IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.04.2008 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.8499 of 1998 The Managing Director, Tamil Nadu State Transport Corporation, Formerly Anna Transport Corporation, Salem. .. Petitioner -Vs.- 1.The Presiding Officer, Industrial Tribunal, Chennai 104. 2. A.V.Subramanian .. Respondents PRAYER: Petition under Article 226 of The Constitution of India praying for the issuance of a writ of certiorari to call for the records relating to Petition No.111 of 1992 dated 16.11.1996 on the file of the Industrial Tribunal at Chennai and quash the same. For Petitioner : Mr.M.Ravi Bharathi For R2 : Mr.R.Purushothamadoss O R D E R The petitioner is the Anna Transport Corporation, now reconstituted as the Tamil Nadu State Transport Corporation. 2. Aggrieved by the order of the first respondent/Industrial Tribunal made in Approval Petition No.111 of 1992 dated 16.11.1996, the present writ petition has been filed. It is seen from the records that the second respondent/workman who was employed as a driver in the petitioner Corporation was continuously absent from 25.07.1991 without prior intimation. Since it would amount to a misconduct under clause 19 (1)(f) of the Certified Standing Orders, the workman was charge sheeted and an enquiry was conducted. In the enquiry, he admitted the charge and chose not to cross examine the witnesses. Thereafter, a second show cause notice was given and after getting his reply, he was dismissed from service. Since at that time an industrial dispute was pending between the workman and the Management with reference to Bonus as I.D.No.62 of 1982, an Approval Petition was filed before the first respondent Tribunal under Section 33(2)(b) of the Industrial Disputes Act, seeking for approval from the Tribunal. 3. Before the Tribunal, the petitioner Management marked documents as Ex.M.1 to Ex.M.11 and the Tribunal with its limited jurisdiction came https://hcservices.ecourts.gov.in/hcservices/ to the conclusion that the finding of the Enquiry Officer was not perverse. But having stated so, it embarked on the proportionality of the punishment imposed on the worker. Such an exercise is not permissible when the Tribunal exercises power under Section 33(2)(b) of the I.D.Act. However, the Tribunal held that in Ex.M.8 the petitioner had stated that the previous punishments are also unsatisfactory and since that was also a ground for dismissal and since the workman had not been given an opportunity and that no documents in this regard had been filed, that would vitiate the dismissal order. It also recorded that two telegrams were sent by the workman seeking leave and therefore, the Management cannot say he was absent and so saying, the approval was refused by order dated 16.11.1996. 4. The Management, aggrieved by the same, filed the writ petition and on 01.07.1998, this Court granted an interim order and subsequently the interim - stay was made absolute on 20.12.2002. Today, when the matter is called, Mr.M.Ravi Bharathi, learned counsel for the petitioner submits that the order of the first respondent Tribunal is illegal in as much as the Tribunal had gone into the merits of the case without deciding the validity of the enquiry conducted by the Management and also the perversity of the findings of the Enquiry Officer. Unless these preconditions are met, the question of the Tribunal looking into the evidence independent of the findings of the Enquiry Officer is impermissible. The further finding is that the previous records had been looked into without opportunity to the workman and not placing such material before the Tribunal will vitiate the final order of dismissal. 5. The counsel brought to the notice of this Court the recent Judgment of the Supreme Court in the case of the Management, Pandiyan Roadways Corporation Ltd. vs. N.Balakrishnan reported in 2007 AIR SCW 3595. The learned counsel brought to the notice the specific reference in paragraph Nos.19 and 20 from the said judgment, which are extracted below: "19.Ordinarily, although sub-clause (5) of Clause (17) of the Certified Standing Orders is required to be complied with, the same, in our opinion, would not mean that in a given situation, there cannot be any deviation therefrom. In a case where dismissal or removal of service is to be ordinarily followed, e.g. in a case of grave misconduct like misappropriation, strict enforcement of the rule may not be insisted upon. When, we say so, we are not oblivious of the law that an executive agency is ordinarily bound by the standard by which it professes its actions to be judged. [See Harjit Singh & another v. The State of Punjab & Another [2007) (3) SCALE 553]. But where a procedural provision merely embodied the principles of natural justice, in view of the decision of this Court in State Bank of Patiala (supra), the question as to whether the principle has been followed or not, will depend upon the fact situation obtaining in each case. [See Ashok Kumar Sonkar v. Union of India & Others [2007(3) SCALE 517]. 20. It will be useful to note that in State of Punjab and Others v. Sukhwinder Singh [(1999)SCC (L&S)1234], this https://hcservices.ecourts.gov.in/hcservices/ Court has held that the words "gravest act of misconduct" occurring in Rule 16.2(1) of the Punjab Police Rules need not be used in the order of punishment, as it can be found out from the factual matrix obtaining in each case." 6. Learned counsel also submitted that the said order is rendered with reference to the same State Transport Corporation and the Standing Order referred to therein is more or less identical to the Standing Order that was prevailing in the petitioner Corporation. 7. In the light of the above, it must be stated that the Tribunal had exceeded the jurisdiction conferred upon it under Section 33(2)(b) of the Industrial Disputes Act. In the light of the same, the writ petition is allowed and the impugned order of the first respondent Tribunal is set aside. However, there will be no order as to costs. 8. Notwithstanding, setting aside the order of the Tribunal, it is always open to the second respondent workman to raise an industrial dispute with reference to his dismissal, if he is so advised and the findings rendered herein are only prima facie nature and this will not prejudice any decision to be rendered by any adjudicating authority on such reference being made for adjudication. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar gms To The Presiding Officer, Industrial Tribunal, Chennai 104. +1 cc to Mr.M.Ravi Bharathi, Advocate, SR.No.22378. Ksk (Co) krd / 12.5.08 W.P.No.8499 of 1998 https://hcservices.ecourts.gov.in/hcservices/