IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18-11-2009 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.No.1088 of 2004 & W.P.M.P.No.1135 of 2004 & W.P. 1197 of 2004 W.P.No.1088 of 2004:- The Management, Tamil Nadu State Transport Corporation, (Madurai Div.III) Ltd., Rep. by its Managing Director, Nagercoil ... Petitioner Versus 1.The Presiding Officer, Labour Court, Tirunelveli. 2.M.Rajeswaran ... Respondents W.P. 1197 of 2004:- M.Rajeswaran ... Petitioner Versus 1.The Tamil Nadu State Transport Corporation, Rep. by Managing Director, Division III, Ranithottam, Nagercoil Post, Kanyakumari District. 2.The Presiding Officer, Labour Court, Tirunelveli. ... Respondents https://hcservices.ecourts.gov.in/hcservices/ Prayer in W.P.No.1088 of 2004:- Writ Petition filed under Article 226 of Constitution of India praying for the issue a Writ of Certiorari calling for the records pertaining to the award dated 30.04.2003 made in ID.No.50 of 2002 on the file of first respondent herein and quash the same. Prayer in W.P.No.1197 of 2004:- Writ Petition filed under Article 226 of Constitution of India praying for the issue a Writ of Certiorarified Mandamus to call for the records on the file of the Second Respondent relating to the impugned Award passed in I.D.No.50/02 dated 30.04.2003 and quash the same in so far as the Denial of Backwages and Continuity of Service and consequently direct the respondents to pay full backwages with 18% interest per annum with all benefits and continuity of service. For Petitioners : Mr.V.R.Kamalanathan (W.P.No.1088 of 2004) : Mr.M.Gnanasekar, (W.P.No.1197 of 2004) For Respondents : Mr.M.Gnanasekar, for R2 (W.P.No.1088 of 2004) : Mr.K.Malaikannu, for R1 for Mr.Rajinish Pathiyil (W.P.No.1197 of 2004) COMMON ORDER Aggrieved by the award passed by the second respondent the management as well as workman have approached this Court in separate Writ Petitions. The Writ Petition No.1197 of 2004 was filed by the workman and the Writ Petition No.1088 of 2004 was filed by the management. Hence this order, covers both the Writ Petitions. For the sake of convenience, the parties are referred to as "workman" and "Management". 2. The case of the workman is that he was employed as conductor in the Transport Corporation from 22.02.1988. While he was in service, he was suspended on 31.07.1990, on certain charges and a charge memo dated 06.08.1990 was served on him which reads as follows:- "i) Failure to issue ticket to more than 15 passengers from Thittuvilai to Avvaiaramman Koil after collecting the fare. ii) Planned attempt to misappropriate corporation money. https://hcservices.ecourts.gov.in/hcservices/ iii) On seeing the Checking Inspectors, making irregular entries in Tickets 9195 to 9198. iv) Failure to write details in the journey bill. v) Attempt to seize records from the Checking Inspector and when failed to get the records, refusal to continue the Trip. vi) Abusing the Checking Inspectors and instigating passengers to create confusion and making it impossible for inspection work. vii) Contravention of standing order No.13 (d) (A.R.) (U) (A.S)." For the said charge memo a reply was given by the workman. Not satisfied with the reply, an enquiry was ordered and the enquiry officer found that all the charges framed against him as proved. After issuing the second show cause notice on 21.12.1990, the workman was dismissed from service on 01.03.1991. 3. Against the dismissal order, the workman made a complaint in Complaint No.16/91 on the file of the Industrial Tribunal, which was dismissed. Against which Writ Petition No.11574 of 1995 was filed. The said Writ Petition was dismissed on 27.06.2001, giving liberty to the workman to raise an industrial dispute as per law. 4. Based on the strength of the order passed by this Court, the workman raised I.D.No.50/2002. On appreciation of pleadings and evidence, the Tribunal come to the conclusion that the procedure adopted by the Enquiry Officer is not fair and proper. Further the Tribunal held that the checking officials of the management not acted according to the procedure and there was no misappropriation of management money and that there was no explanation from the management as to whether any action has been taken against the driver of the bus during the incident. The Tribunal further found that the checking Inspector did not check the money bag and did not hand over the same to the management and that the proper procedure to be adopted was not done while conducting check and that the management did not prove misappropriation of the money of the management and there was no charge in that regard. In paragraph 6 of the award the Tribunal elaborately gave reasons to come to the conclusion that all the charges framed against the petitioner were not proved. It also found that the dismissal of the petitioner from service is disproportionate and set aside the termination order and reinstated without any backwages and without continuity of service. https://hcservices.ecourts.gov.in/hcservices/ 5. Against the said award only, the workman has come before this Court challenging the award with regard to the portion without continuity of service and backwages where as the management has come before this Court with regard to reinstatement. 