Madras High Court
The Management Of vs Anbazhagan .. 1St on 26 November, 2010
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.11.2010 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.22280 of 2003 and W.P.No.49749 of 2006 The Management of Pallavan Transport Corporation, Rep. By its General Manager Anna Salai, Chennai 600 002 Now renamed as Metropolitan Transport Corporation Ltd., Chennai 600 002. .. Petitioner in WP.22280/2003 .. 2nd Respondent in WP.49749/2006 Vs 1.Anbazhagan .. 1st Respondent in WP.22280/2003 .. Petitioner in WP.49749/2006 2.The Presiding Officer, I Additional Labour Court, Chennai 600 104. .. 2nd Respondent in WP.22280/2003 .. 1st Respondent in WP.49749/2006 Prayer in WP.22280/2003: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari calling for the records relating to the Award dated 05.09.2002 made in I.D.No.633 of 1996 on the file of the Labour Court, Madras, the 2nd Respondent herein and quash the same. Prayer in WP.49749/2006: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, after calling for the records relating to the Award dated 05.09.2002 passed in I.D.No.633 of 1996, quash the portion of the Award declining 50% backwages and consequently, direct the 2nd Respondent to pay full backwages for the period of non-employment, Award costs. For Petitioner in WP.22280/2003 & For 2nd Respondent in WP.49749/2006 : Mr.G.Muniratnam For 1st Respondent in WP.22280/2003 & For Petitioner in WP.49749/2006 : Mr.S.T.Vardarajulu 2nd Respondent in WP.22280/2003 & 1st Respondent in WP.49749/2006 : Labour Court COMMON ORDER
W.P.No.22280 of 2003: The Petitioner/Management has filed the present Writ Petition as against the Award dated 05.09.2002 in I.D.No.633 of 1996 on the file of 2nd Respondent (I Additional Labour Court, Chennai) in directing the Writ Petitioner/Transport Corporation to reinstate the 1st Respondent/Claimant into service with 50% backwages, with continuity of service and all other benefits.
W.P.No.49749 of 2006: The Writ Petitioner/Claimant has filed the present Writ Petition as against the Award dated 05.09.2002 in I.D.No.633 of 1996 passed by the 1st Respondent (I Additional Labour Court, Chennai) in quashing the portion of the Award declining 50% of backwages and consequently to direct the 2nd Respondent/Transport Corporation to pay full backwages for the period of non-employment to award costs.
2.The Labour Court in I.D.No.633 of 1996 has passed an Award on 05.09.2002 in holding that the Writ Petitioner/Transport Corporation has proved the charges 1, 4 and part of 2nd charge and hence, the extreme punishment of dismissal is not sustainable and the punishment is an excessive and not proportionate to the charges proved and further opined that since the 1st, 4th and part of 2nd charges are grave in nature, severe punishment should be awarded in order to maintain the discipline among the co-workers and resultantly, set aside the punishment of removal from service of the 1st Respondent/ Claimant (Writ Petitioner in W.P.No.49749 of 2006) and passed an Award directing the Petitioner/Transport Corporation to reinstate the 1st Respondent/Claimant (Writ Petitioner in W.P.No.49749 of 2006) in service with 50% of backwages with continuity of service and all other attendant benefits and allowed the I.D. without costs.
W.P.No.22280 of 2003:
3.The Learned Counsel for the Writ Petitioner/Transport Corporation urges before this Court that the Award of the Labour Court in I.D.No.633 of 1996 dated 05.09.2002 is contrary to law, weight of evidence and probabilities of the case and further the charges leveled against the 1st Respondent/Claimant are serious in nature and therefore, the major punishment of dismissal ought to have been awarded by the 2nd Respondent (I Additional Labout Court, Chennai).
4.Advancing his arguments, the Learned Counsel for the Petitioner submits that the 2nd Respondent/Labour Court has not appreciated the facts that the 1st Respondent/Claimant failed to discharge his duties at the time of inspection made by the Checking Inspectors and moreover, he misbehaved with the Checking Inspectors and assaulted him for which a criminal complaint registered against him.
5.According to the Learned Counsel for the Petitioner/Transport Corporation, the 2nd Respondent/Labour Court without appreciating the evidence on record has incorrectly held that the Domestic Enquiry has not been conducted in a fair and free manner though witnesses and documents have been examined and marked on respective sides and added further, without looking into the relevant available material evidence on record, has held that the Petitioner/Transport Corporation has proved charge Nos.1, 4 and part of 2nd charge, which has resulted in miscarriage of justice. As regards the other part of second and third charges, the Second Respondent/Labour Court has held that they have not been proved.
6.In all, four charges have been framed against the First Respondent/Claimant in W.P.No.22280/2003 (Petitioner in W.P. No.49749/2006). The first charge against the First Respondent/Claimant is that he got back the sold tickets from the passenger for the purpose of reissuing the same and not filled up the traffic report and part of the second charge relates to that he attacked the Checking Inspector Sambasivam and the fourth charge pertains to his misbehaviour in the presence of other co-workers. The third charge relates to losing of Rs.533.60p being the sale proceeds of the tickets.
