Madras High Court
P.Subramani vs The Presiding Officer on 3 August, 2023
WP.Nos.14741 of 2010 & 22025 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 03.08.2023
Coram:
THE HONOURABLE MRS.JUSTICE N.MALA
WP.Nos.14741 of 2010
and 22025 of 2008
W.P.No.14741 of 2010
P.Subramani ... Petitioner
Vs.
1. The Presiding Officer,
Principal Labour Court, Chennai.
2. The Management,
Tamil Nadu State Express Transport
Corporation (Division-I) Ltd.,
Pallavan Salai, Chennai-2. .. Respondents
Writ Petition is filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus, after calling for the records
pertaining to the Award, dated 26.02.2008 passed by the first Respondent
in I.D.No.907/2001, quash the same in so far as depriving entire back
wages and consequently direct the second Respondent to pay the
Petitioner full back wages for the period of non-employment from
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28.04.1999 to 25.02.2008, together with interest, award costs.
For Petitioner : M/s. V.Porkodi
for Mr.V.Ajoy Khose
For Respondents : R-1 Court
Mr.K.Kathiresan,
Standing Counsel for R-2
W.P.No. 22025 of 2008
The Management of Tamil Nadu
State Express Transport Corporation,
Tamil Nadu Division I,
Pallavan Salai,
Chennai-600 002.
...Petitioner
Vs.
1. The Principal Labour Court,
Chennai.
2.P.Subramani.
...Respondents
Writ Petition is filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorari, calling for the records in I.D.No.907 of 2001
on the file of the Principal Court, Chennai and quash the order dated
26.02.2008.
For Petitioner : Mr.K.Kathiresan,
Standing Counsel
For Respondents : R-1 Court
R-2- M/s.V.Porkodi
for Ajay Khose
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COMMON ORDER
These two writ petitions arise out of the award passed by the Labour
Court in I.D.No.907 of 2001, dated 26.02.2008. Hence, both the writ
petitions are taken up together and disposed of by this common order.
2. W.P.No. 14741 of 2010 is filed by the workman challenging the
Award in so far as denial of back wages is concerned. W.P.No.22025 of
2008 is filed by the Transport Corporation challenging the Award in so far
as it directs the reinstatement of the workman with continuity of service
and all other attendant benefits.
3. The petitioner in W.P.No.14741 of 2010 will be referred to the
workman and the petitioner in W.P.No.22025 of 2008 will be referred to as
the Transport Corporation.
4. The workman was working as a driver under the Management of
Tamil Nadu State Express Transport Corporation and was suspended from
service from 28.04.1999 onwards. Subsequently a charge memo was issued
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to him on 15.05.1999 and four charges were framed against him which are
as follows:
1. The workman drove the vehicle in a rash and negligent manner and
caused death of 4 pedestrians and caused grievous injuries to another
person,
2. The workman caused irreparable loss to the families of the deceased
and untold sufferings to their families,
3. The workman was responsible for the hindrance to the passengers
and caused loss of income to Corporation, and
4. The workman failed to observe the traffic rules.
5. The workman filed his explanation which was found un-
satisfactory and therefore a domestic enquiry was conducted. Based on the
findings of the enquiry officer, second show cause notice was issued to the
workman regarding the punishment, to which, he submitted his
explanation. As the explanation of the workman was found unsatisfactory,
he was dismissed from service vide order dated 10.09.1999. The workman
raised a dispute claiming reinstatement with continuity of service,
backwages and all other benefits.
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6. It was the Transport Corporations case that because of the rash and
negligent driving of the workman an accident occurred on 24.04.1999, in
which four passengers died on the spot and one passenger was grievously
injured. Therefore, the workman was suspended from service and after
following the due process of law he was dismissed from service on
10.09.1999.
7. Before the Labour court, the workman examined himself as W.W.1
and marked Ex.W.1 to Ex.W.19. On the side of the Transport Corporation,
one witness was examined as M.W.1 and Ex.M.1 to Ex.M.5 were marked.
8. The Labour Court on an appreciation of the entire evidence found
that the charges against the workman were not proved. The Labour Court
therefore directed the Transport Corporation to reinstate the workman
with continuity of service and all other attendant benefits, but without
back wages.
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9. Aggrieved by the award of the Labour Court, the Transport
Corporation as well as the workman have filed the above writ petitions.
10. The learned counsel for the Transport Corporation submitted that
the Labour Court having found that the domestic enquiry was conducted
in a fair and proper manner ought to have confirmed the findings of the
enquiry officer. The learned counsel further submitted that four persons
died due to the negligence of the workman and therefore the punishment
of dismissal from service imposed on the workman after a fair and proper
enquiry did not call for any interference.
11. The learned counsel for the workman on the other hand
submitted that the Labour Court appreciated the entire evidence on record
and concluded that the charges were not proved. The learned counsel
further submitted that the findings of the Labour Court are not perverse
and therefore they do not call for any interference in the writ petition. The
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learned counsel also submitted that once Labour Court found that the
charges were not proved the Labour Court ought to have awarded
backwages also.
12. I have heard both the learned counsel and perused the materials
placed on record.
13. As the enquiry officer, in the absence of independent evidence,
relied heavily on the investigation officer's evidence, the Labour Court did
not countenance the finding of the enquiry officer that the charges were
proved. The Labour Court relied on the admission of the investigating
officer that had the workman/ driver turned the vehicle to the right side of
the road, instead of left side, the bus would have collided with the on
coming lorry which would have resulted in more casualties and damage.
The Labour Court also relied on the order of the Division Bench of this
Court in the case of A.Mariasundararaj Vs. Cheran Transport Corporation Ltd.
and another in Writ Appeal No. 2238 of 2000, wherein the Division Bench
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held that, in the absence of independent evidence before the court, it was
very difficult for the Court to confirm the punishment awarded as against
the erring drivers.
14. In the light of the factual finding of the Labour Court, I am not
inclined to re-appreciate the evidence as I find that there is absolutely no
illegality or perversity in the said findings. As I find no perversity in the
appreciation of the evidence by the Labour court, the finding of the Labour
Court that the Transport Corporation has failed to prove the charges
against the workman is confirmed.
15. As far as backwages is concerned, I am of the view that Labour
Court is fully justified in denying the backwages to the workman. In a
recent Judgment reported in the case of Ramesh Chand vs. Management of
Delhi Transport Corporation reported in 2023 SCC Online SC 776, the Hon'ble
Supreme Court has held that payment of backwages is not automatic on
reinstatement. The Hon'ble Supreme court in the case of J.K.Synthetics Ltd.
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vs. K.P.Agrawal & anr. reported in 2007 (2) SCC 433 held that the burden is
on the workman to establish that he was not gainfully employed to sustain
the claim for backwages. In the absence of any pleadings or an affirmation
affidavit in support of the plea for backwages, I am of the view that the
denial of backwages is justified.
In the light of the above discussions, I am of the view that there are
no merits in these writ petitions and the same are dismissed. There shall be
no order as to costs in both the writ petitions.
03.08.2023
Index:Yes/No
Speaking Order:Yes/No
Neutral Citation:Yes/No
dsn
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To
The Presiding Officer,
Principal Labour Court,
Chennai.
N.MALA, J.
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dsn
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03.08.2023
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