IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.01.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.20849 of 2000 I. Durairaj ... Petitioner -vs- 1.The Presiding Officer, Labour Court, Madurai. 2.The Management, Tamil Nadu Transport Corporation (Madurai I Division) Ltd, Byepass Road, Madurai – 16. ... Respondents Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorari to call for the records relating to I.D.No.98 of 1988 on the file of the Labour Court, Madurai, the first respondent herein and quash that part of the award dated 06.02.1998 relating to the denial of backwages together with all other benefits and to pass such or other orders as the denial of backwages. For Petitioner : Mr.D.Saravanan For Respondents : Mr.Rajnish Pathiyil O R D E R The challenge in the present writ petition is to an award of the Labour Court, Madurai, the first respondent herein in I.D.No.98/88 dated 06.02.1998, in so far it relates to denial of backwages and other attendant benefits. The petitioner herein had raised an Industrial Dispute under the following circumstances. 2. The petitioner was appointed as a conductor on 03.01.1974 with the second respondent corporation and while he was on duty on 23.02.1978 proceeding in the route from Madurai to Thirubuvanam at about 8.30 a.m the checking inspector, who checked the bus detected that the petitioner was reissuing two tickets of 0.45 paise each and was found to be in possession of seven tickets of 0.45 paise each of the previous trip in order to reissue the same. A charge memo dated 27.02.1978 was issued to the petitioner and the petitioner was also https://hcservices.ecourts.gov.in/hcservices/ placed under suspension. The petitioner submitted his explanation on 01.03.1978 stating that he had no motive of misappropriating the ticket amount but had the good intention of preventing loss to the respondent corporation. It is stated on 11.11.1978, the suspension was revoked and thereafter domestic enquiry was conducted. The enquiry officer submitted a report, which according to the petitioner was perverse and thereafter the management issued a second show cause notice on 11.06.1978 proposing the penalty of dismissal from service. The petitioner submitted his explanation on 15.06.1978 and by order dated 07.07.1978, the petitioner was dismissed from service. The conciliation before the Labour Officer, Madurai ended in failure and the Government declined to make a reference of the dispute to the Labour Court and therefore, the petitioner filed W.P.No.9275/1983 for a direction to refer the dispute of his non-employment to the Labour Court for adjudication. The said writ petition was allowed by this Court on 07.12.1986, directing the State Government to refer the dispute for adjudication. Accordingly, a reference was made to the first respondent as I.D.No.98/88. Before the Labour Court both the petitioner and the Management did not adduce any oral evidence, the petitioner marked three documents as W1 to W3 and the management marked M1 to M20. The Labour Court framed two issues for consideration, namely whether the charges alleged against the petitioner were proved and as to whether the punishment of dismissal from service is justified. The Labour Court decided the issue No.1 against the petitioner and while considering the question of the punishment imposed, the Labour Court by exercising its discretion under Section 11A of the Industrial Dispute Act directed that the petitioner should be reinstated in service, but without backwages and other attendant benefits. The petitioner aggrieved by that portion of the award dated 06.02.1998 is before this Court. 3. Mr.D.Saravanan, learned counsel appearing for the petitioner would assail the correctness of the award on several grounds. Firstly by contending that the Labour Court having held that the punishment of dismissal was disproportionate ought to have ordered reinstatment with full backwages. That denial of backwages on the ground of delay is uncalled for and the Labour Court erred in applying strict rules of limitation in disallowing the backwages in toto. It is further contended that once the Labour Court has exercised its jurisdiction under Section 11A of the Industrial Dispute Act, ought to have granted full backwages and other attendant benefits. The learned counsel would further submit that the petitioner has been out of employment from 07.07.1978 and for over 20 years, he was without any employment and therefore it is a fit case where, this Court should consider and direct payment of backwages. 4. Per contra, Mr.Rajnish Pathiyil, learned standing counsel for the second respondent would contended that the charge against the petitioner was serious and the petitioner being a conductor was entrusted with the responsibility of handling cash and the question https://hcservices.ecourts.gov.in/hcservices/ whether there was misappropriation or temporary misappropriation is not the criteria and the charge of misappropriation having been proved beyond all reasonable doubt, the question of granting backwages does not arise and infact the Labour Court took a linent view and ordered for reinstatement. Though, the management would have been fully justified to challenge that portion of the award, directing reinstatement, the management taking a linent view of the matter implemented the award and reinstated the petitioner on 01.01.1999. 