IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.04.2010 CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.Nos.36794 of 2004 and 1050 of 2006 & W.P.M.P.No. 371 of 2005 1. Tamil Nadu State Transport Corporation (Salem) Ltd., Rep. by its Managing Director Salem .. Petitioner in W.P. No. 36794 of 2004 2. S.P. Rajendran .. Petitioner in W.P. No. 1050 of 2006 versus 1.The Presiding Officer Labour Court, Salem .. Respondent in both the writ petitions 2.S.P. Rajendran .. Second Respondent in W.P. No. 36794 of 2004 3. The Management of Tamil Nadu State Transport Corporation (Salem Div.-I) Salem – 7 .. I Respondent in W.P. No. 1050 of 2006 Prayer in W.P. No. 36794 of 2004: Writ petition is filed under Article 226 of the Constitution of India to stay all further proceedings pursuant to the award of the 1st respondent dated 10.03.2004 in I.D. No. 116 of 2002 pending disposal of the above writ petition. Prayer in W.P. No. 1050 of 2006: Writ petition is filed under Article 226 of the Constitution of India for issuance of appropriate writs, orders or directions and in particular issue a writ in the nature of Certiorarified Mandamus after calling for the records pertaining to the Award dated 10.03.2005 passed by the The Presiding Officer, Labour Court, Salem in I.D. No. 116 of 2002 and quash the same in so far as the award depriving the petitioner in this petition backwages and consequently direct the 1st respondent in this petition to reinstate the him with continuity of service, backwages and other attendant benefits and award costs. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.M. Ravi Bharathi For Mr.D. Gopinathan For Transport Corporation in W.P. No. 36794 of 2004 Mr.R. Krishnaswamy For Mr.V. Ajay Khose in W.P. No. 1050 of 2006 For Respondents : Mr.R. Krishnaswamy For Mr.V. Ajay Khose in W.P. No. 1050 of 2006 Mr.M. Ravi Bharathi For Mr.D. Gopinathan For Transport Corporation in W.P. No. 36794 of 2004 C O M M O N O R D E R By consent, the Writ petitions are taken up for disposal. Since both these petitions have been filed challenging the award of the Labour Court, Salem in I.D. No. 116 of 2002 dated 10.03.2004, they are disposed of by a common order. 2. The facts of the case can be briefly stated as follows. The second respondent / petitioner workman (herein after referred to as workman) joined the service of the Tamil Nadu State Transport Corporation, Salem Division (herein after referred to as the Management) as Conductor on 18.01.1983. While on duty on 31.07.2001 in the bus running from Salem to Trichy, Trichy to Hosur and Hosur to Salem, the duty controller in the depot is stated to have noted the scheduled departure time from Salem bus stand as 15:30 hours in the duty chart. According to the workman, the departure time is also noted in the traffic return as well as in the depot gate register. It is stated that the workman, after informing the time keeper about arrival of the bus and receiving the invoice, the time keeper recorded the departure time as 15:39 hours and the workman started issuing tickets to the passengers and at that time, one Assistant Engineer informed the petitioner that two buses belonging to different depots with the scheduled departure time as 15:25 and 15:31 hours respectively had not come and asked the workman to wait. At about 15:35 hours, the bus bearing No. 1108 arrived at the bus stand and the Corporation bus ticket broker one Ayyasamy asked the petitioner to start the bus and received Rs. 1.50 ps. from him towards canvassing charges. When the bus was nearing the entrance, the Checking Official stopped the bus and called upon the petitioner https://hcservices.ecourts.gov.in/hcservices/ to go over to the time keeper's office. When the petitioner went to the office, the Security Guard asked the petitioner whether he received Rs. 10/- through Corporation's Ticket Canvassor and it was alleged that the said money was passed on by a private bus Conductor. This allegation is stated to be denied by the workman. Thereafter, a charge memo-cum-suspension order dated 07.08.2001 was served on the workman alleging that he received Rs.10/- from the private bus canvassor as bribe, failed in his duty and responsibilities, acted unilaterally and caused loss and defrauded the corporation, that these allegations would constitute misconduct under Clause 19(1)(c) of the Standing Orders. The workman submitted his explanation dated 13.08.2001 denying the charges and not satisfied with his explanation, the management ordered for a domestic enquiry by notice dated 24.08.2001. According to the workman, the enquiry was done without giving fair and reasonable opportunity and based on such enquiry, the enquiry officer submitted his finding dated 10.09.2001 holding the petitioner guilty of all the three charges. By a memo dated 20.09.2001, the petitioner was given an opportunity to give his explanation against the findings of the enquiry officer and workman also submitted his explanation on 24.09.2001. Thereafter, a second show cause notice dated 25.09.2001 was issued proposing to dismiss the workman from service. The workman submitted his explanation on 01.10.2001 and by an order dated 29.10.2001, the workman was dismissed from service. 