IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.2.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.19483 and 28764 of 2003 The Managing Director Tamil Nadu State Transport Corporation (Salem Division II) Limited Bharathipuram, Dharmapuri – 5. .. Petitioner in WP:19483/2003 and 2nd respondent in WP:28764/2003 Vs. 1. Kalaiselvan .. 1st respondent in WP:19483/2003 and petitioner in WP:28764/2003 2. The Presiding Officer Labour Court, Salem. .. 2nd respondent in WP:19483/2003 and 1st respondent in WP:28764/2003 PRAYER in WP:19483 of 2003: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorari to call for the records dated 16.9.2002 made in I.D.No.386 of 1998 on the file of the second respondent and quash the same. PRAYER in WP:28764 of 2003: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records from the first respondent relating to the award in I.D.No.386 of 1998, dated 16.9.2002 and quash that portion of the said award dated 16.9.2002 which upholds the findings of the Enquiry Officer and denies the relief of full back-wages to the petitioner and to direct the respondent to pay full back-wages to the petitioner. For Petitioner : Mr.M.Ravi Bharathi in WP:19483/2003 and 2nd respondent in WP:28764/2003 https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.S.Ayyathurai in WP:28764/2003 and 1st respondent in WP:19483/2003 ORDER These writ petitions are filed challenging the award of the Labour Court, Salem dated 16.9.2002 passed in I.D.No.386 of 1998. While W.P.No.19483 of 2003 has been filed by the respondent before the Labour Court (management), W.P.No.28764 of 2003 has been filed by the petitioner before the Labour Court (workman). 2. For the sake of convenience, the parties are referred to as per their rank before the Labour Court. 3.1. The petitioner, who is a B.E. Graduate in Mechanical Engineering joined in the services of the respondent/Tamil Nadu State Transport Corporation, Salem Division in the year 1985 as Assistant Engineer, in which post he was stated to be confirmed in the year 1986. He was issued a charge memo on 19.6.1993, for which he has submitted his explanation denying the charges. The Enquiry Officer appointed conducted enquiry and submitted his report holding the petitioner guilty. The charge being that he has left the work spot 40 minutes before the completion of duty hours. The respondent has issued a second show cause notice, to which also the petitioner has submitted his explanation. Thereafter, the respondent has framed two more charge memos, received explanations from the petitioner, conducted enquiry, issued second show cause notices, received further explanations and thereafter dismissed him from service on 24.1.1995. 3.2. It was against the said order of dismissal, the petitioner has raised an industrial dispute after the conciliation failed. The Labour Court, after trial, has found that the non employment of the petitioner by the respondent is unjustified and directed reinstatement, but without back-wages. While the respondent has filed W.P.No.19483 of 2003 challenging the order of reinstatement, the petitioner has filed W.P.No.28764 of 2003 challenging the denial of back-wages. 3.3. While it is the case of the petitioner that the Labour Court has failed to consider that the findings of the Enquiry Officer are perverse and therefore, the denial of back-wages is improper, it is the case of the respondent that the petitioner was allotted duty on 18.3.1993 between 1400 hours and 2200 hours and he has absconded from duty at 2120 hours, which was found by the Audit Committee. A charge memo was issued on 19.6.1993, for which explanation was submitted on 22.6.1993 and the Enquiry Officer found the charges proved. A second show cause notice was issued on 16.4.1994, for https://hcservices.ecourts.gov.in/hcservices/ which also the petitioner has submitted explanation and ultimately, on 24.1.1995, the petitioner came to be dismissed. 3.4. It was the case of the respondent that the last drawn salary of the petitioner was Rs.3,744/- per month and he was discharging supervisory work in the managerial capacity and therefore, he was not a "workman" as per Section 2(s) of the Industrial Disputes Act, 1947 (for brevity, "the Act") and he left duty on 19.6.1993 at 2120 hours without prior permission. 