7.Expatiating his arguments, it is the contention of the Learned Counsel for the Petitioner/Transport Corporation that the 2nd Respondent/Labour Court has failed to take into account of the fact that the 1st Respondent/Claimant has been keeping old tickets to resale the same with an intention to misappropriate the funds of the Petitioner/Transport Corporation and that apart, the 1st Respondent/ Claimant has endeavoured to stop all the vehicles plying on the road and thereby created an ugly scene before the public, which too has not been considered by the 2nd Respondent/Labour Court in a proper perspective.
8.Drawing the attention of this Court to the observation of the 2nd Respondent/Labour Court in the Award in I.D.No.633 of 1996 dated 05.09.2002 to the effect that the 1st Respondent/Claimant got back the sold tickets to resell the same and misbehaved with the officials, then, the order of dismissal from service should have been passed against the 1st Respondent/Claimant thereby confirming the order of dismissal passed by the Petitioner/management, but unfortunately that has not been resorted to by the 2nd Respondent/Labour Court.
9.Proceeding further, the Learned Counsel for the Petitioner/ Transport Corporation contends that the 1st Respondent/Claimant with a view to prolong the enquiry has willfully absented himself though number of opportunities have been provided to him but not attended even after acknowledging the enquiry notice and this has not been taken into account by the 2nd Respondent/Labour Court and even in the Domestic Enquiry findings, a lady passenger has clearly reported to the Deputy Manager at the time of incident while Checking Inspector collecting the tickets, the tickets have been thrown out by the 1st Respondent/Claimant and at the time of enquiry made by the Checking Inspector, the 1st Respondent/Claimant raised his voice at high pitch.
10.Lastly, it is the plea of the Petitioner/Transport Corporation that even a single grave misconduct is sufficient to award major punishment without without referring to past conduct of the individual and since the 2nd Respondent/Labour Court exercised the power under Section 11A of the Industrial Disputes Act in an improper fashion, the Award passed by the Labour Court in directing the Petitioner/Transport Corporation to reinstate the 1st Respondent/Claimant with continuity of service etc. along with 50% backwages is to be set aside by this Court to promote substantial cause of justice, in view of the fact that the order of dismissal has been approved by the Competent Authority in the Approval Petition No.12/92 which has not been taken into account by the 2nd Respondent/Labour Court.
W.P.No.49749 of 2006:
11.The Learned Counsel for the Writ Petitioner (1st Respondent/ Claimant in W.P.No.22280 of 2003) submits that the Labour Court has failed to appreciate the provisions of law in a real perspective and that it is the evidence of the Writ Petitioner/Claimant before the Labour Court that Sambasivam has taken the tickets from the passenger, punched them, has torn the transport report and has thrown the same inside the bus. But witness M.W.1 has stated that the Writ Petitioner/Claimant has torn the transport report and thrown them outside the bus. But the Labour Court has failed to appreciate the evidence the evidence tendered by the Writ Petitioner/Claimant and that apart, when the Labour Court has rejected the evidence of M.W.1 relating to his statement as stopping of all the vehicles plying on the road by the Writ Petitioner/Claimant, then, the Labour Court ought to have held that the 2nd charge has not been proved but the contra finding that the part of 2nd charge has been proved is not correct based on record.
12.The Learned Counsel for the Writ Petitioner/Claimant (1st Respondent in W.P.No.22280 of 2003) contends that no prudent person will come to the conclusion that an individual can attack 4 persons unless he knows fight and it is not impossible to attack 4 Checking Inspectors inside the bus by a conductor and before the Labour Court in regard to the injury sustained by the Writ Petitioner/Claimant, a hospital slip has been produced and that has not been considered by the Labour Court which has resulted in an erroneous finding being rendered to the effect that the 2nd charge has been partly proved.
13.Also, it is the contention of the Learned Counsel for the Writ Petitioner/Claimant that except the evidence of M.W.1, no material has been placed before the Labour Court to substantiate the charge that the Writ Petitioner/Claimant created scene in the public place, but inspite of the same, the Labour Court has incorrectly held that charge No.4 has been proved and therefore, prays for allowing the Writ Petition No.49749 of 2006.
