IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.04.2010 CORAM THE HONOURABLE MR. JUSTICE M.JEYAPAUL W.P.No.23032 of 2003 D.Govindaraj ..Petitioner Vs. 1. Presiding Officer, Labour Court, Cuddalore. 2. Tamil Nadu State Transport Corporation, Division – I, Kumbakonam. ..Respondents Prayer:- Petition filed under Article 226 of the Constitution of India for the issuance of writ of Certiorari to call for the records pertaining to the award of the 1st respondent passed in I.D.No.55/1996 dated 07.06.2001, quash the same. For Petitioner : Mr.Santhana Raman for Mr. M.R. Sivakumar For R – 1 : Court For R – 2 : Mr.C.Manohar Gupta O R D E R The petitioner had been employed as a Conductor under the second respondent-Tamil Nadu State Transport Corporation ever since 10.11.1978. At the relevant point of time, he was the Joint Secretary of Cholan Roadways Corporation Labour Union. On the allegation that he picked up quarrel with the Branch Manager insisting for leave and used abusive language and made an attempt to pull him down, a charge memorandum was issued as against him on 03.09.1991. 2. Admittedly, a fair enquiry was conducted and ultimately the disciplinary authority namely the second respondent dismissed the petitioner from service on and from 23.09.1992. 3. The said order of dismissal passed by the second respondent was approved by the Industrial Tribunal at Madras through its order dated 29.01.1996. https://hcservices.ecourts.gov.in/hcservices/ 4. The said order was put to test before the first respondent. In fact, the petitioner herein having admitted the fact that a fair enquiry was conducted by the second respondent, sought for lesser punishment invoking the provisions under Section 11-A of the Industrial Disputes Act, 1947. The Labour Court having considered primarily the admission of guilt made by the petitioner and the fairness exhibited by the disciplinary authority in conducting the enquiry, chose to dismiss the petition preferred by the petitioner. Challenging the order of dismissal passed by the second respondent, the present writ petition is filed by the writ petitioner challenging the aforesaid order passed by the Labour Court. 5. The learned counsel appearing for the petitioner submitted that the petitioner had put in 14 years of service as Conductor. The Department is not in a position to pin point any mistake during the 14 years of unblemished service. There was some misbehaviour on a day when the leave sought for by the petitioner was refused by the Branch Manager and the petitioner, who was the Joint Secretary of the Cholan Roadways Corporation Labour Union at that relevant point of time, lost his temper and used some abusive language. At any rate, he would submit that the punishment of dismissal from service is quite disproportionate to the misconduct established by the Corporation. Therefore, he would submit that the Labour Court should have awarded a lesser punishment, taking a departure from the capital punishment of dismissal from service awarded by the Disciplinary Authority and approved by the Industrial Tribunal invoking provisions under Section 11-A of the Industrial Disputes Act, 1947. 6. The learned counsel appearing for the second respondent- Tamil Nadu State Transport Corporation referring to two decisions of the Honourable Supreme Court would submit that the Labour Court has rightly rejected the plea of the petitioner for lesser punishment as the fairness of the enquiry conducted by the second respondent was candidly admitted by the petitioner and the gravity of the misconduct also matched the punishment awarded by the disciplinary authority. Therefore, he would submit that the plea of the petitioner does not survive for legal scrutiny. 7. The charges against the petitioner are that he picked up a quarrel with the Branch Manager insisting for leave. He also used abusive language and attempted to pull down the Branch Manager, it is further alleged in the charge sheet. 8. The fairness of the enquiry conducted by the second respondent culminating in the punishment awarded by the second respondent was not disputed by the petitioner. In fact, the petitioner having admitted the fairness in the conduct of enquiry by the second respondent pleaded for lesser punishment before the Labour Court invoking provision under Section 11-A of the Industrial Disputes Act, 1947. https://hcservices.ecourts.gov.in/hcservices/ 9. The charge stood established and ultimately the second respondent dismissed the petitioner from service on and from 23.09.1992 as it was found that the charge established was graver in nature. 