IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 5.12.2008 Coram: The Honourable Mr.Justice M.JAICHANDREN W.P.No.11890 of 2002 & W.P.No.14180 of 2003 M.Raju .. petitioner in W.P.No11890 of 2002 The Management of Metropolitan Transport Corporation Ltd., Chennai-600 002 .. petitioner in W.P.No.14180 of 2003 Vs The Presiding Officer I Addl. Labour Court High Court Compound Chennai-600 104 .. first respondent in W.P.No.11890 of 2002 and second respondent in W.P.No.14180 of 2003 The Management of Metro Transport Corporation (Division-II) Ltd., Ayyanavaram, Chennai-600 023 .. second respondent in W.P.No.11890 of 2002 Raju .. first respondent in W.P.No.14180 of 2003 https://hcservices.ecourts.gov.in/hcservices/ W.P.No.11890 of 2002: This writ petition has been filed praying for a writ of Certiorari to call for the records from the files of the first respondent in I.D.No.503 of 1997, dated 14.3.2001, and quash its impugned award insofar as it has denied to the petitioner 50% back wages. W.P.No.14180 of 2003 This writ petition has been filed praying for a writ of Certiorari to call for the records relating to I.D.No.503 of 1997, on the file of the Ist Additional Labour Court, Chennai, and quash the award, dated 14.3.2001, made in I.D.No.503 of 1997. W.P.No.14180 of 2003: For Petitioner : Mr.G.Munirathnam For Respondent : Ms.K.Bharathy for R1 for M/s.S.Kumarasamy labour Court – R2 W.P.No.11890 of 2002: For Petitioner : Ms.K.Bharathy for M/s. S.Kumarasamy For Respondent : labour Court – R1 Mr.S.Uthayakumar for R2 for M/s.King & Patridge O R D E R Heard the learned counsels appearing for the parties concerned. W.P.No.11890 of 2002: 2. The Writ Petition in W.P.No.11890 of 2002, has been filed by the petitioner employee challenging the award of the first respondent labour Court, dated 14.3.2001, made in I.D.No.503 of 1997, insofar as it has denied the petitioner 50% of the backwages due to him. 3. The petitioner has stated that the award of the second respondent labour Court, dated 14.3.2001, made in I.D.No.503 of 1997, https://hcservices.ecourts.gov.in/hcservices/ insofar as it denies to the petitioner 50% of the backwages to him, is arbitrary and illegal. It has been stated that the petitioner has joined the service of the second respondent, on 22.10.1979, as a security guard. As such, he was carrying on his duties faithfully and efficiently. While so, he was suspended from service, on 9.8.1989, and the said suspension was revoked, on 28.8.1989. Thereafter, the second respondent has issued a charge memo, to the petitioner, on 8.9.1989, alleging that on 4.8.1989, while he was on duty, three condemned auctioned Radiators were found missing and that a complaint had been lodged before the police and that the petitioner was responsible for the theft. The petitioner had denied the charges stating that he could not be held to be responsible for the theft that had taken place in spite of his showing sufficient care and caution. However, the petitioner had been charged with the misconduct of theft, under clause 25 (iv) of the Standing Orders. Not being satisfied with the explanation submitted by the petitioner, an enquiry had been ordered to go into the charges levelled against him. Thereafter, the petitioner was dismissed from service, on 1.7.1995. The petitioner had preferred an appeal against the said order. The appeal had been rejected, by an order, dated 30.7.1996. 4. It has been further stated that the petitioner had challenged his non-employment by raising an Industrial Dispute, under Section 2- A(2) of the Industrial Disputes Act, 1947. The said industrial dispute had been numbered as I.D.No.503 of 1997, on the file of the first respondent labour Court. The first respondent labour court had passed the award, dated 14.3.2001, in I.D.No.503 of 1997, holding that the non-employment of the petitioner was not justified, since the petitioner could not be held to be responsible for the theft. Therefore, the first respondent labour court had directed the Management of the second respondent corporation to reinstate the petitioner, with continuity of service, 50% backwages, along with all other attendant benefits. The petitioner has challenged the said award, insofar as it denies to him 50% of the backwages due to him. 5. The learned counsel appearing on behalf of the petitioner has submitted that the first respondent labour Court, having analysed the evidence on record and having come to the categorical conclusion that the charges levelled against the petitioner had not been proved, it ought to have granted to the petitioner full backwages due to him, instead, the first respondent labour court had, erroneously, granted only 50% of the backwages due to the petitioner. 