Allowed

The Management of Tamil Nadu v. the Presiding Officer

Madras HC11 Jan 2017WP/4196/2003

Case brief

AI extract

What is this about?

The Court quashed a Labour Court award that reinstated a transport conductor as a new entrant without back wages. The Court held that since the dismissal was justified, no relief was available under Section 11-A of the Industrial Dispute Act. The writ petition was allowed.

What did the court decide?

The impugned award of the Labour Court in ID No.80/2000 dated 07.03.2002 is set aside. Payment made under Section 17-B is held non-recoverable.

The Management of Tamil Nadu Vs the Presiding… — Pension and Retirement Benefits | Madras HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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C O R A M

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The Honourable Mr.Justice P.N.Prakash

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Writ Petition No.4196 of 2003

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Date on which order was reserved : 16/12/2016 Date on which order delivered : 11/01/2017

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The Management of Tamil Nadu
State Transport Coporation
(Kumbakonam Div-II) Ltd.,
Periyamilaguparai,
Tiruchirapalli – 1 …… Petitioner
Vs.
1.The Presiding Officer,
Labour Court, Tiruchirapalli – 1.
2. V.V.Sankaran (Dead)
3. Merita
4. Penitta
5. Meegal Jeevamani ….. Respondents
(R3 to R5 impleaded as LRs vide
W.P..M.P.No.1019/2009 dt 17.12.2009)

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Petition filed under Article 226 of the Constitution of India to issue a writ or direction in the nature of a Writ of Certiorari calling for the records of the 1^st respondent in ID No.80/2000 dated 7.3.2002 and quash the same.

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For Petitioner : Mr.A.Kannan, For Mr. V.R.Kamalanathan For R3 to 5 : Mr.S.Saravanan, (N.A)

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O R D E R Heard.

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The above writ petition was filed by State owned Transport Corporation (Kumbakonam Division – II) and having their office at Tiruchirapalli. The writ petition challenges an Award passed by the 1^st Respondent Labour Court made in ID No.80/2000 dated 7.3.2002. By the aforesaid Award, the Labour Court granted the relief of reinstatement as a new entrant and without service

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https://hcservices.ecourts.gov.in/hcservices/

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continuity and back wages. The writ petition was admitted on 13.02.2003. Even at the time of admission, this Court passed the following order in W.P.M.P.5283 of 2003:

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“Interim Stay on condition that the petitioner complies with the requirements of Sec.17(b) of the Industrial Dispute Act. Notice.”

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Subsequently on 26.09.2003, on being reported that the aforesaid order was complied with, the Miscellaneous Petition was closed with the following order:-

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“The learned counsel for the petitioner states that the petitioner had complied with the condition imposed in the order dated 13.2.2003. Therefore the interim stay granted earlier is made absolute. This W.P.M.P. is closed.”

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However, during the pendency of the writ petition, unfortunately the original 2^nd Respondent workman died on 17.04.2007. This fact was brought to notice before the court on 19.10.2009. On receiving such information, the writ petitioner corporation filed W.P.M.P.1019 of 2009 to bring the legal representatives of the 2^nd Respondent. On 17.12.2009, this Court allowed the Application and substituted the Respondents 3 to 5 in the place of 2^nd Respondent.

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It is seen from the records that the 2^nd Respondent was appointed as a Conductor on 04.06.1985 and his last place of working was Manapparai Branch. On 31.7.1989, while he was a Conductor in the bus proceeding from Mannargudi to Tiruchirapalli, the bus was checked by the Checking Inspectors near Thanjavur Thoppu Kudisai Railway Gate. It was found that as per the invoice, there were 56 passengers, and 5 passengers were travelling with used tickets. When the same was found out, the half portion of the tickets was snatched by the 2^nd Respondent from the Checking Inspectors and put it in his mouth. When he was told that he will be taken to an hospital and the tickets will be retrieved from his mouth, he took out the tickets and threw it away from the running bus.

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There were also several irregularities in the invoice which did not tally with the ticket book. The Checking Inspectors issued 5 tickets to the ticketless passengers and made entries in the invoice that the 2^nd Respondent had misappropriated Rs.35/- belonging to the Corporation and that there was Rs.37/deficit in the bag held by the 2^nd Respondent. He was placed under suspension on 03.08.1999 pending enquiry. He was given a charge memo dated 07.08.1999. The 2^nd Respondent gave his explanation dated 14.08.1999. Since the explanation was not satisfactory, an enquiry officer was appointed, who held a domestic enquiry on

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31.08.1999. The enquiry officer gave his findings dated 08.09.1999 and found that charges were proved. After accepting the findings of the enquiry officer and also taking note of the fact that the 2^nd Respondent was involved for various misconducts on 13 occasions, they came to a provisional conclusion to dismiss the 2^nd Respondent from service.

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A second show cause notice dated 21.9.1999 was issued to him. After granting time extension sought for by the 2^nd Respondent, he submitted his reply dated 15.10.1999. The 2^nd Respondent was dismissed from service by an order dated 21.10.1999. Thereafter, he raised an industrial dispute before the Govt. Labour Officer at Tiruchirapalli under Sec 2-A of the I.D.Act. The Conciliation Officer after notice to the petitioner Corporation, held conciliation proceedings and as there was no settlement between the parties, he gave his failure report dated 08.05.2000.

