IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.8.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.3682 of 2001 The Managing Director Tamil Nadu State Transport Corporation (Villupuram Divn.III) ltd., Kancheepuram .. Petitioner vs. 1. The Presiding Officer II Addl. Labour Court Chennai 2. R.Jagadeesan .. Respondents This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records relating to the order passed in ID No.546 of 1997 dated 31.8.2000 on the file of the first respondent and quash the same. For petitioner : Mr.T.Chandrasekaran For Respondents : Mr.C.Manoharan for R2 O R D E R The petitioner Corporation has filed the present writ petition challenging the award of the first respondent labour Court, dated 31.8.2000, made in I.D.No.546 of 1997, ordering reinstatement of the second respondent, with continuity of service, with 50% backwages, along with the other attendant benefits. 2. It has been stated by the petitioner Corporation that the second respondent was dismissed from service, on 17.3.1993, for committing serious acts of misconduct in the petitioner Corporation. Even before the order of dismissal was passed, the conduct of the second respondent was not satisfactory. He has been punished for several acts of misconduct. However, in spite of the repeated warnings and punishments, the second respondent did not correct himself. He continued to be negligent in performing his duties and was disrespectful towards the other staff members and the members of https://hcservices.ecourts.gov.in/hcservices/ the Management of the petitioner Corporation. 3. It has been further stated that the petitioner Corporation had served a show cause notice, dated 28.8.1992, for which the second respondent had submitted his explanation. Not being satisfied with the explanation, the petitioner Management had ordered a domestic enquiry. Sufficient opportunity was given to the second respondent to participate in the domestic enquiry. The enquiry was conducted by the enquiry officer in a fair and proper manner, following the principles of natural justice. After analysing the materials available on record and by taking into consideration the evidence from both sides, the enquiry officer had come to the conclusion that the charges against the delinquent employee was proved. Based on the enquiry, a second show cause notice was served on the second respondent, on 14.2.1993. The second respondent had submitted his explanation, on 23.2.1993. Not being satisfied with the explanation submitted by the second respondent, the petitioner Management had passed an order of dismissal, on 17.3.1993, dismissing the second respondent from service. 4. It has been further stated that while the second respondent was working as a conductor in the petitioner Corporation, on 23.8.1992, it was found that he had collected a sum of Rs.25/- and refunded Rs.2.20 to the passenger, who headed a group of 5 adults and 2 children. He did not issue the tickets to the passengers and thereby, he had attempted to misappropriate the amount. A statement had been obtained from the head of the group, in the presence of the second respondent. Only after going through the statement given by the passenger the delinquent employee had signed the same, without any protest. The second respondent had admitted that, after collecting the ticket fare from the head of the group, he did not issue the tickets. The explanation submitted by the second respondent is not consistent with the statements given by the passenger and the witnesses examined on behalf of the petitioner Management. As the second respondent had admitted the statement given by the passenger and when he had countersigned the said statement, he is estopped from saying that the passenger should be examined. Therefore, the reasoning given by the enquiry officer, with regard to the non- examination of the passenger, is reasonable and correct. 5. With regard to charge No.2, it has been stated that the total collection by way of sale of tickets, on 23.8.1992, was Rs.1338.90, but the cash found in the bag of the second respondent was only Rs.1,280.20. Even after deducting, the amount of Rs.20/- as expenses of the conductor and the stand bill of Rs.3.50/-, it should have been Rs.1303.72. Hence, the shortage of Rs.35.20 has been proved. Therefore, the enquiry officer, after analysing all the documents and the evidence available, had held that the charges had been proved. Therefore, there was no need for the labour Court to interfere with the well considered finding of the enquiry officer. The labour Court https://hcservices.ecourts.gov.in/hcservices/ had failed to see that the petitioner Management had passed the dismissal order, on 17.3.1993 and the second respondent had raised the conciliation proceedings only, on 24.2.1997. The extraordinary delay of more than 4 years caused by the second respondent shows his lethargic attitude towards his duties. However, the labour Court had found that the domestic enquiry had been ordered based on the report of the checking inspector and it had also been found that the checking inspector did not know about the incident, directly. The labour Court had also found that no passengers were examined before the enquiry officer to prove the charges levelled against the second respondent delinquent employee, even though the second respondent had admitted the irregularity as he had countersigned the statement given by the passenger. Therefore, the award of the labour Court reinstating the second respondent in service, with 50% backwages and continuity of service, is not sustainable, as it is not supported by any material evidence. 