Madras High Court

The Management vs The Presiding Officer on 19 September, 2022

                                                                                         W.P.No.1165 of 2018

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED: 19.09.2022

                                                             CORAM:

                                   THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE

                                                     W.P.No.1165 of 2018
                                                  and WMP No.1454 of 2018

                The Management,
                Tamil Nadu State Transport Corporation (Villupuram) Ltd.,
                Cuddalore Region,
                Cuddalore-02
                Rep by its General Manager                                ... Petitioner

                                                                Versus

                1. The Presiding Officer,
                   Labour Court,
                   Cuddalore.

                2. The General Secretary,
                   Tamil Nadu State Transport Corporation Employees Union,
                   S.N.Memorial,
                   89, Lawarence Road,
                   Cuddalore-607 002                                    ... Respondents

                                  Petition filed under Article 226 of the Constitution of India praying to
                issue Writ of Certiorari to call for the records of the order passed by the first
                respondent in I.D.No.4 of 2015 dated 27.09.2016 and to quash the same as
                illegal.
                                            For Petitioner      : Mr.Aswin
                                            For Respondents     : R.1 – Labour Court
                                                                  R.2 – Ms.V.Porkodi
https://www.mhc.tn.gov.in/judis                                   for M/sR.Krishnaswamy

                1/10
                                                                                            W.P.No.1165 of 2018



                                                              ORDER

This writ petition has been filed challenging the order passed by the

Labour Court, Cuddalore dated 27.09.2016 in I.D.No.4 of 2015.

2. The brief facts leading to filing of this writ petition are as follows:-

A driver by name V. Paneerselvam, employed with the petitioner

Corporation was charged by the petitioner Corporation by a Charge Memo

dated 04.08.2003. While the workman was working as a driver with the

Petitioner Corporation, while driving the bus bearing No.TN 32 N 1320, in

route No.239/D, on 16.12.2009, the bus hit against a motorcyclist and the said

motorcyclist died on the spot. The driver V.Paneerselvam was suspended by the

petitioner Corporation on 18.07.2003 and thereafter, the aforementioned charge

memo was issued by the petitioner Corporation.

3. Disciplinary proceedings were initiated and Enquiry Officer, after

due enquiry, held that the charges framed against the driver V.Paneerselvam,

has not been proved. However, the petitioner Corporation, after receiving an

explanation from V.Paneerselvam (delinquent), disagreed with the findings of

the Enquiry Officer and imposed penalty of withholding the increment for one

year with cumulative effect on the driver V.Paneerselvam(delinquent). https://www.mhc.tn.gov.in/judis

W.P.No.1165 of 2018

Thereafter, since conciliation efforts failed, a reference was made by the

Government to the Labour Court by the second respondent Union representing

the interest of the driver V.Paneerselvam.

4. The Labour Court, under the impugned order, set aside the penalty

imposed by the petitioner Corporation on the driver V.Paneerselvam on the

ground that despite the findings of the Enquiry Officer holding that the charges

framed against the driver have not been proved and despite the fact that in the

criminal proceedings, the driver has been acquitted, the disciplinary authority

had erroneously disagreed with the findings of the Enquiry Officer by

imposing penalty. Aggrieved by the order of the Labour Court dated

27.09.2016 passed in I.D.No.4 of 2015, the present writ petition has been filed

by the petitioner Transport Corporation.

5. Heard Mr.Aswin, learned counsel for the petitioner and

Ms.V.Porkodi, learned counsel for the second respondent Union.

6. Learned counsel for the petitioner submits as follows:-

a) Only after receiving the explanation from the delinquent

(driver) the petitioner Transport Corporation has imposed https://www.mhc.tn.gov.in/judis

W.P.No.1165 of 2018

the penalty of withholding increment for one year with

cumulative effect on the delinquent (driver);

b) Only after a period of ten years, a dispute has been raised

by the second respondent Union before the Labour Office at

Cuddalore and therefore, the reference is bad in the eye of

law;

c) The disciplinary authority (petitioner) can disagree with

the findings of the Enquiry Officer. If it disagrees with the

findings of the Enquiry Officer, it can give its own reasons

for such disagreement and can record its own findings,

provided if the evidence on record is sufficient for that

purpose. The petitioner Transport Corporation has assigned

its valid reasons of taking note of various physical features

available in the place and was pleased to hold its own

reasoning.

