Madras High Court
The General Manager vs The Presiding Officer on 21 April, 2023
W.A. No. 938 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.04.2023
CORAM
THE HON'BLE MR.JUSTICE S. VAIDYANATHAN
AND
THE HON'BLE MRS.JUSTICE R. KALAIMATHI
W.A. No. 938 of 2023
&
C.M.P. No. 9326 of 2023
The General Manager,
Tamil Nadu State Transport
Corporation (Villupuram) Ltd.,
Cuddalore Region Office,
Cuddalore -2. ..Appellant
Vs.
1. The Presiding Officer,
Labour Court, Cuddalore.
2. G. Murugasamy ..Respondents
Prayer: Writ Appeal as against the order dated 22.06.2022 passed in
W.P. No. 1313 of 2019.
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W.A. No. 938 of 2023
For Appellant :: Mr.T. Chandrasekaran
Special Government Pleader
For Respondents :: R1- Labour Court
Mr.R. Muralidharan for R2
JUDGMENT
S. VAIDYANATHAN,J.
AND
R. KALAIMATHI,J.
The present writ appeal has been filed preferred as against the order
dated 22.06.2022 passed in W.P. No. 1313 of 2018.
2. The 2nd respondent herein, who was employed as a Driver in the
appellant Transport Corporation had caused an accident on 12.08.2014
resulting in disciplinary proceedings being initiated against him, pursuant to
which he was dismissed from service on 12.05.2015. Aggrieved by the
dismissal order, the 2nd respondent/employee raised an industrial dispute,
which was taken up by the Labour Court in I.D. No. 23 of 2015 and an
award was passed on 17.06.2017 setting aside the order of dismissal and
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directing the Management to reinstate the 2nd respondent with backwages
and continuity of service. The award of the Labour Court has also been
confirmed by the learned Single Judge by dismissing the writ petition filed
by the appellant Transport Corporation.
3. Heard both sides.
4. During the course of arguments, it was submitted by the learned
counsel for the 2nd respondent that though the employee had been reinstated,
he had not been paid actual wages, which he was entitled to, pursuant to the
award of the Labour Court and that wages have to be paid on par with his
counterparts.
5. As could be seen from the award of the Labour Court, the 2 nd
respondent/employee had stopped the bus by the side of the road on seeing a
lorry coming from the opposite direction driven at high speed, in a rash and
negligent manner. However, the lorry hit one of the passengers of the bus,
who was seated by the window in the last six-seater and caused a fatal
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W.A. No. 938 of 2023
accident. Soon after, the driver of the bus/2nd respondent herein had lodged a
complaint in the police station against the driver of the lorry and a case was
also registered against the lorry driver. The Labour Court, after analysing
the evidence on record, came to the conclusion that the driver of the bus/2nd
respondent herein was not at fault and the passenger, who died, was keeping
his head outside the window of the bus in spite of repeated instructions from
the Conductor, which ultimately resulted in his unfortunate death. The
relevant portion of the inference drawn by the Labour Court is extracted
hereunder:
“(10) While this being so, when examining as to whether the
charges against the petitioner have been proved, in the final hearing
on the petitioner side, the petitioner having been examined as WW-
1, Exhibits W-1 to 8 were marked; that on the Respondent side, one
Thiru A. Kannusamy working as Assistant Manager in the legal
section, Caddlore Branch, was examined as M.W.1 and documents
M-1 to 9 were marked as Exhibits; that when the petitioner on
taking the Bus No.TN 32/No.3273 – Route No.152/K from Chennai
to Cuddalore, at the place called Nonankuppam, as a lorry with
Regn No. TN-59 E 9797, came with high speed in the opposite
direction, the petitioner while stopping the bus by the side of the
road, the lorry abrasing the bus on the right side, hit on the head of
the passenger who was sitting at the last 6 seatter seat by the side of
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W.A. No. 938 of 2023
the window, caused a fatal accident; that since the accident had
occurred due to the careless driving of the lorry driver, a complaint
was lodged in the Pondicherry Transport Police department and
FIR was registered against the lorry driver; that inspite of
informing about the complaint mae against the lorry driver to the
respondent – management, stating in the explanation that the
aforesaid fatal accident took place due to the careless driving of the
lorry driver, the explanation was not accepted on the respondent
side and domestic enquiry was conducted on the petitioner and the
enquiry report was issued stating that the petitioner, conductor and
the lorry driver were responsible for the accident. While so, M.W.1,
in his cross examination had stated that he had not seen the
accident in person and that the averment that it was only on the
lorry driver the First Information Report was filed, is correct and
that the averment that there was no any complaint against the
petitioner in the police station, is also correct; that on the
respondent side, it was stated that the petitioner had already caused
two fatal accidents on 30.04.1994 and 20.10.1999 respectively and
taking that into consideration, the order of removal from service
was issued to the petitioner and pertaining to this, M.W.1 in his
cross-examination had stated that he did not know whether the FIR
