IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 18-6-2010 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.3165 of 2006 The Management of Metropolitan Transport Corporation (Chennai) Ltd., formerly Pallavan Transport Corporation Ltd., and Metropolitan Transport Corporation (CD1) Ltd., Pallavan House, Anna Salai, Chennai – 600 002. ... Petitioner Vs. 1. The Presiding Officer, II Additional Labour Court, Chennai. 2. Palani ... Respondents The prayer in the writ petition is to issue a writ of certiorari calling for the records pertaining to the award dated 10.5.2005 made in I.D.No.901 of 1998 on the file of the first respondent and quash the same. For Petitioner : Mr.V.R.Kamalanathan 1st Respondent : Court For 2nd Respondent : Mr.S.Ravi O R D E R The prayer in the writ petition is to quash the award of the Labour Court dated 10.5.2001 passed in I.D.No.901 of 1998. 2. Petitioner is the Metropolitan Transport Corporation Limited, a State Government Undertaking. The second respondent was appointed as Driver in the then Pallavan Transport Corporation Limited from 21.9.1989. The said Corporation was subsequently renamed as petitioner Corporation. https://hcservices.ecourts.gov.in/hcservices/ 3. According to the petitioner, the second respondent committed 27 accidents including 17 accidents within a period of four years and three months. On 21.12.1993 while the second respondent was driving the Transport Corporation bus Route No.18JJ, Fleet No.OG 242 between Tambaram and Broadway and while proceeding to Broadway at about 7.40 p.m., the said bus involved in an accident in the traffic junction near the traffic signal on the arterial road of Chennai viz., Anna Salai, just opposite to the headquarters of the petitioner Corporation. Due to the said accident, damage was caused to the bus. On receipt of the information regarding the accident, the management deputed its Traffic Investigator, Accident Branch. After inspection in the place of accident, the said Officer gave a report holding that the second respondent rashly and negligently drove the bus and that was the cause for the accident. Based on the investigation report, the management placed the second respondent under suspension by order dated 6.1.1994, pending disciplinary action with effect from 7.1.1994. 4. Three charges were framed against the second respondent on 10.1.1994. The second respondent submitted his explanation and the same having been found not satisfactory, domestic enquiry was ordered and the petitioner was allowed to rejoin duty from 28.1.1994 without prejudice to the outcome of the disciplinary proceeding. The domestic enquiry was conducted by the retired Deputy Commissioner of Labour. The second respondent participated in the enquiry and also cross examined the management witnesses with the help of a co-worker. The second respondent did not appear for enquiry on several days, however, subsequently he participated on four hearing dates, that was on 17.11.1994, 24.11.1994, 3.12.1994 and 24.1.1995. On 24.1.1995 his co-worker did not take part in the enquiry and therefore the second respondent sought for adjournment. Thereafter the second respondent remained absent in spite of giving several opportunities. The Enquiry Officer proceeded with the enquiry in the absence of the second respondent and held that all the charges levelled against the second respondent were proved, by his report dated 9.2.1995. 5. The petitioner Corporation issued second show cause notice on 20.4.1995 and sought for explanation as to why the second respondent shall not be removed from service. Second respondent gave his explanation on 27.5.1995 and after considering the same, the management decided to remove the second respondent from service by order dated 15.8.1995. Petitioner filed appeal on 30.10.1995 which was also rejected by order dated 3.3.1996. Thereafter the petitioner raised a dispute under section 2A of the Industrial Disputes Act, 1947, before the Labour Officer-II, Chennai. The management participated in the conciliation https://hcservices.ecourts.gov.in/hcservices/ proceedings and no conciliation having been reached, a failure report was made by the Labour Officer and thereafter I.D.No.901 of 1998 was raised. The Labour Court set aside the order of dismissal and held that the second respondent is liable to pay a sum of Rs.10,000/- as damages to the management and ordered reinstatement with 50% backwages with continuity of service and all other attendant benefits by its award dated 10.7.2005. 6. The said award is challenged in this writ petition on the ground that the Labour Court has improperly exercised its jurisdiction under Section 11A of the Industrial Disputes Act, 1947, without even considering the past conduct of the second respondent including the punishments already imposed as stated supra. The Labour Court gave a finding that while relying upon the past conduct, no opportunity was given to the petitioner with regard to the said past conduct. It is also contended in the affidavit that the second respondent having caused 27 accidents, out of which he was found fully responsible in 17 accidents within four years and three months, he is not entitled to be retained in the Transport Corporation as driver. 7. The learned counsel for the petitioner submitted that the second respondent is unfit to continue as Driver as he has committed 27 accidents in his service and taking note of the said past record of service as well as the accident committed by the second respondent on 21.12.1993, after holding enquiry and based on the enquiry report, the order of termination was passed, which was interfered with by the Labour Court under Section 11A of the Industrial Disputes Act, 1947, and the same is improper. 8. The learned counsel for the second respondent on the other hand submitted that the charges framed against the petitioner being carelessness and negligent driving, causing damages to the tune of Rs.10,000/- and loss of revenue of Rs.15,000/- due to the non-operation of the bus for ten days, the extreme penalty of dismissal from service is clearly unproportionate to the gravity of the charges and therefore the Labour Court has rightly interfered with the punishment by invoking its powers under Section 11A of the Industrial Disputes Act, 1947, and the discretion exercised by the Labour Court cannot be found to be wrong, warranting interference under Article 226 of the Constitution of India. The learned counsel also submitted that while relying upon the past record of service for terminating the services of the petitioner, the same was not stated in the show cause notice while proposing the punishment and this amounts to violation of the principles of natural justice. The learned counsel further submitted that the damages to the bus has already been ordered to be recovered from the second respondent by the Labour Court and the second respondent was also denied 50% of the https://hcservices.ecourts.gov.in/hcservices/ backwages till reinstatement and the said order being a valid order no interference is called for. 9. I have considered the rival submissions of the learned counsel for the petitioner Transport Corporation as well as the learned counsel for the second respondent/Workman. 