10. At the time of the occurrence, it appears that the petitioner was the Joint Secretary of the Cholan Roadways Corporation Labour Union. No material could be produced by the second respondent that similar misbehaviour was exhibited by the petitioner during the service of the petitioner for the past about 14 long years. There is no material to show as to what was the reason why he insisted for leave from the Branch Manager. It is found that the petitioner had not hotly contested the charge leveled as against him. He in fact pleaded for a lesser punishment even during the proceedings before the Labour Court. 11. In this context, the learned counsel appearing for the second respondent sought to rely upon a decision of the Honourable Supreme Court between New Shorrock Mills and Maheshbhai T.Rao 1997 (1) L.L.N.69. That was a case where the employee who was found guilty of misconduct in the enquiry conducted as against him was discharged from the services of the employer, but the Labour Court having taken a marked departure from the nature of punishment awarded by the employer chose to reinstate the employee in service with part of backwages. Further, the employee in that case threatened the Deputy Manager that he would not mind going to jail after committing murder of four to five officers working in the said department. Under such circumstances and also considering the fact that a fair enquiry was conducted by the Management, the Supreme Court found that the Labour Court should not have interfered with the order of punishment of discharge passed by the Management as against the employee. 12. In the instant case, no such threat was wielded by the petitioner. Further the capital punishment of dismissal from service was awarded to the petitioner who was also a Joint Secretary of the Cholan Roadways Corporation Labour Union. In view of the above facts and circumstances I hold that the above said ratio laid down by the Honourable Supreme Court will not apply to the case on hand. 13. The learned counsel appearing for the second respondent would refer to yet another decision of the Honourable Supreme Court between Mahindra and Mahindra, Ltd. And N.B.Narawade 2005 (1) L.L.N.1074 wherein the Honourable Supreme Court disapproved the order of reinstatement with two-thirds backwages, setting aside the order of punishment awarded by the Management passed by the Labour Court and confirmed in the writ petition as well as in the writ appeal preferred by the Management. 14. That was a case where the employee used abusive and filthy language as against the superior officers not once, but twice, that https://hcservices.ecourts.gov.in/hcservices/ too in the presence of his subordinates. The repetition of misconduct by the employee did not invoke the sympathy of the Honourable Supreme Court in that case to consider the plea for lesser punishment sought for by the employer. 15. In the instant case, it is not the case of the Management that the petitioner was cantankerous and had in fact repeated the misconduct. Therefore, the above ratio will not also apply to the fact- situation of this case. 16. It is trite law that wherever the Court finds that the punishment awarded is disproportionate to the misconduct established by the Management, the Court can definitely interfere even with the nature of punishment awarded, despite the fact that there was fair enquiry conducted by the Management giving full opportunity to the employee concerned. 17. Considering the unblemished service that the petitioner had put in for 14 long years and the stray incident of misconduct, which of course was established by the Management, the Court finds that a lesser punishment of compulsory retirement would meet the ends of justice. 18. Therefore, the punishment of dismissal from service awarded by the Management and approved by the Industrial Tribunal and confirmed by the Labour Court is modified into one of compulsory retirement from service. The petitioner is entitled to all the benefits as per law, as an employee who is retired compulsorily with effect from 23.09.1992. 19. With the above modification in the matter of punishment awarded to the petitioner, the writ petition stands disposed of in the aforesaid terms. There is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ps To 1. The Presiding Officer, Labour Court, Cuddalore. https://hcservices.ecourts.gov.in/hcservices/ 2. Tamil Nadu State Transport Corporation, Division – I, Kumbakonam. + 1 c.c. to Mr. M.R. Sivakumar, Advocate. S.R.No.23544. + 1 c.c. to M/s. Gupta & Ravi, Advocate. S.R.No.23483. W.P.No.23032 of 2003 KSJ (CO) GSK 21.04.2010. https://hcservices.ecourts.gov.in/hcservices/