IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 21.03.2011 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NO.34517 OF 2002 M.Esakimuthu .. Petitioner Versus 1.The Labour Court Tirunelveli. 2.The Management Tamil Nadu Transport Corporation Madurai Division – II Vannarpettai Tirunelveli. .. Respondents PRAYER: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records in I.D.No.165 of 1997 on the file of the Labour Court, Tirunelveli dated 26.07.2001 and to quash the same as illegal, incompetent and to direct the 2nd respondent to reinstate the petitioner with backwages. For Petitioner : Shri.V.Raghavachari For Respondent-1 : Court For Respondent-2 : M/s.Kala Ramesh O R D E R The Writ Petition has been filed by the petitioner, challenging the dismissal of the I.D.No.165 of 1992 on the file of the first respondent confirming the order of dismissal passed by the second respondent. Facts in brief: 2.The petitioner herein was working as a Conductor with the second respondent. He had been working in the said capacity from 1975 onwards. An order of suspension was passed against the https://hcservices.ecourts.gov.in/hcservices/ petitioner by the second respondent on 12.03.1992. Thereafter, a charge memo was issued to the petitioner by the second respondent on 30.03.1992 on the ground that, the petitioner had misappropriated the money due to the second respondent by stealing ticket books and invoices belonging to the other buses and used them in the bus in which he was plying. The said charges are pertaining to the period between November 1991 to February 1992. It is also stated in the charge memo that, during the enquiry it came to the knowledge that excess diesel has been used in a particular bus and while examining the driver, he informed that due to heavy passengers intake and higher income, the said expenses had occurred. 3.Thereafter, the income particulars of the route bus was checked, by which it was found that the collection was lesser than the other buses which were plying in the very same route. When this was pointed out to the driver, he was surprised and informed the authorities that he was given excess batta of Rs.28/-, since the income had been very high. In view of the said statement, the petitioner was asked to report before the Branch Manager. However, he reported only on the next date and during enquiry it was found that, the collection made by him on that date was lesser than that of the other buses plying in the same route. During further enquiry it was found that, the collection was lesser for a quite some time in the bus in which the petitioner was working as a Conductor. 4.When an explanation was asked from the petitioner, he has stated that, the driver was driving the vehicle very slowly and as a result the passengers were not willing to board the bus as more time is taken to reach the destination. Further enquiry was made based upon the records, in which it was found out that there were discrepancies in the number of passengers boarded. Thereafter, the petitioner was enquired in his house on 11.03.1992 during which enquiry he accepted and admitted that, he has stolen the ticket books and invoices of the buses which were not running,and used it in the bus in which he was working. A statement was also given by him to that extent. He was further asked to demonstrate his action and accordingly, he along with other officials went to the Office and produced the stolen ticket books and invoices covered in a cloth from the rack. He again gave another statement regarding the recovery made from him in the presence of the witnesses. Therefore, under those circumstances, the charge memo was given towards the theft of the invoices and bus tickets and for committing loss to the Corporation by the sale of such tickets. The said charge memo was issued without prejudice to the filing of an additional charge memo for the period in which the investigation was yet to be done. https://hcservices.ecourts.gov.in/hcservices/ 5.An explanation was given by the petitioner on 06.04.1992 under Ex.M-12. In the said explanation, he has stated that the statements have been obtained by force and coercion at his residence. He has further stated that it is impossible to steal the ticket books and invoices of the other buses without the knowledge of the concerned authorities. Not satisfying with the statement given by the petitioner, an enquiry was ordered and conducted by appointing an Enquiry Officer. 