6.Mr.M.Gnanasekar learned counsel for the petitioner submitted that it is the bounden duty of the management to prove charges against the workman by proper evidence. In this case he submitted that only one of the two Inspectors was examined and there was animosity between the said Inspector and the petitioner and therefore the evidence of Inspector relied on by the enquiry officer should be eschewed. Apart from that he submitted that no passenger was examined to prove the charges against the petitioner and the Tribunal went into the question and based on the evidence only rightly passed the order of reinstatement. However, he found fault with the findings Labour Court for ordering reinstatement without backwages and continuity of service. Mr.M.Gnanasekar learned counsel for workman submitted that when the Labour Court came to the conclusion that the procedure adopted by the enquiry officer was not fair and proper and further found that all the charges against the petitioner was not proved, it is obligatory on the part of the Tribunal to reinstate the petitioner along with backwages and continuity in service. He relied upon the Judgment of Supreme Court in A.L.Kalra Vs. The Project and Equipment Corporation of India Limited reported in AIR 1984 SC 1361. He particularly relied upon paragraph 32 of the said Judgment. In nutshell the learned counsel for the petitioners submitted that the workman should have been reinstated along with backwages and continuity of service. 7. On the other hand, Mr.V.R.Kamalanathan, learned counsel for the management submitted that the transport corporation is a public transport corporation, where the employees are entrusted with public money, and they should have confidence of the management, as money is being entrusted with them. The learned counsel submitted that charges against the petitioner were proved beyond doubt before the enquiry officer after examining one of the Inspectors and based on evidence only the enquiry officer found that the charges against the petitioner were proved and that the management subsequently dismissed the petitioner from service. He further submitted that unlike the civil proceedings, the law of evidence is not strictly applicable to the domestic enquiry where the principle of preponderance of probabilities alone is applicable. He further submitted the enquiry is neither Civil nor Criminal proceedings where the law of evidence is strictly applicable, and the parties are to plead and prove their case respectively. In this case out of the two checking Inspectors, one was examined before the enquiry officer and the other was examined before the Tribunal. Moreover the deposition copy of the officer was marked before the Labour Court. When such is the position, it should be deemed that the management proved the charge. https://hcservices.ecourts.gov.in/hcservices/ When the evidence available on record proved the charges against the workman, Mr.V.R.Kamalanathan submitted, the labour court ignored the material evidence and reinstated the petitioner without any justifiable findings/reasons. 8. With regard to departmental enquiry where only fair and natural justice are required to be complied with, the learned counsel relied upon a judgment of the Supreme Court in State of Haryana and Another Vs. Rattan Singh reported in 1977 (2) SCC 491 and also another judgment in Cholan Roadways Limited Vs. G.Thirugnanasambandam reported in (2005) 3 SCC 241. With regard to the punishment for misappropriation, the learned counsel relied upon the judgment of the Supreme Court in Divisional Controller , KSRTC(NWKRTC) Vs. A.T.Mane. In that case it was held that when an employee was found guilty of misappropriating the corporation's funds and it was held therein that there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. 9. Mr.K.Malaikannu learned counsel for the Transport Corporation in W.P.No.1197 of 2004 submitted that all the records required for proving charges against the petitioner were produced before the enquiry officer as well as the Industrial Tribunal. When such is the position the Labour Court wrongly found that the charges against the petitioner were not proved properly. 