3. Aggrieved by the same, the workman initiated conciliation proceedings, which also ended in failure. Thereafter, the workman approached the Labour Court, Salem and raised the dispute in I.D. No. 116 of 2002. Before the Labour Court, the workman did not lead any oral or documentary evidence. The management did not lead any oral evidence, but marked 13 documents as M-1 to M13. After considering the factual aspects and materials placed before the Court, the Labour Court, by an impugned award dated 10.03.2005 ordered for reinstatement of the workman with continuity of service and attendant benefits, but denied backwages. Aggrieved by the said award of reinstatement with continuity of service and other attendant benefits, the management has filed W.P. No. 36794 of 2004 and being aggrieved by the denial of the backwages, the workman filed W.P. No. 1050 of 2006. 4. The management would contend that the Labour Court erred in interfering with the order of dismissal without valid reasons and erred in finding that no where in the complaint or in the evidence, it was stated as to why Rs.10/- was paid as a bribe to the 2nd respondent, that the Labour Court erred in finding that it cannot be assumed that Rs.10/- was paid as bribe to the 2nd respondent in order to take the bus earlier or later. That the Labour Court failed to correctly appreciate the evidence of the management witness in the domestic enquiry conducted. 5. The workman would contend that the Labour Court, having held https://hcservices.ecourts.gov.in/hcservices/ that the charges levelled against him were not proved ought to have granted backwages and the Labour Court was not correct in depriving the backwages, that too, the entire backwages and that the Labour Court failed to give any reasons in support of its conclusion to deny backwages. 6. Heard Mr. M. Ravi Bharathi, learned counsel appearing for the Management and Mr. R. Krishnaswamy, learned counsel appearing for the workman. 7. Learned counsel appearing for the parties reiterated the contention raised in the affidavit filed in support of the writ petitions and on behalf of the management, it was contended that a full-fledged domestic enquiry was conducted by the management and after affording opportunity to submit his objection to the enquiry officer's report, a second show cause notice was issued to the workman and only after considering the explanation of the second show cause notice, order of dismissal was passed. Therefore, it is contended that in the absence of any error in the disciplinary proceedings, the Labour Court ought not to have interfered with the findings of the disciplinary authority. 8. Per contra, learned counsel appearing for the workman would first contend that the jurisdiction of this Court, while examining the correctness of the award of the Labour Court is very limited and this Court would not act as an Appellate Authority as against the findings rendered by the Labour Court, which has been done after examining the evidence on record. It is further contended that the jurisdiction of this Court could be invoked only if the findings are perverse or if there is violation of principles of natural justice or failure of giving reasons in support of its conclusion. Therefore, it is submitted that the findings regarding the award of reinstatement with continuity of service and the attendant benefit does not call for interference. As regards, denial of backwages, it is contended that the Labour Court has not given any reasons for denying backwages in its entirety. The Labour Court, by giving its factual findings that charges against the petitioner has not been proved,ought to have granted the full backwages. 9. In view of the contention raised on either side, it is first necessary to examine the scope and jurisdiction of this Court under Article 226 of Constitution of India, while examining the correctness of an award passed by the Labour Court or an Industrial Tribunal. This issue is no longer res-integra and settled by the Judgments of the Hon'ble Supreme court as well as this Court. At this stage, I am guided by the decisions of the Hon'ble Supreme Court in Indian Overseas Bank Vs. I.O.B. Staff Canteen Workers' Union and another - (2000) 4 SCC 245, held as follows:- "17. The learned Single Judge seems to have undertaken an exercise, impermissible for him in exercising writ https://hcservices.ecourts.gov.in/hcservices/ jurisdiction, by liberally reappreciating the evidence and drawing conclusions of his own on pure questions, of fact, unmindful, though aware fully, that he is not exercising any appellate jurisdiction over the awards passed by a tribunal, presided over by a judicial officer. The findings of fact recorded by a fact-finding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ court to warrant those findings, at any rate, as long as they are based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can reasonably and possibly be taken. The Division Bench was not only justified but well merited in its criticism of the order of the learned Single Judge and in ordering restoration of the award of the Tribunal. On being taken through the findings of the Industrial Tribunal as well as the order of the learned Single Judge and the judgment of the Division Bench, we are of the view that the Industrial Tribunal had overwhelming