Madras High Court
N.Sivanchyal vs The Management on 7 August, 2023
WP.No.9351 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.08.2023
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
W.P. No.9351 of 2013
N.Sivanchyal .... Petitioner
Vs
1. The Management,
Tamil Nadu State Transport Corporation,
(Villupuram) Limited.
Villupuram.
2. The Presiding Officer,
Labour Court,
Cuddalore. .... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India praying to issue a Writ of Certiorari to call for the entire records
relating to I.D.No.32 of 1998 on the file of the 2nd respondent herein
dated 08.02.2010 and quash the same.
For Petitioner : Mr.R.Muralidharan
For R1 : Mr.M.Ashwin
Standing Counsel
For R2 : Court
ORDER
This writ petition has been filed challenging the order dated
08.02.2010 passed in I.D.No.32 of 1998 by the second respondent,
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WP.No.9351 of 2013
thereby dismissing the Industrial Dispute raised by the petitioner as
against the order of removal from service.
2. Heard the learned counsel appearing for the petitioner and
the learned Standing Counsel appearing for the second respondent and
perused the materials available on record.
3. The petitioner was employed as a Conductor in the first
respondent Corporation from 10.05.1985. While he was in service, he
was served with a charge memo alleging that the petitioner corrected the
ticket numbers in the invoices and thus committed misappropriation of
the amount of the first respondent Corporation. The alleged corrections
were made in respect of Route No.D11 on 05.03.1994. Again on
07.03.1994 in respect of Route No.17, on 10.03.1994 in respect of Route
No.11 and finally on 12.03.1994 in respect of Route No.11, corrections
were made. On the strength of the charge memo, an enquiry was
conducted and the petitioner did not appear before the Enquiry Officer.
Therefore, an ex-parte enquiry was conducted and all the charges were
proved against the petitioner. On the strength of the enquiry report, the
petitioner was removed from service by an order dated 15.07.1994.
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WP.No.9351 of 2013
Aggrieved by the same, the petitioner raised Industrial Dispute in
I.D.No.32 of 1998 and the same was also dismissed by the second
respondent.
4. The learned counsel appearing for the petitioner would
submit that as per the charge memo, the petitioner had misappropriated a
sum of Rs.95.50/-. Though the petitioner sought for certain copies of six
documents from the second respondent, those were not provided to the
petitioner. Even then the petitioner was not given sufficient opportunity
to contest the case in the domestic enquiry. In fact, MW1 categorically
admitted that the alleged corrections can be proved only after
examination of the passengers, who purchased the tickets.
5. He also cited the Judgment of the Hon'ble Supreme Court
of India reported in AIR 2017 Supreme Court Page 57 in the case of
Jursingh Govind Vanjari Vs. Divisional Controller Maharastra States
Road Transport Corporation, in which the Hon'ble Supreme Court of
India held that the principles of natural justice have not been observed by
the Management. The alleged passengers have not been examined and
an opportunity of cross examining them is not available to the workman.
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WP.No.9351 of 2013
The one and the same authority had issued charge sheet, conducted
enquiry and suggested punishment. Therefore, serious prejudice is
caused to the workman. Accordingly, bias enquiry was conducted.
Instead of examining the witnesses, the enquiry officer considered their
statements recorded on the spot and concluded that the charge of
misconduct have been proved as against the workman. However, in the
case on hand, no statement have been recorded from the passengers who
purchased the tickets.
6. He further submitted that there was no provision in respect
of limitation for initiating proceedings before the Labour Court only
under Section 2A in Sub-Section (3) of the Industrial Dispute Act is very
clear that there was no limitation for raising an Industrial Dispute before
the Labour Court. Only thereafter by way of amendment there is
limitation.
7. The learned counsel appearing for the first respondent
submitted that though the first respondent raised the ground of delay of
13 ½ years, the Labour Court did not take that ground into consideration
while dismissing the Industrial Dispute raised by the petitioner on the
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WP.No.9351 of 2013
ground that he raised industrial dispute after 3 ½ years from the date of
his removal from service. He also pointed out that the quantum may be
marked, which is an act of misappropriation. The way bills, which were
corrected by the petitioner and the same was compared with the invoice.
