fare. The conductor has deposed that he did not receive any amount at all from the passenger in question. Therefore, the fact, as to whether the amount was paid or not, is within the exclusive knowledge of only the passenger. To prove the said fact, the evidence of the passenger would have not only been relevant, but also material. But, the passenger has not been examined. The statement made by the passenger before the Checking Inspector alone has been produced. The labour court has not rejected that statement as inadmissible by applying the rule of hearsay. The labour court has admitted the same in evidence and has also appreciated the same in accordance with law. It is not as though the labour court has rejected the statement of the checking inspector in the instant case. But on the ground of non-examination of the passenger, who made the statement, the labour court has appreciated the statement and has given cogent reasons as to why the contents of the statement cannot be believed as true. Virtually, the labour court has given finding that the version of the passenger that he had paid rupees three to the conductor, but the conductor did not, in turn, issue ticket to him, cannot be believed. Thus, the disputed question of fact has been analytically analysed to come to the conclusion that the management has failed to prove that the passenger paid the amount to the conductor. If the labour court has rejected the statement of the passenger on the ground that the passenger had not been been examined, then, as it is pointed out by the learned counsel for the petitioner, it can be said that it is error apparent on record or such finding is perverse. But,the labour court has not done so. As I have already pointed out, the labour court has admitted the statement in evidence, appreciated the same and has rejected the same saying that it does not contain the truth. For a moment, I have to repeat that the labour court has not applied the rule of hearsay to reject the statement of the passenger. But, the labour court has rejected the same as unbelievable. This finding is of course on facts. Since there is no perversity shown by the petitioner or any error apparent , as has been held by the Hon'ble Supreme Court consistently, this court cannot reappreciate the entire evidence so as to substitute its own finding in the place of the finding recorded by the labour court.
18. Nextly, coming to the judgement in J.D.Jain's case, upon which much reliance has been placed by the petitioner, that was a case where the delinquent cashier manipulated a withdrawal slip of one Mr.Kansal to withdraw more amount from the account than what was given by the account holder Mr.Kansal. So, Mr.Kansal preferred a complaint to the Branch Manager about the same. During domestic enquiry, Mr.Kansal was not examined. A point was taken before the Hon'ble Supreme Court that non examination of Mr.Kansal is fatal and, therefore, the complaint given by Mr.Kansal should not be given any weightage of. While considering the said objection, the Hon'ble Supreme Court found that though Mr.Kansal was not examined, the person in whose presence Mr.Kansal preferred complaint to the Branch Manager have been examined. Thus, the fact that the said complaint was given to the Branch Manager has been nexus. Apart from that the Hon'ble Supreme Court has also accepted the evidence of those persons in whose presence the delinquent made a confession. To make it more understandable, let us know extract paragraph 23 of the said judgement which reads thus:-
23. In the instant case, the alleged misconduct of the appellant was that he forged documents, withdrew Rs. 1500 Rs.1000 in excess of the amount he was authorised to do and misappropriated the excess amount of Rs.1000. With regard to the fact whether the appellant manipulated the documents, withdrew excess amount and misappropriated it, there is, of course, no direct evidence of any eye witness except the appellant's 'confession' referred to above. The evidence on which reliance has been taken by the respondent is the confession and circumstantial evidence, namely, the authority letter containing the admitted interpolations by the appellant in his own handwriting in different ink, and the addition of the digit '1' before 500. The evidence of Kansal would have been primary and material, if the fact in issue were whether Kansal authorised the appellant to make the alterations in the authority letter. But Kansal's complaint was to the contrary. For the purpose of a departmental enquiry complaint certainly not frivolous, but substantiated by circumstantial evidence, is enough. What the respondent sought to establish in the domestic enquiry was that Kansal had made a verbal complaint with regard to the withdrawal of excess money by the appellant in presence of the four witnesses, namely, Wadhera, Gupta, Ramzan and Sarkar, aforesaid, against his advice. On the complaint of Kansal, the evidence of these four witnesses is direct as the complaint is said to have been made by Kansal in their presence and hearing; it is therefore, not hearsay. As the respondent has succeeded in proving that a complaint was made by Kansal on the evidence of the above-named four witnesses, the respondent has succeeded. No rule of law enjoins that a complaint has to be in writing as insisted by the Tribunal.
19. A close reading of the above judgement would go to show that based on the evidence of the persons in whose presence Mr.Kansal made complaint, the labour court has come to the conclusion that such complaint was given. But, the Hon'ble Supreme Court has not held that by production of the said statement, the contents of the statement have been proved. The Hon'ble Supreme Court has taken the complaint only as a substantive evidence to support the confession, which was given by the delinquent in the presence of witnesses. The Hon'ble Supreme Court has held that in respect of the fact that complaint was given, the evidence of the witnesses in whose presence it was made is direct and not hearsay. In the case on hand, in respect of the fact as to whether the amount was paid by the passenger or not, there is no confession by the 2nd respondent and in fact, he has denied the same. Though the checking inspector has stated that the 2nd respondent gave an oral confession, the same has been disbelieved by the labour court. That finding cannot be reversed by this court as the same cannot be stated to be perverse. The written statement given by the passenger by way of complaint cannot be treated as substantive evidence and mere production of the same will not go to prove the disputed facts contained therein. That is the law laid down by the Hon'ble Supreme Court in J.D.Jain's case, cited supra. To repeat, I would say that the fact that the statement was given by the passenger to the checking inspector has been proved, but, the contents therein have not been proved. This has been correctly appreciated by the labour court. Thus, I do not find any perversity at all in the findings of the labour court. Therefore, the findings of the labour court that all the charges except, charge No.4, have not been proved cannot be interfered with.
20. Now coming to the proved charge [charge No.4], the learned counsel for the petitioner would submit that the punishment imposed is far less. I do not find any substance in the said argument inasmuch as for mere failure to receive the report of the Checking Inspector, punishment of stoppage of increment for two years with cumulative effect will be appropriate. Therefore, the question of enhancing the sentence does not at all arise.
21. Now coming to the back wages, it is the settled law that it is for the workman to plead and prove that during the interregnum period, he was not elsewhere employed gainfully. In the instant case, there is no neither pleading nor evidence to show that the 2nd respondent was not employed gainfully during the interregnum period during which he was out of employment. Therefore, the 2nd respondent is not entitled for back wages. To that extent, the award of the labour court needs interference at the hands of this court.
22. In the result, the writ petition is allowed in part in the following terms:-
(i) the punishment of stoppage of increment for two years with cumulative effect is confirmed;
(ii) the award of the labour court directing reinstatement of the 2nd respondent in service with continuity of service is also confirmed. But, the award of the labour court, in respect of back wages, is set aside and it is directed that the 2nd respondent shall not be entitled for back wages from the date of dismissal till date of reinstatement in service.
(iii) The award of the labour court is accordingly modified.
(iv) There shall be no order as to costs.
kmk To
1.The Managing Director, Tamil Nadu State Transport Corporation [Kumbakonam] Limited, Kumbakonam Railway Station New Road, Kumbakonam 612 001.
2.The Presiding Officer, Labour Court, Cuddalore