Madras High Court
T.Rajamanickam vs The Managing Director on 1 June, 2023
W.P.No.25880 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.06.2023
CORAM :
THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
Writ Petition No.25880 of 2011
T.Rajamanickam ... Petitioner
Vs.
1.The Managing Director,
Tamil Nadu State Transport Corporation
(Villupuram Div-3),
Kanchipuram.
2.The Presiding Officer,
II Additional Labour Court,
Chennai. … Respondents
Writ Petition filed under Article 226 of Constitution of India, praying
for issuance of Writ of Certiorarified Mandamus calling for the records of the
second respondent in I.D.No.234 of 2004 dated 07.01.2011 and quash the
same and direct the first respondent to reinstate the petitioner with
backwages, continuity of service and all other consequent benefits.
For Petitioner : Mr.T.E.Ekambaram
For Respondent 1 : Mr.M.Aswin
Page No.1 of 22
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For Respondent 2 : Labour Court
ORDER
The relief sought by the petitioner in this writ petition is to call for the
records of the second respondent in I.D.No.234 of 2004 dated 07.01.2011
and quash the same and direct the first respondent to reinstate the petitioner
with backwages, continuity of service and all other consequent benefits.
2. The facts of the case in a nutshell:
The case of the petitioner is that he was appointed as conductor
on 16.05.1979 in the respondent corporation and thereafter his services were
regularized in the year 1982 and Subsequently, the petitioner attained
superannuation on 30.06.2012. Ever since the date of his appointment, the
petitioner had put in unblemished service for the past 24 years to the
satisfaction of his superiors until 17.06.2002. When all of a sudden, the
petitioner was suspended from service and charge memo was issued for no
fault on him. In the departmental enquiry, which was conducted by the
respondent corporation, the petitioner was not given a fair opportunity to put
forth his representations and the enquiry officer in a hasty manner without
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following the principles of natural justice and with a predetermined mind,
concluded that the charges against the petitioner are proved and dismissed
the petitioner from service with effect from 20.08.2002. Subsequently, the
petitioner has raised an Industrial Dispute before the II Additional Labour
court, Chennai in I.D.No.234 of 2004, wherein the Learned Presiding Officer
without assessing the evidence on record, had merely given his seal of
approval upholding the decision of the management by dismissing the
petitioner from service. Aggrieved by this order, the petitioner has come
forward with the present writ petition.
3. Learned counsel for the petitioner submitted that on 16.06.2002 at
4.30 A.M, the petitioner took a trip from Pondicherry to Chennai, wherein 19
passengers boarded the bus at Pondicherry and the petitioner issued tickets to
them. Thereafter, 11 passengers (8 Adults + 3 Children) boarded the bus at
Marakkanam but in the statement alleged to have been signed by the
passenger witness by name Paulraj, it was erroneously stated that they had
boarded the bus at Pondicherry. If so, the tickets would have been issued to
them at Pondicherry itself as in the case of the above said 19 passengers.
When the petitioner was about to issue tickets to the above said passengers,
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the bus was intercepted by the checking officials and all of a sudden, the
ticket book and the invoice was snatched from the petitioner. Thereafter, the
checking Inspector demanded tickets from the above said passengers and in
order to escape levy of penalty, they had falsely stated that an amount of
Rs.277/- was tendered to the conductor. Thereafter, tickets were issued to the
passengers by the Checking Inspector. Subsequently, the cash in the cash
bag was counted by the Checking Inspector in the presence of the petitioner
and a deficit of Rs.29 was detected, which is a clear manifestation of the fact
that fare was not collected from the passengers.
4. Learned counsel for the petitioner further submitted that the total
fare from Pondicherry to Chennai for the above 11 fare passengers works out
to Rs.271.50/- but the statement of the passengers that they had tendered
Rs.277/- is highly suspicious and casts incredibility on the veracity of the
statement given by one of the passenger witness for which the witness ought
to have been examined to prove his statement. In the absence of examination
of the passenger witness, the accuracy of the fare, alleged to have been
tendered by the witness could not be ascertained and consequently, the
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W.P.No.25880 of 2011
charges framed are not substantiated and therefore, the decision of the
management in terminating the petitioner from service are based on perverse
finding.
