IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.01.2011 Coram The Hon'ble Mrs. Justice R.BANUMATHI W.P.Nos.17475 and 17476 of 2003 and W.P.M.P.No.21830 of 2003 The Management, Tamil Nadu State Transport Corporation Division I Ltd., Coimbatore. .. Petitioner in both the W.Ps Vs The Presiding Officer, Labour Court, Coimbatore. .. First respondent in both the W.Ps A.Gopalakrishnan .. Second respondent in W.P.No.17475/2003 Nagarajan .. Second respondent in W.P.No.17476/2003 Petitions filed under Article 226 of The Constitution of India praying to issue writs of certiorari to call for the records pertaining to the award dated 03.09.2002 passed in I.D.Nos.179 and 180 of 1998 on the file of the Labour Court, Coimbatore and quash the same. For Petitioner : Mr.T.Chandrasekaran For Respondents : Mr.Krishnasamy for R2 in both the W.Ps R1 - Court COMMON ORDER Aggrieved by the award passed in I.D.Nos.179 and 180 of 1998 (dated 03.09.2002) ordering reinstatement along with backwages from the date of filing of I.D., the Tamil Nadu Transport Corporation, Coimbatore Division has come forward with these writ petitions. https://hcservices.ecourts.gov.in/hcservices/ 2.The brief facts are that the second respondent(s) have joined the service of the petitioner Corporation as conductors on 07.11.1985 and 25.07.1986 respectively. During the relevant period, both the second respondent(s) were working in Gudalur branch of the Corporation. In November, 1990, there was acute scarcity of diesel (which arose in the context of war situation in Arab countries) and the Corporation had to reschedule many of its services with a view to effect economy in the consumption of diesel. On 03.11.1990, the second respondent in W.P.No.17475 of 2003 viz., Gopalakrishnan was asked to work in vehicle TML 4458 in Gudalur-Mullan Vayal route and was asked to take two single trips from 7.15 a.m. to 12.15 p.m. and again two singles from 6 p.m. to 9 p.m. After completion of two trips in the forenoon at about 1.30 p.m., the said Gopalakrishnan is said to have gone to the Traffic Controller and told him that he had completed his work and that he would not go for the afternoon trip; the Traffic Controller told that if he was not willing to work for the second half, he would be marked present only for the first half. Thereafter, at about 3 p.m., when the Traffic Controller was in the room of Branch Manager, the second respondent(s) are said to have gone to the room of the Branch Manager and behaved in a disrespectful manner and shouted at him. It is also alleged that the said Gopalakrishnan attempted to assault the Branch Manager. Both the second respondent(s) were charge sheeted for the serious acts of misconduct and also insubordination. A show cause notice was issued to the second respondent(s) and they have also submitted their explanation. Not being satisfied with the explanation, the second respondent(s) were charge sheeted and enquiry was conducted. In the enquiry, full opportunity was given to the second respondent(s) and both of them effectively participated in the enquiry and availed the opportunity given to them. On consideration of the facts on record, the enquiry officer found that the charges against the second respondent(s) were proved. A second show cause notice was issued to the second respondent(s) by enclosing a copy of the enquiry proceedings and also report of the enquiry officer proposing punishment of dismissal from service. They have submitted their explanation. Upon consideration of the explanation, both the second respondent(s) were dismissed from service. 3.Since certain proceedings in relation to the industrial dispute was pending before the Industrial Tribunal, Madras, the application under Section 33 (2) (b) of the Industrial Disputes Act was filed seeking approval of the action against the second respondent(s), which action was contested by the second respondent (s). By the order dated 16.05.1997, the Tribunal found that there was a prompt enquiry and that the charge of misconduct was proved and the Tribunal approved the action taken by the Corporation. 