IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 15.12.2008 Coram: THE HONOURABLE MR.JUSTICE M.JAICHANDREN W.P.No.1058 of 2003 K.Velusamy ...Petitioner Vs 1. The labour Court Coimbatore 2. The Management of the Tamil Nadu State Transport Corporation Mettupalayam Road Coimbatore – 641 043 ...Respondents Prayer: Petition filed seeking for a writ of Certiorarified Mandamus to call for the records relating to the order of dismissal bearing No.1/G.10/2095/CTC/91, dated 18.5.1993, on the file of the second respondent and the award, dated 18.12.2001, made in I.D.No.173/1998, on the file of the first respondent (served on 26.7.2002) and quash the same and consequently, to direct the second respondent to reinstate the petitioner in service with continuuity of service, backwages and all other attendant benefits from the date of dismissal. For Petitioner : Mr.T.P.Manoharan For Respondent : Mr.T.Chandrasekaran for R2 O R D E R Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the second respondent. 2. The petitioner has stated that he had joined in the service of the second respondent Corporation in the year, 1981, as a Trainee. Thereafter, he was appointed as a Junior Tradesman and he was posted at the Udumalpet Depot of the second respondent Corporation. As a Junior Tradesman, he had to work under the supervision of the Junior Engineer/ Assistant Engineer of the Udumalpet Depot. As such he was discharging his duties sincerely and efficiently. https://hcservices.ecourts.gov.in/hcservices/ 3. The petitioner has further stated that after he had joined the service of the second respondent Corporation, he had become a member of the C.I.T.U. Trade Union. As a member of the said Union he was in its Executive Committee, carrying on the activities of the trade union, actively. Therefore, the Management of the second respondent Corporation had started creating adverse records against the petitioner without having any basis to do so. While so, the second respondent Corporation had issued a charge memo, dated 6.5.1995, vindictively, containing certain allegations against the petitioner stating that he had committed misconduct, within the meaning of the standing orders No.14(b)(k)(t)(aa)(ah). The charges framed against the petitioner were false and they were vague. The relevant clauses of the standing orders of the second respondent Corporation read as follows: Clause-14 (b). Striking work or inciting others to strike work with another or others in breach of standing orers or in contravention of the provisions of the Industrial Disputes Act,1947, or any other enactment of rule in force for the time being. (k) Negligence or neglect of work. (t) Threatening, abusing, intimidating or assaulting any workman within or outside the premises of the industrial establishment if such threat, abuse, intimidation or assault is in connection with the employment in the industrial establishment. (aa) Leaving the proper place or work or the industrial establishment without authorisation. (ah) Unauthorised possession of any lethal weapon in the industrial establishment. 4. It has been further stated that even if the charges framed against the petitioner were true, it would not amount to misconducts, as contemplated by the relevant clauses of the standing orders of the second respondent Corporation. In fact, the charges framed against the petitioner are false, frivolous and untenable. However, the Management of the second respondent Corporation had ordered an enquiry to be conducted against the petitioner based on the charges framed against him. The enquiry officer was an Assistant Engineer of the second respondent Corporation and he was well-versed with the procedures and formalities of conducting the enquiry. However, the petitioner, having studied only upto 9th standard, was not aware of the law and the procedures to be followed during the https://hcservices.ecourts.gov.in/hcservices/ enquiry. He was not informed about the fact that he was entitled to have the assistance of a co-worker during the enquiry. The enquiry conducted against him was neither fair nor proper. 5. It has been further stated that the second respondent Corporation had not produced the attendance register to prove the allegation that the petitioner had made certain alteration therein. Only three interested witnesses had been examined on behalf of the second respondent Corporation to prove the charges framed against the petitioner. However, they were not in a position to substantiate the allegations made against the petitioner. Further, they had refused to answer the questions put to them by the petitioner during the enquiry. Further, the petitioner had not been cross examined at the time of the enquiry. The witnesses examined by the petitioner had fully supported his case. After the enquiry had been conducted, the enquiry officer had filed the enquiry report, dated 5.11.1992, stating that the charge that the petitioner had altered the attendance register was not proved. In respect of the charge that he had delayed in changing the clutch of the concerned vehicle, he had not given clear finding that the petitioner was guilty of misconduct. However, in the concluding portion of the enquiry report, the enquiry officer had stated that the charges framed against the petitioner, in relation to standing order No.14 (k)(t) (aa), were proved, while the charge in respect of the violation of the standing order No.14(ab) had not been proved. Based on the enquiry report, the second respondent Corporation had issued a second show cause notice, dated 13.1.1993, referring to the enquiry report, as well as the previous warning/punishment imposed on the petitioner on the earlier occasions, without any enquiry. The petitioner had submitted a detailed explanation, dated 2.2.1993, stating that the petitioner had not committed any misconduct. 6. It has been further stated that even if it was found that the petitioner had committed some irregularities, the proposed punishment of dismissal from service is highly disproportionate in nature. The warnings and punishments issued on the petitioner on the earlier occasions should not be counted for imposing the extreme punishment of dismissal from service. 