was disposed of in the police department and also the averment that
the case was disposed of mentioning that the person who travelled
in the bus was said to have jumped from the food board of the bus
and committed suicide; that on the petitioner's side, it was stated
that pertaining to the accident that took place on 12.8.2014, the
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W.A. No. 938 of 2023
copy of the FIR against the lorry driver was marked as Ex.W-1; that
in the domestic enquiry report it was stated that though the lorry
driver was responsible for this accident, had the Transport
Corporation driver, on seeing the lorry coming irregularly with
high speed in the opposite direction, operated the bus,controlling its
speed, carefully brought the bus to the left side of the road, the body
of the lorry would have passed without abrasing the bus in its rear
right hand side and that had the Conductor, who worked in the bus,
informed the passenger not to poke his head outside of the bus,
could have averted the accident; that it makes it clear, that at the
conclusion of enquiry it was accepted that only the lorry driver was
responsible for the accident; Therefore, as the First Information
Report was registered lodging a complaint by the petitioner in the
police station against the driver pertaining to the accident which
happened on 12.8.2014 and in as much as it was accepted on the
side of the Respondent – Management that the FIR was registered
against the lorry driver, and also as it was accepted that there was
no complaint against the petitioner in the police department
pertaining to the accident, it becomes clear that the charges that
only the petitioner was responsible for the accident was not proved.
Therefore, these issues are answered that the order of removal from
service issued against the petitioner stands cancelled and the
petitioner is entitled to be reinstated in service with backwages and
continuity of service.
Finally,it is ordered that the petitioner is entitled to be
reinstated in service with backwages and continuity in service.”
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6. Eventhough the appellant Corporation has relied upon the past
record of the employee, apart from stating that the charges against the
employee have been proved, the Labour Court has rendered a categorical
finding that the charges against the employee have not been proved and that
it was the lorry driver, who was responsible for the accident and not the 2 nd
respondent, the driver of the bus belonging to the appellant Corporation.
The said finding has also been confirmed by the learned Single Judge and
we see no reason to interfere with the same.
6. Though the past record of the employee has been brought to our
notice and it has been contended that the award needs to be interfered with
eventhough the employee has been reinstated in service as he had caused
three accidents earlier and was imposed with punishment, a cursory glance
at the award and the evidence of the Management witness would make it
very clear that the lorry had dashed against the stationed bus, as the 2nd
respondent/driver had stopped the vehicle on seeing the lorry coming at
high speed from the opposite direction, driven in a rash and negligent
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W.A. No. 938 of 2023
manner. Since the Labour Court had come to the conclusion after a
thorough analysis of the evidence that the 2nd respondent/driver of the bus
was not at fault as the FIR had been registered against the driver of the
lorry, more so, the complaint had been given by the driver of the bus and
M.W.1 had also stated that he had not seen the accident in person, we are
not inclined to interfere with the award. Once the charges have not been
proved, insisting that past record will have to be taken into account to
uphold the dismissal order may not be correct. Past record will have to be
considered to ascertain extenuating or aggravating circumstances while
imposing punishment for a proved misconduct. When the present set of
charges alleged against the 2nd respondent/employee have not been proved,
his past record cannot be relied upon. Hence, we find that there is no error
apparent on the face of the record in the award passed by the Labour Court,
which has been rightly upheld by the learned Single Judge. We find no
reason to interfere with the order of the learned Single Judge by reversing
the award passed by the Labour Court. We make it very clear that as the
employee has already been reinstated pursuant to the award, he must be paid
wages on par with his counterparts and when there is no dismissal order in
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W.A. No. 938 of 2023
the eye of law, the award of the Labour Court will have to be implemented
in toto.
7. For the foregoing reasons, the writ appeal stands dismissed. No
costs. The difference in wages/arrears of wages have to be paid to the 2nd
respondent/employee within a period of four months from the date of receipt
of a copy of this order. Connected C.M.P. is closed.
(S.V.N.J.) (R.K.M.J.)
nv 21.04.2023
To
1. The General Manager,
Tamil Nadu State Transport
Corporation (Villupuram) Ltd.,
Cuddalore Region Office, Cuddalore -2.
2. The Presiding Officer,
Labour Court, Cuddalore.
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W.A. No. 938 of 2023
S. VAIDYANATHAN,J.
AND
R. KALAIMATHI,J.
nv
W.A. No. 938 of 2023
21.04.2023
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