6. The learned counsel appearing on behalf of the petitioner has further submitted that even though the labour Court had found, based on the evidence, that the theft of the Radiators belonging to the second respondent Corporation had taken place due to circumstances beyond the control of the petitioner, there was no reason for the first respondent labour Court to come to the conclusions that the https://hcservices.ecourts.gov.in/hcservices/ petitioner deserves only 50% of the bakcwages on his reinstatement, with continuity of service. Since it has been held that the charges levelled against the petitioner had not been proved, the denial of 50% backwages to the petitioner is arbitrary and illegal. 7. Per contra, the learned counsel appearing for the second respondent Corporation had submitted that granting of backwages to the reinstated employee is not automatic. The first respondent labour court had rightly exercised its discretionary powers in granting only 50% backwages to the petitioner employee, taking into consideration the facts and circumstances of the case. 8. The learned counsel appearing for the second respondent in W.P.No.11890 of 2002, had relied on the decision of the Supreme court in HISSAR CENTRAL COOP. BANK LTD. Vs. KALIRAM ((2003) 9 SCC 221), wherein it was held that the nature of the charge, the extent of the employee's involvement and whether his conduct has caused the loss to the employer are all the relevant factors to be considered while granting backwages. 9. The learned counsel appearing on behalf of the second respondent in W.P.No.11890 of 2002, had relied on a recent decision of a Division Bench of this Court, dated 31.7.2008, made in W.A.No.2010 of 2005 (Metropolitan Transport Corporation Limited, Pallavan House, Pallavan Salai, chennai-600 002 Vs. W.V.Buddar and another), wherein it has been held that it is evident from the award of the labour court that the workman never pleaded that while he was out of service he was not in gainful employment in any other organisation or department. In the absence of such pleadings, the workman is not entitled to claim backwages. 10. In view of the rival contentions raised on behalf of the parties concerned, this Court is of the considered view that the first respondent labour Court had rightly exercised its discretionary powers, taking into consideration the relevant factors, in granting only 50% of the backwages due to the petitioner employee. 11. The granting of backwages is not automatic. It is for the labour Court to come to its conclusions, with regard to the awarding of backwages, taking into account the various factors, which are relevant to the issues raised before it. In U.P. STATE BRASSWARE CORPN. LTD Vs. UDAY NARAIN PANDEY (2006) 1 SCC 479), the Supreme Court had held that no precise formula can be laid down as to under what circumstances payment of entire backwages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be https://hcservices.ecourts.gov.in/hcservices/ in contravention of the relevant provisions of the concerned statute. While granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages cannot be the natural consequence. In such view of the matter, this court is not persuaded to grant the reliefs, as prayed for by the petitioner, in the present writ petition. Hence, the writ petition stands dismissed. No costs. W.P.No.14180 of 2003: 12. The writ petition in W.P.No.14180 of 2003, has been filed by the Management of the petitioner Corporation challenging the award of the second respondent labour Court, dated 14.3.2001, made in I.D.No.503 of 1997, reinstating the first respondent employee in the service of the petitioner Corporation, with continuity of service and with 50% backwages, along with the other attendant benefits. 13. With regard to W.P.No.14180 of 2003, it has been stated that the first respondent employee had joined in the service of the petitioner Corporation, on 22.10.1979. He was placed under suspension, on 8.9.1989, for having been negligent in performing his duties. Since three condemned auctioned Radiators had been stolen, while he was on night duty, on 4.8.1989, a charge memo, dated 8.9.1989, had been issued to the employee, calling for an explanation. The employee had submitted his explanation, on 27.9.1989, requesting for an enquiry to be conducted. Based on his request, an enquiry had been ordered to be conducted by a retired Assistant Commissioner of labour. 