Therefore, no need to examine any passengers, since the Superintendent
of the auditing only found corrections made in the way bills and as such,
non cross examination of passengers is not fatal to the case of the
department. Therefore, the second respondent rightly dismissed the
industrial dispute raised by the petitioner and it does not require any
interference by this Court.
8. The charge against the petitioner is that the petitioner was
employed as Conductor and he submitted the way bills. During auditing
by the Superintendent, it was found that the way bills dated 05.03.1994,
07.03.1994, 10.03.1994 and 12.03.1994 and Sl.No.28950 was corrected
as 28959 and misappropriated Rs.8/-; Sl.No.083913 was corrected as
083918 and misappropriated Rs.13.50/-; Sl.No.080976 was corrected as
080986 and misappropriated Rs.15/- ; Sl.No.066170 was corrected as
066179 and misappropriated Rs.22.50/- ; Sl.No.030480 was corrected as
030489 and misappropriated Rs.9/- and Sl.No.076448 was corrected as
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WP.No.9351 of 2013
076458 and misappropriated Rs.17.50/-, totally a sum of Rs.99.50/- was
misappropriated by the petitioner. Though the petitioner called upon for
enquiry and in order to attend enquiry, he was not provided with any
documents. Therefore, the petitioner did not attend the enquiry and an
ex-parte enquiry was conducted by the Enquiry Officer and submitted his
report. The alleged way bills are marked as Exs.M1 to M4. Since it was
found during the auditing, no passengers were examined by the
Management to show that those tickets were sold out to the passengers
and failed to account the said amount to the first respondent. Further,
when the auditing was conducted by the first respondent was also not
explained by petitioner.
9. In this regard, the learned counsel appearing for the
petitioner relied upon the Judgment reported in AIR 2017 Supreme
Court Page 57 in the case of Jursingh Govind Vanjari Vs. Divisional
Controller Maharastra States Road Transport Corporation, in which
the Hon'ble Supreme Court of India held that the principles of natural
justice have not been observed by the enquiry officer. The alleged
passengers have not been examined and an opportunity of cross
examining them is not available to the workman. The one and the same
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WP.No.9351 of 2013
authority has issued charge sheet, conducted enquiry and suggested
punishment. Therefore, serious prejudice is caused to the workman.
According to him, the enquiry conducted was bias. Instead of examining
the witnesses, the enquiry officer considered their statements recorded on
the spot and concluded the charge of misconduct have been proved
against the workman.
10. In the case on hand, the petitioner corrected the way bills
after selling out the tickets and thereby misappropriated a sum of
Rs.95.50/. No passenger was examined by the Management to show that
after selling out the tickets it was not accounted by the petitioner and
thereby he manipulated the way bills by correcting number of the tickets.
Thus, the Management failed to prove his charges. The order of
termination was not justified by the first respondent. Therefore, the order
of termination is not sustainable and it is liable to be quashed. However,
the petitioner had attained the age of superannuation and as such
reinstatement does not arise. However, the petitioner is entitled for
compensation of 50% of back wages till the age of his superannuation
from the date of removal from his service and all other terminal benefits
and all other attendant benefits and the first respondent is directed to
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WP.No.9351 of 2013
disburse the same within a period of twelve weeks from the date of
receipt of a copy of this order.
11. In the result, this Writ Petition stands allowed. There shall
be no order as to costs.
07.08.2023
Lpp
Index:Yes/No
Internet:Yes/No
To
1. The Management,
Tamil Nadu State Transport Corporation,
(Villupuram) Limited.
Villupuram.
2. The Presiding Officer,
Labour Court,
Cuddalore.
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WP.No.9351 of 2013
G.K.ILANTHIRAIYAN,J.
Lpp
W.P. No.9351 of 2013
07.08.2023
https://www.mhc.tn.gov.in/judis