3.5. The award is challenged by the respondent on various grounds, including that the Labour Court has failed to take note of the fact that the petitioner was working in a supervisory capacity; that the petitioner was previously involved in a similar charge and therefore, he was liable for punishment of dismissal; that the enquiry was conducted indisputably in a fair and proper manner observing the procedure contemplated under law and the principles of natural justice; that the respondent is the authority to decide about the quantum of punishment and therefore, the Labour Court has erred in interfering with the punishment, while exercising its power under Section 11A of the Act, especially when the misconduct is grave in nature; and that in disciplinary proceedings the standard of proof required is preponderance of probabilities and not proof beyond reasonable doubt for the purpose of deciding the delinquency. 4. It is seen that as against the petitioner, the respondent has issued three charge memos on 19.6.1993, 4.10.1993 and 16.4.1994. In the charge framed on 19.6.1993, it is stated by the respondent that on 18.6.1993, the petitioner was to work between 1400 Hours and 2200 Hours, however by 2120 Hours he left abruptly without obtaining permission from higher authorities and that is opposed to the Model Standing Orders. 5. The petitioner has submitted his explanation denying the charge. In respect of the said charge, the Enquiry Officer conducted enquiry on 3.8.1993, in which two management witnesses were examined, who were subjected to cross-examination by the petitioner and that apart, the petitioner was also examined and the Enquiry Officer has submitted his report on 3.8.1993 to the effect that the petitioner having known that he is expected to be present till the time of his employment has absconded from duty at 2120 Hours and therefore, the charge stands proved. 6. In respect of the said first charge, a second show cause notice was given by the respondent on 14.9.1993 by enclosing the report of the Enquiry Officer, directing the petitioner to submit his explanation for the proposed punishment of dismissal from service. The petitioner has in fact submitted his explanation on 25.9.1993 pleading for lesser punishment. https://hcservices.ecourts.gov.in/hcservices/ 7. On 4.10.1993, a second charge memo was issued against the petitioner by the respondent to the effect that on 29.9.1993, when inspection was conducted by the Assistant Manager, Hosur Division and he was asked as to whether any vehicle has been stationed for the purpose of monthly inspection, the petitioner has stated in the negative, while a bus No.0312 was stationed, for which the petitioner has stated that it was not brought to his knowledge and therefore, the charge was that the petitioner was negligent in performing his function. The petitioner has submitted his explanation for the said second charge on 14.10.1993 denying the charge stating that he was busy in organising the meeting of supervisors. 8. In respect of the said charge, the Branch Manager has submitted his report on 17.11.1993 stating that the petitioner has been in the habit of not performing his functions properly and only sitting in the office idly. Domestic enquiry was conducted on 12.2.1994 and the Enquiry Officer submitted his report holding the petitioner guilty. The report of the Enquiry Officer was submitted to the petitioner along with the second show cause dated 16.4.1994 stating as to why he should not be terminated from service, for which the petitioner has submitted his further explanation on 7.5.1994. 9. The third charge memo was issued to him on 23.11.1993, which relates to various instances, viz., (i)that in respect of a bus bearing No.0312, Hosur to Puttaparthi, the period of FC has expired on 10.11.1993 and without sending it for extension of FC, the vehicle has been sent to the route; (ii)that he failed to note that bus bearing No.0440 has involved in an accident on 9.11.1993 and when asked on 10.11.1993 as to whether the vehicle was released, he has put a question as to whether the vehicle was involved in an accident and that shows the negligence; (iii)that he has failed to take the vehicle 0313 from Krishnagiri on 10.11.1993 from the renewal section; (iv)that in spite of the specific instruction that the special buses run on the day of Deepavali on 10.11.1993 are to be entered in the registers by keeping the alternate bus ready, wantonly he has sent the alternate buses on the route; (v)that he has failed to inform about the accident that took place on the night of 10.11.1993; (vi)that he has failed to send the alternate vehicle on 10.11.1993 and there has been certain dispute among the workers in that regard; and (vii)that he has failed to take any further action in respect of the bus which has failed to go out of the station on 10.11.1993 at 2115 Hours and it was only after the Branch Manager has directed the driver to take the bus, the bus was taken. https://hcservices.ecourts.gov.in/hcservices/ 10. The petitioner has given his explanation on 17.2.1994 denying the charges. The Enquiry Officer, in his report dated 12.4.1994, found that the petitioner was guilty of the charges and thereafter, the second show cause notice was issued on 16.4.1994, for which the petitioner has submitted his explanation on 7.5.1994. Ultimately, the final order of dismissal was passed against him on 24.1.1995. 