IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 7.9.2011 CORAM: THE HONOURABLE MR.JUSTICE T.RAJA Writ Petition Nos.28553 of 2003 and 28071 of 2005 W.P.No.28553 of 2003 Tamil Nadu State Transport Corporation (Salem Divn. I) Ltd., Salem, represented by its Managing Director .. Petitioner -Vs- 1. Presiding Officer Labour Court, Salem. 2. R.K.Ramasamy .. Respondents W.P.No.28071 of 2005 R.K. Ramasamy .. Petitioner -Vs- 1.The Management Tamil Nadu State Transport Corporation (Salem Divn. I) Ltd., 12, Ramakrishna Road, Salem-7. 2. The Presiding Officer, Labour Court, Salem. .. Respondents W.P.No.28553 of 2003 Writ petition filed under Article 226 of the Constitution of India praying this Honourable Court to issue a writ of certiorari to call for the records from the file of the first respondent and to quash its award in I.D.No.565 of 1998. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.28071 of 2005 Writ petition filed under Article 226 of the Constitution of India praying this Honourable Court to issue a writ of certiorarified mandamus to call for the records relating to the award in I.D.No.565 of 1998 dated 24.7.2002 passed by the second respondent and to quash that portion of the Award depriving the petitioner's backwages, continuity of service and consequential benefits and to direct the first respondent to reinstate the petitioner with continuity of service, backwages and other consequential benefits. For petitioner in WP.No.28553/2003 : Mr.M.Ravi Bharathi For respondent No.2 in WP.No.28553/2003 : Mr.S.Arunachalam for Ms.S.Girija For petitioner in W.P.No.28071 of 2005 : Mr.S.Arunachalam for Ms.S.Girija For R1 in W.P.No.28071 of 2005 : Mr.M.Ravi Bharathi COMMON ORDER W.P.No.28553 of 2003 has been filed by the management viz. Tamil Nadu State Transport Corporation (Salem Division I) Limited praying for issuance of a writ of certiorari to quash the Award of the first respondent viz. Labour Court, Salem in I.D.No.565 of 1998 dated 24.7.2002. W.P.No.28071 of 2005 has been filed by the workman R.K.Ramasamy praying for issuance of a writ of certiorarified mandamus to quash the portion of the award of the second respondent viz. Labour Court, Salem in I.D.No.565 of 1998, dated 24.7.2002, depriving the petitioner's backwages, continuity of service and consequential benefits and to direct the first respondent management to reinstate the petitioner with continuity of service, backwages and other consequential benefits. 2. The award passed by the Labour Court clearly held that four departmental enquiries were held against the workman by the management viz. Tamil Nadu State Transport Corporation (Salem Division I) but the workman did not participate in two enquiries and in the third enquiry, though appeared, he failed to effectively participate in the enquiry. On that basis, it has been clearly held that the charge of misconducts found against the workman have been proved and imposed the punishment against the workman. However, it has been observed by the Labour Court that severe punishment of https://hcservices.ecourts.gov.in/hcservices/ dismissal from service is not correct. On that basis, the Labour Court passed an award directing the management to reinstate the workman as fresh appointee without any backwages and continuity of service and without any attendant benefits. 3. Aggrieved by the said Award, the management filed writ petition in W.P.No.28553 of 2003 challenging it on the ground that the Labour Court has passed the award in clear violation of the power conferred under Section 11-A of the Industrial Disputes Act. The workman also aggrieved with a portion of the award, filed W.P.No.28071 of 2005 challenging only that portion of the award refusing to give backwages and continuity of service. Therefore, with the consent of both parties, both writ petitions are taken up together. For the sake of convenience, the management is referred as writ petitioner in W.P.No.28553 of 2003 and the workman R.K.Ramasamy is referred as "workman" hereafter. 4. Brief facts leading to the filing of these two writ petitions are given as under:- The second respondent workman in W.P.No.28553 of 2003 joined the management viz. Tamil Nadu State Transport Corporation (Salem Division I) as driver on 12.8.1982. While the workman was driving a vehicle bearing Registration No.TML 7539 on his trip from Salem to Madurai on 16.6.1989, Checking Inspector checked the vehicle at a place called Gandhigram at about 4.15 pm and found that the second respondent workman was neither in uniform nor in possession of the driving licence. 