10. A perusal of the award would show that the complaint received from the Kalaivanar N.S.K. Polytechnic was not produced before the Labour Court in spite of the order from the Court, and there was an observation with regard to non-production of journey bills 264470 also. In the absence of those documents, inspite of the orders from the Labour Court, the Labour Court was compelled to record adverse inference. On the side of the petitioner Pw4 namely a retired checking Inspector, was examined and he categorically deposed that the procedure for the checking was not conducted properly in this case. Hence based on the expert evidence (Pw4), the Labour Court found that the checking by the Checking Inspectors was not done properly. With regard to the misappropriation and other charges, the Tribunal gave cogent reasons in paragraph 6 of the award to come to the conclusion. The Tribunal observed that the excess amount which was alleged to be found in the money bag was not given to the management, which was one of the procedures to be adopted by the checking Inspector the Tribunal rightly ordered reinstatement. The finding given by the Labour Court is finding on fact and based on the evidence of the expert and the same can not be set aside. The findings given in paragraph 6 of the award, are based on the facts and evidence and appreciation of evidence only and there is no scope for interference. https://hcservices.ecourts.gov.in/hcservices/ 11. It is well settled law that the Tribunal is the last forum for determination of fact and Article 226 of this Court can not be invoked for setting aside the finding of fact given by the Labour Court which was based on evidence. The jurisdiction under Article 226 is very limited and it can be exercised only if there is an error apparent on the face of the record and the finding has been given on no evidence or the material evidence has been ignored by the Labour Court. In this case admittedly, the Labour Court found that the enquiry conducted by the Transport Corporation was found to be not fair and proper. Apart from that the Labour Court gave a categorical finding, after appreciating the evidence of various witnesses and documents that the charges against the petitioner were not proved. However based on Ex.M1 namely the Bus Conductor record, the Labour Court was justified in denying continuity of service. Ex.M1 (Management Document) speaks about incidents of misconduct by the petitioner and for that there was a punishment of stoppage of duty and the petitioner was given punishments of warning seven times within a period of two years and that would only go to show that the petitioner is not discharging his duty properly. Considering Ex.M1 the Labour Court took a pragmatic view and reinstated him without backwages on the principle of no work, no pay and also without continuity of service. 12. No doubt the petitioner is entrusted with public money and service by Transport Corporation is an essential service. However, in this case there was no concrete evidence to prove that the petitioner misappropriated the Transport Corporation money. In the absence of any evidence, the Labour Court rightly reinstated the petitioner. As stated earlier, the jurisdiction of this Court is very limited as pronounced by the Hon'ble Supreme Court in Rahimal (Dead) by LRs and another Vs. Deputy Director of Consolidation and others reported in (2002) 10 SCC 94 wherein it has been held that the finding recorded by the Court is the finding of fact and it cannot be assailed in the appeal, and finding of fact cannot be interfered with by this Court. Similarly, in Ranjeer Singh Vs. Ravi Prakash reported in (2004) 3 SCC 682, it has been held by the Hon'ble Supreme Court that the High Court cannot act like an appellate Court and re-appreciate or re-evaluate the evidence while exercising Certiorari or Supervisory jurisdiction. In Shamshad Ahmad and others Vs. Thilak Raj Bajai (Deceased) through LRs reported in (2008) 9 SCC, the Hon'ble Supreme Court held that the powers of the High Court under Article 226 and 227 are very wide and extensive over all Courts and Tribunals, and such powers must be exercised within the limits of law. The High Court does not act as a Court of appeal or a Court of error. Unless there was miscarriage of justice or violation of law calling for intervention it was not for the High Court under Article 226 and 227 to interfere. The above said principle has been laid in D.N.Bonerji Vs. P.R.Mukherjee reported in AIR 1953 SC 58 and the same https://hcservices.ecourts.gov.in/hcservices/ was followed in Chandavarkar Sita Ratna Rao Vs. Ashalata S.Guram reported in (1986) 4 SCC 447 (Page 460 para 20) 13. In view of settled principles of law, there is nothing to conclude that there was miscarriage of justice in the award passed by the Tribunal. The award was based on evidence and moreover the Tribunal was cautious enough to reinstate the petitioner without continuity of service and backwages based on the past conduct of the petitioner. Hence, the award of the Labour Court is confirmed and the Writ Petition filed by the workman as well as the Transport Corporation are dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed. smn Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Presiding Officer, Labour Court, Tirunelveli. 2.The Managing Director, The Tamil Nadu State Transport Corporation, Division III, Ranithottam, Nagercoil Post, Kanyakumari District. 1 cc To Mr.Rajinish Pathiyil, Advocate, SR.62402 1 cc To Mr.M.Gnanasekar , Advocate, SR.62010 1 cc To Mr.V.R.Kamalanathan, Advocate, SR.62003 W.P.Nos.1088 & 1197 of 2004 sj(co) pmk.21.12.2009 https://hcservices.ecourts.gov.in/hcservices/