14. It has been further stated that the enquiry had been conducted by the enquiry officer by providing all reasonable opportunities to the employee. Based on the findings of the enquiry officer, a second show cause notice had been issued to the first respondent employee, along with the findings of the enquiry officer, calling for an explanation as to why he should not be removed from service by a memo, dated 22.3.1993. The employee had submitted an explanation, dated 17.4.1993, stating that he was not responsible for the theft of the Radiators and he had requested the Management of the petitioner Corporation to reconsider the proposed punishment. After considering all the relevant aspects, an order had been passed by the Management of the petitioner Corporation, removing the first respondent employee from service, by an order, dated 1.7.1995. 15. Aggrieved by the order of dismissal passed against him, the first respondent employee had raised an industrial dispute, in I.D.No.503 of 1997, before the second respondent labour Court. According to the first respondent employee, the charges levelled against him are false and the order of dismissal passed by the Management of the petitioner Corporation is contrary to law and the https://hcservices.ecourts.gov.in/hcservices/ principles of natural justice. 16. In the counter statement filed by the Management of the petitioner Corporation, it was contended that the first respondent employee was responsible for the theft of three condemned auctioned Radiators. Based on the enquiry conducted, with regard to the charges levelled against the employee, he had been removed from service, by an order, dated 1.7.1995. The second respondent labour Court had passed an award, dated 14.3.2001, in I.D.No.503 of 1997, setting aside the order of dismissal, dated 1.7.1995, directing the petitioner Corporation to reinstate the first respondent in service, with continuity of service, with 50% backwages and other attendant benefits. 17. The learned counsel appearing for the petitioner had submitted that the award of the labour Court is contrary to law, weight of evidence and probabilities of the case. The second respondent labour Court had failed to note that the first respondent employee was responsible for the theft of three condemned auctioned Radiators, as he has been careless and negligent in his duties. The second respondent labour Court had failed to note that the charge memo had been issued to the first respondent employee and an explanation had been called for. Thereafter, an enquiry had been conducted following the principles of natural justice. Since the charges levelled against the first respondent employee were held as proved, a second show cause notice had been issued to him calling for an explanation from the first respondent employee. Since the explanation submitted by the employee was not satisfactory, he was dismissed from service, on 1.7.1995. 18. It has also been submitted that the impugned award is perverse, as it is arbitrary and contrary to the evidence available on record. The second respondent labour Court ought not to have exercised its jurisdiction, under Section 11-A of the Industrial Disputes Act, 1947, as the charges levelled against the fist respondent had been clearly proved. In spite of the fact that the second respondent labour Court had found that the charges levelled against the first respondent employee, relating to the negligence in his duties, had been proved during the enquiry and that it was a serious misconduct, in accordance with the Standing Orders applicable to the employees of the petitioner Corporation, the labour Court had concluded that the theft of the Radiators had taken place beyond the control of the first respondent employee. Further, the second respondent labour Court ought not to have granted 50% of backwages to the first respondent employee, as there was no claim from him that he was not gainfully employed during the relevant period. Hence, the award of the second respondent labour Court, dated 14.3.2001, made in I.D.No.503 of 1997, is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 19. Per contra, the learned counsel appearing for the first respondent employee had submitted that the award of the second respondent labour Court, dated 14.3.2001, made in I.D.No.503 of 1997, is in accordance with law. There is no infirmity or irregularity in the said award, as contended by the learned counsel appearing for the petitioner Corporation. Based on the evidence available on record, the second respondent labour Court had come to the right conclusions that the first respondent employee could not be held to be responsible for the theft of three condemned auctioned Radiators belonging to the petitioner Corporation. Even though there was no dispute with regard to the fact that the theft had taken place, the second respondent labour Court had found that the theft had taken place beyond the control of the first respondent employee. It