5. Therefore, when the checking inspector questioned the workman viz. Driver the reason for not wearing the uniform and not keeping his driving licence, the second respondent alleged to have shouted at him in a bad manner. Hence the Checking Inspector submitted a report. On the basis of the report, the writ petitioner in WP.No.28553 of 2003 viz. Management issued a charge sheet dated 6.7.1989 charging him for his misconduct under 19(1L) and 19(1B) of the Standing Orders which is extracted as under: "(i) that he was not wearing uniform and not possession of the driving licence at the time of checking on his duty, and that he acted in an irresponsible manner towards the Corporation Officials when they questioned about the matter. He was also charge sheeted, for his irresponsible and callous behaviour with the officials during checking and also for bringing bad name to the Corporation among the public." On receipt of the said charge memo, the second respondent workman submitted his explanation on 27.7.1989 and finding his https://hcservices.ecourts.gov.in/hcservices/ explanation not satisfactory, the petitioner management ordered domestic enquiry to enquire into the charges. Thereupon, the enquiry was conducted. After receipt of the notice by the second respondent for the enquiry to be held on 6.12.1989 and after acknowledging the receipt of the said notice, he failed to participate in the enquiry and therefore enquiry was proceeded treating him as exparte and finally the Enquiry Officer submitted his report holding that the second respondent was guilty of charges. Again the workman gave rise to one more enquiry on 9.7.1989 by committing the same misconduct while driving a bus on his trip from Salem to Erode. A checking inspector inspected the vehicle at Magudanchavadi and found that the second respondent was again driving the vehicle without wearing uniform and also not keeping the driving licence in possession. When the checking inspector handed over the inspection report to the second respondent workman, he refused to receive the same. As a result, the petitioner Corporation issued charge memo dated 18.7.1989 alleging that the second respondent workman has committed misconduct under 19(1L) and 19(1B) of the Standing Orders. On receipt of the said charge memo, he also submitted his explanation on 27.7.1989. In the said explanation, the workman accepted the allegation that he was not able to wear the uniform, since wearing uniform would land any driver in problem that if for any reason the vehicle meets with an accident, the public and the affected people would manhandle the driver by properly identifying the driver's uniform. In respect of the second charge that he failed to keep in possession of the driving licence, again by admitting the fact that he was not holding the licence at the time of driving the licence, he justified the same stating that he was not keeping the licence in his pocket in order to avoid misplacement and loss of licence. Since these explanations were not satisfactory, the Disciplinary Authority rejected the explanation and ordered for domestic enquiry. After several adjournments, the second respondent -workman failed to appear before the Enquiry Officer on 7.10.1989. He also failed to participate in the second enquiry which compelled the management to complete the enquiry on his absence. On completion of the second enquiry, the Enquiry Officer submitted his enquiry report holding the second respondent guilty of the charges. 6. Adding further, the learned counsel appearing for the management, has submitted that the workman once again committed third misconduct on 16.6.1989 when he was driving the vehicle bearing Registration No.TML 7589 on his trip from Salem to Coimbatore by dashing against one autorickshaw at about 3 pm at Pallipalayam and he after dashing the vehicle, instead of stopping it, he picked away the vehicle, for which, he was issued with charge memo under 19(1)(d) and 19 (1)(l) of the Standing Orders of the management Corporation. Again the second respondent workman has submitted his explanation dated 27.7.1989, in which, he stated that he compromised with the matter with Autorickshaw owner, hence an enquiry was held on 5.12.1989. Though he was present in the enquiry, he refused to https://hcservices.ecourts.gov.in/hcservices/ participate in the enquiry proceeding and the Enquiry Officer found him guilty of the charges. Four enquiries were held against him for the four misconduts, for which he was issued with four charge memos. The Disciplinary Authority, on receipt of four independent enquiry reports from four Enquiry Officers for four different misconducts, by clubbing all four reports, issued one common second show cause notice to the workman calling him to submit his further representation. The second respondent also, on receipt of a second show cause notice, submitted his further representation on 30.1.1990. The Disciplinary Authority, having seen that the second respondent has accepted all the charges by giving unjustified explanation, finally passed the order of dismissal from service on 14.3.1990. 7. The learned counsel for the petitioner management has further submitted that though the Labour Court held that all the three enquiries were properly and fairly held, again by taking note of the fact that workman deliberately avoided the enquiry, issued a direction to the management to reinstate him in service. Aggrieved against the award of the Labour Court, the management Corporation filed W.P.No.28553 of 2003 and aggrieved against the portion of the award refusing to grant backwages and continuity of service, the workman preferred W.P.No.28071 of 2005. 