materials which constituted ample and sufficient basis for recording its findings, as it did, and the manner of consideration undertaken, the objectivity of approach adopted and reasonableness of findings recorded seem to be unexceptionable. The only course, therefore, open to the writ Judge was to find out the satisfaction or otherwise of the relevant criteria laid down by this Court, before sustaining the claim of the canteen workmen, on the facts found and recorded by the fact-finding authority and not embark upon an exercise of reassessing the evidence and arriving at findings of one's own, altogether giving a complete go-by even to the facts specifically found by the Tribunal below." In Management of Madurantakam Coop. Sugar Mills Ltd. Vs. S.Viswanathan – (2005) 3 SCC 193, held as follows:- 12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these types of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding or fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon. A consideration of the impugned https://hcservices.ecourts.gov.in/hcservices/ order of the learned Single Judge shows that nowhere has he come to the conclusion that the finding of the Labour Court was either perverse or based on no evidence or based on evidence which is not legally acceptable. Learned Single Judge proceeded as if he was sitting in a court of appeal on facts and item after time of evidence recorded in the domestic enquiry as well as before the Labour Court was reconsidered and findings given by the Labour Court were reversed. We find no justification for such an approach by the learned Single Judge which only amounts to substitution of his subjective satisfaction in the place of such satisfaction of the Labour Court. 13. The Division Bench too in appeal, in our opinion, has committed the same error. Maybe, there was some justification, since if it had to allow the appeal, then it had to consider the points on facts decided by the learned Single Judge. In that process it also took up for consideration every bit of evidence that was considered by the Labour Court as well as by the learned Single Judge and disagreed with the finding of the learned Single Judge." and in Management, Chennai Central Co-operative Bank Ltd Vs. The Joint Commissioner of Labour and others – (2007) 2 CTC 604, held as follows:- "14. The power of exercising jurisdiction of the High Courts under Article 226 in Labour matters is considered by the Honourable Supreme Court in the following decisions. (a) In Apparel Export Promotion Council Vs. A.K.Chopra, 1999(1) SCC 759, in paragraph 16 the Honourable Supreme Court held as follows: "16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to reappreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable........." (b) In Hari Shankar Sharma V. Artificial Limbs Mfg. Corpn. 2002(1) SCC 337, in paragraph 12 it is held as follows: https://hcservices.ecourts.gov.in/hcservices/ "12. ...... After a detailed analysis of the evidence, the Labour Court concluded that the appellants were not the employees of Respondent 1. The finding cannot be termed to be perverse. Given this, it would have been inappropriate for the High Court under Article 226 to reappreciate the evidence and come to a different factual conclusion. The High Court did not do that nor do we propose to do so under Article 136." (c) In Bharat Heavy Electricals Ltd. V. State of U.P., AIR 2003 SC 3024:2003 (6) SCC 528, in paragraph 13, the Honourable Supreme Court observed thus, "13. This apart, the finding that the respondent workmen were the employees of the appellant, does not rest merely on the test of control. The other evidence and facts and circumstances of the case were also kept in mind in recording such a finding inlcuding a vital fact that the appellant did not produce the records alleging that they were not available which led to drawing adverse inference against them. It is not possible for us to hold that such concurrent findings recorded by the Labour Court and the High Court that the workmen were to be treated as the employees of the appellant are either perverse or based on no evidence or untenable at all." (d). In workmen of Nilgiri Co-op. Mkt. Society Ltd. Vs. State of T.N., 2004 (3) SCC 514, at page 532: "50. The question whether the relationship between the parties is one of employer and employee is a pure question of fact and ordinarily the High Court while exercising its power of judicial review shall not interfere therewith unless the finding is manifestly or obviously erroneous or perverse." (e) In the decision reported in Madurantakam Coop. Sugar Mills Ltd, V. S. Viswanathan, 2005 (3) SCC 193, the Honourable Supreme court in paragraph 12 held thus, 12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these types of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding or fact. In the absence of https://hcservices.ecourts.gov.in/hcservices/ any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon. A consideration of the impugned order of the learned Single Judge shows that nowhere has he come to the conclusion that the finding of the Labour Court was either perverse or based on no evidence or based on evidence which is not legally acceptable. Learned Single Judge proceeded as if he was sitting in a court of