11. The fairness of the domestic enquiry conducted is not in dispute. Before the Labour Court, on the side of the petitioner no witness was examined, while on the side of the respondent, one witness was examined. On the side of the petitioner two documents were marked as Exx.W1 and W2, while on the side of the respondent, 28 documents were marked as Exx.M1 to M28. The Labour Court has also found that the domestic enquiry has been conducted in a fair manner and principles of natural justice have been followed and opportunity has been given to the petitioner. 12. While deciding about the issue as to whether the petitioner was a "workman" as per Section 2(s) of the Act, considering the case of the respondent that the petitioner was doing supervisory work in allotting work to the employees and taking note of the evidence of the management witness M.W.1 that the petitioner was working under him and further evidence that the petitioner has no right of making appointment of employees or to take any disciplinary action against any erring employees and that he cannot give any memo to any of the workers and he has no jurisdiction to grant batta or incentive bonus to the workers and that granting leave to the workers is only within the jurisdiction of the Branch Manager and that the charge memo issued to the petitioner itself was based on the Model Standing Orders, the Labour Court has held, in my view, correctly that the petitioner was a workman and therefore, the industrial dispute was maintainable. 13. In Burmah Shell Oil Storage and Distribution Company of India Limited v. The Burma Shell Management Staff Association and others, [1970] 3 SCC 378, while construing the meaning of "workman" under Section 2(s) of the Act, which is as follows: "Section 2(s): "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person - https://hcservices.ecourts.gov.in/hcservices/ (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature." in the context of the duty of the Transport Engineer appointed, who was to supervise and ensure that the skilled and unskilled manual workmen employed under him are properly doing the work of repair, maintenance, etc., and taking note of the fact that he allocates and reallocates work and takes disciplinary action against the employees, it was held he was discharging supervisory functions. The Supreme Court has held as follows: "19. In determining the nature of employment of Mathai, and in holding that he is employed to do supervisory work, we have taken into account not only the work of supervision which he carries on in ensuring that the skilled and unskilled manual workmen employed under him are properly doing the work of repairs, maintenance, servicing and fabrication, etc., but also the fact that the workmen function under his control and directions, that he allocates an re-allocates work to them, that he initiates, disciplinary proceedings, etc. The exercise of such powers is clearly a part of his supervisory duty. That such functions indicate that the employment is of supervisory character was laid down by this Court in All India Reserve Bank Employees Association v. Reserve Bank of India, [1966] I S.C.R. 25. where Hidayatullah, J., as he then was, expressed the view of the Court in the following words :- "These employees distribute work, detect faults, report for penalty, make arrangements for filling vacancies, to mention only a few of the duties which are supervisory and not merely clerical." Thus, in the case of a Transport Engineer, there is a combination of supervisory duties of two types. The Transport Engineer actually supervises the work of repairs, maintenance, servicing and fabrication which is carried on in the Central Garage by the skilled mechanics, fitters, and other workmen, and, at the same time he has the supervision over those men in the matter of giving directions, recommending leave, initiating disciplinary proceedings etc. In this view, the decision of the Tribunal holding that the Transport Engineer is a https://hcservices.ecourts.gov.in/hcservices/ workman has to be set aside, because, admittedly, the Transport Engineer is drawing salary in excess of Rs. 500 per mensem and ceases to be a workman under exception (iv) of the definition." 