IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 06.01.2009 CORAM THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE S.TAMILVANAN WRIT APPEAL Nos.1670 and 1671 of 1999 The Management of Cheran Transport Corporation, Coimbatore – 43. ... Appellant in both the writ appeals -vs- 1. G.Balasubramaniam ..First respondent in both the writ appeals 2. The Presiding Officer Labour Court, Coimbatore .. Second respondent in W.A.No.1670 of 1999 3. The Industrial Tribunal Tamil Nadu, Madras .. Second respondent in W.A.No.1671 of 1999 Writ appeals filed under Clause 15 of the Letters Patent against the order, dated 26.02.1999 made in W.P.No.4065 of 1994 and W.P.No.17037 of 1991.Petition presented to this Court under Article 226 of the Constitution of India to issue a writ of certiorari calling for the records relating to I.D.No.53/89 from the first respondent and quash the award dated 9.11.92 (WP.4065/94) and to issue a writ of certiorari calling for the records in petition No.85/88 in I.D.No.62/88 dated 29.5.91 on the file of the 2nd Respondent (WP.17037/91) For appellant : Mr.Ravi Bharathi For respondents : Mr.D.Hariparanthaman for R1 C O M M O N J U D G M E N T S.TAMILVANAN,J W.A.No.1670 of 1999 has been preferred against the order, dated 26.02.1999 passed in W.P.No.4065 of 1994 by the learned single Judge. The first respondent / petitioner herein had filed the writ petition, seeking an order in the nature of writ of certiorari calling for the records relating to I.D.No.53 of 1989 passed by the second respondent and quash the same. https://hcservices.ecourts.gov.in/hcservices/ 2. W.A.No.1671 of 1999 is filed by the appellant herein against the order passed in W.P.No.17037 of 1991 dated 26.02.1999 by the learned single Judge and the writ petition had been filed by the Management of Cheran Transport Corporation Ltd. The writ petition had been filed challenging the order passed in Petition No.85 of 1988 in I.D.No.62 of 1982 on the file of the second respondent, by way of issuing a writ of certiorari calling for the records and quash the same. 3. It is an admitted fact that I.D.No.53 of 1989 was filed under Section 2A (2) of the Industrial Disputes Act, 1947. On 28.08.1986, when the first respondent herein was working as Conductor in the bus, bearing Registration No. TML 4502, Route No.50, Gandhipuram to Kannamanaicker at about 8.30 p.m, at Railway Gate, Coimbatore, Inspection squad of the appellant conducted personal check of passengers, tickets taken by them and also the entry made in the invoice, wherein it was found that there were 10 passengers in the bus, however, entries for issuance of two tickets were not made, one for Rs.1.25/- and another for Re.1.00/- from the point Velakuparai to Railway station. As per the charge, the conductor (employee) failed to make entry with reference to the two tickets issued to the passengers, hence, charge under Rule 14 (d) of the Standing Orders of the appellant corporation was issued to the first respondent. Based on which, enquiry was conducted, then the first respondent herein was dismissed from service with effect from 25.05.1988. Aggrieved by which, I.D.No.53 of 1989 was preferred by the first respondent. By order, dated 09.11.1992, Industrial Tribunal, Coimbatore, set aside the order and directed the appellant herein to reinstate the first respondent in service with continuity of service, but without back wages. 4. The Petition No.85 of 1988 was filed by the appellant herein under Section 33 (2) (b) of Industrial Disputes Act in the matter of reference in I.D.No.62 of 1982, wherein the appellant, as petitioner, has stated that the first respondent had been suspended on two occasions in the past and further, the enquiry officer held that the aforesaid charges were proved and therefore, the order of dismissal from service was passed against the first respondent. The first respondent herein raised his defence by way of filing counter that there was a violation of Rule 14 (d) of the Standing Orders of the appellant corporation, on the ground that he had failed to enter two tickets issued to the passengers in the invoice and that the finding of the enquiry officer was perverse. According to him, at that time, the lights inside the bus were burning dim and he was also suffering from illness, hence, he could not correctly enter the details of the two tickets in the invoice, though he had issued tickets to all the passengers. He has further pleaded that the order of dismissal from service passed against him is highly disproportionate. It is seen that show-cause notice was issued to the first respondent on 07.09.1986 and the explanation submitted by the first respondent was found not satisfactory by the enquiry officer. Further, it was held that some correction was made in the trip sheet, hence, on 19.11.1986, another show-cause notice was issued stating that https://hcservices.ecourts.gov.in/hcservices/ why he should not be removed from service. 