IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03-02-2010 CORAM : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P. No. 15509 of 2000 S. Sivam .. Petitioner Versus 1. The Presiding Officer Labour Court Madurai 2. The Management Tamil Nadu Arasu Transport Corporation Bye Pass Road Madurai 625 016 .. Respondents Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorari calling for the records relating to I.D. No.166 of 1994 on the file of the Labour Court, the first respondent herein and quash the award dated 22.12.1999 made therein. For Petitioner : Mr. D. Saravanan For Respondents : Mr. Rajnish Pathiyal for R2 ORDER The petitioner was a workman and employed as Driver in the second respondent state owned transport corporation. The petitioner was dismissed from service by an order dated 01.02.1994 of the second respondent on certain charges. The charge against the petitoner was that on 27.08.1992, while he was driving the bus, route No.320, morning shift, in a place near Mandiriodai from Madurai to Kariapatti, the bus met with an accident by dashing it against the standing tree. The petitioner was give a charge memo dated 01.09.1992 for which he submitted his explanation on 23.09.1992. After conducting an enquiry, the petitioner was dismissed from service. 2. The petitioner has raised an Industrial Dispute under Section 2 (A) (2) of the Industrial Disputes Act. The Conciliation Officer could not bring about an amicable resolution of the disputes, hence, a failure report was made. On the strength of the failure report, a claim statement was filed before the labour court on 04.07.1994. The Labour Court took up the dispute as I.D. No. 166 of 1994 and issued notice to the second respondent. The second respondent also filed a counter statement https://hcservices.ecourts.gov.in/hcservices/ dated Nil 1996 resisting the claim made by the workman. 3. Before the Labour Court, on the side of the petitioner, six documents were marked as Exs. W1 to W6. On the side of the management, Exs. M1 to M14 were filed. Before the labour court, the validity of enquiry conducted against the petitioner was considered as a preliminary issue. The labour Court, by an order dated 05.05.1999 held that the enquiry was conducted in accordance with the principles of natural justice. Thereafter, the matter was posted for further proceedings. There was a change in the office of the first respondent and the labour court Judge, who later took charge, dealt with the dispute and passed the impugned award on 22.12.1999. In Para No.7 of the impugned award, the following findings were decided. "7. It is well decided principle of law that once a competent authority had given a finding that the domestic enquiry about the charge was conducted properly, the burden of proving the fact that the punishment given, namely, termination of the petitioner in this case, is proper and in accordance with the provisions of law will not rest on the shoulders of the respondent. But any how, under Sec. 11 A of the Industrial Dispute Act, at this stage, it is for the Court to decide whether the punishment is proportionate to the proved misconduct laid down against the petitioner in the charges. As quoted above this Court already given a finding that the findings of the enquiry officer based on the domestic enquiry was not perverse. Therefore, I am of opinion that this Court need not give further finding regarding the perversity of the findings of the Enquiry Officer or Management. 4. It is rather unfortunate that the labour court did not keep in mind the true import of Section 11A of the Industrial Dispute Act. After perusing the order passed by his predecessor stating that the findings of the enquiry officer was not perverse, the labour court proceeded to deal with the issue on the proportionality of the punishment. After considering Standing Order 17, including the previous misconduct of the petitioner, the labour Court held that it cannot interfere with the quantum of punishment by exercise of its powers conferred under Section 11-A of the Industrial Disputes Act, thus saying, the impugned award came to be passed on 22.12.1999. It is this award which is under challenge in this writ petition. 5. The writ petition was admitted on 14.09.2000. On notice from this Court, the second respondent filed a counter affidavit on 15.03.2008 justifying the award passed by the labour Court. 6. The only question arise for consideration is whether the https://hcservices.ecourts.gov.in/hcservices/ labour Court kept in mind the true scope and import of Section 11A of the Industrial Disputes Act at the time of passing the impugned award. 