Madras High Court

The Management vs N.Karunakaran on 22 January, 2021

                                                                                W.P(MD)No.11515 of 2010


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED : 22.01.2021

                                                     CORAM

                             THE HONOURABLE MR.JUSTICE M.DHANDAPANI

                                            W.P(MD)No.11515 of 2010
                                                    and
                                             M.P.(MD)No.1 of 2010

                 The Management,
                 Tamil Nadu State Transport Corporation,
                 (Madurai Division-1),
                 Bye-Pass Road,
                 Madurai-10.                                                 ... Petitioner

                                                         Vs.

                 1.N.Karunakaran

                 2.The Presiding Officer,
                   Labour Court,
                   Madurai.                                                 ... Respondents

                 Prayer : Writ Petition filed under Article 226 of the Constitution of India,
                 praying this Court to issue a Writ of Certiorari, to call for the records pertaining
                 to the order passed by the Labour Judge, Madurai, in I.D.No.32 of 2001 dated
                 04.02.2009 and quash the same as illegal and invalid.

                               For Petitioner     : Mr.M.Prakash

                               For Respondent : Mr.S.Arunachalam for R1




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                                                                              W.P(MD)No.11515 of 2010




                                                      ORDER

The case of the petitioner is that the first respondent was employed as

Conductor in the petitioner/Corporation. While he was on duty on 20.09.1998

from Theni to Rameswaram in the bus bearing registration No.TN-58-N-246

collected ticket fare of Rs.21/- from one passenger for Madurai Teppakulam to

Ramanathapuram stage and issued a ticket for Rs.14.25 paisa to the stage of

Madurai to Paramakudi. When the Inspector checked the invoice with

passengers and tickets, it was found that the first respondent misappropriated

Rs.6.75 paisa. The passenger in the bus had witnessed the same and gave a

statement in writing. The petitioner/corporation conducted enquiry and the

charges were proved against the first respondent. Hence, the first respondent

was dismissed from service on 23.02.2020. Aggrieved over the order of

dismissal, the first respondent filed I.D.No.32 of 2011 before the learned

Labour Court, Madurai under Section 2(a)2 of the Industrial Dispute Act, 1947.

The said Industrial Dispute Petition was allowed and the petitioner was directed

to reinstate the first respondent in service without backwages. Aggrieved over

the same, this writ petition has been filed.

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W.P(MD)No.11515 of 2010

2.The learned counsel for the petitioner submitted that the first

respondent himself pleaded guilty before the Enquiry Officer and inadvertently,

he had given lesser value ticket to the passengers. It shows that the guilt is

committed by the first respondent. The first respondent was punished more

than 21 times for the very same charge. The first respondent was suspended

from service for a period of 30 days for the very same offence on 29.02.1996

also. In the present case, the first respondent himself admitted his guilt before

the enquiry officer and the same was confirmed by the Labour Court. However,

the learned Labour Court set aside the order of termination. Hence, the learned

counsel for the petitioner prays this Court to set aside the order of the Labour

Court.

3.The learned counsel appearing for the first respondent would submit

that he served 23 years in the petitioner/Corporation. The termination order

passed by the petitioner was dismissed and the Labour Court after carefully

considering the evidence, reinstated him in service without backwages. Hence,

the order of the Labour Court is null and void and it does not warrant any

interference.

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W.P(MD)No.11515 of 2010

4.Heard the learned Counsel appearing for the petitioner and the learned

Counsel appearing for the first respondent and perused the materials placed

before this Court.

5.The bus bearing registration No.TN-58-N-246 belonging to the

Corporation was on its trip from Madurai Teppakulam to Ramanathapuram on

20.09.1998. When the bus crossed Chanthirekudi entrance, the checking

inspector boarded the bus. At that time, 42 passengers were travelling in the

bus but 41 passengers were entered in ticket book and invoice. It is seen that

first respondent collected a sum of Rs.21 and issued ticket only for a sum of

Rs.14.25 and he misappropriated a sum of Rs.6.75. The passenger had

witnessed the same and gave a written complaint to that effect. Hence, the first

respondent was issued with charge memo. The first respondent offered his

explanation on 28.10.1998 and the same was not accepted, an enquiry was

conducted and the first respondent was dismissed from service on 23.02.2020.