5. The Tribunal framed the following two points for determination : 1. Whether the findings are perverse ? And 2. Whether the punishment is excessive ? The Industrial Tribunal held that the first respondent had failed to enter in the invoice about two tickets, that was proved, however, held that the same was not a serious misconduct warranting dismissal of the conductor from service. The Tribunal has viewed that a lesser punishment like suspension or fine could have been imposed by the appellant. With the above observation, the petition filed by the appellant, Transport Corporation herein was dismissed by order, dated 29.05.1991. 6. Aggrieved by the order of the Tribunal, dated 09.11.1992 made in I.D.No.53 of 1989, the first respondent herein filed W.P.No.4065 of 1994. Similarly, against the order passed in Petition No.85 of 1988 in I.D.No.62 of 1982 on the file of the second respondent, the appellant, Transport Corporation preferred W.P.No.17037 of 1991. Both the writ petitions were heard together. By a common order, dated 26.02.1999, learned single Judge dismissed the W.P.No.17037 of 1991 preferred by the Management and allowed the W.P.No.4064 of 1994 preferred by the first respondent herein, whereby the learned single Judge directed the appellant herein to reinstate the first respondent in service with all attendant /service benefits with full back wages from the date of dismissal,24.05.1988. The first respondent was also directed to withdraw a sum of Rs.60,000/- which had been deposited by the appellant herein to the credit of the Claim Petition No.85 of 1988. 7. Mr.Ravi Bharathi, learned Counsel appearing for the appellant submitted that the order passed by the Industrial Tribunal under Section 33 (2) (b) of the Industrial Tribunal Act will be a bar to the Labour Court adjudicating the dispute under Section 10 of the Industrial Disputes Act. He has further contended that the power of the Labour Court under Section 2A (2) and Section 10 of the Industrial Disputes Act, are general in nature and Section 33 (2) (b) confers a special jurisdiction on the Tribunal and hence, an Industrial Dispute cannot be adjudicated by the Labour Court till an order was passed under Section 33 (2) (b) of the Industrial Disputes Act. According to him, the power of the Tribunal under Section 33 (2) (b) is restricted to check whether prima facie case for dismissal was made out, whereas under Section 10, the Labour Court adjudicates the dispute. With the above plea, the appellant herein placed his arguments to allow the writ appeal. We are of the considered view that after common order passed in the writ petitions filed by both the contesting parties, the aforesaid plea raised by the appellant is not legally sustainable. 8. In W.A.No.1671 of 1999, the learned counsel appearing for the appellant contended that the order of dismissal cannot be construed as https://hcservices.ecourts.gov.in/hcservices/ unfair labour practice under Clause 5 (g) of Chapter 1 of the Fifth Schedule to the I.D.Act and further contended that the order of the Industrial Tribunal could be interfered with, on the ground that it had dealt with the charge relating to alleged misconduct under Rule 14 (d) of the Standing Order. According to the learned counsel, the writ petition filed by the appellant could have been allowed, quashing the order passed by the second respondent, on the ground of exceeding its jurisdiction under Section 33 (2) (b) of the Industrial Disputes Act. 9. Mr.Ravi Bharathi, learned counsel appearing for the appellant further submitted that as per the impugned common order, W.P.No.17037 of 1991 filed by the appellant was dismissed and W.P.No.4065 of 1994 filed by the first respondent herein has been allowed, directing the appellant to reinstate the first respondent with all attendant service benefits with full backwages from the date of dismissal, i.e., from 24.05.1998 and the first respondent was also permitted to withdraw a sum of Rs.60,000/- deposited by the appellant to the credit of the Petition No.85 of 1989 on the file of the Industrial Tribunal, Chennai. 