6.Before the Enquiry Officer, three witnesses have been examined on the side of the second respondent. The petitioner has examined himself on his side. The Enquiry Officer has also considered the documents produced by the Management. After the conclusion of the enquiry, a report was filed by the Enquiry Officer under Ex.M.14 dated 22.06.1992 holding that, all the charges levelled against the petitioner were proved. In pursuant to the Enquiry Officer's report, the petitioner was given a show cause notice dated 13.07.1992 under Ex.M.16. After considering the reply of the petitioner, an order of dismissal was passed under Ex.M-19 dated 18.08.1992. A complaint was also given against the petitioner before the jurisdictional Police Station but the said complaint was closed as the materials were found insufficient. 7.In the meanwhile, the petitioner filed a Writ Petition in W.P.No.12095 of 1992 on the ground that, in view of the pendency of the criminal case, the departmental proceedings shall not be allowed to proceed with. The Writ Petition as well as the Writ Appeal filed were dismissed against the petitioner. The petitioner filed another Writ Petition in W.P.No.15949 of 1994, challenging the order dated 19.07.1994, by which the Industrial Tribunal has given approval for the order of dismissal under 33(2) (b) of the Industrial Disputes Act, 1947. In the said Writ Petition, it was submitted by the petitioner that, the criminal case filed against the petitioner was closed, the past records of the petitioner were not perused by the disciplinary authority and the penalty of dismissal imposed on the petitioner was grossly disproportionate to the charges alleged against him. In the meanwhile, proceedings have been initiated against the petitioner for some other period based upon the very same allegation. However, in view of the collection of the enquiry which resulted in the punishment, the subsequent proceedings have been dropped as unnecessary. 8.The learned single Judge of this Court was pleased to hold that Ex.M-2 has been signed by the petitioner which is a statement given by him accepting his guilt. It was further observed that the contention of the petitioner that the signature https://hcservices.ecourts.gov.in/hcservices/ was obtained by force is not borne out by records and no complaint has been made against it. Another finding was given that the ticket books and invoices were recovered from the locker of the second respondent. A reference was also made to Ex.M-3 being the invoices of the buses. The learned single Judge was pleased to hold that, it cannot be said that the signature of the petitioner was obtained on a blank paper and the domestic enquiry was conducted properly. The learned single Judge was pleased to dismiss the Writ Petition by further observing that the petitioner has not challenged the order of dismissal by raising a dispute. 9.After the dismissal of the Writ Petition in W.P.No.15949 of 1994, the petitioner raised a dispute in I.D.No.165 of 1997 before the first respondent. The learned counsel appearing for the petitioner made submissions before the Tribunal primarily on the ground that, there was a violation of the standing order in Section 17(4)(a), inasmuch as the reasons for the suspension has not been granted within a period of one week, as the same was given only on 30.03.1992 by way of a charge memo. A further submission was made on the ground that the charges levelled are vague and it has not been specifically stated in the charge memo about the date in which the amount has been misappropriated. The Labour Court on a appreciation of the evidence available on record, both oral and documentary was pleased to dismiss the dispute mainly basing reliance upon Exs.M-1 and M-2 apart from the oral evidence. 10.The Labour Court further held that, the enquiry has been conducted in a free and fair manner as found by this Court and considering the charges levelled against the petitioner, the order of dismissal cannot be interfered with. On the question of vagueness of charges, the Labour Court found that it cannot be said that the petitioner has not understood the charges and the mere delay of few days in issuing the charge memo would not vitiate the proceedings. Challenging the said order passed by the Labour Court, the petitioner has come forward to file the present Writ Petition. Submissions of the petitioner: 11.Shri.V.Raghavachari, learned counsel appearing for the petitioner submitted that, the findings of the Labour Court are perverse and not supported by materials. The Ticket Checking Inspectors who checked the tickets on the relevant dates have not been examined. Exs.M-1 and M-2 have been obtained by force and coercion. P.Ws.1 to 3 have not seen the statement given by the petitioner. No enquiry has been initiated against the concerned officials from whose custody the tickets and invoices were said to be stolen by the petitioner. The criminal case filed against the https://hcservices.ecourts.gov.in/hcservices/ petitioner has been closed in his favour. Exs.M-3 and M-6 to 8 have not been