5. Learned counsel for the petitioner contended that in the tickets
which were seized from the passengers (bearing No.69291, 69292, 69293,
and 69294) initially the fare was written as Rs.18.50/- and subsequently, the
same was re-written/corrected as 28.50/- by the checking Inspector falsifies
the statement that fare of Rs.277/- was tendered to the petitioner. The
alteration in the tickets, deliberately done by the checking Inspector without
any authentication were clear manifestation of the vindictive attitude of the
Checking Inspector to fortify the false charges and to impose maximum
punishment on the petitioner in order to take revenge for the wordy
altercation that ensued with the Checking Inspector. Based on the
discrepancies in the seized tickets, the charges were framed against the
petitioner is in itself an indication that the charges are not substantiated.
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6. Learned counsel for the petitioner further contended that the
Checking Inspector by issuing threat to the passengers that a fine of Rs.500/-
each would be levied from them forcibly obtained the signature of the
witness and the statement tendered by the passenger witness which was
marked as EX-MI on the management side, written on a piece of paper
clearly shows that the passengers boarded at Pondicherry and fare of Rs.277/-
was alleged to have been tendered to the conductor. The alighting place of
the passengers was not even stated in the impugned statement. The
passenger witness were not examined properly and the above statement was
fabricated by the Checking Inspector in order to impose maximum
punishment on the petitioner.
7. Learned counsel for the petitioner drew the attention of this Court to
the standing orders issued by the first respondent dated 30.04.2014, in which
it, Section 24 deals with ACTS AND OMMISSIONS CONSTITUTING
MISCONDUCT, in which
Clause 41 (a) deals with Misappropriation of Corporation's money
Clause 41 (b) deals with Non-issue of tickets after receiving fares
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Clause 41 (f) deals with holding deficit cash balance of Rs.29/-
8. Learned counsel for the petitioner further drew the attention of
this Court to the Memorandum of Settlement under Section 12(3) of the
Industrial Disputes Act, 1947, reached before the Joint Commissioner of
Labour, (Conciliation) Chennai, dated 13.02.1999 and the decision taken
during the meetings between the representatives of the managements of the
State Transport Corporations of Tamil Nadu and the federations of the
Central Trade Unions, in which it is mentioned that special batta has been
increased from Rs.3/- to Rs.4/- with effect from 01.09.1998 and steering
allowance has been raised to Rs.5/- with effect from 01.09.1998. Hence, a
total sum of Rs.9/- (5+4=9) comes under these two heads. It is pertinent to
note that a sum of Rs.29/- was found deficit in the cash bag and if the
aforesaid amount of Rs.9/- is deducted, the balance is Rs.20 as per Section
24, Clause 41 (f) of the standing orders. According to the standing orders
dated 30.04.2014, the amount under clause 41 (f) holding deficit cash balance
or holding unauthorised cash in excess of Rs.20/- and in this case, after
deducting a sum of Rs.9/-, the deficit amount is only Rs.20/-. So it is not
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amount to misconduct as per Section 24 of the Standing Orders dated
30.04.2014. Therefore, charge under Clause 41 (f) is not maintainable.
9. Learned counsel for the petitioner further submitted that since
the charges under Section 24, Clause 41 (a) and 41 (f) does not lie, hence, the
punishment of dismissal from service is disproportionate to the charges
framed. As far as charges under Clause 41 (b) and non-closing of stage are
concerned, the above lapse have crept in due to his ill health. The above
charges under Clause 41 (b) do not warrant imposing maximum punishment
of dismissal from service of the petitioner.
10. Learned counsel for the petitioner further submitted that the
seized tickets bearing No.69287 to 69295 have been produced to substantiate
the charge of misappropriation against the petitioner. In the said tickets
bearing No's 69291 to 69294 the fare was originally written as Rs.18.50/- and
then rounded off and re-written as Rs.28.50/-. In the enquiry spot, the
checking inspector seized the ticket book from the petitioner and drawn the
tickets and thereafter, altered the fare as admitted by management witness in
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domestic enquiry and this was deliberately done by the checking inspector in
violation of the rules of the corporation.
11. Learned counsel for the petitioner further submitted that under
RTI application, the management in its reply in Ref No.10667-
3325/PIO/TNSTC(VPM)/2013 dated 12.11.2013 has stated as follows:
"...Alteration or making corrections in the ticket are not
allowed. In case of alteration /correction the ticket should be cancelled
and retain all the copies of the ticket in the ticket book itself.
Alteration in the manual ticket is not allowed. If it is found
necessary disciplinary action will be taken against the conductor as per
the standing order."
Hence, alteration of fare in the manual ticket is against the rules and standing
orders of the management corporation.