5. The learned standing counsel would further submit that the petitioner attained the age of superannuation on 31.05.2002 and all his entitlements have been fully settled and as such nothing remains to be adjudicated in the present writ petition. The learned standing counsel would further submit that this Court would decline to reappreciate the conclusion arrived at by the Labour Court, while exercising its jurisdiction under Section 11A of the Act and therefore, the writ petition is liable to be dismissed. 6. Having heard the counsels on either side and perused the materials on record, the short question, which arises for consideration in this writ petition, is as regards the validity of the award of the Labour Court denying backwages and other attendant benefits, while ordering for reinstatement. The scope of interference in the awards of the Labour Court has been clearly stated by various decision of the Hon'ble Supreme Court and the Hon'ble Supreme Court has held that normally this Court should not interfere, which such award unless the award is irrational, illegal or perverse. 7. The following decisions of the Hon'ble Supreme Court would be relevant in this regard:- i) Management of Maduranthkam COOP. Sugar Mills Ltd. Vs. S.Viswanathan [(2005) 3 SCC 193, 196] "12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these types of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon. A consideration of the impugned order of the learned Single Judge shows that nowhere has he come to the conclusion that the finding of the Labour https://hcservices.ecourts.gov.in/hcservices/ Court was either perverse or based on no evidence or based on evidence which is not legally acceptable. Learned Single Judge proceeded as if he was sitting in a court of appeal on facts and item after item of evidence recorded in the domestic enquiry as well as before the Labour Court was reconsidered and findings given by the Labour Court were reversed. We find no justification for such an approach by the learned Single Judge which only amounts to substitution of his subjective satisfaction in the place of such satisfaction of the Labour Court." ii)Amritvanaspati Co. Ltd Vs. Khemchand and another [(2006) 6 SCC 325, 332] "9. We have also perused the award dated 7-12-1989 passed by the Labour Court. The Labour Court in the concluding part of its award has held that the charges framed against the workman are charges of misconduct of serious nature and, therefore, it agreed with the argument of the management that it was not in the interest of the management and industrial peace to retain such a person in service who was guilty of creating indiscipline in the factory which affects the production of the factory adversely. On the basis of the aforesaid discussion, the Labour Court came to the conclusion that the management had succeeded in proving the charges against the workman before the Court. Hence, the Labour Court held the dismissal of the workman from service from 08.03.1976 by the management as justified, proper and lawful and the workman concerned was held to be not entitled, proper and lawful and the workman concerned was held to be not entitled to receive any benefit or relief. However, the High Court, as stated earlier, interfered with the factual and categorical findings of the Labour Court and ordered reinstatement with back wages and other benefits. In our opinion, the High Court while exercising powers under writ jurisdiction cannot deal with aspects like whether the quantum of punishment meted out by the management to a workman for a particular misconduct is sufficient or not. This apart, the High Court while exercising powers under the writ jurisdiction cannot interfere with the factual findings of the Labour Court which are based on appreciation of facts adduced before it by leading evidence. In our opinion, the High Court has gravely erred in holding that the evidence of Respondent I was not considered by the Labour Court and had returned the finding that the evidence of Respondent I did not inspire any confidence. We are of the opinion that the High Court is not right in interfering with the well-considered order passed by the Labour Court confirming the order of dismissal." iii)Seema Ghosh Vs. Tata Iron & Steel Co.[(2006) 7 SCC 722] https://hcservices.ecourts.gov.in/hcservices/ 30. The above judgment is not only distinguishable on facts as well as on law. We have elaborately dealt with the events which led to the constitution of the Medical Board for determining the age of the workman. The workman did not challenge the opinion of the Medical Board constituted by the management for determining the age of the workman and the management permitted the workman to work till his attaining the age of retirement. Therefore, the workman in the present case is estopped from challenging the correctness of the opinion of the Medical Board after his retirement. This apart, the school-leaving certificate which was produced by the workman was forwarded to the DEO, Dacca for verification who informed the management that the certificate is not genuine. The workman was to superannuate in the year 1986 but on the basis of the assessment of age made by the Apex Medical Board, he was allowed to continue till 13-09-1987. At that stage, the workman did not challenge