IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.01.2012 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.30230 and 37629 of 2007 and M.P.Nos.1/2007, 1 and 2/2008 Management Tamil Nadu State Transport Corporation (Salem Division I) Ltd 12, Ramakrishna Road Salem-7 ... Petitioner in W.P.30230/2007 Subash ... Petitioner in W.P.37629/2007 vs 1.The Presiding Officer Labour Court Salem ... 1st respondent in both the WPs 2.P.Subash ... 2nd Respondents in WP.30230/2007 3.The Management of Tamil Nadu State Transport Corporation (Salem Division) Ltd., 12, Ramakrishna Road Salem ... 2nd respondent in W.P.37629/2007 Prayer in W.P.No.30230/2007: Writ Petition filed under Article 226 of Constitution of India praying to issue a Writ of Certiorari calling for the records of the 1st respondent in its Award made in I.D.No.473/2004 dated 08.09.2006 and quash the same. Prayer in W.P.No.37629/2007: Writ Petition filed under Article 226 of Constitution of India praying to issue a Writ of Certiorarified Mandamus after calling for the records relating to the Award dated 08.09.2006 in I.D.No.473/2004 from the 1st respondent, quash the same in so far as depriving the entire backwages and other attendant benefits for the entire period of non-employment and consequently direct the 2nd respondent corporation to pay the petitioner backwages and grant the petitioner and pay all other attendant benefits including annual and other increments , revision of wages. For petitioner in W.P.30230/2007 : Mr.Ravibharathi For petitioner in W.P.37629/2007 : Mr.V.Ajoy Khose For 2nd respondent in W.P.30230/2007: Mr.V.Ajoy Khose For 2nd respondent in w.P.37629/2007 : Mr.Ravibharathi C O M M O N O R D E R W.P.30230/2007 is filed by the petitioner/Management, which is a State owned Transport Corporation having head quarters at Salem. They are aggrieved by the Award in I.D.No.473/2004 dated 08.09.2006. 2. By the impugned award, the Labour Court, Salem-the first respondent in W.P.30230/2007 granted reinstatement in favour of the second respondent with service continuity but without backwages and other attendant benefits. 3. Initially, notice of motion was ordered and interim stay was granted in this writ petition along with another W.P., viz., W.P.30229/2007 filed by the same management in respect of another industrial dispute in I.D.No.485/2002 relating to one R.Pandian. Subsequently, both the writ petitions were admitted on 26.03.2009 and this Court also directed payment of the last drawn wages in terms of Section 17-B of the Industrial Disputes Act, 1947. Even while the writ petition was pending, the aggrieved workman filed a cross writ petition being W.P.37629/2007, challenging that portion of the award denying backwages and other attendant benefits. That writ petition was admitted on 20.12.2007 and directed to be posted along with the writ petition filed by the Management. Since the writ petition filed by the management and the writ petition filed by the workman viz., Subash have interconnectivity, they are grouped together and a common order is passed. For the sake of convenience, the parties are referred to as Management and workman as the case may be. 4. The short point that arise for consideration is as to whether the impugned order is liable to be interfered with. The facts leading to the filing of the writ petition are as follows:- The workman was employed as a Conductor with effect from 10.06.1985 and his last drawn salary was Rs.7,000/-. On 05.02.2003, he was working in the trip from Tirupathur to Salem. The bus was checked at Ayothiyapattinam and it has been found that one passenger, who was entrained into the bus at Thirupathur and did not get down at Harur, but continued to proceed to Salem. Therefore, a chargememo was given on the basis of the checking inspector's report dated 10.02.2003. The workman gave explanation on 20.02.2003. After conducting an enquiry, second show cause notice dated 05.06.2003 was given to him. Thereafter, by order dated 08.08.2003, he was dismissed from service. 5. On the basis of the dismissal order, the workman raised a dispute before the Government Labour Officer and on the strength of the failure report dated 08.03.2004, a claim statement was filed before the Labour Court. The Labour Court registered his claim as I.D.No.473/2004. 6. On notice from the Labour Court, the Management filed a counter statement dated 20.12.2004. In the counter statement filed, they had reserved their liberty to lead fresh evidence, in case, the enquiry conducted by them was held to be invalid. 7. The Labour Court considered the validity regarding the enquiry as a preliminary issue. By its preliminary award dated 08.12.2005, the Labour Court set aside the enquiry conducted by the Management. Thereafter, evidence was let in before the Labour Court. 8. On the side of the workman, the workman himself was examined as W.W.1. On the side of the management, three witnesses were examined as M.Ws.1, 2 and 3. On the side of the workman, the failure report filed by the Conciliation Officer dated 08.03.2004 was marked. On the side of the Management, fourteen documents were filed and marked as M.1 to M.14. 9. The Labour Court on an analysis of evidence came to a conclusion that at the maximum, it was a case of negligence. It is true instead of getting down at Harur, the passenger travelled beyond his destination and got down at Salem and the explanation of the workman was that he had a ticket to travel upto Harur and he could not find out that he was over-travelling beyond Harur ; at a maximum there was a loss of Rs.11.50 and for that purpose, the dismissal cannot be invoked. 10. The Labour Court also held that it is not a case of fair collected(FC) but not ticket issued. But, it is a case of fair not collected (FNC). The Labour Court further not accepted the contention of the Management that workman is entitled for capital punishment of dismissal. It is in that view of the matter, the Labour Court reinstated the workman with service continuity, but without backwages and other attendant benefits. It was held that it was sufficient punishment for the loss caused. 11. The contention raised by the Management was that the Labour Court was wrong in exercising its power under Section 11-A of the Industrial Disputes Act, 1947 in interfering with penalty and the documents filed will clearly prove the misconduct of the workman. It is further contended that for the misconduct done by the workman, punishment of dismissal can be granted. 12. The Labour Court considered the contention of the Management as invalid and set aside the enquiry conducted. Fresh evidence was let in. In this case, the Management has not chosen to challenge the preliminary award passed by the Labour Court. Therefore, this Court has to proceed that enquiry conducted by the Management was invalid and has become final. 13. On the appreciation of the witness examined by the Management before the Labour Court, we find that at the maximum there is negligence on the part of the workman and there is no finding of defrauding the Transport Corporation. Safeguarding the interest of the management in denying the entire backwages, with which the workman is aggrieved, in the second portion, the Labour Court ordered reinstatement. Hence, this Court do not find any interference with the Award as pointed out by the Management. 14. In the writ petition filed by the workman, the contention was loss was only to the extent of Rs.11.50. Therefore, denial of entire backwages cannot be done. It is also contended that under Section 124 of the Motor Vehicles Act, it is a punishable offence under Section 178 of the said Act. Therefore, sufficient safeguard are provided to safeguard the interest of the Management. Therefore, in a case of fair not collected (FNC), it should not be treated as Fair Collected (FC). 15. In any event, there is no denial of the fact that the passenger was allowed to travel beyond his stage. The workman do not have any explanation for over-travelling of the passenger. But that is not a ground the Labour Court declined to grant backwages. However, the Labour Court in order to keep balance of two sides, only ordered reinstatement with continuity of service. 16. This Court is not inclined to interfere with that portion of the Award. Accordingly, both the writ petitions stand dismissed. Consequently, connected MPs are closed. 17. In view of the dismissal, the petitioner-Transport Corporation is hereby directed to reinstate the workman within a period of eight weeks from the date of receipt of a copy of this order. 12.01.2012 Index:Yes/No Internet:Yes/No nvsri To The Presiding Officer Labour Court Salem K.CHANDRU, J. nvsri W.P.Nos.30230 and 37629 of 2007 12.01.2012