14.The 1st Respondent/Claimant's (Petitioner in WP.49749/2006) has projected in 2-A(2) Petition under Industrial Disputes Act, 1947 in I.D.No.633 of 1996 before the 2nd Respondent/Labour is that he has been appointed as a Conductor in the Writ Petitioner/Transport Corporation by virtue of order dated 29.08.1980. His last drawn wage has been Rs.1,926.30 paise. On 29.04.1989, he has been on duty in bus route No.18V/L, on its way from Vandalur to Broadway and the Checking Inspectors Sambasivam, Peer Mohideen, Govindasamy and Dhanapal have made an inspection of the bus. The Checking Inspector Sambasivam required the passengers who have been getting down from the bus to show him the ticket and the two passengers have informed him, they missed the ticket. The passengers at that time have been forced to give in writing that the conductor has not issued ticket after receiving the ticket fare but they refused. The Checking Inspector Sambasivam snatched the ticket from the 1st Respondent/ Claimant and has torn them and further snatched the money from his bag and when he tried to prevent them, the Checking Inspector Sambasivam, Govindasamy and Dhanapal all joint together and assaulted him and therefore, he has become unconscious. He has taken treatment in the Government Hospital and has lodged a complaint to the Petitioner/ Transport Corporation and Police Station. Subsequently, the Writ Petitioner/ Transport Corporation issued a charge memo dated 15.05.1989 to him and he has been suspended by means of an order dated 08.05.1989. He submitted his explanation on 23.06.1989. The Petitioner/Transport Corporation received the explanation and withdrew the suspension order and transferred him to Vadapalani Depot. On the basis of complaint given to the Police Station by the 1st Respondent/Claimant and the Checking Inspectors, a case has been filed against them and that the Petitioner has been acquitted on26.06.1991. Since the explanation submitted by the 1st Respondent/ Claimant has not been found to be a satisfactory one, a domestic enquiry has been conducted not in a fair and proper manner. The 1st Respondent/Claimant has been issued with a show cause notice on the basis of findings of the Enquiry Officer. He has submitted his explanation to the second show cause notice. However, without considering his explanation, the Petitioner/Transport Corporation dismissed the 1st Respondent/Claimant on 04.12.1991. The non-employment of the 1st Respondent/Claimant is an illegal, unjust and violation of principles of natural justice. Since no conciliation has arrived at in regard to the dispute raised by him pertaining to the non-employment before the Conciliation Officer, the 1st Respondent/ Claimant has been constrained to file the Writ Petition No.49749 of 2006 before this Court.
15.The stand of the Writ Petitioner/Transport Corporation (Management) is to the effect that the 1st Respondent/Claimant has been employed as a Conductor and on 29.04.1989 while he has been on duty in Bus No.18V 'L' service in Fleet No. of 906, on its way from Vandalur to Broadway has been intercepted at Wellington Bus Stop, Mount Road by the Checking Inspectors Sambasivam, Peer Mohideen, Govindasamy and Dhanapal and by entering the bus on inspection it has been found out the 4 passengers as one group are not possessing the tickets with them and on questioning, they have mentioned that although 4 tickets at the rate of Rs.1.30 each have been purchased by them, the same have been taken back by the Conductor and the Checking Inspectors asked the 1st Respondent/Claimant to furnish the traffic return and the ticket bundles and that the 1st Respondent/ Claimant has given the traffic return first and on verification it has been noticed that no proper entries have been made at all and the 1st Respondent/Claimant instead of handing over the ticket bundles have thrown the same under the last seat i.e. 6 numbers seat (meant for ladies) of the bus and he snatched away the traffic return from the hands of Sambasivam, Checking Inspector and has torn the same and has thrown out of the window. Because of the attitude of the 1st Respondent/Claimant, the bus, moving slowly, has been made to stop and one of the Checking Inspectors got down from the bus and picked the traffic return. The ticket bundles, collected from the last seat on inspection, revealed that there have been loose tickets of the denominations i.e. 4 x Rs.1.30; 3 x 1.35; 6 x 1.35 and 11 x 1.75, which have already been punched and have been kept in the respective denominations with an intention to resell the same.
16.The 1st Respondent/Claimant suddenly pulled out the ticket bundles from the Checking Inspector's hands and scolded Sambasivam continuously and then assaulted him. Further, he started abusing the Checking Inspectors in filthy language. During this period, the bus has been moving and has come near the Head Office of the Petitioner/ Transport Corporation at Pallavan Salai, the bus has been made to stop and the Checking Inspector Sambasivam and Peer Mohideen has given inside the office to report about the unruly behaviour of the 1st Respondent/Claimant and also about the assault. On coming to know of the incident, the Deputy Manager Santhanakrishnan rushed out of the office and has gone to the bus. The 1st Respondent/Claimant has been going on abusing the other two Checking Inspectors. He also learned out of the window and shouted at the top of his voice in Tamil that 'unjustly case is writing and all to stop the vehicle' etc.
17.The Checking Inspectors who sustained injuries have been taken to the General Hospital and have been treated as out-patients. As the acts committed by the 1st Respondent/Claimant amounted to misconducts of very serious nature, the Writ Petitioner/ Transport Corporation suspended him from service with effect from 30.04.1989 pending disciplinary action. Thereafter, charges have been levelled against the 1st Respondent/Claimant as per Memo dated 15.05.1989. Since the explanation submitted by the 1st Respondent/Claimant dated 23.06.1989 has been found to be unsatisfactory, a Domestic Enquiry has been conducted and he has not participated in the enquiry and the enquiry has been adjourned to various dates like 05.09.1990, 05.10.1990, 20.10.1990, 07.11.1990, 23.11.1990 and 14.12.1990.
