1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.09.2011 CORAM: THE HONOURABLE Mr.JUSTICE P.JYOTHIMANI and THE HONOURABLE Mr.JUSTICE M.M.SUNDRESH W.A.(MD)No.88 of 2011 S.Pandian ... Appellant/Petitioner Vs. 1.The Managing Director, Tamil Nadu State Transport Corporation, Madurai Division IV, Byepass Road, Dindigul District – 624 004 2.The Presiding Officer, Labour Court, Madurai-20. ... Respondents Prayer: Appeal filed under Clause 15 of the Letters Patent Act, against the order dated 23.11.2010 passed by this Court in W.P.(MD) No.10372 of 2006. Prayer in WP.No.10372/2006: Petition is filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorari calling for the records of the first respondent in his proceedings in I.D.No.137 of 2002, dated 19.04.2006 and quash the same. For Appellant : Mr.S.Govindan For Respondent No.1 : Mr.S.C.Herold Singh,Govt.Advocate JUDGMENT (Judgment of the Court was delivered by M.M.SUNDRESH,J.) This Writ Appeal is filed against the order of the learned Single Judge, in and by which, the award of the labour court, ordering reinstatement, without backwages, was set aside, whereby, confirming the order of dismissal passed by the appellant against the respondent No.1. 2.The respondent No.1 was working as a Conductor with the appellant/Transport Corporation. Charges have been framed against the respondent No.1 on the ground that he has misappropriated a sum of Rs.22/-, while the bus was plying from Cumbum to Trichy. The charges is very specific to the effect that for 5½ passengers, who https://hcservices.ecourts.gov.in/hcservices/ 2 have been travelling from Dindigul to Manaparai, tickets have been issued as if they have travelled from Vadamadurai to Manaparai and the differential amount has been misappropriated by the respondent No.1. In pursuant to the enquiry conducted, the appellant came to the conclusion that the charge levelled against the respondent No.1 has been proved. Accordingly, the order of dismissal has been passed. Challenging the order of dismissal passed by the appellant, the first respondent has raised a dispute in I.D.No.137 of 2002. 3.The labour Court after considering the statement given by the passengers, from whom the duplicate tickets said to have been issued and recovered, to the effect that they have been issued tickets only from Vadamadurai to Manaparai alone and they have paid a sum of Rs.50/- and 50 paise has been returned correctly by the respondent No.1. The learned Judge has also rejected Ex.M.1 after relied upon Ex.W.1, while coming to the conclusion. The Labour Court has further found that the materials available on record would not be sufficient enough to substantiate the charges levelled against the respondent No.1. Accordingly, an order of reinstatement, without backwages has been passed by the Labour Court. Challenging the award passed by the Labour Court, the respondent No.1 herein has filed the Writ petition. 4.The learned Single Judge of this Court has set aside the award of the Labour Court by holding that the award has been passed by the Labour Court was perverse, inasmuch as, the materials available on record have not been taken into consideration. Challenging the same, the present appeal has been filed. 5.As submitted by the learned counsel for the appellant and after going through the award of the Labour Court, we are fully convinced that the Labour Court has rightly considered the materials available on record. The power under Section 11(a) is rather wide and the Lbour Curt has got ample power to consider the materials available on record, including reappreciation of evidence. The Labour Court after taking into consideration of the materials available on record and as held by the Hon’ble Division Bench reported in 2009(2) MLJ 218 (P.Jayaraman Vs. Bharat Heavy Electricals Ltd., Trichy and another) wherein the Division Bench after referring to the Judgment of the Hon’ble Apex Court, 1973(1) LLJ 278 holding that the power under Section 11(a) is very wide and the Labour Court has got ample jurisdiction to go into the same. The relevant passage of the Division Bench is extracted hereunder:- "10.The powers of the Labour Court under Section 11-A of the Industrial Disputes Act, 1947, is to give appropriate relief in case of discharge or dismissal of workmen. Under Section 11-A of the Act, where an Industrial Dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, in the course of the adjudication proceedings, if the Labour Court is satisfied that the order of discharge or dismissal was not justified, it may, by https://hcservices.ecourts.gov.in/hcservices/ 3 its award, set aside the order of discharge or dismissal and direct reinstatement of the workman including the award of any lesser punishment is lieu of discharge or dismissal as the circumstances of the case may require. The only proviso attached to Section 11-A of the Act is that the Labour Court shall rely on the materials on record and shall not take any fresh evidence in relation to the matter. " 6.Therefore, taking note of the fact that the Labour Court has considered the materials available on record and the fact that this Court cannot substitute his own view over the view already arrived at by the Labour Court based upon the materials, we are of the view that the order of the learned Single Judge requires interference. The learned Single Judge has given a factual finding to the effect there is sufficient proof to show that the tickets collected from the passengers were tallied with the tickets found in the ticket book. This finding, in our considered view cannot be sustained as this Court by exercising powers under Article 226 of Constitution of Indian by re-appreciating the evidence and replace the view taken by the Labour Court by considering the materials available on record as he is also wrong in holding that the Labour Court's power is very limited. 7.Considering the scope of Section 11(A) of the Industrial Disputes Act and placing reliance on the Apex Court judgment referred supra, it has been held by a Division Bench of this Court in G.Annie Christy Vs. Deputy Chief Mechanical Engineer, Personnel Branch, Golden Rock Workshop, Southern Railway, Ponmalai, Trichy and another (2011(3) MLJ 915) in paragraphs 21 and 22 as- "21.The Honourable Apex Court, in the judgment in Workmen of Firestone Tyre and Rubber Co.of India (Pvt.) Ltd. V. Management and others (supra), has categorically held that the Industrial Tribunal has power and jurisdiction to record a different findings. In this regard, para 13 of the said judgment is extracted hereunder: "13.The above position has been completely changed by Section 11-A ...... Even in case where a domestic enquiry has been held and finding of misconduct recorded, the Labour Tribunals have now full power and jurisdiction to reappraise the evidence and to satisfy themselves whether the evidence justifies the finding of misconduct ......" Paras 40 and 41 of the judgment Workmen of Firestone Tyre and Rubber Co.of India (Pvt.) Ltd. Vs. Management and others (supra) are also relevant for the purpose of this case and the same are extracted hereunder at p.296 of LLJ: "37.Therefore, it will be seen that both in respect of cases where a domestic enquiry has https://hcservices.ecourts.gov.in/hcservices/ 4 been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under Section 11-A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at, the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved. 38.We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11-A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge. The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either ay, the Tribunal will have to reappraise the evidence for itself. Ultimately, it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why, according to us, Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now, the jurisdiction of the Tribunal to reappreciate the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time. Both categories are now put on a par by Section 11-A." 22.In view of the judgment of the Honourable Apex Court in Workmen of Firestone Tyre and Rubber Co.of India (Pvt.) Ltd. V.Management and others https://hcservices.ecourts.gov.in/hcservices/ 5 (supra), we hold that the learned single judge committed error in holding that the second respondent was not correct in re-appreciating the evidence and recorded a different finding." 8.Therefore, for the reasons stated above, the order of the learned Single Judge is set aside and the award passed by the Labour Court is restored. Accordingly, the appeal is allowed. No costs. Sd/- Assistant Registrar(AS) /True Copy/ Sub Assistant Registrar To 1.The Managing Director, Tamil Nadu State Transport Corporation, Madurai Division IV, Byepass Road, Dindigul District. 2.The Presiding Officer, Labour Court, Madurai-20. Nbj ssk/30.09.2011 /3c-5p/- W.A.(MD)No.88 of 2011 09.09.2011 https://hcservices.ecourts.gov.in/hcservices/