7. It has also been stated that since certain adjudication proceedings were pending before the Industrial Tribunal, Chennai, the second respondent had filed a petition before the Tribunal, in petition No.47 of 1993, under Section 33(2)(b) of the Industrial Disputes Act, 1947, seeking approval for imposing the punishment of dismissal from service on the petitioner. By an order, dated 30.1.1996, the Industrial Tribunal had found that the enquiry was conducted in a fair and proper manner. However, granting of the approval by the Industrial Tribunal cannot take away the rights of the petitioner to contend that the disciplinary proceedings had not https://hcservices.ecourts.gov.in/hcservices/ been conducted fairly and properly and without following the procedures established by law. 8. It has been further stated that since the conciliation efforts had failed, the petitioner had raised an Industrial Dispute before the first respondent labour Court, in I.D.No.173 of 1998. The first respondent labour Court, by its award, dated 18.12.2001, had dismissed the Industrial Dispute raised by the petitioner, holding that he was not entitled to any relief, as prayed for by him. Aggrieved by the said award of the first respondent, dated 18.12.2001, made in I.D.No.173 of 1998, the petitioner had preferred the present writ petition before this Court, under Article 226 of the Constitution of India. 9. In the counter affidavit filed on behalf of the second respondent Corporation, the averments made by the petitioner had been denied. It has been stated that the petitioner had been employed as a Junior Tradesman in the second respondent Corporation at its Udumalpet branch. The petitioner had been dismissed from service, with effect from 22.5.1993, for having made an alteration in the attendance register, on 23.4.1991, by striking out 'A' to show that he was on sick leave. Further, he had misbehaved with the Superiors by attempting to beat them up. It was also alleged that he had not completed his work within the time allotted. Again, on 25.4.1991, the petitioner had threatened to beat up the Assistant Engineer, who had enquired him with regard to the changing of the clutch in the bus bearing Registration No.TML 4958, which was the work assigned to him. 10. It has been further stated that the petitioner had also threatened another Junior Engineer, one Kumar, for making a complaint about the petitioner for sleeping while on duty. Based on the allegations levelled against the petitioner, a domestic enquiry had been conducted by affording ample opportunity to the petitioner to defend himself. Thereafter, based on the findings of the enquiry officer, an order had been issued dismissing the petitioner from service. The Industrial Tribunal had also granted approval for the dismissal holding that the enquiry had been held in a fair and proper manner. The extreme punishment of dismissal from service had to be imposed on the petitioner due to the serious misconduct he had committed and taking into account his previous records and after having issued a second show cause notice to submit his explanation. Therefore, there is no irregularity or illegality in the enquiry proceedings conducted against the petitioner and the punishment of dismissal from service imposed on him is fair and proper. 11. It has been further stated that it is not correct for the petitioner to claim that the second respondent Corporation was having vindictive attitude towards the petitioner as he was active in trade union activities. Since the charges against the petitioner https://hcservices.ecourts.gov.in/hcservices/ were serious in nature, the punishment of dismissal from service had been imposed on him, in accordance with the standing orders of the second respondent Corporation. 12. The learned counsel appearing for the petitioner had submitted that no reasons had been given by the enquiry officer to come to his conclusion that the charges levelled against the petitioner had been proved. 13. The learned counsel appearing for the petitioner had submitted that the order of dismissal passed by the second respondent Corporation and the award passed by the first respondent labour Court are arbitrary, unfair, illegal and void. The reasons stated in the impugned order passed by the second respondent, imposing the extreme punishment of dismissal from service, are unsustainable. The charges framed against the petitioner are false, frivolous and untenable. Separate charge had not been framed for each misconduct alleged. The charges have not been framed fairly and cogently. 14. The learned counsel appearing for the petitioner had further submitted that the standing order No.14(b)(k)(t)(aa)(ah) would show that even if the allegations made against the petitioner were proved, they would not amount to the misconducts contemplated under the said clauses. The enquiry conducted against the petitioner was not fair and proper. The enquiry was conducted without giving due opportunity to the petitioner to putforth his case. Even if the past misconducts said to have been committed by the petitioner were taken into account, the extreme punishment of dismissal from service could not have been imposed on the petitioner. 15. The learned counsel appearing for the petitioner had further submitted that after the petitioner had submitted his explanation, dated 2.2.1993, the Management of the second respondent Corporation had made a material alteration in the operative portion of the enquiry report by inserting sub clause (b) to the standing order No.14. Such an alteration made by the second respondent Corporation had caused serious prejudice to the petitioner. No reasons have been given by the enquiry officer to come to his conclusions. Even though the Industrial Tribunal had held that the enquiry had been held in a fair and proper manner, it was open to the petitioner to challenge the enquiry proceedings before the first respondent labour Court. In spite of the petitioner showing, by sufficient evidence, that the enquiry proceedings were not conducted in accordance with the procedures established by law and by following the principles of natural justice, the labour Court relied on the findings of the Industrial Tribunal to hold that the enquiry was fair and proper. The labour Court had erred in holding that the order passed by the second respondent Corporation, dismissing the petitioner from service, was in accordance with law. The labour https://hcservices.ecourts.gov.in/hcservices/ Court had also erred in coming to its conclusions that the punishment of dismissal from service, imposed on the petitioner, is fair and that it is not disproportionate to the misconducts alleged against the petitioner. 