IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.09.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.3236 of 2009 M.Albert Arokia Jayaraj ...Petitioner Vs. 1.The Presiding Officer, Labour Court, Cuddalore. 2.The Management, Tamilnadu State Transport Corporation Ltd., Kumbakonam. ...Respondents Writ Petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorarified mandamus, calling for the records pertaining to impugned Award dated 04.07.2007 passed by the first respondent in I.D.No.12/2003 quash the same and consequently direct the second respondent to reinstate the petitioner. For Petitioner : Mr.Ajay Khosh For Respondents : Mr.V.Udayakumar, Standing Counsel for Transport O R D E R The petitioner has filed the present writ petition, challenging an Award passed by the first respondent Labour Court, Cuddalore in I.D.No.12 of 2003 dated 04.07.2007. By the impugned Award, the Labour court refused to grant any relief to the petitioner workman and dismissed the Industrial Dispute raised by him. 2. The writ petition was admitted on 25.02.2009. 3. The learned counsel for the petitioner also filed an additional typed set containing the documents marked before the Labour Court. The case of the petitioner was that he had joined the second respondent wholly owned Transport Corporation, having https://hcservices.ecourts.gov.in/hcservices/ headquarters at Kumbakonam on 05.06.1992 as a Conductor. On 25.10.2000, when the petitioner was about to remit the cash collection at the end of the second shift, the official at Thanjavur Old Bus Stand asked him to go special duty in the route between Thanjavur and Vaduvur, since it was on the date of Diwali eve. He was not familiar with the fare charges of the said route he had issued tickets at the rate of Rs.3.75/- for passengers travelling from Neivasal and Vaduvur. But after sometime when he came to know that the fare was Rs.4.00/-, he issued ticket to the other passengers at the rate of Rs.4/-. The bus was subjected to checking by the checking staff at Neivasal. The Checking Inspector found a group of 14 passengers were issued ticket at the rate of Rs.3.75/- each for trip from Thanjavur to Vaduvur but the actual ticket fare was Rs.4/-. It was found that though the petitioner had collected Rs.56/- from one group of 14 passengers but had issued them tickets for less fare at the rate of Rs.3.75/- and he had not returned the difference amount of Rs.3.50/-, thus, misappropriated Rs.3.50/- in the collected amount from the 14 passengers. When questioned, the petitioner admitted the omission but refused to give any statement. It was also found that one of the passengers who travelled from Thanjavur to Vaduvur was not issued ticket and that passenger also gave Rs.4/- and a fine amount of Rs.25/- was collected for travel without ticket. A verification of petitioner's cash bag revealed there was excess cash of Rs.11.70/-. The driver of the bus signed the defect memo but the petitioner refused to sign the same. 4. Thereafter, a charge memo dated 05.12.2000 was issued to the petitioner. After the petitioner's explanation dated 23.01.2001, an enquiry was ordered to be conducted by a retired Sub-Judge, who was appointed as the Enquiry Officer. Finally, after some adjournments, enquiry was held on 11.04.2001 and the petitioner participated in the enquiry. The Enquiry Officer on the completion of the enquiry gave a report dated 18.04.2001 and held that the charges levelled against the petitioner were proved. On the basis of the findings of the Enquiry Officer, a show cause notice dated 28.07.2001 was given to the petitioner. The petitioner gave his further explanation on 17.08.2001. After examining the petitioner's explanation, the second respondent did not find any grounds to interfere. It was also found that the petitioner had earlier suffered 15 punishments including the punishment for not issuing tickets after collecting fares on two occasions. The petitioner was dismissed from service on 04.01.2002. 5. As against the dismissal order dated 04.01.2002, the petitioner raised an Industrial Dispute before the Government Labour Officer at Thanjavur. As the said officer could not bring about mediation, he gave his failure report. On the strength of the failure report, the petitioner filed a claim statement before the first respondent Labour Court, Thanjavur. The said dispute was taken on file as I.D.No.12 of 2003. On notice from the Labour Court, the second respondent Corporation filed a counter statement dated 10.09.2003. https://hcservices.ecourts.gov.in/hcservices/ 6. Before the Labour court, both sides did not lead any oral evidence. On behalf of the petitioner, no documents were filed and on the side of the second respondent, enquiry proceedings were filed and were marked as Exs.M1 to M19. Te Labour Court did not decide the validity of the domestic enquiry as the preliminary issue since the counsel for the petitioner made an endorsement that they are having no objection regarding the conduct of the enquiry and they only wanted to argue on the findings recorded by the enquiry officer and whether the punishment was proportionate. 