10. The charges levelled against the second respondent are as follows: "1. That while he was on duty in Route No.18JJ in Fleet No.OG 242 on 21.12.93 had driven the vehicle in careless and negligent manner and thus caused an accident, which is misconduct under Sec.25 XXVII of Certified Standing Order. 2. That he is fully responsible for misdriving and caused damage to the value of Rs.10,000/- to the public property and also caused loss of revenue of Rs.15,000/- to the Corporation as the vehicle was not operated on line continuously for ten days due to the accident, which is misconduct under Sec.25 XXVIII of Certified Standing Order. 3. That he was responsible for the non- operation of bus for 10 days which reflects the sufferings to the travelling public since the same was not released by the Police from their custody which is also misconduct under Section 25 XIiii of Certified Standing Order." From the perusal of the above charges it is evident that the allegations levelled against the second respondent are careless and negligent driving of the bus on 25.12.1993 and causing accident, thereby the bus got damaged to the tune of Rs.10,000/- and due to the non-operation of the bus for ten days, the Corporation sustained loss of revenue to the tune of Rs.15,000/-. 11. The petitioner management conducted domestic enquiry as regards the said charges and it was found that the charges are proved. The Labour Court interfered with the punishment on the ground that the disciplinary authority, before accepting the report of the Enquiry Officer, failed to serve the copy of the enquiry report and obtained the remarks from the second respondent and the enquiry report was enclosed only along with the final show cause notice, which is denial of natural justice. The said findings of the Labour Court is in consonance with the decision of the Supreme Court reported in (1993) 4 SCC 727 (Managing Director, ECIL v. B.Karunakar). In paragraphs 26 and 27 of the said https://hcservices.ecourts.gov.in/hcservices/ judgment the Supreme Court held as follows: "26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may https://hcservices.ecourts.gov.in/hcservices/ not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer’s findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it. 27. It will thus be seen that where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer’s report and the delinquent employee’s reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee’s right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings." (Emphasis Supplied) 12. The Labour Court also found that as per Ex.W3 while the second respondent was driving the bus after getting signal, a scooterist tried to take left turn and in order to avert the accident, the second respondent applied brake and since it was raining, the bus dashed against the traffic signal post in the middle of the road. The Labour Court also found that even as per the evidence of MW-1 Investigator, there was rain during the time of accident and consequently found that it cannot be construed from any angle that the accident was only due to the rash and negligent driving of the petitioner. The Labour Court also gave a finding that the actual extent of damage could not be assessed. https://hcservices.ecourts.gov.in/hcservices/ Considering the above aspects the Labour Court exercised its discretion under Section 11A of the Industrial Disputes Act, 1947, and found that the dismissal order passed against the second respondent is highly disproportionate and ordered reinstatement with continuity of service and 50% backwages with a direction to the second respondent to pay a sum of Rs.10,000/- towards damages caused to the bus. 13. When the superior Courts can interfere with the order passed by the Labour Court, exercising powers under Section 11A of the Industrial Disputes Act, 1947, is explained by the Supreme Court in the decision reported in 2010 (2) Supreme 318 (Krishan Singh v. Executive Engineer, Haryana State Agricultural Marketing Board, Rohtak). In paragraph 8 the Supreme Court held thus, "8. Section 11A of the Act clearly provides that where an industrial dispute relating to the discharge or dismissal of workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct re-instatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. Wide discretion is, therefore, vested in the Labour Court while adjudicating an industrial dispute relating to discharge or dismissal of a workman and if the Labour Court has exercised its jurisdiction in the facts and circumstances of the case to direct re-instatement of a workman with 50% back wages taking into consideration the pleadings of the parties and the evidence on record, the High Court in exercise of its power under Articles 226 and 227 of the Constitution of India will not interfere with the same, except on well settled principles laid down by this Court for a writ of certiorari against an order passed by a Court or a Tribunal." 14. The Labour Court by virtue of its powers conferred under https://hcservices.ecourts.gov.in/hcservices/ Section 11A of the Industrial Disputes Act, 1947, having found on facts that the punishment is excessive, and no clear proof about the misconduct of the second respondent being available, and the management having violated the principles of natural justice, and having regard to the circumstances of the case, namely the charges, I am of the view that the award passed by the Labour Court in ordering reinstatement with continuity of service and 50% backwages with direction to pay Rs.10,000/- by the second respondent to the management is just and proper. There is no perversity in the order warranting interference under Article 226 of the Constitution of India. The writ petition is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vr To The Presiding Officer, II Additional Labour Court, Chennai. Copy to: The Section Officer, VR Section, High Court,Madras-104. KGK(CO) km/29.6. W.P.No.3165 of 2006 https://hcservices.ecourts.gov.in/hcservices/