Madras High Court
G.Gomathi vs The Management on 25 November, 2021
W.A.(MD)No.378 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.11.2021
CORAM :
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
W.A.(MD) No.378 of 2011
G.Gomathi .. Appellant/2nd Respondent
Vs.
1.The Management,
Rep. by the Managing Director,
Tamil Nadu State Transport Corporation (Madurai Division-I) Ltd.,
Now Known as
(Tamil Nadu State Transport Corporation(Madurai)Ltd.,),
By-pass Road,
Madurai-10. .. 1st Respondent / Petitioner
2.The Presiding Officer,
Labour Court,
Madurai. .. 2nd Respondent/1st Respondent
PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent Act,
against the order dated 02.02.2011, allowing the W.P.(MD)No.10407 of
2005 filed by the 1st respondent against the impugned award of the 2nd
respondent dated 28.10.2004 passed in I.D.No.64/95 directing the 1st
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W.A.(MD)No.378 of 2011
respondent to pay the terminal benefits to the appellant, the wife and the
legal heir of the deceased employed who filed the I.D.No.64/95 against the
dismissal of his services by the 1st respondent.
For Appellant : Mr.S.Arunachalam
For R1 : Mr.M.Prakash
Respondent No.2 : Labour Court
JUDGMENT
S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.
The appeal is directed against the order dated 02.02.2011, passed in
W.P(MD)No.10407 of 2005 whereby the award of the Labour Court in
I.D.No.64 of 1995 dated 28.10.2004 was interfered by the learned Single
Judge and the punishment of simple discharge was converted into one of
dismissal from service is questioned in the present appeal.
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W.A.(MD)No.378 of 2011
2. The employee was working in the Transport corporation as a driver
and pursuant to the charge memo dated 24.12.1992, he was suspended and
thereafter dismissed from service with effect from 26.11.1994. The
employee questioned the dismissal, which was taken up after conciliation by
the Labour Court, Madurai, in I.D.No.64 of 1995. During the pendency of
the industrial dispute, the employee died on 18.06.1995 and the legalheirs
got substituted vide order dated 23.06.1997 in I.A.No.273 of 1996 before
the Labour Court. The Labour Court, after taking into account the evidence
let in by the parties, came to the conclusion that the employee has
committed a serious misconduct and the act of the driver, namely, deceased
driven the bus in a rash and negligent manner and caused accident deserves
to be dismissed from service. After the second show cause notice, on
getting comments on the enquiry report, the order of dismissal was imposed.
The Labour Court came to the conclusion that the punishment for a driver,
who has rendered 12 years of service is harsh and interfered with the
punishment and convert the dismissal with effect from 11.11.1994 to one of
simple discharge and directed the management to pay the terminal benefits
to the legalheirs of the deceased employee with backwages from 11.11.1994
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W.A.(MD)No.378 of 2011
to 18.06.1995. The Labour Court was also held that the question of
reinstatement was not arise as the employee is no more. The learned Single
Judge going through the records, came to the conclusion that the employee
has committed serious misconduct and that the Labour Court ought not to
have imposed a lesser punishment and restored the punishment of dismissal
of service as imposed by the employer.
3. Before this Court, Management has raised two issues. Firstly, the
past conduct of the employee is very bad and hence the dismissal from
service. Secondly, the employee had driven the vehicle in a rash and
negligent manner, while a cyclist suddenly crossed, dashed against the
tamarind tree and caused injuries to 26 passengers out of 27 passengers and
one died. Since the Labour Court felt that it was an accident not due to the
fault of the employee, imposed the punishment of simple discharge
converting the dismissal from service. But yet another submission was that
the past record of the employee was bad, the management drew the attention
of the Court to the past record numbering 5 imposed to the employee prior
to the accident.
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W.A.(MD)No.378 of 2011
4.When this Court posed a question as to whether these punishments
were imposed after conducting enquiry, he submitted that punishments were
imposed and no enquiry was conducted. Taking note of the submissions, we
are of the view that the Labour Court under Section 11(A) of the Industrial
Disputes Act has got ample powers to interfere with the punishment. During
the course of argument the learned counsel for the workman submitted that
they are willing to give up backwages awarded by the Labour Court from
11.11.1994 to 18.06.1995. As there is no enquiry preceded before imposing
the punishment with regard to the past misconduct, and in the light of the
judgment reported in 1987 (2) LLJ 491, past punishments cannot be treated
as past record at all. Eventhough the charges have been proved in the
present misconduct, the Labour Court has got ample powers to interfere
under Section 11(A) of the Industrial Disputes Act, 1947. Unless perversity
is shown, this Court cannot exercise the extra ordinary jurisdiction of this
Court to interfere with the punishment or modify the punishment imposed
by the Labour Court. The learned Single Judge, while interfering with the
order of the Labour Court, has applied the principles of res ipso loquitur to
draw adverse inference against the driver for his rash and negligence
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W.A.(MD)No.378 of 2011
driving. Infact, it is not a plea taken by the management either in the
domestic enquiry or before the Labour Court.
5. We are of the view that on this ground the learned Single Judge
has exceeded the power of the judicial review over the award of the Labour
Court. For the said reason, the order of the learned Single Judge dated
02.02.2011 passed in W.P(MD)No.10407 of 2005 is set aside and the award
of the Labour Court, dated 28.10.2004 in I.D.No.64 of 1995 is restored with
the following direction:
“The legal heirs of the deceased employee are
entitled to all the monetary benefits due to the employee
from the date on which he entered into service till the
date of death. However, the employee will not be
entitled to back wages from 11.11.1994 to 18.06.1995.
The retiral benefits shall be given by the employer due
to the employee, to the eligible legal heirs of the
employee. All the monetary benefits due including the
terminal benefits shall be disbursed within a period of
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W.A.(MD)No.378 of 2011
four months from the date of receipt of a copy of this
order. The pensionary benefits shall be extended as per
the Rules applicable on the date of demise of the
employee.”
6. With the above direction, this writ appeal is allowed. No Costs.
[S.V.N.,J.] [G.J.,J.]
25.11.2021
Index : Yes / No
Internet : Yes / No
PJL
Note:In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall be
the responsibility of the Advocate/litigant concerned.
To
The Presiding Officer,
Labour Court,
Madurai.
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W.A.(MD)No.378 of 2011
S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.
PJL
W.A.(MD) No.378 of 2011
25.11.2021
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