IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 7.4.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.12478 of 2001 Tamil Nadu State Transport Corporation (Villupuram – Division II) Ltd. rep. by its General Manager Rangapuram, Vellore – 632 009. .. Petitioner Vs. 1. The Presiding Officer Labour Court Vellore. 2. Narayana Sami (Deceased) 3. Mala 4. Mythili 5. Bargavi 6. Janaki 7. Jaganpothan 8. Chinnakuzhanthai Ammal .. Respondents (Respondents 3 to 8 are substituted in the place of the deceased second respondent by order dated 3.8.2009 in WPMP No.107 of 2009) PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorari to call for the records on the file of the first respondent and to quash the award dated 10.11.2000 made in I.D.No.85 of 1996. For Petitioner : Ms.Rajeswari for M/s.King & Partridge For Respondents : Mr.V.Ajay Ghose for respondents 3 to 8 R1 Court ORDER The petitioner is a Transport Corporation wholly owned by the State. They have come forward to challenge the award of the https://hcservices.ecourts.gov.in/hcservices/ first respondent/ Labour Court, Vellore made in I.D.No.85 of 1996, dated 10.11.2000. By the impugned award, the Labour Court directed reinstatement of the second respondent with full back-wages, continuity of service and other monetary benefits. 2. The writ petition was admitted on 11.7.2001 and pending the writ petition interim stay was granted. Subsequently, when the matter came up on 15.10.2001, this Court directed the petitioner/Corporation to deposit Rs.50,000/- to the credit of I.D.No.85 of 1996 in the form of a fixed deposit in the Tamil Nadu Finance Corporation and pay the quarterly interest to the second respondent. Even before filing of the writ petition, the petitioner/Corporation, on their own, reinstated the second respondent on 31.1.2001 and recording the same, this Court directed that the said workman should be paid not last drawn wages, but current wages payable to similarly placed workmen. It was stated that the said order has been complied with. During the pedency of the writ petition, the second respondent/workman unfortunately passed away on 6.6.2008. His legal heirs filed a petition in W.P.M.P.No.107 of 2009 and have come on record. 3. The short question that comes up for consideration is whether the impugned award is liable to be interfered with? 4. A perusal of the impugned award shows that the first respondent/ Labour Court did not pass a proper award after referring to the materials placed before him in the form of documents, which were marked by consent. Even though on the side of the workman there was no attack against the validity of the domestic enquiry, yet the Labour Court by virtue of the power vested under Section 11-A of the Industrial Disputes Act is bound to refer to the documents recorded in the departmental enquiry and if necessary, he is also empowered to re-appreciate the very same evidence and come to a different conclusion. 5. The Labour Court, by one sentence, rejected the material exhibit produced by the workman which is relating to his acquittal in the criminal case. At the same time, the Labour Court referred only to two documents, viz., Exs.M1 and M5 and even after referring to those two documents, the Labour Court did not even state what is the effect of those documents. In fact, Ex.M5 is the enquiry proceedings conducted by the petitioner/ Corporation. The Labour Court, by two sentences, rejected the said report stating that it was predetermined, tailor-made, not made out of free and fair will. It also stated that the report cannot be viewed through judicial lens. 6. The Labour Court nowhere stated as to what was the charge made against the workman and the explanation offered by the workman; the nature of evidence let in before the Labour Court; and as to how the finding recorded in the departmental enquiry was https://hcservices.ecourts.gov.in/hcservices/ perverse and also the fact that it is susceptible of a different interpretation or there was no legal evidence before the domestic enquiry. This kind of perfunctory approach by the Labour Court should be condemned. It must be noted that the Labour Court is a trial court and it has to render findings on the issues raised before the Court, without which no higher court can exercise judicial review. 7. Though this Court is inclined to remand the matter for fresh disposal, considering the fact that the workman is no more and he has also served the Corporation for 7 years after the writ petition was filed and that his legal heirs are before this Court, it is necessary to render a finding in this Court itself and if necessary to modify the award. 8. The case against the workman was that he drove the bus in route No.226 plying from Vellore to Thiruvannamalai, on 15.12.1994, in a rash and negligent manner and hit against a pedestrian at Vannankulam, due to which the pedestrian was thrown over the road and he died on the spot. On the basis of this incident, a charge memo was given to the workman on 7.1.1995 and he was also suspended pending enquiry. After receipt of his explanation, an enquiry was conducted in which the Enquiry Officer found him guilty of the charges. Subsequently, a provisional conclusion was arrived at on 4.3.1995 and a second show cause notice was given to the workman. After he made further representation, he was finally dismissed on 27.4.1995. The workman raised an industrial dispute before the Government Labour Officer and on the strength of the failure report, he filed a claim statement before the Labour Court. The said claim statement was taken on file as I.D.No.85 of 1996 and notice was given to the petitioner/Corporation. The petitioner/Corporation filed a counter statement on 2.4.1996 and thereafter, the impugned award came to be passed. 9. The contention made by the workman before the Labour Court was that the investigation officer, who made investigation, was not eye-witness to the incident and no other eye-witness was examined. He also stated that he was not given opportunity to cross-examine or examine any witness and that the Enquiry Officer without any legal evidence found him guilty of the charges. 10. The petitioner/Corporation took the stand that they conducted enquiry with an independent Enquiry Officer and the Investigation Officer has visited the spot immediately after the accident and clearly spoke about the incident and also the circumstances under which the accident took place and therefore, it was of the view that the accident took place only due to the negligent and careless driving of the workman. 11. In the present case, though the contention that there must be an eye-witness for proving an accident cannot be always of legal https://hcservices.ecourts.gov.in/hcservices/ requirement, the Labour Court in the exercise of the power under Section 11A of the Industrial Disputes Act granted reinstatement. But, at the same time, while exercising the discretion under Section 11A of the Industrial Disputes Act, the Labour Court ought not to have directed his reinstatement with full back-wages. On the contrary, as noted already, the Labour Court passed a perfunctory order in granting such a relief. Considering the fact that the management itself has reinstated the workman, there is no ground to interfere with that portion of the award. But, at the same time, right from the filing of the writ petition the workman is in service and by the order passed by this Court, he was also paid current wages. Therefore, this Court is of the opinion that for the misconduct committed by the workman, his wages can be deprived and since only his legal heirs are on record, there must be a direction to the Corporation to settle all his terminal benefits calculated by taking into account the entire service of the workman till the date of death. 12. In the light of the same, the writ petition stands partly allowed. The impugned award is modified to the effect that while the second respondent will be reinstated with continuity of service and other attendant benefits, he will not be paid full wages for the said period. However, the petitioner/ Corporation is directed to calculate his notional wages till the date of his death and settle all the terminal benefits due to him, as if he continued in service till the death, to the legal heirs who have come on record within twelve weeks from the date of receipt of a copy of this order. In view of this order, the petitioner/Corporation is entitled to withdraw the amount lying in deposit with the Labour Court. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. sasi To: The Presiding Officer Labour Court, Vellore. 1 cc to M/s. King and Partridge, Sr. 23360 1 cc to M/s. V. Ajaykhose, SR. 22921 W.P.No.12478 of 2001 RV (CO) kk 13/4 https://hcservices.ecourts.gov.in/hcservices/