10. The appellant's holding is that there was violation of rule 14 (d) of the Standing Orders of the Management by the first respondent, which reads as follows : "ACTS AND OMISSIONS CONSTITUTING MISCONDUCT : The following acts and omissions shall be treated as misconduct: ..... (d) Theft, fraud or dishonestly in connection with the employer's business or property or a theft of another employee's property within the establishment." In the instant case, the allegation against the employee is that he failed to make entry of two tickets in the invoice, which cannot be construed as 'theft, fraud or dishonestly doing something in connection with the employer's business or property or a theft of another employee's property within the establishment', to attract the said rule, since the employee has issued tickets for all the passengers, who were travelling in the bus and the fare was also collected from them. Even, as per the case of the appellant, the first respondent had failed to make only the entry for two tickets he had issued tickets and therefore, he was accountable for the amount collected as fare from the passengers, for which tickets were already issued. 11. Learned counsel for the appellant mainly contended that while the Industrial Tribunal, Coimbatore, passed the order, dated 09.11.1992 in I.D.No.53 of 1999, setting aside the order passed by the appellant and directed the appellant to reinstate the first respondent without backwages, on that ground that the punishment imposed was disproportionate, the Industrial Tribunal, Chennai in Petition No.85 of 1989, dated 29.05.1991, while dismissing the Petition filed by the appellant, held that the first charge framed against the first https://hcservices.ecourts.gov.in/hcservices/ respondent by the appellant, that he had failed to enter the issuance of two tickets for the value one for Rs.1.25/- and another for Re.1.00/- in the invoice, has been proved and held that the same could not be construed as serious misconduct, warranting dismissal of the employee from service and in the said order, in paragraph number 4, the Tribunal expressed its view that the appellant could have imposed a lesser punishment like suspension or fine. While answering for point number 2, whether the punishment is excessive against the first respondent, the Tribunal has given its finding in favour of the first respondent, holding that the punishment of dismissal is unwarranted, as disproportionate and that the punishment has been disapproved by the Tribunal. Therefore, according to the learned counsel for the appellant, directing the appellant to pay full back wages from the date of dismissal is contrary to law and not sustainable. In support of his contention, the learned counsel for the appellant cited the following decisions of the Hon'ble Apex Court : 1. Regl. Manager, U.R.T.Corpn., vs. T.Singh, 2008 (1) L.L.N.760 2. U.P.S.R.T.Corpn., vs. V.Kumar, 2008 (1) L.L.N.762 12. On the other hand, Mr.D.Hariparanthaman, learned counsel appearing for the first respondent submitted that the first respondent was not guilty of any charge. Though he had issued the alleged two tickets to the passengers, due to insufficient light in the bus, he could not make entries in the invoice and therefore, the Industrial Tribunals could not have held that the charge was proved and that there is no error or infirmity in the order passed in the writ petitions by the learned single Judge. In support of his contention, he relied on the following decisions : 1. Color-Chem Ltd., vs. A.L.Alaspurkar, 1998 (3) SCC 192 2. Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., vs. Ram Gopal Sharma, 2002 (2) SCC 244 13. In the decision, Regl. Manager, U.R.T.Corpn., vs. T.Singh, reported in 2008 (1) L.L.N.760, cited by the learned counsel for the appellant, the Hon'ble Apex Court has held that the order of termination of service passed against a conductor could be justified, for not issuing tickets to 20 passengers, though fare was collected from them and entries were not made in the way bill for 23 passengers out of 48, holding that the said illegality committed by the conductor cannot be legalized. The Hon'ble Supreme Court in the decision referred supra has further ruled as follows : "7...The material on record also shows that the checking staff with a view to regularise the entries and regularising the travel of the passengers had directed issuance of tickets to those 20 passengers to whom respondent 1 had not issued tickets. This is evident from the fact that the Tribunal had categorically noted that 20 passengers were issued https://hcservices.ecourts.gov.in/hcservices/ tickets by the checking staff and respondent 1 was directed to make entries in the way bill. Issuance of tickets on the basis of the instructions of the checking staff cannot legalise the illegality committed by respondent 1 employee..." 14. In the decision, U.P.S.R.T.Corpn., vs. V.Kumar, reported in 2008 (1) L.L.N.762, the Hon'ble Supreme Court has held that there is no place for generosity or misplaced sympathy on the part of the judicial forums, while interfering with quantum of punishment. In that case, the conductor had not even issued tickets to 28 passengers, who were travelling in a bus belonging to Uttar Pradesh State Road Transport Corporation, though he collected the fare from the passengers. 