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On the strength of the failure report, the 2^nd Respondent filed a claim statement before the 1^st Respondent Labour Court on 15.05.2000. The said dispute was taken on file as ID No.80/2000 and notice was issued. The 2^nd Respondent was represented by an authorised representative of his trade union. The petitioner Corporation entered appearance and filed a detailed counter statement dated 14.11.2000. On the strength of the pleadings, the Labour Court framed the following three issues:-

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a. Whether the charges against the petitioner

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(2^nd respondent herein) were proved?

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b. Whether the punishment given to the petitioner was excessive?

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c. To what relief he was entitled to?

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The Labour Court framed a preliminary issue with reference to the fairness of the domestic enquiry. By an order dated 10.10.2001, the labour court held that the domestic enquiry held was fair and proper. On the side of the workman (2^nd Respondent), no documents were filed. However, the petitioner Corporation filed 20 documents, which were marked as Exhibits R1 to R20. No oral evidence was let in.

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The labour court after going through the records of the domestic enquiry found that the charges levelled against the 2^nd Respondent were proved. But, however on the penalty, it found that for the proved misconduct, the punishment of dismissal was not excessive and that the 2^nd Respondent had conducted similar misconducts twice earlier and he had not corrected himself. Thereafter, the labour court went on a tangent and found that from the date of dismissal the 2^nd Respondent would have suffered by not having income and that he should not commit such

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misconducts in future and with a view to give him a last chance for correcting himself, he may be given a fresh employment without back wages and without service continuity. This alone according to the labour court will be just and proper.

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It will be useful to extract the exact text of the impugned award in this regard and it is as follows:-

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“kDjhuh; bra;j Fw;wj;jpw;F eph;thfj;jpw;F mspf;fg;gl;l ntiy ePf;fj; jz;lid mjpfkhdjpy;iy/ Mdhy; mth; ,nj nghd;w jtWfis Vw;fdnt ,uz;L Kiwfs; bra;Js;shh;/ mg;goapUe;Jk; mth; jd;id jpUj;jpf; bfhs;stpy;iy/ kDjhuh; ntiy ePf;fk; bra;jJ Kjy; thH;f;if elj;Jtjw;nf gzkpy;yhky; kpft[k; fc;≶gl;oUg;ghh;/ ,J nghd;w jtWfis ,dptUk; vjph;fhy';fspy; bra;ahky; ,Uf;f ntz;Lbkd;Wk;. mth; jpUe;Jtjw;F filrpahf xU re;jh;g;gk; mspf;Fk; bghUl;L kDjhuUf;F gzpj; bjhlh;r;rp. gpd; rk;gsk; kw;Wk; ,ju rYiffs; ,d;wp mtiu gzpapy; g[jpajhf gzp epakdk; bra;tJ nghy bra;tJ ePjp eyd; Kd;dpl;L rhyr; rpwe;jjhf ,Uf;Fbkd;W ,e;j ePjpkd;wk; fUJfpwJ/@

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(emphasis added)

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Only on the aforesaid basis, the labour court granted relief to the 2^nd Respondent workman by the impugned award dated 07.03.2002. Aggrieved by the same, the management of the Transport Corporation is before this court. However, the 2^nd Respondent workman did not file any writ petition challenging that portion of the award that denied him reinstatement with back wages and continuity of service. There was no argument on the question of fairness of the enquiry and the preliminary order passed by the labour court was also not under challenge.

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In this case, obviously the labour court thought it was exercising its power under section 11-A of the I.D.Act. Section 11-A of the I.D.Act reads as follows:

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“11A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of

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the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.”

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(emphasis added)

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It is only when the labour court is satisfied and records that the dismissal was not justified, the question of imposing a lesser punishment other than dismissal will arise. But in this case, the labour court had found that the dismissal was justified. Then, the question of invoking section 11-A for interfering with the imposed punishment may not arise.

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A division bench of this court in its judgment in Kanyakumari Automobiles (P) Ltd. vs P. Natarajan And Anr. (1983) ILLJ 323 Mad = (1982) 2 MLJ 303, held as follows:-

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“to grant relief under S. 11-A there must be a finding that the discharge or dismissal is not justified. Unless the Labour Court gives such a finding, it has absolutely no power to grant any other relief contemplated under S. 11-A of the Act such as award of lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require or any other relief. Thus the finding regarding the non-justification of discharge or dismissal is condition precedent for granting the other reliefs condition precedent for granting the other reliefs contemplated under S. 11-A. As far as the facts of the present case are concerned, there is a clear finding by the Labour Court that the misconduct is proved and that the punishment of dismissal from service for such a misconduct is also justified.” (emphasis added)