6. The learned counsel appearing for the petitioner had submitted that the award of the labour Court, dated 31.8.2000, made in I.D.No.546 of 1997, is contrary to law and the reasons stated therein for reinstating the second respondent in service, with 50% backwages, are not based on the facts of the case and the evidence available on record. Once the second respondent had admitted that after collecting the money for the tickets from the head of the group of passengers, he had not issued the necessary tickets. The explanation submitted by the second respondent for the irregularity is inconsistent with the statements given by the passenger and the witnesses examined on behalf of the petitioner Management. There were certain discrepancies with regard to the amount found with the second respondent and the shortage of Rs.35.20 have been proved. Since the charges against the second respondent had been proved, there was no need for the first respondent labour Court to set aside the order of dismissal and to order the reinstatement of the second respondent in service, with 50% backwages and with all other attendant benefits. 7. Per contra, the learned counsel appearing for the second respondent had submitted that sufficient proof was not available to show that the second respondent had misappropriated the amount of Rs.35.20, which was the shortage in the collection money available with the second respondent. It cannot be held that the charges against the second respondent had been proved only based on the fact that he had signed the document containing the statement of the passenger. There was no corroboration for the hearsay evidence. The driver of the vehicle has not been examined. Only one checking inspector had been examined and he was not a witness to the incident. 8. The learned counsel appearing for the second respondent had further submitted that the award of the first respondent labour Court, dated 31.8.2000, made in I.D.No.546 of 1997, is in accordance with law, the evidence on record and the facts and circumstances of https://hcservices.ecourts.gov.in/hcservices/ the case. Therefore, the labour Court had come to the right conclusion holding that the order issued by the petitioner Corporation dismissing the second respondent from service is bad in law. In such circumstances, the first respondent labour Court had set aside the order of dismissal passed against the second respondent and had awarded reinstatement of the second respondent in service, with 50% backwages and other attendant benefits. The labour Court had awarded only 50% of the backwages to be paid to the second respondent by the petitioner Management considering the delay caused by the second respondent in agitating the matter, after he had been dismissed from service, by the order, dated 17.3.1993. 9. It has been stated by the learned counsel appearing for the petitioner Management that the second respondent had been reinstated in service by the petitioner Corporation, as per the award of the first respondent labour Court, dated 31.8.2000. 10. It has also been stated that the interim stay granted by this Court, on 27.2.2001, had been made absolute in W.M.P.No.5115 of 2001 & W.P.M.P.No.35480 of 2001 in W.P.No.3682 of 2001, on condition that the petitioner Management deposits a sum of Rs.20,000/- to the credit of I.D.No.546 of 1997, on the file of the first respondent labour Court, within twelve weeks from the date of receipt of the said order and it was also stated that on such deposit, a sum of Rs.20,000/- shall be paid to the second respondent without his being required to furnish any security or guarantee. The balance sum of Rs.1,00,000/- had been ordered to be invested in a fixed deposit with the Indian Bank Extension Counter, High Court, Madras, for a period of four years and the interest, that may accrue thereon, to be paid to the second respondent once in a quarter, without the requirement of furnishing any security or guarantee. 11. In view of the submissions made by the learned counsels appearing for the parties concerned and on analysing the award of the labour Court, dated 31.8.2000, made in I.D.No.546 of 1997, and on a perusal of the records available, this Court is of the considered view that the labour Court had come to the right conclusion in reinstating the second respondent in service, with 50% backwages and other attendant benefits. Nothing has been shown on behalf of the petitioner Corporation for this Court to come to the conclusion that the award of the labour Court, dated 31.8.2000, made in I.D.No.546 of 1997, is perverse. The first respondent labour Court had arrived at its conclusions based on the evidence available and it had rightly found that the petitioner Corporation had not shown sufficient evidence to prove the charges levelled against the second respondent. 12. It is a well settled proposition of law that if the petitioner Management relies on past records while imposing the punishment on the delinquent employee, such an employee should be put on notice with regard to the past events before the punishment is https://hcservices.ecourts.gov.in/hcservices/ imposed on him. In the present case, no such opportunity had been given to the second respondent. Further, the petitioner Corporation had not shown sufficient cause or reason for this Court to interfere with the award of the labour Court, dated 31.8.2000, made in I.D.No.546 of 1997. Therefore, the writ petition stands dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar lan To: 1. The Presiding Officer II Addl. Labour Court Chennai 1 cc To Mr.T.Chandrasekaran, Advocate, SR.47129 1 cc To Mr.C.Manohar, Advocate, SR.46773 W.P.No.3682 of 2001 JSV(CO) SRA(7/11/2008) https://hcservices.ecourts.gov.in/hcservices/