15. Hence, considering the facts and circumstances of the cases referred to, we are of the view that the aforesaid decisions are not applicable to the facts and circumstances of this case, since the first respondent had issued tickets to all the passengers available in the bus and the only allegation against him is that he has failed to make entry in the trip sheet about the issuance of tickets to two passengers. In the referred cases, the conductors had not issued tickets for more than 20 persons, after collecting the fare, for which entries were also not made in the relevant way bills. In the instant case, though the first respondent had issued tickets to all the passengers, he failed only to make entries with regard to two tickets for the value one for Rs.1.25/- and another for Re.1.00/- in the invoice. The delinquent has stated the reason that due to the diminishing light in the bus, at the time of issuing the tickets, he could not make the two entries in the invoice. As he had issued tickets to all the passengers, it cannotbe said that the first respondent misappropriated the money collected for the said the two tickets. Therefore, the minor lapse on the part of the first respondent cannot be compared with the lapses committed by the employees in the aforesaid cases. In the referred cases, the conductors had collected the fare from passengers, but not issued tickets and made entries in the trip sheet and thus caused loss to the State Transport Corporation and thereby gained illegally. The facts of the case on hand are different, hence, as found by the tribunals, the lapse of the first respondent cannot be construed as a major misconduct, warranting dismissal from service. 16. The Full Bench of the Hon'ble Supreme Court in the decision, Color-Chem Ltd., vs. A.L.Alaspurkar, reported in 1998 (3) SCC 192, has held that the punishment of dismissal imposed on the employee is shockingly disproportionate to the charges, though the same were held proved against the employee. The charge therein is that the employee was found sleeping while on duty keeping the machine in working state, which was found to be a major misconduct by the management, however held Item 1(g) of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (1 of 1972) is not attracted. In the Judgment, it has been further held as follows: https://hcservices.ecourts.gov.in/hcservices/ "15. In the result, this appeal is dismissed subject to the slight modification that Respondents 3 and 4 will be entitled to reinstatement and continuity of service but so far as back wages are concerned, even after the order of the Labour instead of 100% of back wages, Respondents 3 will be entitled to 40% back wages till reinstatement and Respondent 4 will be entitled to 50% back wages till actual reinstatement pursuant to the present order. They will also be suitably warned in writing by the appellant as aforesaid. We direct the appellant to reinstate the respondents concerned within four weeks from the date of receipt of a copy of this order at its end. The office shall send a copy of this order to the appellant for information and necessary action. Pursuant to the interim order of this Court pending this appeal, the appellant was directed to deposit Rs.78,000/- for being paid to the respondent-workmen towards their claim of back wages as awarded by the Labour Court and as confirmed by the higher courts. Deducting the said amount, the balance of back wages as payable to the respondents concerned pursuant to the present order shall be worked out and this amount of back wages with all other consequential monetary benefits flowing from the order of reinstatement shall be made available by the appellant to the respondents concerned within a period of eight weeks from the receipt of a copy of this order at its end..." 17. The Constitutional Bench of the Hon'ble Apex Court in the decision, Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., vs. Ram Gopal Sharma, reported in 2002 (2) SCC 244, has held as follows : "13...The interpretation of statue must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso to Section 33 (2) (b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of the industrial dispute when the relationship between them is already strained. An employer cannot be permitted to use the provision of Section 33 (2) (b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal https://hcservices.ecourts.gov.in/hcservices/ passed by the employer without complying with the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman" 18. In the instant case, by order, dated 29.05.1991 made in Petition No.85 of 1988, the Industrial Tribunal, Chennai has found that the charge levelled against the first respondent has been proved, however, held that the same is not a serious misconduct warranting dismissal of the employee from service. It has further expressed its view that the appellant could have imposed a lesser punishment like suspension or fine. Accordingly, the petition filed by the appellant herein was dismissed by the Industrial Tribunal, Coimbatore. The Labour Court, Coimbatore, by order, dated 09.11.1992 made in I.D.No.53 of 1989 has also taken a similar view whereby, it has set aside the order of dismissal passed by the appellant and consequently, directed that the first respondent herein should be reinstated in service without back wages. 