considered properly. The Enquiry Officer has put the entire onus on the petitioner wrongly. The Labour Court has not considered the evidence of the petitioner properly. The reliance made upon by the judgment of this Court by the Labour Court is bad in law. 12.The learned counsel further submitted that when the departmental enquiry is conducted in a manner contrary to law, an order of dismissal passed as a consequent thereon will have to be set aside. When there is an allegation of fraud and misappropriation, then it has been proved by acceptable evidence. When a finding arrived at in a departmental proceedings is totally against fair play and the basic principle of law, then this Court will have to exercise the power under Article 226 of the Constitution of India. The order of punishment has been imposed even before the conclusion of the enquiry. In support of his submissions, the learned counsel has made reliance upon the following judgments: 1.AMULYA RATAN MUKHERJEE vs. DEPUTY CHIEF MECHANICAL ENGINEER, EASTERN RLY.AND OTHERS [AIR 1961 CALCUTTA 40] 2.SAWAI SINGH vs. STATE OF RAJASTHAN [AIR 1986 SC 995] 3.G.CHANDRA KANTH vs. GUNTUR DT.MILK PRODUCERS UNION LTD. & ORS. [1995 HIGH COURT, ANDHRA PRADESH] 4.CAPT.M.PAUL ANTHONY vs. BHARAT GOLD MINES LTD. AND ANOTHER [(1999) 3 SCC 679] 5.VINCENT, D. vs. THE DIRECTOR OF GOVERNMENT EXAMINATIONS [1987 WRIT L.R.69] 6.P.B.ROCHO vs. UNION OF INDIA AND OTHERS [1984 KLT 590] 7.T.JAYABALAN vs. INSPECTOR GENERAL OF POLICE (LAW AND ORDER), DEPUTY INSPECTOR GENERAL FO POLICE AND SUPERINTENDENT OF POLICE [W.P.NO.34189 OF 2006 DATED 12.01.2010] Submissions of the second respondent: 13.M/s.Kala Ramesh, learned counsel appearing for the second respondent submitted that, decisions have been made by the respondents based upon the materials available on record. Such a decision based upon factual findings shall not be interfered with by this Court by acting as an appellate authority. The petitioner having given voluntary statements under Exs.M-1 and 2 cannot contend that the charges levelled against him are not proved. The petitioner has signed Exs.M-1 and 2. The charges levelled against the petitioner are very serious. Ex.M-3 clearly proves the nature of offences committed by the petitioner. The report of the Enquiry Officer itself makes it clear that,there is negligence on the part of the other officials. Action has been taken by the other officials also. In view of the punishment awarded in the first enquiry, the subsequent enquiry have not been proceeded with. The https://hcservices.ecourts.gov.in/hcservices/ petitioner has wrongly submitted that even before the enquiry the proceedings have been concluded. 14.The learned counsel further submitted that, the petitioner has given contrary statement regarding the execution of Exs.M-1 and 2 which are the statements given by him. The petitioner has not spelt out the reasons for obtaining the statements by force. No complaints have been made against the said officers to higher authorities. The learned counsel has made reliance upon the judgments of the Honourable Apex Court in GOVT. OF A.P. AND OTHERS vs. MOHD.NASRULLAH KHAN [(2006) 2 SCC 373], A.P.SRTC vs. RAGHUDA SIVA SANKAR PRASAD [(2007) 1 SCC 222], U.P.STATE ROAD TRANSPORT CORPORATION vs. SURESH CHAND SHARMA [(2010) 6 SCC 555] and submitted that, in a case where the domestic enquiry has been conducted in a free and fair manner, the Labour Court has analysed the facts the High Court shall not exercise its jurisdiction under Article 226 of the Constitution of India. Therefore, the learned counsel submitted that the Writ Petition will have to be dismissed. Findings:- 15.This Court is quite aware of the jurisdiction over disciplinary proceedings conducted by a competent authority which has been appreciated by the Labour Court. However, in view of the elaborate submissions made on facts by the learned counsel appearing for the petitioner, this Court is constrained to go into the same. 16.Allegation against the petitioner is that he has stolen the ticket books and invoices of the buses which were not running and sold the same to the passengers of the bus in which he was working as a Conductor and committed the misconduct. The charge memo has been filed based upon the investigation done by the authorities. During the enquiry made with the driver it was found that, he was having excess amount as batta and the collection showed lesser amount. It also revealed that the collection in the bus in which the petitioner was working, had been low for quite some time as against the other buses plying in the very same route. 