14. Therefore, in effect, as laid down by the Supreme Court, for the purpose of making a person engaged in the supervisory capacity to exclude him from the purview of Section 2(s) of the Act, it must be by virtue of the duties attached to the office, which is in the managerial nature, which predominantly includes not only allotting skilled and unskilled workers, but also extending the managerial power like granting leave, initiating disciplinary proceedings and it is the combination of the two works that should make him as Supervisor. 15. Applying the test laid down by the Supreme Court to the facts of the present case, in the light of the admitted evidence of M.W.1, who has in clear terms stated that the petitioner had no power of initiating disciplinary action against the erring employees, no power of making any appointment and no power of issuing any memo to the workers or giving any incentive, bonus or batta, it is clear that even though the petitioner as Assistant Engineer was controlling the various employees like drivers, conductors and other technical employees in respect of the maintenance of buses, he was not having the managerial powers and therefore, the decision arrived at by the Labour Court that the petitioner is a workman and cannot be termed as a person having managerial capacity so as to exclude him from the purview of Section 2(s) of the Act cannot be said to be either illegal or perverse or opposed to law. 16. The charge memo itself refers to the violation of the Model Standing Orders. Even during the enquiry, the Enquiry Officer has informed the petitioner that as per the charges, he has violated and committed misconduct within the meaning of Clause 14(3)(i) of the Model Standing Orders. Under similar circumstances, in Shaw Wallace and Company Limited v. The Presiding Officer, Second Additional Labour Court, Madras and another, 2002 (1) LLN 317, it was held by this Court that when the charges were framed under the Model Standing Orders, the respondent is estopped from taking a stand that the delinquent was not a workman. D.Murugesan,J., by delivering the judgment in the said case, has held as follows: "A reading of the charge sheet indicates that the second respondent was treated as a workman and was called for explanation as to the charges of misconduct within the meaning of Clauses 14(ii), 8, 16, 21 and 28 of the Standing Orders which are applicable to the workmen. Having treated the second respondent as a workman, the petitioner-management is estopped from taking the stand https://hcservices.ecourts.gov.in/hcservices/ that delinquent was not workman when the delinquent was treated as a workman by the writ petitioner management while issuing the charge sheet for the alleged misconduct and for violation of some of the provisions of the Standing Orders applicable to the workmen. Whether an individual is a workman or not is to be decided on the facts and circumstances of each case. When the management treated the second respondent as a workman for the purpose of issuing charge sheet and conduct of enquiry, allowing the same management to take a different stand before the Labour Court would be otherwise encouraging the management to shift its stand according to the needs and choice and hence the same cannot be permitted." 17. When a charge was framed under the Model Standing Orders, the necessary implication is that the employee is a workman and that was again the view of the Bombay High Court in S.A.Sarang v. W.G.Forge and Allied Industries Limited and others, 1996 (1) LLN 728, wherein it was held as follows: "6. Uniformly, in each Show Cause Notice and charge- sheet, it has been alleged that the act imputed to the Petitioner was a misconduct under the Model Standing Orders. It is not possible to ignore the cumulative effect of this conduct on the part of the First Respondent Employer. To what extent, the contention of Dr.Kulkarni needs to be accepted. If an employer continuously and consistently proposes and takes action against its employee on the footing that he is covered by the Model Standing Orders (thereby implying that the employee is a "workman" within the meaning of the Act), then such employer must be estopped from denying the said fact when the dispute regarding the dismissal of the employees finally lands up before an industrial adjudicator. If is unfortunate that the Third Respondent-Official Liquidator has not chosen to appear before the Court and assist the Court. However, the Show Cause Notices and Charge-sheet pointed out to me cannot be ignored and due weight age will have to be given to them. Considering the cumulative effect of these documents, I am of the view that the Petitioner was a "workman" within the meaning of Section 2(s) of the Act and, therefore, the impugned order needs to be interfered with." 18. Again, Shivraj V.Patil, J., as His Lordship then was, in Binny