19. The learned Single Judge, by the impugned common order has dismissed the writ petition filed by the appellant herein and allowed the writ petition filed by the first respondent, thereby confirming the award passed by the Industrial Tribunal, Coimbatore, so far as it relates to the reinstatement of the first respondent in service, but held that he is entitled to full back wages from the date of dismissal from service. 20. In the light of the various decisions rendered by the Hon'ble Apex Court referred to supra and also considering the facts and circumstances of the case in hand, we are of the view that the Tribunals have rightly held that the proved charge is not a serious misconduct, warranting the dismissal of the employee from service. On the date of occurrence, admittedly, the first respondent, as conductor of the bus had issued tickets to all the passengers, who were travelling in the bus and the only charge is that he did not make entries for two tickets and the value for the tickets are Re.1.00 and Rs.1.25 and further, according to the conductor, the first respondent herein, due to diminishing of light inside the bus, could not make entries in respect of the two tickets in the invoice. Had he permitted the passengers without obtaining ticket or collected the fare without issuing tickets, it could be presumed that he caused loss to the transport corporation and reaped illegal gain, so as to treat the same as a serious misconduct. 21. It is a settled proposition of law that even if charge is proved against an employee, the punishment imposed by the employer must be proportionate and legally sustainable. In the writ jurisdiction, under Article 226 of the Constitution, normally this Court cannot interfere with the order, on the ground of proportionality of punishment, but when the punishment is shockingly disproportionate, to meet the ends of justice, this Court has to interfere, in order to set right the https://hcservices.ecourts.gov.in/hcservices/ injustice caused by such disproportionate punishment. In the instant case, based on the materials available on record, both the Tribunals and the learned single Judge, have concurrently held that the impugned order of the appellant, dismissing the first respondent is disproportionate and against law, accordingly, the order of dismissal was set aside by the Tribunal, directing the appellant to reinstate him into service. Hence, the learned single Judge has rightly dismissed the W.P.No.17037 of 1991 preferred by the appellant herein. However, while allowing the writ petition in W.P.No.4065 of 1994 filed by the employee, the learned single Judge had directed the appellant to pay full back wages, though the Tribunals have held that the first respondent had failed to make entries for two tickets in the invoice and held that it is not a major misconduct, warranting dismissal of the employee from service. For a minor charge having been proved, capital punishment, such as dismissal from service cannot be imposed, as held by the Hon'ble Apex Court. 22. In the light of the Full Bench decision of the Hon'ble Apex Court cited supra, we hold that for the minor charge, having been proved against the first respondent, imposing punishment of removal from service is shockingly disproportionate. However, in the light of the decision, we are of the considered view to modify common order passed by the learned single Judge, by directing the appellant to pay 25% back wages from the date of dismissal till the date of reinstatement into service, after deducting the amount already withdrawn by the first respondent, instead of paying full back wages and in all other aspects, the order passed by the learned single Judge is confirmed. 23. In the result, W.A.No.1670 of 1999 is dismissed, confirming the order passed by the learned single Judge and W.A.No.1671 of 1999 is disposed of with the aforesaid modification. No order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. tsvn To 1. The Presiding Officer,Labour Court, Coimbatore. 2. The Industrial Tribunal, Tamil Nadu, Madras. 3. The Management,Cheran Transport Corporation, Coimbatore-43. + 1 CC to Mr.M.Ravi