17.The petitioner was working as a Conductor on 19.09.1991 in the route between Papanasam to Thiruchendur. Checking was made by two Inspectors at Seranmadevi Bus stop. The petitioner has signed the checking report and invoices. The details of the checking was also noted in the invoices in E.No.20145. The petitioner was returning from Thiruchendur to Papanasam, the vehicle was checked at Srivaikuntam. However, the number of passengers who travelled between Thiruchendur to https://hcservices.ecourts.gov.in/hcservices/ Papanasam was about 33 + 2 has not been shown in the same invoice (E.No.20145). Therefore, a finding has been given on the ground that the petitioner has used the correct ticket and invoice while travelling from Papanasam to Thiruchendur and after the checkup at Sermadevi, he has suppressed the above said invoice and ticket book and used the stolen ones for the return from Thiruchendur to Papanasam. Thereafter at the time of handing over the remaining tickets and invoices, he took up the actual invoices and filled it up with the return passengers by deflating the income and reducing the number of passengers who travelled from Thiruchendur to Papanasam. The said finding was given based upon the records available with the Checking Inspectors in which the petitioner has signed. A similar incidence was also found on 30.05.1991. 18.The Enquiry Officer found that there is no explanation from the petitioner for not getting the signature of the Checking Inspector while travelling from one place to another and also returning from the other place to the starting place. The Enquiry Officer also found that there are discrepancies in the records of the Checking Inspectors and the one produced by the petitioner in which the signature of all the Checking Inspectors were not found. The discrepancies are pertaining to the number of passengers as the invoices produced by the petitioner showed lesser number of passengers. It was also pointed out to the petitioner during enquiry. 19.Therefore from the available records, the Enquiry Officer found that the petitioner has committed the misconduct. The petitioner in his explanation has not stated anything about Ex.B-3. The learned counsel for the petitioner Shri.V.Raghavachari submitted that Ex.B-3 only supports the case of the petitioner. This Court is afraid that such a contention has never been raised in the Labour Court and also before the departmental proceedings. Further as seen from Ex.B-3 the very case of the second respondent is that the petitioner has misused the records and made additions as the invoice did not contain the signatures of all the Checking Inspectors. The further finding is that it is the petitioner who has filled it up to suit his convenience by suppressing the tickets and invoices and replaced them with others and thereafter made wrong entries. Hence, such findings which are borne out by records and supported by evidence available on record, do not warrant any interference. 20.In so far as Exs.M-1 and 2 are concerned, it is seen that the petitioner himself has made contrary statement. In his explanation given on 06.04.1992 under Ex.M-12 he has stated that the authorities came to his house and by force and coercion they obtained a signature and asked him to write what they wanted, in https://hcservices.ecourts.gov.in/hcservices/ two white papers. In the subsequent representation dated 22.06.1992 under Ex.M-14, the petitioner has stated that they obtained another statement in the Office. Therefore, from the above said submissions, it is very clear that the petitioner has not explained his conduct in writing under Exs.M-1 and 2 properly. The contention of the learned counsel for the petitioner that the eye-witness who has signed the above said documents being not seen actually also cannot be countenanced. Those witnesses have been present when the petitioner has signed Ex.M-1 and M-2. They have signed the same in the presence of the petitioner. It is settled position of law that strict rules of evidence are not required in a departmental proceedings. The petitioner has not made any allegations either before the departmental proceedings or thereafter, that the Officers of the second respondent are inimically disposed of against him. He has not explained the reason why the officers have forced him to give the statements. Further no complaints have been made against the petitioner to the higher authorities about the same. On the contrary, the evidence of record would show that the petitioner during the investigation in his residence has admitted his guilt and demonstrated the same by going over to the Office and handing over the remaining unsold tickets and invoices which were meant for misused. 