7. Per contra, Ms.V.Porkodi, learned counsel for the second

respondent Union would submit that the criminal proceedings against the https://www.mhc.tn.gov.in/judis

W.P.No.1165 of 2018

delinquent (V.Paneerselvam, driver) has ended in acquittal and a categorical

finding has been given by the criminal court that the driver is not responsible

for the cause of the accident. Learned counsel further submits that the Enquiry

Officer has also given a categorical finding that the driver (V.Paneerselvam) is

not responsible for the cause of the accident. She also drew the attention of this

Court to the following authorities in support her submissions that if the

disciplinary authority disagrees with the findings of the enquiry authority, they

have to record its own findings on such disagreement and also to record its

own findings on such charge and also is required to give an opportunity of

hearing to the delinquent officer. She relied on the following case laws:

a) Punjab National Bank and Others vs Kunj Behari Misra reported in (1998) 7 SCC 84

b) State Bank of India and Others vs K.P.Narayanan Kutty reported in (2003) 2 SCC 449

Discussion:

8. Admittedly, the Enquiry Officer has held that the charges are not

proved against the delinquent (driver V.Paneerselvam). The driver (delinquent)

has also been acquitted before the criminal court. In the affidavit, filed in

support of the writ petition, the reasons for disagreeing with the findings of the

Enquiry Officer, have not been mentioned excepting for stating that sufficient

reasons were given.

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W.P.No.1165 of 2018

9. The Enquiry Officer has given a categorical finding that the driver

(delinquent) is not responsible for the cause of the accident which resulted in

the death of the motorcyclist. The contention of the driver before the Enquiry

Officer was that the bus, which was driven by the driver (delinquent) was in a

stationary position and the motorcyclist had dashed against the bus on his own.

The said contention was accepted by the Enquiry Officer as no contra evidence

was produced by the petitioner Corporation before the Enquiry Officer. The

criminal court based on the evidence available before it, has also given a

categorical finding that the driver (delinquent) was not responsible for the

cause of the accident. Necessarily, the petitioner Transport Corporation to

overturn the findings of both the criminal court as well as the Enquiry Officer,

will have to produce clinching evidence in order to set aside those findings.

Having not produced the same, the Labour Court, under the impugned order,

has rightly set aside the penalty imposed by the petitioner Management on the

driver (delinquent).

10. In the decisions relied upon by the learned counsel for the second

respondent Union, referred to supra, the Hon'ble Supreme Court has held that

when the disciplinary authority disagrees with the enquiry authority, it is https://www.mhc.tn.gov.in/judis

W.P.No.1165 of 2018

required to record its own reasons for such disagreement and also to record its

own finding on such charge. It is also required to give an opportunity of

hearing to the delinquent officer. The relevant paragraph in the above said

decisions are as follows:-

Punjab National Bank and Others vs Kunj Behari Misra reported in (1998) 7 SCC 84

“ 11. The controversy in the present case, however, relates to the case where the disciplinary authority disagrees with the findings of the enquiring authority and acts under Regulation 7(2), The said sub-regulation does not specifically state that when the disciplinary authority disagrees with the findings of the enquiring authority and is required to record its own reason for such disagreement and also to record its own finding on such charge, it is required to give a hearing to the delinquent officer.”

State Bank of India and Others vs K.P.Narayanan Kutty reported in (2003) 2 SCC 449

6........ In Para 19 of the judgment in Punjab National Bank case extracted above, when it is clearly stated that the principles of natural justice have to be read into Regulation 7(2) [Rule 50(3)(ii) of the State Bank of India (Supervising Staff) Service Rules, is identical in terms applicable to the present case] and the https://www.mhc.tn.gov.in/judis delinquent officer will have to be given an opportunity

W.P.No.1165 of 2018

to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer, we find it difficult to accept the contention advanced on behalf of the appellants that unless it is shown that some prejudice was caused to the respondent, the order of dismissal could not be set aside by the High Court.

7. Therefore, we are in respectful agreement with the decision of this Court in Punjab National Bank case being directly on the point. Moreover, in this case the High Court has given liberty to the appellants to proceed with the case in accordance with law.”

11. In the case on hand, no proper reasons have been given by the

petitioner Transport Corporation for disagreeing with the findings of the

Enquiry Officer. The reasons for disagreeing with the findings of the Enquiry

Officer have also not been disclosed in the affidavit filed in support of the writ

petition by the petitioner Corporation. No opportunity of hearing was also

granted to the delinquent (driver V.Paneerselvam) though an explanation was

received from the delinquent.

12. Insofar as the delay in making reference to Labour Court is

concerned, being a welfare legislation which does not prescribe limitation for

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W.P.No.1165 of 2018

reference to Labour Court, that too, when both Enquiry Officer as well as the