18.Even when the 1st Respondent/Claimant has been informed about the enquiry to be held on 14.12.1990 though he has received the intimation in regard to the conduct of enquiry he has not attended the same and again the enquiry has been adjourned to 25.01.1991. The Petitioner conducted the enquiry ex parte examined the management witnesses and the Enquiry Officer, on the basis of records and evidence, has come to the conclusion that the 1st Respondent/ Claimant has been guilty of charges levelled against him. The 1st Respondent/Claimant has been issued with a second show cause notice consequent to the findings of the Petitioner/ Transport Corporation and because of the fact that the explanation of the 1st Respondent/ Claimant has not been satisfactory, considering the seriousness of the misconduct, the past conduct and since there have been no extenuating circumstances he has been removed from service as per order dated 04.12.1991. Only against the said order of dismissal from service, the instant Industrial Dispute has been raised.
19.W.W.1 (1st Respondent/Claimant) before the Labour Court, in his evidence, has deposed that when the Bus 18 V bearing Registration No. of 906 Route No.18 V has been proceeding from Vandalur to Broadway at the Wellington Bus stand, the Checking Inspectors conducted ticket checking in the bus on 29.04.1989 at about 12.30 p.m., in which he has been the conductor in the bus and at the time of checking two passengers have informed that they have purchased tickets from Pallavaram to Wellington Bus stand and the tickets have been missed and this can be enquired into with the Conductor and that the Checking Inspector Sambasivam informed the passengers that inspite of money being paid by them tickets have not been issued and to that effect a statement be given for which they replied that such a statement they will not furnish and that immediately the Checking Inspector Sambasivam has got the ticket bundles from him and torn the same haphazardly and punched the same and subsequently has beat him and he and Sambasivam have given a Police complaint, based on which two cases have been filed and finally in two cases both of them have been acquitted and that the Petitioner/ Transport Corporation has conducted a Domestic Enquiry against him levelling charges and in the enquiry, he has not been given enough opportunity.
20.It is the further evidence of W.W.1 that on 25.01.1991 in his absence the enquiry has been completed and that the enquiry has not been conducted properly and further he has not been given adequate opportunity and therefore prays for cancellation of the Domestic Enquiry Proceedings.
21.Moreover, it is the evidence of W.W.1 for the enquiry dated 07.11.1990 and 23.11.1990 he has not taken part and he has assigned reasons for the same in writing to the Management and totally for the three dates of enquiry which he has not attended he has given reasons for the same to the Management and since he has not been well, he has not attended the second enquiry and apart from the above, after receipt of the second show cause notice he has not admitted for the conduct of a fresh enquiry.
22.The evidence of M.W.1 is to the effect that he knows the 1st Respondent/Claimant (Writ Petitioner) and he has served as a Conductor and when he served as a Conductor on 29.04.1989 in Route Bus No.18 V, he inspected the bus bearing Registration No.TN.OE.906 proceeding from Vandalur Zoo to Broadway and he checked the bus at Wellington Bus stop at 12.30 p.m., Sambasivam, Peer Mohideen (Checking Inspectors) and while checking it has been found out that 4 passengers have not been in possession of tickets and when Sambasivam asked the passengers as to why they are not kept the bus tickets with them, they replied that the tickets have been demanded by the Conductor (1st Respondent/Claimant) and they have returned to him.
23.It is the further evidence of M.W.1 that Sambasivam (Checking Inspector) has asked for a report from the conductor and at that time he and two other Checking Inspectors have been present and the Conductor's Traffic Report is Ex.M.1 in which the notes have not been fully written and completed and when they asked the Conductor (W.W.1) as to why he has not filled up the Ex.M.1-Traffic Report, immediately the 1st Respondent/Claimant (W.W.1) has snatched the said report from Checking Inspector Sambasivam and after tearing it, has thrown them out and the other Checking Inspector Peer Mohideen has brought the Traffic Return after bringing it from out side the vehicle and when they demanded the ticket bundle from the 1st Respondent/Claimant (W.W.1) he has thrown the bundle outside the bus and the Checking Inspector Dhanapal has taken the thrown out bundle and when they saw the bundles, in the bundles already sold tickets are found and the already sold tickets for Rs.1.35 three in number, Rs.1.55 ticket 6 in number and Rs.1.75 ticket 11 in number and they are Ex.M.2 (series) and when Sambasivam asked the 1st Respondent/Claimant (W.W.1) as to whey he has been doing that, he has beat him and that Sambasivam shouted that he has been beaten and when the incident of beating taking place the vehicle has been running.
