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Judgment
R. Mahadevan, J.—Challenge made in these writ appeals, is to the order passed by the learned Single Judge of this Court, in W.P(MD)No.4216 of 2010, dated 25.04.2013.
For the sake of convenience, the parties herein are referred according to their litigative status in the writ petition.
Brief facts necessary for the disposal of these writ appeals, are as follows:
3.1. The writ petitioner who is an erstwhile Conductor in the Tamil Nadu State Transport Corporation Limited, Kumbakonam Division, (hereinafter referred to as ''the respondent Corporation''), has challenged the award of the Labour Court in I.D.No.96 of 2006, dated 31.10.2006, wherein the Industrial Dispute raised by the writ petitioner was rejected.
3.2. The case of the writ petitioner is that while he was working as a Conductor in the route operated between Manaparai and Thogamalai on 13.09.1997, he was subjected to check by the Checking Inspector of the respondent Corporation, consequent to which, a charge memo came to be issued on the petitioner framing four charges, viz., the petitioner received Rs.2.25 from a male passenger and did not issue ticket to him; at the time when the checking was done, there was an excess of Rs.10.30; abandoned the bus at the time of inspection and when the Checking Inspector gave the defect memo, failed to receive the same.
3.3. Denying the said charges, he submitted his explanation. A domestic enquiry was conducted, wherein, the Management of the respondent Corporation took a stand that a person by name Tirupathi travelled in the bus. Neither a statement from the said Tirupathi was recorded nor he was examined as a Department witness during such enquiry. The driver of the bus was not examined and according to the petitioner, the non-examination of the driver of the bus would weaken the case of the respondent Corporation, since the said driver had countersigned in the statement of the alleged passenger, Tirupathi. Ultimately, the writ petitioner was dismissed from service, by order dated 17.01.1998. Challenging the same, he raised an Industrial Dispute in I.D.No.96 of 2006, which was also dismissed by order dated 31.10.2006. Aggrieved over the same, the writ petition came to be filed.
3.4. Whereas the respondent Corporation contended that when the Checking Inspector questioned the male passenger about the conduct, he replied that he has given Rs.2.25 as fare at Manaparai, so to say, at the beginning of the journey and he is yet to receive the ticket. It is also submitted that the said male passenger gave the statement in the presence of the driver and the Checking Inspector and other passengers, during which, the writ petitioner entrusted the cash bag to the driver of the bus and abandoned the bus in the midst of the road. The Checking Inspector also found excess cash of Rs.10.30 in the cash bag and thereafter, a charge memo was issued and a domestic enquiry was conducted and the Enquiry Officer held that the charges framed against the writ petitioner, are proved. The petitioner had suffered various other misconducts, including the charge of misappropriation and considering all these aspects, the punishment of dismissal from service was imposed and the Labour Court also confirmed the same.
3.5. The learned Single Judge has considered the materials available on record in detail and found that the writ petitioner ought not to have been dismissed from service and the Labour Court ought to have interfered in the order of dismissal and exercised its discretion under Section 11A of the Industrial Disputes Act, 1947 and imposed any other penalty on the writ petitioner other than dismissal from service for the charges 2 to 4.
3.6. Aggrieved by the order of the learned Single Judge in not ordering for full back wages, the writ petitioner has filed the writ appeal in W.A.(MD)No.838 of 2014. Whereas the respondent Corporation has filed another writ appeal in W.A.(MD)No.633 of 2014 against the order setting aside the award passed by the Labour Court.
Ms. J.Anandhavalli, learned Counsel for the writ petitioner submitted that in the charge memo, the name of the alleged passenger to whom the petitioner issued the ticket, was not mentioned and the petitioner in his explanation stated that there was one ticketless passenger, which was not at all considered by the Labour Court while passing the impugned award.
She further contended that the writ petitioner sent a letter dated 13.08.1997 to the Honourable Chief Minister by a Registered Post about the conduct of the Checking Inspector during the check in collecting evidence against the petitioner and the said letter was not considered by the Labour Court by examining the report of the Enquiry Officer. According to the petitioner, though the alleged passenger is said to be one Tirupathi, neither he was examined nor any document was produced to prove that he is said to have travelled in the bus.