Questioning the same, the first respondent filed I.D.No.32 of 2011 before the

Labour Court, Madurai.

6.Before the Labour Court, there is no witness on behalf of the petitioner

as well as the respondent. 16 documents were marked on side of the

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W.P(MD)No.11515 of 2010

petitioner/Corporation and no documents is marked on the side of the first

respondent/workman.

7.On above backgrounds, this leads this Court to the next question as to

whether the Labour Court would be justified in exercising its discretion under

Section 2(a)(2) of the Industrial Disputes Act, 1947 had held that the charges

are proved. However, the Labour Court modified the punishment of dismissal

imposed by the petitioner/Corporation. While considering the scope of judicial

review in respect of a punishment imposed by the disciplinary authority and

subsequently modified by the Labour Court, it has been now well settled by the

judgment of the Supreme Court in Government of India and another v.

George Philip, AIR 2007 SC 705, where the Supreme Court, in paragraph-9 of

the judgment, has held as follows:-

"9. It is trite that the Tribunal or the High Court exercising jurisdiction under Article 226 of the Constitution are not hearing an appeal against the decision of the disciplinary authority imposing punishment upon the delinquent employee. The jurisdiction exercised by the Tribunal or the High Court is a limited one and while exercising the power of judicial review, they cannot set aside the punishment altogether or impose some other penalty unless they find that there has been a substantial non-compliance of the rules of procedure or a gross violation of rules of natural justice which has caused prejudice to the http://www.judis.nic.in

W.P(MD)No.11515 of 2010

employee and has resulted in miscarriage of justice or the punishment is shockingly disproportionate to the gravamen of the charge."

8.In fact in the above judgment, the Supreme Court had quoted with

approval the following judgments in B.C.Chaturvedi v. Union of India, (1995)

6 SCC 749; Om Kumar v. Union of India, (2001) 2 SCC 386 and Damoh

Panna Sagar Rural Regional Bank & another v. Munna Lal Jain, (2005) 10

SCC 84.

9. In U.P.State Road Transport Corporation v. Mohan Lal Gupta and

others, (2000) 9 SCC 521, the Supreme Court has held that the question of

award of any minor punishment in the facts of that case does not and cannot

arise and neither Labour Court could alter punishment of termination having

regard to its assessment of facts and contentions as regards validity of the

inquiry proceedings. The employee has been found guilty of misappropriation

and in such an event, if the appellant Corporation loses its confidence vis-a-vis

the employees, it will neither be proper nor fair on the part of the Court to

substitute the findings and confidence of the employer with that of its own by

allowing reinstatement. The misconduct stands proved and in such a situation

by reason of gravity of the offence, the Labour Court cannot exercise its

discretion and alter the punishment. In Bharat Heavy Electricals Limited v.

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W.P(MD)No.11515 of 2010

M.Chandrasekhar Reddy and others, (2005) 2 SCC 481, the Supreme Court,

while quoting the above judgment with approval, has held that the Labour

Court has no unlimited jurisdiction under Section 2(a)(2). The Labour Court

has no power to exercise the discretion vested in it unless the same is based on

justifiable grounds supported by acceptable materials and reasons thereof.

10. In South Indian Cashew Factories Workers' Union v. Kerala State

Cashew Development Corporation Ltd., and others, (2006) 5 SCC 201, the

Supreme Court has held that if the enquiry is fair and proper then, in the

absence of any allegations of victimization or unfair labour practice, the Labour

Court has no power to interfere with the punishment imposed.

11. A careful reading of the above judgments of the Supreme Court

would go to show that in exercise of the power under Section 2(a)(2), the

Labour Court could not interfere with the imposition of punishment, unless the

punishment is shockingly disproportionate to the gravamen of the charges. In

fact in Damoh Panna Sagar Rural Regional Bank case (supra), the Supreme

Court has observed that the Court should not interfere with the administrator's

decision unless it was illogical or suffers from procedural impropriety or was

shocking to the conscience of the Court, in the sense that it was in defiance of

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W.P(MD)No.11515 of 2010

logic and moral standards. The Supreme Court has also held in that judgment

that the Court would not go into the correctness of the choice made by the

administrator open to him and the Court should not substitute its decision to

that of the administrator and the scope of judicial review is limited to the

deficiency in decision-making process and not the decision as such.