8. The learned counsel for the petitioner management submitted that when the matter was taken up before the conciliation officer and after the enquiry report was submitted by the conciliation officer on 22.8.1991, keeping quiet for almost 7 years, with inordinate delay, he raised an industrial dispute in the year 1998 under Section 2A (ii) of the Industrial Disputes Act. He further submitted that while considering the Industrial dispute, the Labour Court, accepting the case of the petitioner Transport Corporation that the second respondent workman has repeatedly committed misconducts in driving the Corporation bus without wearing uniform and without keeping the driving licence in his possession, should have passed the award accepting the punishment imposed against the second respondent for his admitted misconducts. On the question of punishment, the Labour Court, in exercise of the power conferred under Section 11-A of the Industrial Disputes Act, has erroneously passed the impugned award directing the petitioner Corporation to give the second respondent workman fresh employment without backwages and continuity of service. It was further contended that once the Labour Court accepts the case of the petitioner management that the petitioner management has fairly and properly conducted the domestic enquiries on three different dates by appointing four different Enquiry Officers and after finding that the misconducts have been proved, the finding of the Labour Court that the workman should not have been issued with order of dismissal, as the punishment of dismissal is totally contrary to the power conferred under Section 11A of the Industrial Disputes Act. On that https://hcservices.ecourts.gov.in/hcservices/ basis, he prayed for setting aside the award of the Labour Court. 9. Opposing the above submission of the learned counsel for the petitioner management, the learned counsel appearing for the second respondent workman submitted that management has wrongly clubbed four enquiry reports submitted by four enquiry officers and issued one common show cause notice with regard to four misconducts and after receiving the reply from the second respondent workman, the petitioner Corporation should not have passed the order of dismissal from service by clubbing all four enquiry reports. Therefore the order of dismissal from service cannot be passed clubbing more enquiry reports. In support of his submission, he has also relied upon a judgment rendered by a learned single Judge of this Court in the case of M.V.Balu Vs. The Chairman, Tamil Nadu Housing Board and another reported in 1993 (1) MLJ 552 for a proposition that the disciplinary authority cannot club two or more enquiry officers' reports and issue one common second show cause notice calling upon the petitioner to submit his explanation, when separate enquiries were held with regard to the misconducts alleged in four charge memos and impose a major punishment of removal from service. Further, it was contended that the procedure adopted by the petitioner management in passing the order of dismissal is clearly illegal and therefore the order of dismissal has been rightly interfered with by the Labour Court. On that basis, he prayed for dismissing the writ petition in W.P.No.28553 of 2003 filed by the petitioner management and also prayed for allowing the writ petition in W.P.No.28071 of 2005 filed by the second respondent workman. 10. In respect of the delay in approaching the Labour Court, it was mentioned that there is no provision in the Industrial Disputes Act giving any limitation to raise Industrial dispute, therefore, when the negative report was filed on 22.8.1991 by the Conciliation Officer, the second respondent was not able to take any independent decision for about 7 years, however, after 7 years, he raised industrial dispute under Section 2A(ii) of the Industrial Disputes Act and in any event, he pleaded that the second respondent need not be paid with backwages for the delay in approaching the Labour Court. On that basis, it was submitted that the writ petition filed by the second respondent workman need not be considered by this Court under Article 226 of the Constitution of India. However, in respect of supporting the Award passed by the Labour Court that has been challenged by the petitioner management, it was submitted that since the Labour Court has set aside the order of dismissal on the ground that the punishment of dismissal is disproportionate to the proved charges, there is no justification for interference with the award passed by the Labour Court, as the Labour Court has ordered only for fresh appointment and https://hcservices.ecourts.gov.in/hcservices/ subsequently by accepting fresh appointment, he has been working now. On that basis, he prayed for dismissal of both the writ petitions. 11. Heard both sides. 