24.M.W.1 adds in his evidence that the bus has stopped in front of the Pallavan Transport Corporation Head Office and Checking Inspector Peer Mohideen has gone inside the Head Office to complaint about the incident and Divisional Manager Santhanakrishnan has come inside the bus and at the time when Peer Mohideen has gone for making a complaint, he has been inside along with Dhanapal another Checking Inspector and that the 1st Respondent/Claimant (W.W.1) has remand inside the bus and remanding into bus the 1st Respondent/Claimant (W.W.1) has waved his hands to stop the other vehicles and when he asked him as to whey he has been conducting like this, immediately he has beat him on his left cheek and later he has got down from the bus and asked the other vehicles to stop but the other vehicles have not stopped and the Divisional Manager has sent him, Dhanapal and Sambasivam to the Hospital and the 1st Respondent/Claimant (W.W.1) has beat Dhanapal and that he does not remembered the place where he has beat him and the report submitted to Deputy Manager (Accident Section) is Ex.M.3.
25.M.W.1 in his cross examination has deposed that the 1st Respondent/Claimant (W.W.1) has thrown the ticket bundle inside the bus which he has seen and he does not remembered as to who has taken them and their team have taken 20 tickets and he does not know specifically as to who has taken the tickets and in Ex.M.3-Complaint he has stated that the 1st Respondent/Claimant (W.W.1) has punched him on the face and the three injured persons on the date of accident have gone to Government Hospital for treatment.
26.It is the evidence of M.W.2 (Peer Mohideen another Checking Inspector) that at the time of checking of the 18 V bus E 906 on 29.04.1989 they have found that 4 passengers have remained without tickets in their hands and when they asked them as to why they have not purchased the tickets, they informed that they have paid the amount and bought the tickets from the Conductor, but the Conductor has asked for the return of the tickets from that and they have handed over the tickets to him and that the tickets relates to denomination of Rs.1.30 paise and when they verifying the Traffic Return obtained from the Conductor (W.W.1) they found out that the 'stage' has not been properly filled up and they have also got the other ticket bundles from the Conductor and also added subsequently that they asked for the bundles and the Conductor (W.W.1) has thrown the ticket bundles in the ladies seat portion on the backside of the bus and another Checking Inspector Sambasivam who has been with him has taken the ticket bundles and that the said ticket bundles have already been an used one and the said copies are Ex.M.2 (Rs.1.35 paise denomination tickets 3, Rs.1.55 denomination tickets 6 and Rs.1.75 denomination tickets 11).
27.It is the further evidence of M.W.2 that Checking Inspector Sambasivam has asked the bus driver to stop the vehicle and after the bus has stopped he has taken the Traffic Report which has been torn and squeezed by the 1st Respondent/Claimant and the said copy is Ex.M.1 and that he has pasted/affixed the same properly and in other respects, since the witness repeats the same evidence of M.W.1, this Court is not repeating the same.
28.M.W.3 (Legal Superintendent) in his evidence has stated that the copy of Charge Memo dated 15.05.1989 given to the 1st Respondent/ Claimant (W.W.1) is Ex.M.5 and the dismissal order of the 1st Respondent/Claimant dated 04.12.1991 is Ex.M.6 and his past record copy is Ex.M.7 and further that in Ex.M.6-Dismissal Order, the past record of the 1st Respondent/Claimant is mentioned like he has committed two major misconducts and 4 minor misconducts.
29.The Learned Counsel for the Petitioner/ Transport Corporation cites the decision of Honourable Supreme Court U.P.State Road Transport Corporation V. Basudeo Chaudhary and Another (1997) 11 Supreme Court Cases 370 at page 372 wherein at paragraph 5 and 6 it is, among other things, observed as follows:
"5... Having regard to the misconduct that has been found established against the petitioner, it is not possible to say that the Corporation, in removing the petitioner from service, has imposed a punishment which is disproportionate to the misconduct. We are, therefore, unable to uphold the judgment of the High Court.
6.The appeal is accordingly allowed, the judgment of the High Court is set aside and the award of the Labour Court is restored. No orders as to costs."
30.He invites the attention of this Court to the decision Karnataka State Road Transport Corporation V. B.S.Hullikatti (2001) 2 Supreme Court Cases 574 at page 575 wherein it is held thus:
"As the respondent had been in service as a Conductor for nearly 22 years, it is difficult to believe that he did not know what was the correct fare which was to be charged. The principle of res ipsa loquitur, namely, the facts speak for themselves, is clearly applicable in the instant case. Charging 50 paise per ticket more from as many as 35 passengers could only be to get financial benefit, by the Conductor. This act was either dishonest or was so grossly negligent that the respondent was not fit to be retained as a Conductor because such action or inaction of his is bound to result in financial loss to the appellant Corporation. Therefore, the order of dismissal should not have been set aside, but as in the meantime the respondent has already superannuated, on the special facts of the case, the order of reinstatement need not be set aside. But it is directed that the respondent would not be entitled to any back wages at all but he would be entitled to the retiral benefits."
