Madras High Court
The Management vs The Joint Commissioner Of Labour ... on 22 February, 2021
W.A.(MD)No.93 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON 04.04.2022
DELIVERED ON 12 .04.2022
CORAM:
THE HONOURABLE MR.JUSTICE PARESH UPADHYAY
and
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.A(MD).No.93 of 2022
and CMP(MD).No. 990 of 2022
The Management
Tamil Nadu State Transport Corporation
(Madurai Division II) Limited
Now bifurcated as Tamil Nadu State Transport Corporation
(Tirunelveli Division) Limited
19, Trivandram Road
Vannarpet
Tirunelveli 627 003 ....Petitioner/Appellant
Vs
1.The Joint Commissioner of Labour (Conciliation)
Chennai – 6
2.A.Mariappan
Conductor, Staff No.8598
2/34, Nadu Theru
Nanchankulam Post
Sankar Nagar
Tirunelveli 627 357 ...Respondents/Respondents
Page No.1 of 12
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W.A.(MD)No.93 of 2022
Prayer: Writ Appeal filed under clause 15 of the Letters Patent, to set aside
the order made in W.P(MD).No.8825 of 2012 dated 22.02.2021
For Appellant : Mr.Veera Kathiravan
Additional Advocate General
Assisted by Mr.R.Rajaraman
R1 : Labour Court, Chennai
For R2 : Mr.V.Kannan
JUDGMENT
(Delivered by R.VIJAYAKUMAR,J.)
The present Writ Appeal has been filed by the writ petitioner in
W.P(MD).No.8825 of 2012 which was dismissed by the learned Single
Judge of this Court on 22.02.2021.
2.The second respondent in the writ petition was employed as a
Conductor in the petitioner Transport Corporation. According to the
management, when the second respondent was working as a driver on
20.01.2005, he had received a sum of Rs.10/- from the passenger and gave a
ticket for Rs.3.50 instead of Rs.8.50 and misappropriated a sum of Rs.5/-.
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W.A.(MD)No.93 of 2022
On the said allegation, a charged memo was issued to the second respondent
on 27.01.2005 and he was placed under suspension. A domestic enquiry was
conducted, in which, he was found guilty. A second show cause notice was
issued to the second respondent on 15.04.2005 and the second respondent
also submitted a reply. Thereafter, the petitioner management dismissed the
second respondent from service by an order dated 11.05.2005.
3.In order to comply with the provision of Section 33(2)(b) of
Industrial Dispute Act, an application to approve the dismissal was filed
before the Joint Commissioner of Labour, Chennai in Approval Petition No.
69 of 2005. In the said application, the Statutory Authority passed an order
on 31.07.2007 holding that the Enquiry Officer has not considered all the
legal evidence before him. The Statutory Authority further held that the
findings of the Enquiry Officer were perverse. The management filed a
petition requesting the Statutory Authority that if any defect is found in the
enquiry proceedings, they may be permitted to let in evidence. Based upon
the said application, the management was permitted by the Statutory
Authority to let in evidence to prove the charges.
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W.A.(MD)No.93 of 2022
4.Before the Statutory Authority, the management chose to examine
the enquiry officer who conducted the domestic enquiry. Written
submissions were filed on behalf of the management as well as by the
workman. The Statutory Authority by its order dated 23.12.2010 arrived at a
finding that except the Enquiry Officer, no one was examined before him
and the evidence of enquiry officer is hearsay evidence. The Statutory
Authority further found that the main reason for reopening of the case was
due to defects found in the domestic enquiry. But, the Enquiry Officer
himself has entered into the box and he has let in evidence attempting to
prove the misconduct of the workman. The Statutory Authority further
found that the passenger who is said to have travelled and has not been
examined. The Statutory Authority further found that it is doubtful, whether
the passenger himself has sought for a ticket for Rs.3.50 instead of Rs.8.50
or not. Based upon the said findings, the Statutory Authority held that no
prima facie case is made for the alleged misconduct against the workman
and rejected the approval sought for by the management.
5.The management challenged the said order of the Statutory
Authority in W.P(MD).No8825 of 2012.
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W.A.(MD)No.93 of 2022
6.The learned Single Judge of this Court after hearing both the parties
arrived at a finding that the passenger who has lost the money has not been
examined and his statement was also not recorded by the Checking
Inspector. In the view of the above said facts, the learned Single Judge
arrived at a conclusion that the Statutory Authority has rightly rejected the
request for approval of the dismissal of the workman. The present Writ
Appeal has been filed by the management challenging the said order of the
learned Single Judge of this Court.
7.The learned Additional Advocate General appearing for the
appellant contended that in view of various judgments of the Hon'ble
Supreme Court, it is not necessary to examine the passenger who is
connected with the incident of misappropriation done by the workman. He
further cited various judgments of the Hon'ble Supreme Court as well as
High Courts to impress upon the Court that even if the misappropriation is
for a small amount, the punishment of dismissal cannot be considered to be
disproportionate to the proved misconduct. He has also cited the various
judgments to the effect that the examination of the Checking Inspector who
has recorded the statement of the passenger at the place of occurrence, is
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W.A.(MD)No.93 of 2022
enough to prove the charge of misappropriation. Hence, he contended that
the misconduct of the workman/conductor has been proved and for the said
proved misconduct, the order of the dismissal is not disproportionate. He
further contended that the proceedings under Section 33(2)(b) of Industrial
Dispute Act are summary in nature and hence, the Statutory Authority
cannot re-appreciate the evidence and proceed to reject the request for
approval of the dismissal.