12. The statement alleged to have been written on a piece of paper
and purported to have been signed by one of the passenger by name Paulraj,
it is alleged that the passengers boarded the bus at Pondicherry and tendered
Rs.277/- and demanded tickets. The said statement does not even disclose
the destination to which the passengers demanded tickets. Therefore, when
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the passenger has given a bald statement purported to have been written on a
piece of paper and based upon which capital punishment of dismissal from
service was imposed it is the bounden duty of the management to produce the
said passenger witness to prove his statement as mandated u/s 26(vii)(c) of
the sanding orders of the respondent corporation.
13. Learned counsel for the petitioner further submitted that
Violation of standing order of the respondent corporation, the management
ought to have examined the passenger witness to prove the statement in
departmental enquiry but failed to comply and give effect to the standing
order.
“26(vii)(C) The witness to prove the acts of commissions and
omissions shall be examined in the presence of the workman and the
workman shall be given an opportunity to cross examine the witnesses."
In view of the above, the findings of the enquiry officer in the departmental
proceedings as well as by second respondent that the charges of
misappropriation have been proved is said to be perverse.
14. Learned counsel appearing for the first respondent submitted
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that the charge sheet dated 16.06.2002 was issued to the petitioner, in which
three charges were framed viz.,
(i) the petitioner collected a sum of Rs.271.50/- from the passengers
proceeding from Pondicherry to Mahabalipuram (8 adults and 3 children) but
did not issue the tickets (Rs.28.50x8 and Rs.14.50x3)
(ii) He did not fill up the trip sheet
(iii) a sum of Rs.29 was found deficit in the bag of the petitioner
15. Learned counsel appearing for the first respondent further
submitted that there were seven previous misconducts committed by the
petitioner, which was mentioned in the dismissal order dated 20.08.2002,
issued by the first respondent. The above misconducts includes, collecting
excess money, misbehaving with the colleagues, found druken during the
duty hours, etc., for which enquiry was conducted and appropriate
punishment were awarded to the petitioner, from which, it can be construed
that the petitioner is an habitual offender and the punishment imposed on the
petitioner is appropriate and the writ petition is liable to be dismissed.
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W.P.No.25880 of 2011
16. In this case, three charges were framed against the petitioner
vide Charge Memo dated 17.06.2002, in which Rs.271.50/- was collected
from 8 adult passengers and 3 children, who boarded the bus from
Pondicherry. But, the tickets were not issued by the petitioner, the petitioner
has not closed the stage and maintained a deficit cash balance of Rs.29/-.
17. In regard to Charge No.1, according to the statement of
passengers witness Paulraj, a sum of Rs.277/- was given to the petitioner and
asked tickets for 8 adults and 3 children, but, the petitioner did not issued
tickets and in that statement he has also stated that the petitioner will pay the
remaining sum of Rs.5.50 paise. It is pertinent to extract the relevant portion
of the findings of the Labour Court and the same reads as follows:
“ 13/ bjh/ rh/ M/1y; kDjhuh; kPjhd g[fhh; gjpt[ bra;ag;gl;Ls;sJ/ mjpy;
kDjhuh; elj;Jduhf gzpahw;wpa jlk; vz; 188/A-0 ngUe;jpy; flg;ghf;fj;jpy;
nrhjid bra;jnghJ fhiy 5/35 kzpf;F vl;L bghpath;fs;. K:dW
;
rpwpath;fSf;fhd of;bfl; fl;lzk; U:/277-? kDjhuh; bgw;Wf;bfhz;L of;bfl;
bfhLf;ftpy;iy vd;Wk;. mJFwpj;J nfl;lnghJ kDjhuh; xg;g[f; bfhz;ljhft[k;.