31.He brings it to the notice of this Court to the decision of Honourable Supreme Court in Employers in relation to the Management of West Bokaro Colliery of M/s.TISCO Ltd., V. The Concerned Workman, Ram Pravesh Singh AIR 2008 Supreme Court 1162 wherein it is held that 'The standard of proof in criminal proceedings and Disciplinary proceedings are different and the Disciplinary Proceedings is not barred by the acquittal of delinquent in criminal proceedings."
32.Apart from the above, the Learned Counsel for the Petitioner/ Transport Corporation cites the following decisions:
(a)In State of Haryana and another V. Rattan Singh 1982 (1) LLJ 46 the Honourable Supreme Court has held that '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 a reasonable nexus and credibility. It is true that departmental authorities and administrative Tribunal must be careful in evaluating such material and should not glibly follow what is strictly speaking not relevant under the Indian Evidence Act. The essence of judicial approach is objectivity, exclusion of extraneous matters 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 judgment vitiates the conclusions reached. Such finding even though of a domestic tribunal cannot be held good.'
(b)In Workmen of Balmadies Estates V. Management Balmadies Estates and others (2008) 4 SCC 517 the Honourable Supreme Court has among other things held that 'Moreover, all materials which are logically probative including hearsay evidence can be acted upon provided it has a reasonable nexus and credibility etc.'
(c) In Talwara Co-operative Credit Service Society Ltd., V. Sushil Kumar 2008 (5) CTC 377 at page 378 the Honourable Supreme Court has held that 'This Court in a large number of cases noticed the paradign shift in the matter of burden of proof as regards gainful employment on the part of the employer holding that having regard to the provisions contained in Section 106 of the Indian Evidence Act, the burden would be on the workman. The burden, however, is a negative one.
If only the same is discharged by the workman, the onus of proof would shift on to the employer to show that the concerned employee was in fact gainfully employed.'
(d)In Management of Sri Ram Coffee Estate V. Presiding Officer, Labour Court, Coimbatore and Another 2002 (1) LLJ 220, this Court has held that 'once second respondent took different stand as to manner in which incident occurred, burden of proof shifted to him to that extent and the Second respondent has not discharged burden of his case and as second respondent already reinstated by employer, order of Labour Court modified to one of reinstatement without back wages.'
(e) In the order in W.A.No.2010 of 2005 dated 31.07.2008 the Division Bench of this Court has held as follows:
"4.So far as the present case is concerned, it is evident from the award that the workman never pleaded that while he was out of service, he was not in gainful employment in any other organisation or department. In the absence of such pleading, we are of the view that the workman could not have claimed for backwages. Only if such pleading could have been made, the management would have got an opportunity to show whether the workman was in gainful employment in any other organisation or department. In the absence of such pleading made by the workman, it was not open for the learned single Judge to interfere with the award passed by the labour Court. The order dated 22nd September, 2004 passed by the learned Single Judge in W.P.No.9808 of 1997 is accordingly set aside. The writ appeal is allowed, but there shall be no order as to costs. Consequently, W.A.M.P.No.3691 of 2005 is closed."
(f) In B.Govindaswamy V. 1.Inspector General of Police, Law and Order Chennai-2 and 2 others 2009 (5) CTC 160 at page 162 this Court has held that 'Thus, the law is settled in the Constitutional Bench judgment in Tulsi Ram's case that a person holding a civil post, has no Constitutional right to make a further representation on the proposed penalty, in a disciplinary proceedings.
... The 42nd Constitutional amendment has taken way the right of a delinquent to put forth his plea on the proposed penalty and therefore, he cannot insist that at the time of calling for further representation, if the Disciplinary Authority had proposed to consider his past misconduct and record of service, he should indicate his mind in the said notice. Therefore, while imposing the punishment, it is permissible to take into consideration the past record of a delinquent, even if it is not mentioned in the notice, calling for further representation or in the punishment order."
(g) In Janatha Bazar (South Kanara Central Cooperative Wholesale Stores Ltd.), Etc. V. Secretary, Sahakari Noukarara Sangh, Etc. AIR 2000 Supreme Court 3129 the Honourable Supreme Court has held that 'in regard to the charges of breach of trust and misappropriation of goods established, Reinstating the employee in service, unjustified and the fact that misappropriation is for small or large amounts, or that past record of employee is unblemished, irrelevant.'
(h)In Yoginath D. Bagde V. State of Maharaashtra and another AIR 1999 Supreme Court 3734 the Honourable Supreme Court has inter alia held that '... The decision of Disciplinary Committee for dismissing delinquent officer from service should be treated as decision of Full Court and that the decision need not be circulated to all individual Judges of High Court for seeking their opinion.'