8.Per contra, the learned counsel for the second respondent/workman
contended that the domestic enquiry conducted by the management was
found to be defective and perverse by the Statutory Authority by his order
dated 31.07.2007. It has not been challenged by the management and it has
become final. Based upon the application filed by the management, the
management was given with an opportunity to let in evidence afresh to
prove the misconduct before the Statutory Authority. However, the
management has failed to examine either the passenger or the ticket
examiner who is said to have recorded the statement of the passenger. He
further contended that the Enquiry Officer who conducted the domestic
enquiry alone was examined as witness on the side of the management
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W.A.(MD)No.93 of 2022
before Statutory Authority. According the learned counsel for the
respondent, the Enquiry Officer is not a competent witness to speak about
the happenings on 20.01.2005. The Enquiry Officer does not have any
personal knowledge about what has happened on the said date. The enquiry
conducted by the Special Officer has already been held as defective and
perverse and hence, his oral evidence cannot be accepted by the Statutory
Authority and rightly, the Statutory Authority has chosen to reject the
evidence of Enquiry Officer. He further contended that even though the
management was provided with second opportunity to let in evidence to
prove the misconduct, they have not examined a single witness before the
Statutory Authority to prove the misconduct. Hence, the Statutory Authority
has rightly rejected the request for approval of the dismissal of the
conductor. The order rejecting approval has been rightly confirmed by the
learned Single Judge of this Court. Hence, he prayed for dismissal of the
Writ Appeal.
9.We have given anxious consideration to the submissions made on
either side.
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W.A.(MD)No.93 of 2022
10.Admittedly, the second respondent who is a conductor was visited
with a charge memo on 27.01.2005 on certain allegation of
misappropriation of amount while issuing tickets. He was found guilty in
the domestic enquiry and was dismissed from service by an order dated
11.05.2005. The management approached the Statutory Authority for the
approval of the said order under Section 33(2)(b) of Industrial Dispute Act.
The above said facts are not in dispute.
11.The Statutory Authority has passed an order on 31.07.2007
holding that the conclusion of the Enquiry Officer is based upon the
non-consideration of evidence and it is perverse. The management was
provided with an opportunity to let in fresh evidence to prove the
misconduct. However, the management has not chosen to examine either the
passenger or the ticket examiner to prove the misconduct of the workman.
Instead the management has chosen to examine the Enquiry Officer who
conducted the domestic enquiry which was found to be defective by the
Statutory Authority by its order dated 31.07.2007.
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W.A.(MD)No.93 of 2022
12.Where as Statutory Authority arrives at a conclusion that the
domestic enquiry is defective, the entire matter is left open and the
management is duty bound to prove the misconduct once again by adducing
fresh evidence before the Statutory Authority. However, in the present case,
the management has not chosen to examine any one connected with the
alleged misconduct. Hence, the judgments relied upon by the learned
Additional Advocate General to the effect that the examination of ticket
examiner is enough and the passenger need not be examined is not
applicable to the facts of the present case.
13.In the present case, not even the ticket examiner has been
examined before the Statutory Authority. The other judgments cited by the
learned Additional Advocate General that where the charges of
misappropriation are proved, even if the amount involved is very small, the
Court can impose the punishment of dismissal. In the present case, the
misconduct of the workman itself has not been proved by letting in any
evidence before the Statutory Authority. Hence, the question relating to the
quantum of punishment for misconduct does not arise at all. The Statutory
Authority has arrived at a finding that the Enquiry Officer is not competent
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W.A.(MD)No.93 of 2022
to let in evidence in order to prove the misconduct. Under such
circumstances of the case, the Statutory Authority as well as the learned
Single Judge have arrived at a finding that the non-examination of the
passenger is fatal. That apart even the ticket examiner has not been
examined before the Statutory Authority to establish the misconduct. Hence,
we do not find any ground to interfere in the order passed by the Statutory
Authority which was confirmed by the learned Single Judge of this Court.
The Writ Appeal stands dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
[P.U.,J] [R.V.,J]
12 .04.2022
Index :yes
Internet :yes
msa
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.93 of 2022
To
1.The Management
Tamil Nadu State Transport Corporation
(Madurai Division II) Limited
Now bifurcated as Tamil Nadu State Transport Corporation
(Tirunelveli Division) Limited
19, Ttrivandram Road
Vannarpet
Tirunelveli 627 003
2.The Joint Commissioner of Labour (Conciliation)
Chennai – 6
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.93 of 2022
PARESH UPADHYAY,J.
AND
R.VIJAYAKUMAR,J.
msa
Judgment in W.A(MD).No.93 of 2022 and
CMP(MD).No. 990 of 2022
12.04.2022
https://www.mhc.tn.gov.in/judis