the decision of the Medical Board. It is only after enjoying the benefits given to the workman and after availing the benefits, the workman raised a dispute after his retirement in pursuance of which the Labour Court has passed the award. The High Court has not given any undue credence to the evidence of the management or wrongly relied upon the one-sided testimony of the management as alleged by the appellant. We have already noticed that the findings arrived at by the Labour Court are nothing but perverse against the facts and it passed the award in favour of the workman on totally misplaced sympathy. In our opinion, both the learned Single Judge and the Division Bench are right and within their jurisdiction in reassessing and revaluing the weight of the evidence in the case recorded by the Labour Court by which the High Court came to the conclusion that the workman was not entitled to any relief. When the judgment of the Labour Court is perverse and against the facts and records, the High Court is entitled to exercise its jurisdiction under Article 226 and to interfere with the perverse finding and set aside the same. iv)Coimbatore District Central Cooperative Bank Vs. Coimbatore District Central Cooperative Bank Employees Assn. and anther 2007 4 SCC 669, 681 "30. In our opinion, therefore, the High Court was not right in exercising power of judicial review under Articles 226/227 of the Constitution and virtually substituting its own judgment for the judgment of the Management and/or of the Labour Court. To us, the learned counsel for the appellant Bank is also right in submitting that apart from Charges 1 and 2, Charges 3 and 4 were "extremely serious" in nature and could not have been underestimated or underrated by the High Court." https://hcservices.ecourts.gov.in/hcservices/ v)N.Selvaraj Vs. Kumbakonam City Union Bank Ltd. and another [(2006) 9 SCC 172, 174] "9. In this view of the matter we do not find any infirmity in the order passed by the High Court." 8. Further, the Hon'ble Supreme Court in Government of India Vs. George Philip [AIR 2007 SC 705], while considering the power of judicial review under Article 226 in the matter of imposition of punishments on employee, the Hon'ble Supreme Court held that this Court, while exercising jurisdiction under Article 226 of the constitution is not hearing an appeal against the decision of the disciplinary authority imposing punishment upon the delinquent employee and the jurisdiction is a limited one and it cannot set aside the punishment all together or impose some other penalty unless the court finds that there has been substantial non compliance of the rules of procedure or a gross violation of the rules of natural justice, which has caused prejudice to the employee and has resulted in miscarriage of justice or the punishment is shockingly disproportionate to the gravamen of the charge. In the instant case the findings of the disciplinary authority were considered by the Labour Court and after re-appreciating the evidence on record the Labour Court came to a conclusion that the charge against the petitioner stands proved and thereafter proceeded to exercise its jurisdiction under Section 11A of the Industrial Dispute Act. The power under Section 11A of the Act is purely discretionary and in view of law laid down by the Hon'ble Supreme Court, as referred above such exercise of discretion could not be easily interfere in a proceeding under Article 226, unless the penalty, which has been imposed by the Labour Court was shockingly disproportionate to the charge. In the instant case, though the Labour Court held that the charges were proved, has recorded certain reasons for exercising its discretion under Section 11A, whereby the Labour Court directed reinstatement, but however, denied backwages. One other factor, which was taken note of by the Labour Court was that the petitioner was dismissed from service on 07.07.1978 and as on the date, when the award was passed i.e., on 08.12.1997, 19½ years have elapsed and it would not be appropriate to order for backwages. There is no material on record to establish that such denial of backwages was shockingly disproportionate to proven charge or there was any irrationality or perversity in the approach of the Labour Court. 9. Therefore, this Court of the view that this is not a fit case where there is any material on record to interfere with the discretion exercised by the Labour Court, which according to this Court is for sound and valid reasons. That apart as submitted by the learned counsel for the second respondent, the petitioner was reinstated on 01.01.1999 and also attained the age of superannuation on 31.05.2002 and all the entitlements of the petitioner have been settled. https://hcservices.ecourts.gov.in/hcservices/ 10. Hence, for the above mentioned reasons, there are no good grounds to interfere with the award of the Labour Court and accordingly, the writ petition fails and is dismissed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar pbn To 1. The Presiding Officer, Labour Court,Salem. 2.The Management, Tamil Nadu Transport Corporation (Madurai I Division) Ltd, Byepass Road, Madurai – 16. + 1 cc to Mr.D.Saravanan,Advocate,SR.890 + 1 cc to M/s.Rajnish Pathiyil, Advocate,SR.883 W.P.No.20849 of 2000 JP(CO) EM/12.1.10 https://hcservices.ecourts.gov.in/hcservices/