4.Thereafter, challenging the act of dismissal from service, the second respondent(s) have raised industrial dispute in I.D.Nos.179 https://hcservices.ecourts.gov.in/hcservices/ and 180 of 1998 respectively. By filing a detailed counter, the petitioner Corporation resisted the claim and contended that the punishment of dismissal was fully justified and there was no scope for any intervention under Section 11(A) of the Industrial Disputes Act. 5.Before the Labour Court, the workmen produced Ex.W1 and the management produced Exs.M1 to M27. No oral evidence was adduced. Upon consideration of the evidence and referring to the proceedings under Section 33 (2) (b) of the Industrial Disputes Act, the Labour Court found that the enquiry against the second respondent(s) was properly conducted. Referring to the past misconduct and having regard to the indisciplined conduct of the second respondent(s), the Labour Court found that the punishment of dismissal from service was justified. Upon consideration of Exs.M10 and M11 and the plea of the workmen, the Labour Court however stated that the second respondent(s) have already crossed 36 years of age and that there is no possibility for them being employed anywhere else and observed that the second respondent(s) ought to be reinstated on sympathetical and humanatarian grounds and the Labour Court ordered reinstatement with payment of backwages from the date of filing of I.D. i.e. 04.05.1998, which is the subject matter in these writ petitions. 6.Mr.T.Chandrasekaran, learned counsel for the petitioner Corporation has submitted that having found that the charges of indiscipline and misconduct have been proved, the Labour Court ought to have dismissed I.D.Nos.179 and 180 of 1998 on the ground of misconduct and serious misbehaviour by the second respondent(s). Learned counsel for the petitioner Corporation would further contend that having found that the order of dismissal was justified, the Labour Court ought not to have ordered reinstatement showing sympathy and indulgence to the second respondent(s). Insofar as ordering of backwages, learned counsel would further submit that there is no proper exercise of discretion in ordering the backwages. 7.Reiterating the findings of the Labour Court, learned counsel for the second respondent(s) submitted that it is the clear case of victimisation and unfair labour practice and having regard to the age of the second respondent(s), the Labour Court has rightly ordered reinstatement on sympathetical grounds and the exercise of discretion by the Labour Court cannot be interfered with. 8.As pointed out earlier, even in the proceedings before the Industrial Tribunal, when an application under Section 33 (2) (b) of Industrial Disputes Act was filed seeking approval of the action taken against the second respondent(s), the Tribunal found that there was prompt enquiry and that the charge of misconduct was proved. Referring to the enquriy conducted and the proceedings before the Industrial Tribunal, the Labour Court rightly held that the enquiry was properly conducted. As rightly contended by the learned counsel https://hcservices.ecourts.gov.in/hcservices/ for the petitioner Corporation, having found that the charges have been proved, the Labour Court ought not to have exercised its discretion under Section 11(A) of the Industrial Disputes Act. 9.However, in view of the subsequent developments, this Court may not interfere with the order of reinstatement of the second respondent(s). Learned counsel for the second respondent(s) has submitted that after the award, the second respondent(s) were reinstated on 20.06.2003 and continue to be in service without any complaints. Since the order of the Labour Court in directing reinstatement has already been given effect to, at this distant point of time, this Court is not inclined to interfere with the order of reinstatement. Insofar as the payment of backwages, ordering of backwages depends upon the number of years of service which the workman has worked and the nature of misconduct and such other factors. The Labour Court, having found that the charges of misconduct have been proved and that the enquiry was also properly held, ought not to have exercised its discretion in ordering backwages. Since there is no proper exercise of discretion in ordering backwages, the order of the Labour Court in ordering backwages from the date of filing of I.D. is liable to be set aside. 10.The order of the Labour Court in I.D.Nos.179 and 180 of 1998 dated 03.09.2002, ordering backwages from the date of filing of I.D. is set aside and these writ petitions are partly allowed. Insofar as the award of the Labour Court in ordering reinstatement, the same is confirmed. The interregnum period between the date of order of dismissal till the actual date of reinstatement shall be taken into account for continuity of service alone and for the limited purpose of pensionary benefits. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar mmi To The Presiding Officer, Labour Court, Coimbatore. 2 ccs To Mr.T.Chandrasekaran, Advocate, SR.969 1 cc To Mr.V.Ajoy Khose, Advocate, SR.1131 W.P.Nos.17475 and 17476 of 2003 KGK (CO) RH (31.1.11) https://hcservices.ecourts.gov.in/hcservices/