21.The petitioner has filed two Writ Petitions on the earlier occasions. In the Writ Petition filed in W.P.No.15949 of 1994, a finding was given by the learned single Judge that the contention of the petitioner regarding the statements having been obtained by force cannot be accepted. The learned single Judge has also observed that the petitioner has not approached the Labour Court challenging the order of dismissal. It is only thereafter the petitioner has approached the Labour Court. Therefore, the said findings have been given by the learned single Judge as the petitioner himself has warranted the same by filing the earlier Writ Petition. That is a reason why the Labour Court has also made reliance upon the same. It is further to the seen that a contention was specifically raised in the earlier Writ Petition by the petitioner stating that punishment imposed is disproportionate to the charges which were also rejected by the learned single Judge. 22.It is seen that primarily only three submissions were made by the learned counsel for the petitioner before the Labour Court. The said submissions are pertaining to the vagueness in the charges, delay in issuing the charge memo and non monitoring of the date for the theft committed by the petitioner. The Labour Court has considered the above said submissions and found that there is nothing wrong in the order of dismissal passed by the second respondent in the delay of issuing the charge memo. The Labour Court also found that the charges are not vague and the https://hcservices.ecourts.gov.in/hcservices/ petitioner was in a position to putforth his case as he understood the charges properly. A further finding was given that there is no necessity to give any specific date of alleged misconduct and in any case the same would not vitiate the proceedings. Apart from that the Labour Court has gone into the merits of the case and appreciated the oral and documentary evidence available on record for coming to the conclusion. Hence, this Court does not find the order of the Labour Court needs any interference. 23.It is seen from the records that two proceedings have been initiated against the petitioner. Even a perusal of the charge memo would indicate that an additional charge memo would be given in view of the on going investigation. However, the second proceeding was not continued, since an order of dismissal was passed already. The petitioner has mixed both the enquiries pertaining to the two charge memos into one. In so far as the charge memo which is the subject matter of the Writ Petition is concerned, the charges have been framed, enquiry conducted, a copy of the same was given to the petitioner, a show cause notice was issued on the charges framed and thereafter final orders have been passed. Therefore, this Court does not find any merit in the submissions of the learned counsel appearing for the petitioner that even before the enquiry is completed a final order is passed. Violation of Principles of Natural Justice: 24.In the present case on hand, there is no violation of principles of natural justice and no prejudice is shown even if there is a violation. In this connection it is useful to refer the pronouncement of the Honourable Apex Court in STATE BANK OF PATIALA vs. S.K.SHARMA [(1996) 3 SCC 364], wherein it is held thus: "33.(3)... Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except in cases falling under-'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice viz. whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively." Scope of Judicial Review: 25.It is trite law that a judicial review of this Court over a decision rendered by the Industrial Tribunal which was asked to adjudicate upon the validity of the departmental proceedings is very limited. Until and unless the Labour Court committed a gross error which is manifest and apparent, this Court https://hcservices.ecourts.gov.in/hcservices/ cannot act as an appellate authority and re-appreciate the evidence. In this case, not only the Labour Court but also the second respondent in the departmental enquiry have given factual findings based upon the materials available on record. There is nothing to demonstrate that the findings rendered by the respondents are perverse or based upon no evidence. 26.The Honourable Apex Court in GOVT. OF A.P. AND OTHERS vs. MOHD.NASRULLAH KHAN [(2006) 2 SCC 373] considering the scope of judicial review under Article 226 of the constitution of India has held as follows: "11. By now it is a well-established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an appellate authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by reappreciating the evidence as an appellate authority. 12. We may now notice a few decisions of this Court on this aspect avoiding multiplicity. In Union of India V. Parama Nanda [(1989) 2 SCC 177], K. Jagannatha Shetty, J., speaking for the bench, observed at SCC p.189, para 27 as under: "27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the inquiry