(i)In U.P. SRTC V. Mahendra Nath Tiwari and another (2006) 1 Supreme Court Cases 118 the Honourable Supreme Court has held that 'it is a misconception to consider the amount involved in such offence, though it may be relevant in a criminal prosecution when considering quantum of punishment and when person like conductor of a bus is found to have passengers in the bus, even if it be only one passenger, to whom he had not issued a ticket, it clearly amounts to a clear violation of the duty imposed on him and the same is the position regarding the twelve used tickets and that prima facie raises doubt as to his honesty and the conductor did not even try to explain the circumstances in that regard and if these are not enough to find conductor of bus guilty of misconduct, one wonders what according to High Court would be misconduct on part of conductor of a bus and the conduct of the respondent as conductor was totally irresponsible and clearly deserved maximum punishment of dismissal."
33.However, the Learned Counsel for the 1st Respondent/ Claimant relies on the decision of Honourable Supreme Court G.M., O.N.G.C. Shilchar V. O.N.G.C. Contractual Workers Union 2008-II-LLJ-1071 (SC) wherein it is held that 'the Tribunal is entitled to lift veil to determine the nature of employment and his scope of interference with the factual findings of the Labour Court by High Court is very limited, only in cases of patent illegality or perversity etc.'
34.He also cites the decision of this Court The Management of Eswaran and Sons Engineers (P) Limited c. III Additional Labour Court, Madras and Another 1997 (1) LLJ 698 wherein the Division Bench of this Court has held that 'the order of punishment is vitiated because no notice was given to the worker before taking into account the past record of service to the prejudice of the worker.'
35.In the decision Santhanam R v. Madura Coats Limited, Tuticorin represented by its Industrial Relations Manager and Another 2007 (2) LLJ 285, the Division Bench of this Court has held that 'the Labour Court's modification of dismissal punishment by ordering reinstatement without backwages, proper.'
36.In Pandian Roadways Corporation Limited v. The Presiding Officer and Others CDJ 2007 MHC 4409 the Division Bench of this Court has among other things held that 'The first respondent Labour Court having applied its mind in every respect while analysing the evidence while reaching the conclusion about the proof of misconduct levelled against the second respondent, we do not find any scope to interfere with the award of the labour court while directing the reinstatement of the 2nd Respondent by deprivation of 50% of backwages, which will meet the ends of justice.
37.Continuing further, the Learned Counsel for the 1st Respondent/Claimant has cited the following decisions:
(a) In Scooter India Limited, Lucknow v. Labour Court, Lucknow and Others 1989 (1) LLJ 71 at page 73 the Honourable Supreme Court has observed that 'The Labour Court has taken the view that justice must be tempered with mercy and that the erring workman should be given an opportunity to reform himself and prove to be a loyal and disciplined employee of the petitioner company etc.'
(b) In Palghat BPL & PSP Thozhilali Union v. BPL India Limited and Another 1996-II-LLJ 335 the Honourable Supreme Court has held that 'The Labour Court had discretion under Section 11 A of the I.D. Act to consider the quantum of misconduct and the punishment. The Labour Court was well justified in taking a lenient view an din setting aside the order of dismissal. The discretion exercised by the Labour Court was, in the opinion of the Supreme Court proper and justified in the circumstance of the case. The Labour Court was directed to decide whether the workmen were gainfully employed from the date of dismissal till reinstatement, in order that the management's liability to pay back wages might be determined."
38.The clause 26(2)(c) of the Standing Orders applicable to the Employers of Pallavan Transport Corporation Limited, Madras as certified by the Appellate Authority under the Industrial Employment (Standing Orders) Act, 1946 refers to as follows:
"(c) If one the conclusion of the enquiry, or as the case may be of the criminal proceedings, the workman has been found guilty of the charges framed against him and it is considered after giving the workmen concerned a reasonable opportunity of making representation on the penalty proposed that an order of dismissal or suspension or fine or stoppage of annual increment or reduction in rank would meet the ends of justice, the employer a hall pass an order accordingly."
39.Also, the Standing Orders Clause 27(f) page 26 reads as follows:
"(f)In awarding punishment, the punishing authority shall take into account the gravity of the acts of commission and omissions, the previous records of the workman and or any other extenuating or aggravating circumstances that may exist."
40.A conductor of a bus, being an employee employed in a Transport Corporation holds the post of trust and confidence as opined by this Court. The word 'Mis' means badly. The term 'conduct' means behaviour. The term 'misconduct' as a relative term. In law and ordinarily the term 'misconduct' employees an Act done wilfully with a wrong intention.
41.When there is fiduciary relationship between employer and employee, the conduct of an employee must be of good faith.
42.When an employer looses the confidence upon a workman, then, in such event, the Labour Court cannot exercise its discretion in the considered opinion of this Court.
43.A court is not empowered to substitute the punishment of removal of a workman unless it shocks its judicial conscience.
44.If an enquiry is fair, a Labour Court has no power to interfere punishment as per decision GENERAL SECRETARY, SOUTH INIDA CASHEW FACTORIES WORKERS UNION V. THE MANAGING DIRECTOR, KERALA STATE CASHEW DEVELOPMENT CORPORATION LIMITED, AIR 2006 SC 2208.