Limited, rep. by Staff Manager, Madras v. M.P.Appadurai Samuel (died) and others, 1995 II LLN 384 has held that it is not the designation, but it is the nature of work which has to be considered. https://hcservices.ecourts.gov.in/hcservices/ The Court while considering that as a Spinning Assistant in a textile mill, the employee was found to be not eligible to take part in the policy decision and not allowed grant leave for any workers and the nature of work was purely technical, held that such person cannot be said to have been employed in the managerial capacity and he is a workman. It is useful to extract paragraph [13] of the judgment, which is as follows: "13. Looking to the evidence of M.W.1 the second respondent in the award has stated that the respondent No. 1 was not employed as a managerial staff and his nature of job was purely technical. It is to be noted that M. W. 1 in the cross - examination says that the work of motor speed changing, attending defects were not actually carried out by the first respondent but he only supervised the job. Mere supervision of the above cannot convert the nature of the job done by the first respondent as supervisory one. On facts and in the light of the evidence the Labour Court has recorded a finding that substantial work of the first respondent was technical one, and not managerial or supervisory as contended by the petitioner, and as such the respondent No. 1 was a workman within the meaning of Section 2(s) of the Act." 19. Therefore, on evidence, it is clear that the petitioner was not performing managerial function and on the admitted conduct of the respondent that the charges have been levelled based on the Model Standing Orders, the contention raised by the learned counsel for the respondent that the petitioner should be treated not as a workman, has no basis. The finding of the Labour Court that the petitioner was a workman cannot be said to be either perverse or illegal for this Court to interfere in this regard. 20. The contention of the learned counsel for the petitioner that while three separate charge memos have been issued, a single order of dismissal has been passed and therefore, it should be held to be invalid based on the judgment of this Court in M.V.Balu v. The Chairman, Tamil Nadu Housing Board and another, 1993 (1) MLJ 532 deserves to be considered. 21. Mr.S.Ayyathurai, learned counsel appearing for the petitioner would heavily rely upon the said judgment in M.V.Balu case, supra, wherein the punishment was quashed with the following observation: "On a perusal of the show-cause notice dated 18.8.1983 and the impugned order it is clear that the punishment imposed by the first respondent on the petitioner by the impugned order is in respect of the misconduct alleged https://hcservices.ecourts.gov.in/hcservices/ against the petitioner in both the charge memos dated 5.2.1981 and 5.8.1982. The impugned order is clearly illegal because the said order is passed clubbing the charges mentioned in the two separate charge memos dated 5.2.1981 and 5.8.1982 in respect of two separate incidents which look-place on 22.8.1980 and 31.7.1982 respectively. The materials on record go to show that there are two different incidents. With regard to the two different incidents, two separate charge-memos were issued to the petitioner. The materials on records also go to show that two separate enquiries were also held with regard to the alleged misconduct referred to in the two separate charge-memos. Though the incidents were different separate charge memos were issued to the petitioner relating to the two incidents and separate enquiries were held with regard to the misconduct alleged in the two charge-memos, strangely the first respondent issued the show-cause notice dated 18.8.1983 referring both the charge-memos, incidents and enquiries held in respect of those charges and proposed to impose a punishment of removal from service which ultimately led to the passing of the impugned order removing the petitioner from service. Thus, the procedure adopted by the respondent in passing the impugned order is clearly illegal and, therefore, the impugned order is liable to be quashed." 22. On a perusal of the said judgment, it is clear that in that case there were two separate charges framed in respect of separate instances, two separate enquiries were conducted, but one show cause notice was issued by referring to both the charges and the report of the Enquiry Officer was not served to the petitioner therein and in those circumstances, when the petitioner therein was removed from service, it was held by this Court that the removal and the procedure adopted for removal is not valid. But, that is not the case in the