Madras High Court
The Management vs The Special Deputy Commissioner ... on 12 July, 2023
W.P.No.26964 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.07.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.26964 of 2014 and
MP.No.1 of 2014
The Management,
Tamilnadu State Transport Corporation
(Villupuram)Ltd.,
Kancheepuram Region,
Ponneri Karai, Bangalore National Highway,
Kancheepuram ... Petitioner
Vs.
1.The Special Deputy Commissioner of Labour,
DMS Compound, Anna Salai,
Chennai-6
2.A.S.Baskaran(deceased)
3.Usharani
4.Rachel Priyanka
5.Christina Selva Rani
(R3 to R5 substituted as LR's of deceased 2nd respondent
vide order dated 10.07.2023 made in WMP.No.10692
of 2023 in WP.No.26964 of 2014) ... Respondents
PRAYER: Writ Petition is filed under Article 226 of Constitution of
India praying to issue Writ of Certiorari calling for the records of the first
respondent made in AP.No.358 of 2011 dated 22.04.2013 and to quash
the same as illegal and against the provisions of the Industrial Disputes
Act, 1947.
1/10
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W.P.No.26964 of 2014
For Petitioner : Mr.M.Ashwin
For Respondents
For R1 : No appearance
R2 : died (steps taken)
For R3 to 5 : Ms.Kirathiga
for M/s.Sudha Ramalingam
ORDER
This writ petition has been filed challenging the order
passed by the first respondent in AP.No.358 of 2011 dated 22.04.2013,
thereby dismissed the petition filed for approval of dismissal order
passed against the second respondent herein.
2. The second respondent died and his legal heirs have been
impleaded as respondents 3 to 5 herein. The deceased second respondent
was working as Conductor in the petitioner's Corporation. He was
assigned duty on 07.06.2010 in route No.200 P/C in bus bearing
registration No.TN 21 N 1299. On surprise check by the Checking
Inspector of the petitioner Corporation at about 5.38 p.m. near
Varadhapalayam, he found that three passengers travelling from
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W.P.No.26964 of 2014
Tirupathi to Tada were not issued tickets with denomination of Rs.46/- x
3 = 138. On verification of the hand bag, it was found that there was
shortage of Rs.109/- also. It was grave misconduct and as such, the
deceased second respondent was served with charge memo dated
21.06.2015. Without satisfying with the reply submitted by the deceased
second respondent, enquiry was ordered and on the enquiry, all the
charges framed against him were proved. On the strength of the enquiry
report, he was dismissed from service after complying with the principles
of natural justice by order dated 08.09.2011. The dismissal order was
served with one month salary. Thereafter, the petitioner herein sought for
approval of the dismissal order in AP.No.358 of 2011 as contemplated
under Section 33(2)(b) of Industrial Disputes Act, 1947. However, it was
dismissed on the ground that the passengers were not examined by the
petitioner during the enquiry.
3. The learned counsel for the petitioner would submit that the
first respondent ought to have found out whether prima facie made out or
not while approving the order of dismissal. The prima facie of the case
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W.P.No.26964 of 2014
means an element availability of the misconduct substantiated or
grounded on some material evidences. The prima facie of the case will
not require for an existence of clear proof of misconduct. The usage of
the 'prima facie of the case', would show that the power of approval
should be limited to an extent of seeing that there is existence of the
prima facie of the case to see that there is no victimization of the
employee. He further submitted that the Department made out a prima
facie case by admission of the deceased second respondent himself and
there is no requirement of any standard proof of evidences to substantiate
the further claim.
4. Per contra, the learned counsel for respondents 3 to 5
submitted that the Department admittedly failed to examine any
independent witness. They also failed to examine even the driver of the
bus who drove the bus during the surprise inspection. That apart, they
failed to examine any passenger to whom tickets were not issued after
collecting money. Therefore, the first respondent rightly rejected the
approval petition and it does not require any interference of this Court.