45.This Court recalls the decision of the Hon'ble Supreme Court in MAHINDRA & MAHINDRA LIMITED, V. N.B.NARAVADE, AIR 2005 SC 1993, whereby and whereunder it is held that 'A Labour Court should interfere with the punishment under Section 11A of the Industrial Disputes Act only when it is disturbing to the conscience and it is highly disproportionate to the misconduct.
46.Also, this Court aptly points out that the quantum of punishment will not be interfered with by the Labour Court unless it is perverse or unreasonable.
47.Under Section 11 A of the Industrial Disputes Act 1947, a Labour Court should act as a Revisional Court and not as an Appellate Court, as opined by this Court.
48.In the instant case, the 2nd Respondent/Labour Court has not borne in mind of the fact that the Industrial Tribunal in Approval Petition No.12/92 filed by the Petitioner/ Transport Corporation under Section 33(2)(b) of the Industrial Disputes Act, 1947 has approved the dismissal of the 1st Respondent/Claimant and resultantly allowed that petition with no costs on 30.01.1996. As a matter of fact, the Industrial Tribunal in A.P.No.12/92 has rendered a categorical finding that 'the enquiry has been conducted giving reasonable opportunity to the 1st Respondent/Claimant and there is nothing to infer that there is a victimisation or unfair labour practice, in dismissing the respondent.'
49.Admittedly, the 1st Respondent/Claimant has not taken part in the Domestic Enquiry Proceedings inspite of numerous opportunities provided to him. The Enquiry Officer in his report/findings dated 25.01.1991 has clearly held that the 4 charges levelled against the 1st Respondent/Claimant have been proved. Later, a final order dated 04.12.1991 removing him from service has been passed by the Petitioner/Transport Corporation.
50.This Court, after going through the findings of the Domestic Enquiry dated 25.01.1991 and also on an appreciation of the oral and documentary evidence let in before the 2nd Respondent/Labour Court in I.D.No.633 of 1996, comes to an inevitable conclusion that the Petitioner/Transport Corporation has proved the charges 1 to 4 as against the 1st Respondent/Claimant to the subjective satisfaction of this Court and since the 1st Respondent/Claimant has lost the confidence of Petitioner/Transport Corporation and since his good faith and confidentiality are found lacking and all the more when he has assaulted the concerned Checking Inspectors (examined as Management Witnesses), this Court is of the considered view that the order of dismissal of the 1st Respondent/Claimant is the proper and appropriate punishment and the same is not a disproportionate one considering the facts and circumstances of the case in a cumulative fashion and as a matter of fact, the 2nd Respondent/Labour Court cannot exercise its discretion under Section 11A of the Industrial Disputes Act, 1947 to alter the punishment of dismissal dated 04.12.1991 passed by the Petitioner/Transport Corporation and in the present case, the 2nd Respondent/Labour Court has wrongly exercised its discretion in ordering the reinstatement of the 1st Respondent/ Claimant in service with 50% of backwages with continuity of service and all other attendant benefits and hence, this Court is perforced to interfere with the Award passed by the 2nd Respondent/Labour Court in I.D.No.633 of 1996 dated 05.09.2002 and accordingly, sets aside the same by allowing the W.P.No.22280 of 2003 filed by the Petitioner/ Transport Corporation and upholds the order of dismissal passed by the Petitioner/Transport Corporation dated 04.12.1991.
51.In the result, the W.P.No.22280 of 2003 filed by the Transport Corporation/Management is allowed. Resultantly, W.P.No.49749 of 2006 filed by the Writ Petitioner (1st Respondent/ Claimant in W.P.No.22280/2003) is dismissed. There shall be no order as to costs in both the Writ Petitions.
52.A payment received by a workman during pendency of proceedings as mentioned under Section 17B of the Industrial Disputes Act is in the nature of Subsistence Allowance and will not be adjustable on any score.
53.In the present case, if the Petitioner/ Transport Corporation has not paid the Section 17B wages as per the Industrial Disputes Act, 1947 to the 1st Respondent/Claimant from the date of dismissal of W.M.P.No.1968 of 2004 dated 25.09.2007 till the disposal of W.P.No.22280 of 2003, then, the Petitioner/Transport Corporation is directed to pay the same after calculating the amount due, if any (deducting amount already paid), for the concerned period within a period of four weeks herefrom failing which, (if need be) it is open to the First Respondent/Claimant (Petitioner in W.P.49749/2006) to initiate appropriate Claim Petition before the competent forum as per Section 33(c)(2) of the Industrial Disputes Act, 1947 viz., Computation of monetary benefits and to seek appropriate remedy against the Petitioner/Transport Corporation.
Sgl To
1.The Presiding Officer, I Additional Labour Court, Chennai 600 104.
2.The General Manager, The Management of Metropolitan Transport Corporation Ltd., Anna Salai, Chennai 600 002