The Managing Director vs S. Palanisamy

S. Vaidyanathan, J.—W.P. No. 4363 of 2008 is filed by the Management challenging the award passed in I.D. No. 139/2002 dated 09.07.2007 by the Labour Court, Coimbatore, granting reinstatement to the workman with continuity of service and other benefits, but, without backwages and W.P. No. 18531 of 2008 is filed by the workman challenging the very same award insofar as it relates to denial of backwages.

The facts of the case are:

The 1st respondent in W.P. No. 4363 of 2008/petitioner in W.P. No. 18531 of 2008 was employed as Conductor in the Transport Corporation. A charge memo dated 08.04.2001 was issued to him on the ground that on 03.04.2001, he failed to issue tickets to two passengers, who had boarded the Transport Corporation bus, bound for Namakkal, at Erode, to go to Thiruchengode. On inspection, the workman had given a statement that he had forgotten to issue the tickets to the passengers. After a detailed domestic enquiry, the employee was imposed with the punishment of dismissal from service. Challenging the dismissal order dated 24.10.2001, the workman raised an industrial dispute in I.D. No. 139 of 2002 and the Labour Court, by award dated 09.07.2007, while upholding the fairness of the domestic enquiry, came to the conclusion that the punishment imposed is disproportionate to the gravity of the misconduct and accepting the statement of the workman that in order to avoid a cyclist, when sudden break was applied by the Driver, he and the passengers fell and in that process, he had forgotten to issue the tickets, even though, he collected the money, passed an award reinstating the workman in service, without backwages, but, with continuity of service and other benefits. As already stated, aggrieved by the denial of backwages, the employee has approached this Court by filing W.P. No. 18531 of 2008 and aggrieved by that portion of the award granting reinstatement with continuity of service and other benefits, the Management has approached this Court in W.P. No. 4363 of 2008.

Heard both sides.

On a cursory look at Exts-M1 and M6, it is clear that the employee had not taken the plea about the accident, i.e., in order to avoid a cyclist, the driver applied sudden break, due to which, he and the passengers fell and in that process, he had forgotten to issue the tickets. The incident is said to have occurred at Karungalpalayam, but the workman did not issue the tickets even thereafter and only when there was an inspection after the bus had crossed 4 kms, the non-issuance of tickets was found out by the Checking Inspector, who has also given a statement before the Labour Court. The employee was issued with a charge memo dated 08.04.2001 and only on 19.04.2001, the employee had given his reply. There is no evidence to the effect that the employee had given this story prior to the issuance of charge memo.

The only defence taken by the employee in this case is that the Labour Court has interfered with the punishment and this Court need not exercise its extraordinary powers under Article 226 of the Constitution of India and set aside the award granting reinstatement without backwages, even if the writ petition filed by him is going to be dismissed. Consequently, it is stated that there was no direct evidence and therefore, the Labour Court was right in coming to the conclusion, accepting the statement of the employee, while granting the relief of reinstatement. Further, it is stated that even though the Management has taken a plea, only before this Court, that his past record is bad and that there are 33 incidents against him, similar to the one in question, the dismissal order does not speak about the past record and he was not given an opportunity to explain the same.

On the other hand, according to the Management, even assuming that the past record has not been taken into account, there is no mitigating circumstance to grant the relief, more particularly, the plea of sudden break to avoid a cyclist resulting in the passengers and the workman falling, due to which the workman forgot to issue the tickets, cannot be accepted. The award of the Labour Court granting reinstatement without backwages, but with continuity of service should be set aside; that the writ petition filed by the Management should be allowed and the writ petition filed by the employee should be dismissed.

The Honourable Apex Court (Three Judges), in the judgment reported in State of Haryana and Another Vs. Rattan Singh, has held that there is no need for direct evidence and even hearsay evidence is admissible, provided it has reasonable nexus and credibility. The relevant portion at paragraph 4 is extracted hereunder:

"4. It is well-settled that in a domestic enquiry, the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic Tribunal, cannot be held good. However, the Courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the Tribunal before the valid finding could be recorded. The "residium" rule to which counsel for the respondent referred, based upon certain passages from the American Jurisprudence does not go to that extent nor does the passage from the Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic Tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, inspector of the Flying Squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground."

In this context, it is also relevant to extract paragraph Nos. 9 and 10 of the judgment of the Honourable Apex Court reported in J.D. Jain Vs. Management of State Bank of India and another, :

"9. The learned Tribunal, it appears, was oblivious of the fact that it was examining the evidence in a domestic enquiry and not the evidence in a criminal prosecution entailing conviction and sentence. In a case like the one before us, three kinds of proceedings against the delinquent are possible:

(i) departmental proceedings and action,

(ii) criminal prosecution for forgery and misappropriation,

(iii) civil proceedings for recovery of the amount alleged to be misappropriated.

The respondent herein adopted course (i) and instituted the domestic enquiry in which the principle applied by the Tribunal is not applicable; in such an enquiry guilt need not be established beyond reasonable doubt; proof of misconduct may be sufficient. The learned Tribunal has committed another error in holding that the finding of the domestic enquiry was based on "hearsay" evidence. The law is well settled that the strict rules of evidence are not applicable in a domestic enquiry. The Court in the case of State of Haryana and Another Vs. Rattan Singh, held:

"4. It is well-settled that in a domestic enquiry, the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.

The next question is, is the evidence in the domestic enquiry really hearsay, as held by the Tribunal? The word "hearsay" is used in various senses. Sometimes it means whatever a person is heard to say; some it means whatever a person declares on information given by someone else. (See Stephen on Law of Evidence.) The Privy Council in the case of Subramanium V. Public Prosecutor, 1956(1) W.L.R. 965 observed:

"Evidence of a statement made to a witness, who is not himself called as a witness may or not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made."

As far as the case on hand is concerned, there is no evidence of the employee, prior to the issuance of charge memo, about the driver applying sudden break to avoid an accident with a cyclist. That being so, the explanation given by the employee has to be construed only as an afterthought since he has not disclosed this fact prior to the issuance of the charge memo dated 08.04.2001.

That apart, the Labour Court has accepted the fact that the domestic enquiry has been fair and proper. It is no doubt true that under Article 226 of the Constitution of India, there is no need for re-appreciation of finding of fact, even if there is a grave mistake in finding of fact, as has been held by the Honourable Apex Court in Syed Yakoob Vs. K.S. Radhakrishnan and Others, . The relevant portion of the judgment at paragraph No. 16 reads thus:

"16....If findings of fact were allowed to be disturbed by High Courts in such writ proceedings, that may lead to an interminable search for correct findings and would virtually convert the High Courts into Appellate Courts competent to deal with questions of fact. That is why we think, in entertaining petitions for writs of certiorari, it is necessary to remember that findings of fact recorded by special Tribunals which have been clothed with jurisdiction to deal with them, should be treated as final between the parties, unless, of course, it is shown that the impugned finding is based on no evidence...."

Taking note of the submissions made on either side and in view of the decisions, cited supra, the award of the Labour Court granting reinstatement to the workman with continuity of service and other benefits is set aside and the writ petition filed by the Management is allowed. Consequently, the writ petition filed by the workman is dismissed. No costs. However, considering the fact that the employee is without employment; that he has attained the age of superannuation in January, 2014, which fact has been admitted by both parties; that the employee had the benefit of the award and that during the pendency of the writ petition, no amount was paid, without treating this as a precedent, the Management/Transport Corporation is directed to pay the last drawn wages to the workman from the date of the award till the date of superannuation, within a period of eight weeks from the date of receipt of a copy of this order.