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W.P.No.26964 of 2014
5. Heard the learned counsel appearing on either side.
6. The deceased second respondent was served with charge
memo dated 21.06.2010 that on surprise inspection conducted by the
Checking Inspector of the petitioner Corporation, it was found that three
passengers travelling from Tirupathi to Tada were not issued tickets with
denomination of Rs.46/- x 3 = 138. That apart, in the handbag, it was
found shortage of Rs.109/-. After receipt of reply on the show cause
notice, enquiry was ordered. During the enquiry, the Checking Inspector
was examined and prima facie made out by the Department and as such,
the deceased second respondent was dismissed from service. In order to
approve the same, the petitioner filed petition before the first respondent
for approval of dismissal order in AP.No.358 of 2011. Admittedly, no
passengers were examined and driver of the bus was also not examined
by the petitioner during the enquiry conducted by the enquiry officer on
the charge memo dated 21.06.2010.
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W.P.No.26964 of 2014
7. In this regard, the learned counsel for the petitioner relied
upon the judgment in the case of State of Haryana Vs. Rattan Singh
reported in (1977) 2 SCC 491, wherein the Constitution Bench of the
Hon'ble Supreme Court of India held that the Government servants in the
departmental enquiry not bound by strict rules of Evidence Act, but by
fair play and natural justice. Only total absence but not sufficiency of
evidence before tribunal is ground for interference by court. In a
domestic enquiry all the strict and sophisticated rules of the Evidence
Act may not apply. All materials which are logically probative for a
prudent mind are permissible, though departmental authorities and
Administrative Tribunals must be carefully in evaluating such material
and should not glibly swallow what is strictly speaking not relevant
under the Evidence Act. The essence of judicial approach is objectivity,
exclusion of extraneous materials or considerations, and observance of
rules of natural justice. Of course, fair play is the basis and if perversity
or arbitrariness, bias or surrender of independence of judgment, vitiate
the conclusion reached, such a finding, even of a domestic tribunal,
cannot be held to be good. Therefore, the first respondent ought not to
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W.P.No.26964 of 2014
have insisted that the passengers who had travelled without ticket to be
examined before the enquiry officer.
8. Further held that the simple point was there some evidence
or was there no evidence and not in the sense of the technical rules
governing court proceedings but in a fair common sense way as men of
understanding and worldly wisdom will accept. Therefore, mere non
examination of independent witness does not render the finding of guilt
and punishment invalid. The punishment imposed by the petitioner is
limited and cannot be equated with that of the jurisdiction under Section
10 of Industrial Disputes Act. The scrutiny of the first respondent limited
to ascertain whether prima facie case is made out for grant or non grant
of approval of order of punishment. While doing so, the first respondent
cannot substitute his own judgment but must only consider whether view
taken by disciplinary authority is a possible view. The provision under
Section 32 (2) (b) of the Act also delineates the extent of scrutiny to be
done at this stage to ascertain whether prima facie case is made out for
grant or non grant of approval to the order of punishment. Therefore, in
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W.P.No.26964 of 2014
view of non examination of passenger does not render the finding of guilt
and punishment imposed by the disciplinary authority invalid.
9. In view of the above, the order passed by the first
respondent is liable to be quashed. Accordingly, the order of the first
respondent in AP.No.358 of 2011 dated 22.04.2013 is quashed and this
writ petition is allowed. The petition under Section 33 (2) (b) of ID Act
preferred by the petitioner is allowed. It is needless to say that the legal
heirs of the deceased second respondent are at liberty to take recourse to
appropriate remedy as may be available in law to question the said order
of dismissal dated 08.09.2011 in the manner known to law.
Consequently, connected miscellaneous petition is closed. There shall be
no order as to costs.
12.07.2023
Internet: Yes
Index: Yes/No
Speaking/Non-speaking order
lok
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W.P.No.26964 of 2014
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W.P.No.26964 of 2014
G.K.ILANTHIRAIYAN, J.
lok
To
1.1.The Special Deputy Commissioner of Labour,
DMS Compound, Anna Salai,
Chennai-6
2. The Public Prosecutor,
High Court, Madras.
W.P.No.26964 of 2014
12.07.2023
https://www.mhc.tn.gov.in/judis