was also clearly found that the first respondent employee was not involved in the act of theft committed by some outsiders. The labour Court had also found that the height of the walls around the premises in which the stolen Radiators had been kept was low and that it would not have been possible for the first respondent employee to have guarded the Radiators from being stolen. In such circumstances, the labour Court had come to the conclusion that the punishment of dismissal from service, imposed on the first respondent employee, by the Management of the petitioner Corporation, was disproportionate in nature. Therefore, the second respondent labour Court had invoked its discretionary jurisdiction, under Section 11-A of the Industrial Disputes Act, 1947, to direct the Management of the petitioner Corporation to reinstate the first respondent employee in service, with continuity of service, 50% backwages and with all other attendant benefits. Hence, the writ petition filed by the Management of the petitioner Corporation, is liable to be dismissed as devoid of merits. 20. The learned counsel appearing on behalf of the petitioner Corporation in W.P.No.14180 of 2003, had relied on the decision of the Supreme Court in TALWARA CO-OPERATIVE CREDIT SERVICE SOCIETY LTD. Vs. SUSHIL KUMAR (2008 (5) CTC 377), to contend that the onus of proof is on the workman to show that he was not gainfully employed while he was not in service. 21. In view of the submissions made by the learned counsels appearing on behalf of the petitioner Corporation, as well as the first respondent employee 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 for this Court to interfere with the award of the second respondent labour Court, dated 14.3.2001, made in I.D.No.503 of 1997. 22. The second respondent labour Court has arrived at its https://hcservices.ecourts.gov.in/hcservices/ conclusions based on the evidence available on record. The second respondent labour Court had found that the first respondent employee cannot be held to be responsible for having been negligent or careless. When he was on duty, at the relevant point of time, the theft of three condemned auctioned Radiators belonging to the petitioner Corporation had been stolen in spite of due care and caution shown by the first respondent employee. One of the reasons stated by the second respondent labour Court for the theft having taken place is the height of the walls around the premises in which the stolen goods had been kept. Further, the labour Court had exercised its discretionary powers, under Section 11-A of the Industrial Disputes Act, 1947, to hold that the punishment of dismissal from service, imposed on the second respondent, is disproportionate to the misconduct alleged against him. The second respondent labour Court had also come to the conclusion that the charge levelled against the first respondent employee, under the Standing Orders applicable to the petitioner Corporation, stating that he was responsible for the theft of Radiators, has not been sufficiently proved. The second respondent labour Court had further held that even if it could be found that the first respondent employee was negligent in performing his duty of guarding the Radiators belonging to the petitioner Corporation, the punishment of dismissal from service, imposed on him by the Management of the Corporation, is too harsh and excessive in nature, considering the facts and circumstances under which the theft had taken place. In such circumstances, the labour Court had invoked its discretionary powers, under Section 11-A of the Industrial Disputes Act, 1947, to pass the award, dated 14.3.2001, reinstating the petitioner, with continuity of service, 50% backwages and other attendant benefits. Nothing has been shown on behalf of the petitioner Corporation for this Court to come to the conclusion that the award of the second respondent labour Court, dated 14.3.2001, made in I.D.No.503 of 1997, is perverse or based on no evidence. In such circumstances, this Court is not inclined to interfere with award of the second respondent labour Court, dated 14.3.2001, made in I.D.No.503 of 1997. Hence, the writ petition stands dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar lan https://hcservices.ecourts.gov.in/hcservices/ To 1.The Presiding Officer I Addl. Labour Court High Court Compound Chennai-600 104 2. The Management of Metro Transport Corporation (Division-II) Ltd., Ayyanavaram, Chennai-600 023 +1cc to Mr.G.Munirathnam, Advocate Sr 69414 +1cc to Mr.K.M.Ramesh, Advocate Sr 68732 +1cc to Mr.King & Partridge, Advocate Sr 69127 SJ (CO) km/21.1. W.P.No.11890 of 2002 & W.P.No.14180 of 2003 https://hcservices.ecourts.gov.in/hcservices/