In respect of the second charge, viz., there was excess of Rs.10.30 in the cash bag, it is the contention of the writ petitioner that the writ petitioner''s day had not come to an end at the relevant point of time and it was the usual practice of the conductors to have some of their personal cash in the bag in order to meet out the need of changes to be given to the passengers.
So far as the third charge of desertion of his job is concerned, it is submitted by the writ petitioner that he had only gone to the Manager to give a statement, which was recorded by the Manager and marked as M.6 before the Enquiry Officer. Accordingly, the writ petitioner contended that it would not warrant the punishment of dismissal from service.
Per contra, Mr.D.Sivaraman, learned Counsel for the respondent Corporation contended that when the Checking Inspector enquired the passenger about the conduct in not having the ticket, he stated that he has given Rs.2.25 towards fare at the beginning of the journey itself, i.e., at Manaparai and he is yet to receive the same. According to the respondent Corporation, the said male passenger had given the statement in the presence of the driver and the Checking Inspector and other passengers, during which, the writ petitioner abandoned the bus.
It is further submitted that the Enquiry Officer, on enquiry, held that the charges levelled against the writ petitioners, were proved. Moreover, it is contended that the petitioner had suffered various other misconducts including the charge of misappropriation and thereafter, the order of punishment was imposed on the writ petitioner and ultimately, the Labour Court confirmed the same, warranting no interference at the hands of this Court.
The learned single Judge, on consideration of the entire materials available before him, has gone through the charges against the writ petitioner; the explanation offered by him; the report of the Enquiry Officer and the award of the Labour Court as well and ultimately, found that the writ petitioner ought not to have been dismissed from service and the Labour Court ought to have interfered with the order of dismissal and exercised discretion under Section 11A of the Industrial Disputes Act, 1947, and imposed any other penalty on the petitioner other than the dismissal from service for charges 2 to 4. Consequently, the petitioner was directed to be reinstated in service with 30% back wages and continuity of service.
Aggrieved by the order of the learned single Judge in ordering for reinstatement with 30% back wages, the writ petitioner filed W.A.(MD)No.838 of 2014, claiming the full back wages. Whereas the respondent Corporation filed W.A.(MD)No.633 of 2014, challenging the order of reinstatement.
The learned Counsel for the writ petitioner contended that while the learned single Judge ordered for reinstatement, he ought to have awarded the full back wages instead of 30%, which according to her, would affect the interest of the writ petitioner.
However, the learned Counsel for the respondent Corporation submitted that the award of the Labour Court is sustainable, since the act of the writ petitioner in not issuing ticket to the passenger would amount to dishonesty and grave negligence and therefore, the punishment of removal from service, would be justified and the learned single Judge ought not to have interfered with the same in exercise of Article 226 of the Constitution of India.
In support of the contentions of the respondent Corporation, he relied on the following decisions:
(i) State of Haryana and Another Vs. Rattan Singh, .
(ii) Regional Manager, RSRTC v. Ghanshyam Sharma reported in (2002) 10 Supreme Court Cases 330.
(iii) Government of India and Anr Vs. George Philip, .
We have given our anxious consideration to the rival submissions and perused the materials available on record, including the order of the learned single Judge.
The learned single Judge found that when the Labour Court either misinterpreted the evidence available on record, or failed to consider the same, which would end in an award, in exercise of the jurisdiction under Article 226 of Constitution of India, interference could be made in the award of the Labour Court. Further, it is held by the learned single Judge that the Labour Court is duty cast upon to analyse whether the alleged male passenger was examined in the domestic enquiry or whether the charge levelled against the writ petitioner was proved and whether there was sufficient evidence to prove the same.
Upon consideration of the entire materials available on record, we are of the view that the learned single Judge has correctly allowed the writ petition and ordered for reinstatement. However, insofar as awarding of 30% back wages to the writ petitioner is concerned, we have no hesitation to observe that the writ petitioner does not deserve to it due to his conduct at the relevant point of time. Therefore, the order of the learned single Judge in respect of awarding 30% back wages, stands set aside and the rest of the same shall hold good. Meanwhile, we find that the writ petitioner had not made out a case for claiming the entire back wages and therefore, we are of the opinion that the writ appeal filed by the writ petitioner is also liable to be rejected.
In fine, W.A.(MD)No.633 of 2014 is partly allowed to the extent indicated above and W.A.(MD)No.838 of 2014 is dismissed. Consequently, the connected miscellaneous petition is closed. No costs.