7. Section 11A of the Industrial Disputes Act came to be introduced on 15.12.1971. As indicated in the aims and objects of the bills introduced in the parliament, it was specifically stated that such an amendment was necessary in view of the fact that India being a party to International Convention under resolution No. 119 of the International Labour Organisation and also to get over the judgment of the Supreme Court in (Indian Iron and Steel Company Limited vs. Their Workmen) AIR 1958 SC 130. Before introduction of the said section, the Supreme Court held that only in cases where enquiry was vitiated or perversity in the findings given in the domestic enquiry, the Court can interfere. In effect, what was largerly in the realm of satisfaction of the employer was made to be changed and the satisfaction of the Tribunal will be final as per the amendment. The said amendment came to be interpreted by the Supreme Court in (The Workmen of M/s. Firestone Tyre & Rubber Co., of India Pvt Limited., vs. The Management ando thers) AIR 1973 SC 1227. In dealing with Section 11-A of the Act, in Para Nos. 37 and 38, the Honourable Supreme Court observed as under:- "37. We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge. The Tribunal may also hold that theo rder of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way, the Tribunal will have to reappraise the evidence for itself. Ultimately, it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer replies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise https://hcservices.ecourts.gov.in/hcservices/ was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11A. 38. Another charge that has been effected by Section 11A is the power conferred on a Tribunal to alter the punishment imposed by an employer. If the Tribunal comes to the conclusion that the misconduct is established, either by the domestic enquiry accepted by it or by the evidence adduced before it for the first time, the Tribunal originally had no power to interfere with the punishment imposed by the management. Once the misconduct is proved, the Tribunal had to sustain the order of punishment unless it was harsh indicating victimisation. Under S.11A, though the Tribunal may hold that the misconduct is proved, nevertheless it may be of the opinion that the order of discharge or dismissal for the said misconduct is not justified. In other words, the Tribunal may hold that the proved misconduct does not merit punishment by way of discharge or dismissal. It can, under such circumstances, award to the workman only lesser punishment instead. The power to interfere with the punishment and alter the same has been now conferred on the Tribunal by S.11A. 8. If the dictum laid down by the Supreme Court referred to above is taken into account, the Tribunal will have to now decide whether the charge of misconduct against the petitioner was established by evidence on record and for coming to the conclusion either way, the Tribunal will have to re-appraise the evidence by itself. Under Section 11 A, full power is given to the labour court to go into the evidence and satisfy itself on both these points. The power now conferred on the labour court is that of an appellate court, but however, a perusal of para No.7 of the impugned award extracted above would indicate that the labour court did not keep in mind the jurisdiction conferred on it. While deciding the preliminary issue, on the question of validity of enquiry, the Court merely decides the procedure adopted in the enquiry. Finally, after rendering such a finding, it is a case for appreciation of evidence regarding the proof of misconduct. In the present case, the labour court made a short cut and decided the case only on the basis of the preliminary order passed by the labour court on an earlier occasion namely on 05.05.1999. This approach of the labour court cannot be appreciated and the award suffers from manifest error on the face of the record. 9. For the aforesaid reasons, the impugned award is set aside and the matter is remitted back to the labour court for fresh disposal from the stage of preliminary finding rendered on 05.05.1999 in I.D. No. 166 of 1994. The labour court is directed https://hcservices.ecourts.gov.in/hcservices/ to give preference for disposal of I.D. No. 166 of 1994 as it is already 16 years old and in any event, the labour Court shall dispose of the I.D. No. 166 of 1994 within a period of three months from the date of receipt of a copy of this order. Before deciding the matter, notice shall be given to both sides. 10. The writ petition is disposed of in the above terms. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rsh To The Presiding Officer Labour Court Madurai (with records if any) +1cc to Mr.D.Saravanan, Advocate Sr 6750 +1cc to M/s.Rajnish Pathiyil, Advocate Sr 6777 KG(CO) km/9.2. WP No. 15509 of 2000 https://hcservices.ecourts.gov.in/hcservices/