IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.03.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.4777 of 2010 & M.P.No.1 of 2010 1 MANAGEMENT OF METROPOLITAN TRANSPORT CORPORATION PALLAVAN HOUSE CHENNAI-2. [ PETITIONER ] Vs 1 THIRU.S.MARIA ARULANANDAM 2 THE PRESIDING OFFICER III ADDITIONAL LABOUR COURT CHENNAI-104. [ RESPONDENTS ] Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records pertaining to the Award dated 26.11.2009 made in I.D.No.551 of 2003 on the file of the 2nd Respondent herein and quash the same. For Petitioner :: Mr.M.Chidambaram O R D E R Heard Mr.M.Chidambaram, learned counsel for the petitioner. 2. The petitioner is a State owned Transport Corporation. Aggrieved by the award passed by the Labour Court in I.D.No.551 of 2003 dated 26.11.2009, the present Writ Petition has been filed. By the impugned award, the Labour Court held that the charges levelled against the 1st respondent was not proved. On considering the fact that he had already reached the age of superannuation on 30.11.2005 it had set aside the termination by taking into account the overall circumstances including his past history, it granted 75% of the backwages with attendant benefits. 3. The learned counsel for the petitioner contended the the 1st respondent has committed misconduct twice earlier while driving the bus in a rash and negligent manner and had caused damages and this https://hcservices.ecourts.gov.in/hcservices/ was the third time such an accident had taken place. Therefore, the Labour Court was wrong in reappreciating the evidence and coming to a different conclusion. He also stated that a proper enquiry was held in which witnesses were examined. After observing principles of natural justice and following the standing orders scrupulously the order of dismissal was passed on 18.12.2001. The entire record relating to the enquiry proceedings were filed and they were marked as Ex.M.1 to M.15. They also examined one G.Janarthanan as M.W.1. It is also seen from the records that the 1st respondent examined himself as W.W.1 and had filed 9 documents, which were marked as Ex.W.1 to W.9. Ex.W.8 is the FIR filed against him in the criminal case and Ex.W.9 dated 8.11.2005 was the judgment of the criminal court acquitting the 1st respondent in C.C.No.3333 of 2001. 4. The Labour Court though held that there was no infirmity in the enquiry conducted against the 1st respondent but held that the charges levelled against the workman was not proper. The enquiry officer's finding was perverse and not supported by materials on record. The Labour Court after analysing the evidence recorded against the workman found that though in the domestic enquiry one Ramachandran was examined, he was not an eye witness. He was merely an officer who visited the spot after the accident and prepared the topo map and filed the accident report. But in the domestic enquiry on the side of the 1st respondent workman, three persons were examined, who are eye witnesses and passengers, who traveled in the said bus. The witnesses deposed that the bus in Route No.15-F in which they had traveled when it was proceeding on the road, a Cyclist standing on the left side of the bus suddenly took a right turn. That had resulted in the accident. This can be seen from the mark found in the front side Center of the bus as well as in the backside Mudguard of the Cycle. The Labour Court took into account the fact that the 1st respondent was acquitted of the criminal case filed under Sections 304-A r/w 279 IPC. The Labour Court held that when the eye witnesses have spoken in favour of the 1st respondent, M.M.1 Ramachandran examined in the enquiry was not an eye witnesses. In such circumstances, the evidence will have to be analsyed more carefully. The enquiry officer's finding was given in a mecahnical fashion. Though the charge was that the 1st respondent drove the vehicle in a negligent fashion but the nature of the accident shows the other way round. In that view of the matter, the Labour Court held that the workman was entitled to get reinstatement. But in view of the fact that he had reached the age of superannuation on 30.11.2005, there was no scope for his reinstatement. On the question of backwages, the Labour Court considered all relevant aspects and held that 75% of the backwages will be sufficient relief to the workman. 5. Mr. M.Chidambaram, learned counsel for the petitioner made two submissions. The first submission was that the passengers were interested witnesses and their witnesses should not be believed. The https://hcservices.ecourts.gov.in/hcservices/ second submission was that the grant of 75% of the backwages is on the higher side. 6. With reference to the first submission, it must be stated that after the introduction of Section 11-A of the Industrial Disputes Act, which Section has been interpreted by the Supreme Court in Firestone's case, the power of the Labour Court is that of an appellate court and it cannot only reappreciate the evidence but also it come to a different conclusion. Merely because the passengers who come on the side of the workman gave evidence by itself will not prove that they were interested witnesses. On the contrary, the Corporation did not prove that they are got up witnesses or that individual never traveled in the bus on the relevant date. One official of the Corporation, who only went to the accident spot subsequent to the accident was examined by them. When the eye witnesses have spoken in favour of the workman, that is a relevant factor, which the Labour Court can take into account in finding the workman not guilty. With reference to the further submission that the workman was guilty of such an accident during the year 1987 and 2004 cannot have any relevance while considering the charges made against the petitioner in the present case on hand. Only when the present charges were proved, the question of looking into the past misconducts will arise. The concept of res ipsa loquitur will be available only in the absence of any eye witnesses. In the present case, the workman had taken care to bring the witnesses to speak for himself and their testimony was believed by the Labour Court. This Court sitting under Article 226 of the Constitution cannot interfere with the finding of fact recorded by the Labour Court. Hence, the submission made by the learned counsel for the petitioner will have to be necessarily rejected. 7. With reference to the last submission that the grant of 75% of backwages was on the higher side, it must be stated that the Supreme Court vide its judgment in Rajasthan Lalit Kala Academy v. Radhey Shyam reported in 2008 (3) SCC 248 has held that in case of invalid termination, the relief of reinstatement and backwages was the normal Rule. But at the same time, the Labour Court can take into account several other factors, namely the nature of employment whether permanent or temporary and the delay in raising dispute etc. In the present case, the 1st respondent is a permanent worker and there was no delay in moving the Labour Court. 8. In Laxmi Rattan Cotton Mills Ltd. v. State of U.P., reported in 2009 (1) SCC 695, the Supreme Court held that in the matter of grant of backwages, the Labour Court has wide discretion though it struck a note of caution to state that it must be exercised judiciously and all attempts must be taken by the court to strike a balance between the competing claims. https://hcservices.ecourts.gov.in/hcservices/ 9. In the present case, in the impugned award, the Labour Court held that it has taken into account the overall circumstances of the case including his past history and denied 25% of the backwages to the workman. Though it held that the workman was entitled for reinstatement, in view of the fact that he had reached the age of superannuation on 30.11.2005, that relief was denied. Therefore, under the over all circumstances of the case, this Court is of the view that the Labour Court has kept in mind the correct legal parameters in dealing with the dispute on hand and granted proper relief. The award of the Labour Court is well considered and not susceptible by this Court. 10. In the light of the above, the Writ Petition stands dismissed. No costs. The connected Miscellaneous Petition stands closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar ajr To 1 THE PRESIDING OFFICER III ADDITIONAL LABOUR COURT CHENNAI-104. +1 C.C. to Mr.M.Chidambaram Advocate – SR No.15703 W.P.No.4777 of 2010 09.03.2010 https://hcservices.ecourts.gov.in/hcservices/