16. Per contra, the learned counsel appearing for the second respondent Corporation had submitted that there is no error in the award of the first respondent labour Court, dated 18.12.2001, made in I.D.No.173 of 1998. The punishment of dismissal from service imposed on the petitioner is sustainable due to the fact that the misconduct committed by the petitioner is of a serious nature. The charges, which were framed against the petitioner were clear, cogent and correct and there was no necessity to frame separate charges. The labour Court had also held that the enquiry conducted against the petitioner was fair and proper. The second respondent Corporation had not made any material alteration in the operative portion of the enquiry report by inserting clause 14(b) of the standing orders as alleged by the petitioner. Clause 14(b) of the standing orders had already been included in the charge memo issued to the petitioner. The punishment of dismissal from service imposed on the petitioner is not excessive or disproportionate, since the misconducts committed by the petitioner were serious and grave in nature. Therefore, the award passed by the first respondent labour Court, dated 18.12.2001, made in I.D.No.173 of 1998, is in accordance with law and therefore, the present writ petition is liable to be dismissed. 17. The learned counsel appearing for the second respondent had relied on the decision of the Supreme Court in MAHINDRA & MAHINDRA LTD., Vs. N.B.NARAVADE (2005-I-LLJ 1129). Paragraph 20 of the said decision reads as follows: "20. It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the Management where the concerned workman is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to herein above and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the Court, or the existence of any mitigating circumstances which requires the reduction of https://hcservices.ecourts.gov.in/hcservices/ the sentence, or the past conduct of the workman which may persuade the labour Court to reduce the punishment. In the absence of any such factor existing, the labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the Act and reduce the punishment. ......." 18. In view of the submissions made by the learned counsels appearing for the parties concerned and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason for this Court to interfere with the order passed by the second respondent Corporation dismissing the petitioner from service and the award of the labour Court, dated 18.12.2001, made in I.D.No.173 of 1998. 19. The Management of the second respondent Corporation had framed various charges against the petitioner for the alleged misconducts committed by him, in accordance with the standing orders of the second respondent Corporation. The enquiry had been held giving sufficient opportunity to the petitioner to putforth his case. The labour Court had also held that the enquiry was fair and proper. Thereafter, the first respondent labour Court had held, by its award, dated 18.12.2001, made in I.D.No.173 of 1998, that the order passed by the second respondent Corporation, dismissing the petitioner from service, was valid and sustainable in the eye of law. The labour Court had given sufficient reasons for coming to its conclusions. The order of dismissal from service has been imposed on the petitioner, not only based on the proved misconducts alleged against him, but also based on his past records. 20. The claim of the petitioner that he was illiterate and that he was not informed that he could avail the assistance of a co- worker during the enquiry proceedings, and therefore, the enquiry proceedings conducted against him cannot be held to be fair and proper, cannot be countenanced. In fact, the petitioner has stated that he had studied upto 9th standard and that he was holding the post of a member of the Executive Committee of a Trade Union. While so, it would not be open to him to contend that he was not aware of the fact that he could take the assistance of a co-worker during the enquiry proceedings. Further, the petitioner has not shown that he has raised the said issue during the enquiry proceedings. Further, the misconducts alleged against the petitioner are serious in nature and therefore, it cannot be said that the punishment of dismissal from service is disproportionate to the allegations made against the petitioner. In such circumstances, the labour Court was right in not exercising its discretionary powers, nder Section 11-A of the Industrial Disputes Act, 1947, to reduce the punishment imposed on the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 21. Mere sympathy, devoid of merits, would not be sufficient for the labour Court to reduce the punishment imposed on the petitioner, as held by the Supreme Court in MAHINDRA & MAHINDRA LTD., Vs. N.B.NARAVADE (2005-I-LLJ 1129). Therefore, the contentions raised on behalf of the petitioner cannot be accepted. 22. For the reasons stated above, the reliefs prayed for by the petitioner in the present writ petition cannot be granted by this Court. Hence, the writ petition stands dismissed. No costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar lan To 1. The labour Court Coimbatore 2. The Management of the Tamil Nadu State Transport Corporation Mettupalayam Road Coimbatore – 641 043. + 1 c.c. to Mr. T.P. Manoharan, Advocate. S.R.No.70018. + 1 c.c. to Mr. T. Chandrasekaran, Advocate. S.R.No.70131. W.P.No.1058 of 2003 GG (CO) GSK 26.12.2008. https://hcservices.ecourts.gov.in/hcservices/