IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 18-02-2011 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.44459 of 2006 C.Ganesan .. Petitioner. Versus 1.The Presiding Officer, Labour Court, Salem. 2.The Management, Tamilnadu State Transport Corporation, (Salem Division-2) Limited, Dharmapuri-5. .. Respondents. Prayer: Petition filed seeking for a Writ of Certiorarified Mandamus, to call for the records of the first respondent bearing in ID.No.354 of 2000, dated 16.6.2003, quash the same and to direct the second respondent herein to reinstate the petitioner with continuity of service, backwages and other benefits. For Petitioner : Mr.G.Purushothaman For Respondents : Mr.C.Kanagaraj (R2) R-1 Court O R D E R This writ petition has been filed praying for a Writ of Certiorarified Mandamus to call for and quash the order of the first respondent Labour Court, dated 16.6.2003, made in I.D.No.354 of 2000, and to direct the second respondent to reinstate the petitioner, with continuity of service, backwages and other attendant benefits. 2. The petitioner has stated that he was appointed, as a conductor in the second respondent Corporation, with effect from 12.12.1988. As such, he was discharging his duties diligently, without any blemish. While so, on 28.3.1993, he was unwell due to dysentery. Even though he had intimated his higher authorities and had sought for leave, they had refused to accept his request. In such https://hcservices.ecourts.gov.in/hcservices/ circumstances, he was compelled to be on duty, in the bus plying from Dharmpauri to Mysore. 3. While the petitioner was seriously suffering from stomachache ailment and he was in distress, the ticket examiners had checked the ticket books, the invoice and the cash bag, which were with the petitioner and they had found certain irregularities in the issuing of tickets. Therefore, the petitioner had been suspended from service and a charge memo, dated 30.3.1993, had been issued, wherein, it had been alleged that the petitioner had collected the fare from 14 passengers and had not issued the tickets to them. 4. It had also been alleged that an excess amount of Rs.150.65 was found in the cash bag of the petitioner. Therefore, for having caused financial loss to the second respondent Corporation and for conducting himself in an irresponsible manner, an enquiry had been conducted, based on the charges alleged against the petitioner. Thereafter, the enquiry report had been submitted by the enquiry officer finding the petitioner guilty of the charges. 5. Based on the charges levelled against the petitioner, he had been dismissed from service, by an order of the second respondent management, dated 19.4.1994. Challenging the order of dismissal from service, the petitioner had preferred an industrial dispute before the first respondent Labour Court, in I.D.No.354 of 2000. The first respondent Labour Court had confirmed the order of dismissal passed against the petitioner, by the second respondent management, in its award, dated 16.6.2003, made in I.D.No.354 of 2000. 6. The main contention of the learned counsel appearing on behalf of the petitioner is that the punishment of dismissal from service imposed on the petitioner, by the second respondent management, is disproportionate in nature. The Labour Court ought to have taken into account the mitigating circumstances before confirming the punishment of dismissal imposed on the petitioner. He had also submitted that the first respondent Labour Court ought to have invoked Section 11-A of the Industrial Disputes Act, 1947, to impose a lesser punishment on the petitioner, taking into account the fact that he was unwell at the relevant point of time and that there was no intention of misappropriating the funds of the second respondent Corporation. 7. The learned counsel had also submitted that the order of imposing the punishment on the petitioner had been passed by the appellate authority, instead of the same being passed by the https://hcservices.ecourts.gov.in/hcservices/ disciplinary authority. Thus, the petitioner had lost the opportunity of availing the appellate remedy. He had also submitted that the first respondent Labour Court ought to have relied only on the documents, which were available during the time of the enquiry, since, the fairness of the enquiry had not been contested. He had also submitted that the first respondent Labour Court had taken into consideration certain documents like the invoice, which did not form a part of the records available before the enquiry officer at the time of the enquiry. 8. He had also submitted that no proper reasons had been given by the first respondent Labour Court, while confirming the order passed by the second respondent management dismissing the petitioner from service. When there was sufficient evidence to show that the petitioner was suffering from stomach ailment, it should have been taken as a mitigating factor to impose on the petitioner a reduced punishment. As such the award of the first respondent Labour court, dated 16.6.2003, made in I.D.No.354 of 2000, is unsustainable in the eye of law. 9. The learned counsel had relied on the following decisions in support of his contentions: 1) Workmen V. Firestone Tyre and Rubber Co. [(1973) 1 SCC 813] 2) Engine Valves Ltd., Vs. Labour court, Madras and another (1991 1 L.L.N. 372) 3) Mahindra and Mahindra Ltd. Vs. N.B.Narawade (2005 (1) L.L.N. 1074) 4) Mavji C.Lakum Vs. Central Bank of India (2008(3) L.L.N 1) 5) Subramanian Vs. The Presiding Officer and another (W.P.No.799 of 1997, dated 16.10.2003) 10. Per contra, the learned counsel appearing on behalf of the second respondent had submitted that the award of the first respondent Labour Court, dated 16.6.2003, is proper and valid. There is no infirmity in the said award, by which the punishment of dismissal from service, imposed on the petitioner, had been confirmed. The claim made by the petitioner that he was unwell and therefore, certain irregularities had taken place in the issuing of tickets to 13 persons, on 28.3.1993, had not been established. The punishment of dismissal from service on the petitioner is not disproportionate to the allegations made against him, which had been proved during the domestic enquiry. Therefore, the writ petition is devoid of merits. 11. In view of the averments made in the affidavit filed in support of the writ petition and in view of the submissions made by https://hcservices.ecourts.gov.in/hcservices/ the learned counsels appearing on behalf of the petitioner, as well as the second respondent and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to set aside the award of the Labour Court, dated 16.6.2003, made in I.D.No.354 of 2000. The petitioner had not proved, by sufficient evidence, that he was unwell, on 28.3.1993. 12. It is not in dispute that he had not issued the tickets to 13 passengers, who had boarded the bus at Malavalli bus stop, even though he had collected the fare from the said passengers. The petitioner had not been in a position to establish that the excess amount of 150.65 found in the cash bag had belonged to him. Further, the fairness of the enquiry conducted against the petitioner, based on the allegations made against him by the second respondent management, had not been questioned. 13. No witness had been examined on behalf of the petitioner to substantiate his claim that the irregularities had taken place due to the stomach ailment he was suffering. There is nothing to show that the principles of natural justice had not been followed by the first respondent Labour Court during the proceedings before the said Court. Nothing has been stated in his explanation about the endorsement found in the invoice to show that the excess amount of money found in the cash bag belonged to the petitoner. 14. The first respondent Labour Court had arrived at its conclusions based on the evidence available on record and on the basis of the preponderance of probabilities. Further, it cannot be said that the first respondent Labour Court had committed an error in not exercising its discretion to reduce the punishment imposed on the petitioner due to the mitigating circumstances in which the irregularities had been committed. In such circumstances, the contentions raised on behalf of the petitioner cannot countenanced. As such, this Court does not find sufficient cause or reason to interfere with the award of the first respondent Labour Court, dated 16.6.2003, made in I.D.No.354 of 2000. Since, the writ petition is devoid of merits, it is liable to be dismissed. Hence, it is dismissed. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar cash To 1.The Presiding Officer, Labour Court, Salem. https://hcservices.ecourts.gov.in/hcservices/ 2.The Management, Tamilnadu State Transport Corporation, (Salem Division-2) Limited, Dharmapuri-5. 1 cc To Mr.C.Kanagaraj, Advocate, SR.11991 Order in Writ Petition No.44459 of 2006 RS (CO) RH (16.3.11) https://hcservices.ecourts.gov.in/hcservices/