mjpfg;goahd fl;lzk; U:/5/50-? tRypff; g;gl;oUe;jhy; mij gazpfSf;F jpUg;gpf;
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bfhLj;jjhft[k;. nkYk; Trip sheet gjpt[ bra;ahky; ghz;or;nrhpapypUe;J flg;ghf;fk;
tiu elj;Jdh; te;Js;sjhft[k;. elj;Jdhpd; gzg;igapy; U:/29-? Fiwthf
,Ue;jjhft[k; Fwpg;gplg;gl;Ls;sJ/ mij Traffic Inspector Mf gzp g[hpe;j ep/rh/1
kw;Wk; xUth; mspjJ
; s;sdh;/ mj;Jld; gwpKjy; bra;j of;bfl;fs;. gazp
thf;FK:yk;. gzg;ig FwpjJ
; mwpf;if Mfpaita[k; ,izf;fg;gl;Ls;sjhf
Fwpg;gplg;gl;Ls;sJ/ gadp ghy;uh!; vd;gth; mspj;j thf;FK:yj;jpy; ngUe;jpy;
ghz;or;nrhpapy; Vwpa vl;L bghpath;fs; K:d;W rpwpath;fSf;F U:/277-? fl;lzk;
bfhLj;J gazr;rPlL
; nfl;ljhft[k; elj;Jdh; bfhLf;ftpy;iy vd;W Twp
ifbaGj;jplL
; s;shh;/ mjpy; mtUf;F kPjp U:/5/50-? bfhLf;fg;gl;lhjft[k;
Fwpg;gplg;gl;L mjpYk; gazp ifbaGj;jpl;Ls;shh;/ bjh/rh/2 rhd;whtzj;jpy;
eph;thfk; g[fhhpd; nghpy; kDjhuiu jw;fhypf gzp ePf;fk; bra;J 17/06/2002 njjpapy;
Fw;wg;gj;jphpf;if jhf;fy; bra;ag;gl;Ls;sJ. mjpy; mth; kPJ K:d;W Fw;wr;rhl;Lfs;
Twg;gl;Ls;sJ/ mjd;nghpy; bjh/rh/4 rhd;whtzj;jpy; cs;Jiw tprhuiz
elj;jg;gl;Ls;sJ/ mjpy; epht
; hf jug;gpy; Mf gzpahw;wpa ep/rh/1 rhl;rpak;
mpsj;Js;shh;/ mtiu kDjhuh; tpupthf FWf;F tprhuiz bra;Js;shh;/ gpd;dh;
kDjhuiu eph;thf jug;gpy; FWf;F tprhuid bra;Js;shh;/ gpd;dh; kDjhuiu
eph;thf jug;gpy; FWf;F tprhuid bra;ag;gl;Ls;sJ/ mjpy; jd; Kd;dpiyapy; gazp
thf;FK:yk; gjpt[ bra;ag;gl;lJ vd;gij kDjhuh; xg;g[fb; fhz;Ls;shh;/ of;bfl;
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fl;lzj;jpy; kPjpj;bjhif ghpnrhjfh; th';fpf; bfhLj;jij bgw;Wf; bfhz;ljhft[k;
Twp me;j thf;FKPyj;jpy; gazp ifbaGj;jplL
; s;shh; kDjhuh; elj;Jduhf
gzpahw;wpa ngUe;jpy; nrhjid elj;jp Fw;wj;ij fz;lwpe;j ep/rh/1 eph;thf jug;gpy;
rhl;rpak; mpsj;Js;shh;;/ vdnt ngUe;J Xl;Leh; kw;Wk; gazp Mfpnwhiu
tprhhpff; hjjhy; tprhuiz ghjpff; g;gl;ljhf Twk; kDjhuh; thjj;ij Vw;gjw;fpy;iy/
mJnghy rhl;rpia FWf;F tprhuiz bra;a tha;gg; [ mspj;J tprhuiz
elj;jg;gl;Ls;sJ/ tprhuizapy; gazpfs; vtiua[k; kDjhuh; jug;gpy;
tprhhpff; tpy;iy/ gazpia rhl;rpahf miHg;gjpy; kDjhuUf;nf jaf;fk; cs;sjhf
tprhuiz mjpfhhp mwpf;ifapy; Twpa[ss
; hh;/ kDjhuUf;F cly;epiy rhpapy;yhjjhy;
fl;lzk; tRypjJ
; k; of;bfl; bfhLf;fhky; ,Ue;jjhf kDjhuh; jug;gpy; jf;f
Mjhuj;Jld; epU:gpf;fg;gltpy;iy/ ep/rh/M/8 rhd;whtzj;jpy; kDjhuh; mspj;j
tpsf;fj;jpy; ghpnrhjfh;fs; gazpfis kpuj;oajhy; fl;lzk; bfhLj;Jk; of;bfl;
bfhLf;ftpy;iy vd;W gazpfs; Twpajhf TwpapUe;jhYk; mij epU:gpf;ft[k;
kDjhuh; jug;gpy; rhl;rpak; ,y;iy/ kDjhuiu gHp th';Ftjw;fhfj;jhd; eph;thfk;
gzp ePf;fk; bra;jJ vd;gija[k; kDjhuh; jug;gpy; epU:gpf;ftpy;iy/ mth; bjhHpw;r';f
eltof;iffspy; jPtukhf <Lgl;lhh; vd;gjw;Fk; Mjhuk; ,y;iy eprh[M/7
rhd;whtzj;jpy; kDjhuhpd; fle;j fhy gzp tuyhW vjph;kDjhuuhy; Twg;gl;Ls;sJ/
mjpy; nfhg;g[ vz;fs;. Fw;wr;rhl;L. kDjhuh; mspf;fg;gl;l jz;lidfs; Mfpait
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bjspthf Fwpg;gplg;gl;Ls;sd/ kDjhuh; fle;j fhy gzpapy; VGKiw mtUf;F
jz;lid tH';fg;gl;Ls;sJ/”
18. In regard to Charge No.3, i.e., a sum of Rs.29/- was found in
deficit in the cash bag of the petitioner. It is pertinent to mention that as per
Section 24, Clause 41 (a) and 41 (f) of the Standing Order dated 30.04.2014
of the first respondent/corporation deals as follows:
Section 24 deals with ACTS AND OMMISSIONS CONSTITUTING
MISCONDUCT, in which
Clause 41 (a) deals with Misappropriation of Corporation's money
Clause 41 (f) deals with holding deficit cash balance of Rs.20/-