appeal on facts and item after time of evidence recorded in the domestic enquiry as well as before the Labour Court was reconsidered and findings given by the Labour Court were reversed. We find no justification for such an approach by the learned Single Judge which only amounts to substitution of his subjective satisfaction in the place of such satisfaction of the Labour Court. (f) In Central P&D Inst. Ltd. V. Union of India, 2005 (9) SCC 171, the Honourable Supreme Court held thus, "6. The finding arrived at by the Tribunal, Single Judge and the Division Bench is that the workperson has put in 240 days during the relevant period hence her services could not have been terminated without taking recourse to the procedure laid down in Chapter 5-A of the Standing Orders. This question being purely a question of fact we do not think that in a petition under Article 136 we would go into this issue unless of course we come to the conclusion that such finding of fact is totally perverse which ground is not available in this case." 10. Thus, the legal principle deducible from the decisions referred above is that this Court is not acting as an appellate authority to the findings of the Labour Court and the High Court in writ jurisdiction may not normally interfere in such findings of the Labour Court unless the findings are wholly perverse or legally untenable. That this Court would not re-appreciate the evidence to come to a different factual conclusion. 11. Thus, with the above legal principle in mind, if the award of the Labour Court is perused, it is seen that the Labour Court framed two issues for consideration namely whether the award of punishment of dismissal imposed on the workman is proper and to what relief, he is entitled to. While examining these issues, the Labour Court went into the aspects as to whether the disciplinary enquiry was conducted in a proper manner. Since it was conceded by the workman that the disciplinary enquiry was fair and proper, the Labour Court proceeded further to adjudicate the claim. The Labour Court went into the aspect that whether the workman had received bribe is the most important aspect of the case and one Karunakaran, Ticket Inspector has given a complaint against the workman in this regard. https://hcservices.ecourts.gov.in/hcservices/ The bus, where the workman was the Conductor, according to Ex.M-1 should depart at 15:31 hours and the private bus should depart at 15:33 hours. The allegation being that the conductor of the private bus took Rs.10/- and gave it to the broker Ayyasamy and the said broker is stated to have handed over the same to the workman. They have divided the said amount between themselves. This allegation is contained in the complaint marked as Ex.M-1. The Labour Court found that in the complaint, Ticket Inspector Karunakaran has not stated for what purpose this Rs.10/- was given. Further statement recorded from the private bus broker one Shajahan, which was marked as Ex.M-2 also does not state for what purpose Rs.10/- is said to have been given to the workman. Thereafter, the Labour Court came to the conclusion that it is not clear as to whether this amount was given either to make the government bus leave early or make the government bus to leave later than the private bus. In the absence of any oral evidence to support that this Rs.10/- was paid as bribe to the workman either to make the bus leave early or to depart later having not been brought out in the disciplinary enquiry, the Labour Court came to the conclusion that this amount, which is said to have been paid cannot be presumed to be paid as bribe. However, considering the facts more particularly the statement recorded in the departmental enquiry and also taking note of the statement given by the workman conceding that the domestic enquiry was conducted in a fair and proper manner, the Labour Court granted the relief of reinstatement with continuity of service and attendant benefits and denied the relief of backwages. In paragraph No. 10 of the award, the Labour Court took note of the peculiar circumstances of the case on hand and came to the conclusion that the workman is not entitled for backwages and this decision is supported by reasons as stated therein. This finding of the Labour Court cannot be stated to be either perverse, arbitrary or absurd for interference of this Court under Article 226 of the Constitution of India. Further, the Labour Court also took into consideration the past conduct of the workman. Therefore, this Court finds that the award passed by the Labour Court is neither perverse or legally untenable and consequently the impugned award does not call for any interference. Accordingly, both the writ petitions fail and are dismissed. Consequently, connected miscellaneous petition is closed. However, there will be no order as to costs. Sd/- Assistant Registrar / True Copy / Sub Assistant Registrar ar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Presiding Officer Labour Court, Salem 2. The Tamil Nadu State Transport Corporation (Salem Div.-I) Salem – 7 +2 Ccs to Mr.M.RaviBharathi, Advocate Sr.No.23274 & 23273 +1 CC to Mr.V. Ajay Khose, Advocate Sr.No.23699 W.P.Nos.36794 of 2004 and 1050 of 2006 BV(CO) THS: 19/04/2010 https://hcservices.ecourts.gov.in/hcservices/