12. The Supreme Court in Regional Manager, RSRTC v. Ghanshyam

Sharma, (2002) 10 SCC 330 has held that when the main duty or function of

the conductor is to issue tickets and collect fare and then deposit the same with

the Road Transport Corporation and when a conductor fails to do so, then it

will be misplaced sympathy to order his reinstatement instead of dismissal. On

the facts of that case, the Supreme Court held that the Labour Court was not

justified in interfering with the punishment of dismissal and should not have

ordered reinstatement with continuity of service, but without backwages.

Though under Section 2(a)(2) the Labour Court has jurisdiction and powers to

interfere with the quantum of punishment, however, the discretion has to be

used judiciously.

13.On consideration of the various materials, ultimately the Labour Court

found that the charges are proved. However, it held that the punishment of

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W.P(MD)No.11515 of 2010

dismissal was too harsh and therefore, modified the said punishment into one of

reinstatement without backages. Aggrieved over the same, this writ petition has

been filed.

14. In this context, we may also refer to the following judgments of the

Supreme Court. In Mahindra and Mahindra Ltd., v. N.B.Narawade, (2005) 3

SCC 134, the Supreme Court, while considering the discretion of the Labour

Court under Section 2(a)(2) to interfere with the punishment, has held that the

said discretion is certainly not unlimited, but could be exercised only in the

following circumstances, namely, (i) when the punishment being so

disproportionate to gravity of misconduct so as to disturb conscience of court,

or (ii) existence of any mitigating circumstances which require reduction of the

sentence, or (iii) past conduct of workman which may persuade Labour Court to

reduce punishment. In M.P.Electricity Board v. Jagdish Chandra Sharma,

(2005) 3 SCC 401, the Supreme Court, while quoting with approval the

judgment in Mahindra and Mahindra Ltd. case, has held that the Court/Tribunal

cannot interfere with quantum of punishment based on irrational or extraneous

factors and certainly not on a compassionate ground and the said jurisdiction is

not to be exercised capriciously or arbitrarily.

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W.P(MD)No.11515 of 2010

15. Further, a learned single Judge of this Court in the judgment in

Management, Dheeran Chinnamalai Transport Corporation Ltd., v.

Presiding Officer, Labour Court, 2002 (95) FLR 1031, has held that in the

absence of adequate and acceptable reasons, the Labour Court has no power to

reduce the punishment. In fact in the said judgment, the learned single Judge

had quoted a Division Bench judgment of this Court in Sri Gopalakrishna Mill

P.Ltd. v. Labour Court, 1980 (1) LLJ 425, where the Division Bench held as

follows:-

"When a workman is charged for a serious misconduct as in this case, one cannot go by the number of years of service put in by the workman or by the workman or by his age or by his married or unmarried status. If an unmarried worker is entitled to seek lenience in the matter of punishment as has been held by the Labour Court, a worker who is married and has children to support is equally entitled to claim leniency. This will lead to a situation that all workmen whether married or unmarried can claim leniency."

16. Another Division Bench of this Court, in Pandiyan Roadways

Corporation Ltd. v. Employee P.Murugesan, (2002) 3 LLN 570, held that

misconduct amounting to misappropriation of ticket fare cannot be considered

as minor misconduct and in that event power exercised by the Labour Court to

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W.P(MD)No.11515 of 2010

modify the punishment, without acceptable reasons, cannot be sustained. The

above judgment was quoted with approval by another Division Bench, in

N.Mylsamy, Pollachi and another v. Cheran Transport Corporation Limited

and another, 2004 (101) FLR 963, where the Division Bench held that the

exercise of discretion by the Labour Court is not automatic, but should be

exercised with sufficient reasons.

17.Keeping the above judgments in mind, the facts of the present case

should be looked into. The first respondent was employed as Conductor in the

petitioner/Corporation. While he was on duty on 20.09.1998 from Madurai to

Rameswaram in the bus bearing registration No.TN-58-N-246 collected ticket

fare of Rs.21/- from one passenger for Madurai Teppakulam to