IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 23-07-2008 CORAM: THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.11466 of 1999 and 44949 of 2002 & W.P.M.P.No.16162 of 1999 in W.P.No.11466 of 1999 The Management of Tamil Nadu State Transport Corpn. (Coimbatore Divn. II) Ltd., (formerly known as Jeeva Transport Corpn. Ltd.,) Rep. by its Managing Director Erode ... Petitioner 2nd respondent in W.P.No.44949/2002 Vs 1. The Presiding Officer Labour Court Salem 1st respondent in both the petitions 2. A. Ponnusamy Petitioner in W.P.No.44949/02 ... Respondents 2nd Respondent in WP.11466/99 Prayer in W.P.No.11466 of 2008: Petition filed under Article 226 of the Constitution of India praying for a Writ of certiorari calling for the records pertaining to the order passed by the first respondent made in I.D.No.50 of 1997 dated 28-12-1998 and quash the same. Prayer in W.P.No.44949 of 2002: Petition filed under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus after calling for the https://hcservices.ecourts.gov.in/hcservices/ records relating to the order in I.D.No.50 of 1997 dt. 27-08-1998 on preliminary issue and the final award dt.28-12-1998, quash the preliminary order holding that the findings of the enquiry officer holding that the petitioner guilty of the charges, was correct and that portion of the final award depriving the petitioner's backwages and consequently direct the 2nd respondent to pay the petitioner backwages and other attendant benefits, award costs and render justice. For petitioner :: Mr. T. Chandrasekaran (for R2 in W.P.No.44949/2002) For respondents :: Mr. V. Ajay Ghose for R2 (for petitioner in W.P.No. 44949/2002) ORDER The writ petition is filed by the Tamil Nadu State Transport Corporation(W.P.No.11466 of 2008) against the award of the first respondent-Labour Court in I.P.No.50 of 1997 dated 28-12-1998, insofar it granted reinstatement with continuous service but without backwages. Pending the writ petition, this Court directed the petitioner-Management to comply with the payment under Section 17B of the Industrial Disputes Act pending disposal of the writ petition. In order to avoid the monthly payment the Management reinstated the workmen by an order dated 20-08-1999 without prejudice to the outcome of the writ petition. It was also stated that he will be paid the last drawn wages. Therefore, the workman joined service pursuant to the order passed by the Corporation. However, after two years of service by a further order dated 18-01-2001, the Management revoked the earlier order of reinstatement on the ground that there are surplus conductors and therefore, the service of the second respondent is not required. But, however, the Management assured the second respondent that he will be paid monthly wages as earlier directed by this Court and he continues to draw the same. After the petitioner became unemployed, he filed W.P.No.44949 of 2002 against the very same award as well as the preliminary order dated 27-12-1998 made by the Labour Court. His challenge was that the enquiry conducted by the Management was opposed to natural justice and in the alternative the finding recorded by the Labour Court to deprive the backwages was improper. In view of the interconnectivity between the writ petitions they were heard together. 2. Heard the arguments of Mr. T. Chandrasekaran, learned counsel for the Management and Mr. Ajoy Khose, learned counsel for the workman and perused the records. The Labour Court by order dated 27-08-1998 decided the preliminary issue against the workman and held https://hcservices.ecourts.gov.in/hcservices/ that the enquiry conducted by the Management was fair and proper and the findings rendered by the enquiry officer in the domestic enquiry was based upon the materials furnished by the Management. Thereafter, the issue was adjourned for arguments on the proportionality of the punishment as well as the perversity of the findings of the enquiry officer. While deciding the penalty the Labour Court came to the conclusion that the charge against the workman (who was a Conductor) that he had retained the tickets with the denomination of Rs.1.50 in respect of four passengers and reissued the same and therefore, the charge was proved beyond doubt. But the Labour Court held that though the Courts have pointed out that the quantum of misappropriation cannot be a relevant criteria in interfering with the punishment of dismissal imposed by the employer, but, however, based upon the judgment of the Andhra Pradesh High Court in 1994 (11) MLN 299 (P. Narayana V. Andhra Pradesh State Transport Corporation and other) wherein the Andhra Pradesh High Court has held that even the quantum could also be a relevant criteria, had held that in the circumstances of the case on hand and also taking note of the past conduct of the conductor, the reinstatement of the petitioner would be proper. The Labour Court further held that the workman was dismissed from service from 31-01-1995 and he was not in employment for nearly more than four years and deprivation of entire backwages will be a sufficient punishment. 3. Mr. Ajoy Khose, learned counsel for the petitioner submitted that the finding that the petitioner had misappropriated the amount is even contrary to the report given by the Enquiry Officer. 4. In the domestic enquiry dated 11-10-1994 wherein the Enquiry Officer had given a finding that after referring to the Management witness with regard to the conduct of the workman, that even if he had written wrongly with absent mind, it was a mistake and therefore, he was responsible. The Enquiry Officer also took note of the fact that the workman in his explanation has stated that the mistake took place because of the wrong entries made in the trip sheet. According to the workman, the serial number for one trip ended at 62 and instead writing 63 in the next stage he has written serial No.67. Even if this wrong entry was made in the trip sheet, usually, he could not have utilised the tickets with a denomination of Rs.1.50, because the destination was reaching and all the stages till the destination was having ticket value of less than Rs.1.50. In any event, the Labour Court having found that the enquiry report was not perverse in its preliminary order, but at the time of deciding the penalty, gave diametrically opposite finding. This is not a case where the Labour Court had independently appreciated the evidence after the preliminary order was passed by it. On the https://hcservices.ecourts.gov.in/hcservices/ contrary, the preliminary order itself is recorded that the enquiry was fair and proper and the findings was based upon evidence and it was acceptable. In the light of the same, though the Labour Court has held that the charge of misappropriation is proved in its final award dated 28-12-1998, this Court is of the opinion that such finding goes contrary to the report submitted by the Enquiry Officer which was accepted by the Management. But with reference to the backwages, no exception can be taken to the deprivation of backwages because the grant of backwages was not automatic even on a finding that the workman was not guilty of the charges. The Labour Court had rightly exercised its discretion in not granting backwages. In the present case, even if the report of the Enquiry Officer was accepted as final, even then the negligence committed by the petitioner is proved and therefore, he has to suffer the punishment as imposed by the Labour Court. 5. In the light of the same, both the writ petitions are mis-conceived. The conclusions urged by the Labour Court is proper and there is no irregularity or illegality in the same. However, the reasons attributed by the Labour Court in its award is contrary to the materials produced before it. Therefore, while finding that the reasons attributed by the Labour Court may not be proper, this Court is of the opinion that the end result regarding the punishment is justified. 6. In the result, both the writ petitions stand dismissed. There will be no order as to costs. The petitioner- Corporation is directed to implement the award within a period of eight weeks from the date of receipt of a copy of this order. The connected miscellaneous petition is closed. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar glp To 1. The Presiding Officer Labour Court, Salem https://hcservices.ecourts.gov.in/hcservices/ 2. The Management of Tamil Nadu State Transport Corpn. (Coimbatore Divn. II) Ltd., (formerly known as Jeeva Transport Corpn. Ltd.,) Rep. by its Managing Director Erode +1 cc to Mr.T. Chandrasekaran, Advocate, SR.No.39733 +1 cc to Mr.D.Hariparanthaman, Advocate, SR.No.39639 W.P.No.11466 of 1999 and 44949 of 2002 TS(CO) SMK/02.9.08 https://hcservices.ecourts.gov.in/hcservices/