7. The Labour court held that the worker himself accepted that he had issued ticket for lower value as he was not familiar with the route in which he was deputed. Once he found that he had mistakenly issued ticket at the rate of Rs.3.75, he started giving tickets at the rate of Rs.4/-. If that explanation of the petitioner was accepted as truthful, then there was no reason that he has not given any further explanation for having Rs.11.70/- in his cash bag as excess amount. Therefore, if he had issued ticket and collected on the basis of the face value, there was no scope for having extra amount in his cash bag. Therefore, the finding recorded by the Enquiry Officer that he was guilty of collecting fare for issuing lower value ticket was proved. Therefore, on the basis of his past record, even earlier, two times he was punished for such misconduct, the Court refused to exercise its jurisdiction under Section 11-A of the Industrial Disputes Act. 8. However, Mr.V.Ajoy Khose, learned counsel for the petitioner contended that the findings of the Labour court was erroneous. On the relevant date, there were 80 passengers and the bus was fully packed. Even after realizing that he had issued tickets for a lower value, he could not identify those 14 passengers. But when the bus came to Neivasal, he told those 14 passengers that the validity of the ticket was over and for further travel to Vaduvur, they have to pay Rs.1.50/- each but they refused to purchase tickets and were quarreling with the petitioner. It was at that stage the checking officials got into the bus and alleged that the petitioner had collected the money and they were not willing to accept the explanation offered by the petitioner. In his earlier explanation dated 23.01.2001 marked as Ex.M2 though the petitioner had stated similar reason but with reference to the statement recorded from the passenger he had stated that they were threatened by the Checking Inspector in giving such statement but actually, they were travelling without ticket and they were trying to cheat the corporation. In respect of the excess amount which was found in the bag, it was stated that it was due to non-receipt of balance amount by the passenger in his previous duty and that should be returned. The statement recorded from the group passengers was marked as Ex.P3 in the enquiry. The defect report of the Checking Inspector was marked as Exs.M13 and M14. 9. Apart from this, second show cause notice dated 28.07.2001 marked as Ex.M17 showed that the petitioner on two occasions namely 12.04.1995 and 25.03.1997 was issued with similar chargesheet and was imposed with the penalty of stoppage of https://hcservices.ecourts.gov.in/hcservices/ increment for one year in the first instance and two years in the second instance and there were as many as 15 penalties against the petitioner including those two punishments. In the present case, the Labour Court considered the defence of the petitioner, but with reference to the non-issuance of ticket to one passenger, he had no explanation except stating that he could not find out due to over crowd of passengers. If he was allowed to pay the cash after the end of the trip, he would have paid the excess amount also by showing that it was the excess amount, which amount to be returned to the passenger which was collected in the previous trip. But because of the checking, he could not deposit the amount. 10. In any event, in the present case, charges levelled against the petitioner have been clearly proved in the departmental enquiry and the petitioner do not object to the procedure conducted in the enquiry. On the findings recorded in the domestic enquiry, the Labour Court was in full agreement and did not want to deviate and render a different finding by exercising its appellate power. On the question of penalty, the Labour Court also took note of the previous punishments given to the petitioner and held that it was not a fit case to to exercise its discretion for the proved misconduct. 11. In this context, it is necessary to refer to the judgment of the Supreme Court vide its judgment in U.P.State Road Transport Corporation v. Vinod Kumar reported in (2008) 1 SCC 115, wherein, it was held that if the workman was removed from service and had challenged the conclusions reached by the Enquiry Officer and the quantum of punishment but not the legality or fairness of the enquiry proceedings, then the Labour court cannot examine the findings of the Enquiry Officer and hold that the charges were not proved. 12. Similarly in respect of bus conductor who did not keep correct accounts and was also found not issuing tickets to some passengers but collected amounts, the Supreme Court held that the Labour court was not justified in holding that the punishment was disproportionate vide its judgment in Uttaranchal Transport Corporation v. Sanjay Kumar Nautiyal reported in (2008) 1 SCC 115. 13. In view of the above, this Court is not inclined to interfere with the impugned Award. Hence, the writ petition stands dismissed. However, there will be no order as to costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar svki https://hcservices.ecourts.gov.in/hcservices/ To 1.The Presiding Officer, Labour Court, Cuddalore. 2.The Management, Tamilnadu State Transport Corporation Ltd., Kumbakonam. 1 cc to Mr. V.Ajay Khose, Advocate, Sr.No.60325 W.P.No.3236 of 2009 tam(co) pmk.10.10.2011 https://hcservices.ecourts.gov.in/hcservices/