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In cases of conductors working in Transport Corporation having found guilty of non-issue of tickets, re-issue of tickets, allowing passengers to travel without tickets and also misappropriating monies of the Corporation, the Supreme Court in the last two decades has held that in such circumstances, the labour courts should not show sympathy and excise discretion under 11-A for granting relief. It is necessary if those references are indicated below:

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2001 (2) SCC 574 Karnataka State Road Transport Corporation v. B.S. Hullikatti

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2002 (10) SCC 330 (Regional Manager, RSRTC v. Ghanshyam Sharma)

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2003(3) SCC 605 (Regional Manager, U.P.SRTC, Etawah and others Vs. Hoti Lal and another)

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2004(8) SCC 218 (The Regional Manager, Rajasthan State Road Transport Corporation Vs. Sohan Lal)

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2005(7) SCC 338 (V. Ramana Vs. A.P. SRTC and others)

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2006(8) SCC 108 )State Road Transport Corporation, Dehradun Vs. Suresh Pal )

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2007 (4) SCC 627 U.P.SRTC Vs. Ram Kishan Arora :

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2008(12) SCC 131 (Uttaranchal Transport Corporation Vs. Sanjay Kumar Nautiyal)

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2009(7) SCC 552 (Rajasthan S.R.T.C. V. Kamruddin)

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2009 (8) SCC 772 (U.P.S.R.T.C Vs. Nanhe Lal Kushwaha)

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2010(6) SCC 555 (U.P. State Road Transport Corporation Vs. Suresh Chand Sharma)

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Thus, it is surprising that every year the Supreme Court had delivered on an average, one judgment, on the issue of Transport Conductors being granted relief by the labour courts, even after they were found misappropriating monies belonging to their employers and by not issuing tickets after collecting the fare. The Supreme Court constantly reminded that the amounts involved in such misappropriation is inconsequential in granting relief.

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Very recently, the Supreme Court in U.P.S.R.T.C Vs. Gopal Shukla & another (C.A.No. 2038 of 2012 dated 1.9.2015) almost dealt with the similar case and found fault with the labour court and high court in granting relief to workmen. It was observed as follows:

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“the irresistible conclusion is that both the Labour Court and the High Court have fallen in error by imposing a lesser punishment on the respondent-workman whereas the only punishment, on establishment of the charges which have been accepted by the labour court, should have been dismissal and not a lesser one.”

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The Supreme Court also in the very same judgment cautioned about the moral standards of the people being affected by corruption and the need to eliminate the corrupt tendencies. It was observed as under:-

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“It is so, as has been observed in Shobha Suresh Jumani v. Appellate Tribunal that there is a cancerous growth of corruption which has affected

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the moral standards of people and all forms of governmental administration. “

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“In Niranjan Hemchandra Sashittal v. State of Maharashtra , it has been observed that:-

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“.. corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. It is worth noting that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered. The only redeeming fact is that collective sensibility respects such suffering as it is in consonance with the constitutional morality.”

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“In the said case, it has also been observed that the degree of corruption is immaterial. In the case at hand, as we perceive, the delinquent employee has harboured the notion that when the cancerous growth has affected the system, he can further allow it to grow by covering it like an octopus, with its

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tentacles disallowing any kind of surgical operation or treatment so that the lesion continues. The whole act is reprehensible and such a situation does not even remotely commend any lenience.”

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In view of the above, the impugned award of the labour court suffers from manifest illegality and is liable to be interfered with. Accordingly, the impugned award in ID 80/2000 dated 07.03.2002 will stand set aside. However, during the pendency of the writ petition, it was noted earlier that the 2^nd Respondent was directed to be paid his last drawn wages, in terms of Section 17-B of the I.D. Act, vide order dated 13.02.2003. The learned counsel for the petitioner Corporation also reported compliance of the said order. In Dena Bank vs Kiritikumar T.Patel [1999(2) SCC 106], the Supreme Court held that the amounts paid by way of interim relief under section 17-B cannot be recovered, even if the award goes against the workmen. It was held as follows:-

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“the amount is not refundable or recoverable in the even of the award being set aside it would result in the employer being required to give effect to the award during the pendency of the proceeding challenging the award before the High Court or the supreme Court without his being able to recover the said amount in the event of the awarded being set aside.”

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Under the above circumstances, the writ petition stands allowed and the impugned award of the 1^st respondent labour court in ID No.80/2000 dated 07.03.2002 stands set aside. It is made clear that the payments made to 2^nd Respondent under section 17B cannot be recovered. However, the parties are allowed to bear their own costs.

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Sd/-
Assistant Registrar
//True Copy//
Sub Assistant Registrar
To:
The Presiding Officer,
Labour Court,
Tiruchirapalli – 620 001.
(with records if any)

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2 The Section Officer, VR Section, High Court, Madras 104

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+1cc to Mr.V.R. Kamalanathan, Advocate, S.R.No.2787 +1cc to Mr.S. Saravanan, Advocate, S.R.No.2786 rk(CO) md(01/02/2017) W.P.No.4196 of 2003

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The Management of Tamil Nadu v. the Presiding Officer

Case brief

What is this about?

What did the court decide?

The Management of Tamil Nadu v. the Presiding Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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