IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.01.2009 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.17514 of 1999 The Management of Tamilnadu State Transport Corporation (Madurai Division II) Ltd., (Formerly KTC Ltd.,) 2, Thirvananthapuram Road, Vannarpettai, Tirunelveli – 627 003. ... Petitioner Vs 1.The Presiding Officer, Labour Court,Tirunelveli. 2.N.Kochumani ... Respondents PRAYER :- Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, calling for the records pertaining to the I.D.No.50 of 1995 and quash the award dated 19th March 1999 passed by the first respondent therein. For petitioner : Ms.Kala Ramesh For R2 : No appearance O R D E R The petitioner is a State owned transport corporation. Aggrieved by the award of the first respondent Labour Court made in I.D.No.50 of 1995 dated 19.03.1999, the present writ petition has been filed. By the aforesaid award, the Labour Court directed re- instatement of the second respondent with continuity of service, full backwages together with a cost of Rs.500/-. 2. The writ petition was admitted on 29.10.1999. An interim stay was granted subject to the condition that the petitioner deposits 50% of the backwages and also complies with the monthly https://hcservices.ecourts.gov.in/hcservices/ payments in terms of Section 17-B of the Industrial Disputes Act, 1947 (for short I.D.Act). But this was made under condition that the second respondent must file an affidavit that he was not employed anywhere else. No such affidavit was forthcoming from the second respondent. But however when the matter came up on 01.09.2003, this Court was informed that they have already complied with the said condition. 3. However, when the matter came up for final hearing, this Court found that the second respondent was not paid the amounts under Section 17-B. When asked the learned counsel for the petitioner as to why the said condition was not complied with she had produced an affidavit sworn to by the General Manager of the Corporation dated 07.01.2009 and submitted to the Court. The following averments are found in Para 3 of the said affidavit, which reads as follows: 3. .......I state that on receipt of the above order,in order to comply with the order, the petitioner corporation drew out a cheque bearing Cheque No. 040252 dated 16.02.2005 drawn on for Rs.1,79,227/- towards backwages in favour of The Presiding Officer, Labour Court, Tirunelveli. However the above cheque was not deposited before the first respondent since the 2nd respondent had not filed an affidavit as per the above order of this Hon'ble Court. By oversight, this fact was not also communicated to our earlier counsel. In the meantime the above stay petition came up before this Hon'ble Court after notice on 01.09.2003 when our counsel, on the bonafide impression that we would have complied with the earlier order made a representation based on which this Hon'ble Court made the interim order absolute. 4. The case of the second respondent was that he was working as a Conductor in the petitioner corporation. He was attached to the Valliyoor Depot and he had put in 26 years of service. A charge sheet dated 12.01.1988 was given to him on the ground that he had continued to be absent from 23.12.1987 without prior intimation and without obtaining leave. An enquiry was ordered against the second respondent as he did not give any reply. When the enquiry held on 31.05.1988, he submitted a medical certificate obtained from the Government Doctor stating that he requires 20 days leave. Since the said certificate was not in accordance with certified Standing Orders No.7 r/w 15 applicable to the Corporation, the explanation offered by the second respondent was not accepted. Hence, the Enquiry Officer found him guilty of the charges. 5. Even while the said enquiry was pending, he was given another charge memo dated 18.06.1988 and he was placed under suspension. This time the charge related to the workman having collected amounts from the passengers and had not issued tickets, thereby misappropriated Rs.2 and 90 paise. Another enquiry was held https://hcservices.ecourts.gov.in/hcservices/ on 17.08.1988 in which one witness was examined by the petitioner. In that enquiry also the charge against the second respondent was proved. Thereafter, a second show cause notice was given to him on 13.10.1988. The notices dated 03.10.1988 and 13.10.1988 were served on him. He sent a reply 28.11.1988. On examination of these materials, the petitioner dismissed him from service with effect from 22.06.1988. 6. Since a dispute was pending before the Industrial Tribunal at Chennai, an approval petition was filed under Section 33(2)(b) of the I.D.Act. The Tribunal granted its approval on 18.07.1994. It was thereafter the second respondent raised an Industrial Dispute before the Government Labour Officer. He gave a failure dated 07.03.1995 on the strength of the failure report, he filed a claim statement before the Labour Court. 7. The Labour Court took up the dispute as I.D.No.50 of 1995 and issued notice to the petitioner corporation . The petitioner corporation filed a counter statement Before the Labour Court, on behalf of the petitioner corporation, 26 documents were filed and they were marked as Exs.M1 to M26. The Labour Court held since no attack was made against the enquiry and no submission was made regarding the validity of the same, there is no necessity to grant any finding on the domestic enquiry. 8. With reference to the charges levelled against the second respondent, the Labour Court held though the workman did not submit any certificate in accordance with the Standing Order, the issue will have to be looked into on a humanitarian angle. Therefore, on a technical ground the punishment of dismissal cannot be granted. With reference to collecting amount from the passengers, the said charge was not proved on the basis of any legal evidence. Thereafter on the basis of the power conferred under Section 11(a) of the I.D.Act, it held that the punishment of dismissal was disproportionate with the charges and therefore it interfered with the punishment by stating that he is eligible for reinstatement with backwages and continuity of service. It is against this award the present writ petition has been filed as noted already. 9. Ms.Kala Ramesh, the learned counsel for the petitioner submitted that the findings of the Labour Court was erroneous and not supported by materials on record. The management has conducted a proper enquiry in which the charges have been proved. The workman did not avail the opportunities given to him by leading any contra evidence. It is not the case of only one charge was proved against the workman but both the charges have been proved. 10. The learned counsel for the petitioner also referred to the decision of the Supreme Court in Mahindra and Mahindra Ltd. v. N.B. Narawade,(2005) 3 SCC 134, and referred to the following passage found in Paragrapah 20. 20. It is no doubt true that after introduction of https://hcservices.ecourts.gov.in/hcservices/ Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11- A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment..... 11. In the light of the same, she submitted that the Labour Court ought not to have granted reinstatement in a matter of misappropriation, even if it amounts to a very small amount. At the maximum if the Court came to the conclusion that the punishment of dismissal was disproportionate considering the fact that the second respondent had put in 26 years of service it could have granted only compensation in lieu of reinstatement. 12. In this context a reference can be made to a Judgment of the Supreme Court in Senapathy Whiteley Ltd. v. Karadi Gowda, (1999) 9 SCC 259, more particularly to the following passage found in paragraph 9. 9. It is well settled that the powers of the Labour Court under Section 11-A are wide and that it would be open to the High Court in justifiable cases to modify the order of the Labour Court. It is also permissible for this Court under Article 136 of the Constitution in appropriate cases to alter the punishment imposed on the workman for doing justice between the parties. In view of the facts stated above and the subsequent developments which have taken place after the order of dismissal, we are inclined to modify the order passed by the Labour Court. 13. The submission made by the learned counsel is well founded. In the light of the above, the award of the Labour Court will stand modified, it is hereby directed that instead of reinstatement with backwages, the workman is entitled for a sum of Rs.2,00,000/- towards full and final settlement. The writ petition https://hcservices.ecourts.gov.in/hcservices/ is disposed of accordingly. However, there is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar svki To The Presiding Officer, Labour Court,Tirunelveli. 1 CC To Ms.Kala Ramesh, Advocate, SR NO.3525 W.P.No.17514 of 1999 kji(co) pmk/5.2.2009. https://hcservices.ecourts.gov.in/hcservices/