12. The second respondent, while serving as a driver in the petitioner Corporation, was found driving the vehicle, bearing Registration No.TML 7539 on his trip from Salem to Madurai, not only without wearing the uniform but also not keeping his driving licence in his possession. When the checking inspector checked up the vehicle in a place called Gandhigramam at about 4.15 pm on 29.5.1989 the Driver was not only without uniform but also found without driving licence, therefore when the checking inspectors enquired the second respondent, he shouted at the Checking Inspector. Hence, the Checking Inspector submitted a report stating that the second respondent was found driving the vehicle without wearing uniform and without keeping the driving licence in his possession. Further he was issued with a charge memo dated 6.7.1989. The second respondent also submitted his explanation on 20.7.1989. In his explanation, he admitted his misconducts that he was neither wearing uniform nor keeping the driving licence in his possession. The explanation offered by the workman shows that he was unable to wear the uniform during the peak summer in view of unbearable heat caused by "Agni Natchatiram". He has also given one more explanation that in case the vehicle meets with any accident and if the public coming to see that the person with uniform is the Driver who is responsible for accident, he would be put to wrath of the public and only to avoid this unwanted angry of the mob, he was deliberately not wearing the uniform and to avoid misplacement and missing of driving licence, he decided not to carry his driving licence in his pocket. Again when he committed the very same misconduct in not wearing the uniform and not keeping the Driving licence in his pocket, the Checking Inspector who checked up him for a second time on 9.7.1989, made a report, therefore he was issued with second show cause notice and on third occasion also, he repeated the same misconduct and on 4th occasion when he dashed the bus with Autorickshaw at Pallipalayam at about 3.30 pm, on 16.6.1989 he was issued with fourth charge memo for the alleged misconducts under 19(1)(d) and 19(1)(l) of the Standing Order. On receipt of the said charge memo, the second respondent workman submitted his explanation to the petitioner management stating that he had compromised the matter with the driver of the Autorickshaw. However, for the reason that the second respondent has not brought to the notice of the petitioner management about the involvement of the bus in the accident that took place on 16.6.1989, an enquiry was initiated and finally he was found guilty of the charge memo dated 6.7.1989. 13. Though the petitioner management has issued four charge https://hcservices.ecourts.gov.in/hcservices/ memos dated 6.7.1989, 6.7.1989, 18.7.1989, 27.7.1989 and conducted four different enquiries, the second respondent workman did not take part in any of the enquiries. Therefore, all the four different Enquiry Officers submitted 4 different enquiry reports and held that the second respondent workman was guilty of all the charges. The Disciplinary Authority, after receipt of the reports from 4 different enquiry officers, by clubbing the copies of 4 reports, issued a common second show cause notice calling upon the second respondent workman to explain as to why the Disciplinary Authority should not take action against him. On receipt of the second show cause notice, the second respondent workman also submitted his explanation requesting the Disciplinary Authority not to take any stringent action against him, but the Disciplinary Authority, having seen that the second respondent failed to participate in any of the enquiries and also for the reason that he has admitted all the charges, finally found that the second respondent workman was deliberately not wearing the uniforms while driving the Government Bus and not keeping the driving licence in his possession. For these reasons, the Disciplinary Authority passed the order of removal from service against the workman. The learned counsel for the workman has not shown to this Court any rules or regulations prohibiting such clubbing of more enquiry reports to impose one common order of punishment, therefore the object underlying the Rules of natural justice to secure fair play in action, and to prevent miscarriage of justice cannot be faulted with. In this context, it is pertinent to refer a judgment of the Karnataka High Court in Nagendra Rao Vs. Indian Bank, reported in 1995 (5) Kar. L. J. 332) “ Para 17. Mr.Rajagopal however urged that clubbing of two enquiry reports for the purpose of a common order of punishment should be deemed to be prejudicial to the delinquent employee and therefore held illegal. He contended that if the Disciplinary Authority had taken a decision separately on each one of the reports, the quantum of punishment imposed by him may have been much lighter than what has been imposed by clubbing the two reports together. I am not impressed by this argument either. Assuming that the Disciplinary Authority would have on the basis of the first report taken a less serious view of the matter, yet nothing prevented the Disciplinary Authority from taking a more serious view on being convinced that the employee having already been held guilty of misconduct once was incorrigible in his conduct warranting a heavier dose of punishment in the second case. That apart, as to what would have been the quantum of punishment imposed by the https://hcservices.ecourts.gov.in/hcservices/ Disciplinary Authority upon the petitioner even if the two enquiries conducted against him had culminated in two different orders of punishment is in the realm of speculation. This Court cannot base only on a mere possibility of a lesser punishment having been imposed on the petitioner if the two enquiries were dealt with separately interfere with the common order of punishment issued by the Disciplinary Authority, particularly when after the common order is quashed and the matter is remitted back for fresh orders nothing would prevent the Disciplinary Authority from passing the same order of punishment once again.” The reason given in the above said judgment makes the issue candidly clear that even if the common order of punishment is quashed and the matter is remanded back for fresh orders, nothing would prevent the Disciplinary Authority from passing the same order of punishment once again for the simple reason that the Driver- workman repeatedly and deliberately offended the standing orders 19 (1)(d) and 19(I)(i) with regard to clubbing of four enquiry reports for imposing a common order of punishment, hence I do not deem it to be prejudicial to the delinquent workman, the reason being, if the Disciplinary Authority had taken a decision separately on each one of the reports, the workman would have suffered the same punishment because his explanation offered for not wearing the driver's uniform that due to heavy heat caused by 'Agni Natchatram', he was not able to wear the uniform was not only unsatisfactory but also ridiculous. Even for not keeping with him in his possession the driving licence, his explanation that to avoid attack from unruly mob at the time of causing accident, again does deserve more than any minor punishment. Admittedly, the second respondent was issued with charge memo dated 6.7.1989 for his misconduct committed on 29.5.1989 for not having worn official driver's uniform. Second charge memo was issued on 18.7.1989 for again not wearing his official driver's uniform while he was on duty on 6.7.1989. On third occasion, while he was driving his vehicle TML 7539 on 9.7.1989, he was again found not wearing official driver's uniform and not keeping driver's licence in his possession, for which, he was issued with third charge memo dated 27.7.1989 for not wearing official driver's uniform and not keeping driver's licence in his possession. Fourthly, while he was driving his bus No.TML 7557 on 16.6.1989 on his trip from Salem to Coimbatore, at about 3.30 pm, he caused accident by dashing with one Auto-rickshaw at Pallipalayam and for settling the matter through compromise without bringing to the notice of the higher officers, he was also issued with one another charge memo dated 6.7.1989. It is an admitted case where the workman repeatedly and deliberately committed 4 separate misconducts one after the other, heedless of the consequences ever after the issuance of charge memos and after issuing 4 charge memos, therefore, the Disciplinary Authority on https://hcservices.ecourts.gov.in/hcservices/ finding the second respondent's explanation being not satisfactory, appointed 4 independent enquiry officers. All the 4 enquiry officers, on completion of the enquiries, submitted four different reports holding the second respondent guilty of all the charges. Thereafter, by clubbing all the four reports, the Disciplinary Authority served second show cause notice by furnishing copies of the enquiry reports to the workman with further representation from the petitioner as to why the management should not impose punishment for proved misconducts. Again when the delinquent workman did not complain, the validity of the enquiries held by the management, there is nothing wrong in clubbing all the four enquiry reports for the purpose of imposing common punishment. Therefore so long as the imposition of common punishment by clubbing four enquiry reports so long as is not prohibited by any rule or regulation, I do not find any infirmities in imposing the impugned punishment for all the proved charges. This issue and yet another point of law that I am dealing with right now below has not been found dealt with in the judgment of M.V.BALU V. THE CHAIRMAN. Besides, the ratio laid down by the Hon'ble Apex Court in the PUNJAB NATIONAL BANK's case (1999) 7 SCC 84) holds that any delinquent has got right to complain any violations that takes place only during the first stage commencing from issuance of charge memo till the submission of further representation by the delinquent. From the stage of issuance of charge memo till the submission of further representation to the second