19. In regard to the above two misconducts, Section 24, Clause 41
(a) – misappropriation of money has been proved as per the evidence of the
passenger witness viz., Paulraj, who has been examined as M.W.1 and he has
also cross examined by the petitioner. The relevant portion of the findings of
the Labour Court has also been extracted supra.
20. In regard to Section 24, Clause 41 (f), according to the
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Memorandum of Settlement under Section 12(3) of the Industrial Disputes
Act, 1947, reached before the Joint Commissioner of Labour, (Conciliation)
Chennai, dated 13.02.1999 and the decision taken during the meetings
between the representatives of the managements of the State Transport
Corporations of Tamil Nadu and the federations of the Central Trade Unions,
in which it is mentioned that special batta has been increased from Rs.3/- to
Rs.4/- with effect from 01.09.1998 and steering allowance has been raised to
Rs.5/- with effect from 01.09.1998 and Night hault batta has been fixed as a
sum of Rs.7/- with effect from 01.09.1998.
The learned counsel for the petitioner relied on the above
Memorandum of Settlement under Section 12(3) of the Industrial
Disputes Act, 1947 dated 13.02.1999 but the same was not marked as
Exhibit before the Labour Court. Hence, the above document cannot be
taken into consideration or relied by this Court for arriving at a decision.
According to the Memorandum of Settlement, the petitioner was having
only a sum of Rs.13/- but since, the settlement was not marked as Exhibit
and the same cannot be relied by the petitioner in the appeal stage.
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21. The Standing order issued by the Corporation dated
30.04.2014, in which Section 24 and Clause 41 (f) deals with holding the
deficit cash balance of Rs.20/- but in the above case, the petitioner was
having only a sum of Rs.13/- as per the Memorandum of Settlement and
the said amount is lesser than the cash balance of Rs.20/-, which is
mentioned in Clause 41 (f) of the standing order dated 30.04.2014 since,
both the documents were not marked as Exhibits before the Labour
Court/Tribunal, the petitioner cannot relied on this documents. In the
deficit amount of sum of Rs.29/-, which was found in the cash bag of the
petitioner, the following amount has to be deducted:
(i) Special Batta – Rs.4/-
(ii) Steering allowance – Rs.5/-
(iii) Night Hault Batta - Rs. 7/-
Hence, Rs.29 – Rs.16 = Rs.13/-, which does not attract Clause 41 (f) of the
Section 24 of the Standing Order issued by the first respondent/corporation
dated 30.04.2014. Hence, this Court arrives at the following findings:
(i) Charge No. 1 – Proved
(ii) Charge No.2 – Proved
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(iii) Charge No.3 – Not proved
At this juncture, it is pertinent to extract the relevant portion of the judgment
passed by the Division Bench of this Court in W.A.No.372 of 2017 dated
27.06.2017 and the same reads as follows:
“6. In the case of MADRAS ALUMINIUM
COMPANY LIMITED v. LABOUR COURT, COIMBATORE
AND ANOTHER (1992 II LLN 101), it has been held that any
plea or material not produced before the Court below, cannot be
sought to be introduced and tested before this Court for the first
time. In view of the above judgment, we find that the
appellant/petitioner, having failed to establish the charges
before the Labour Court, the fact finding authority, by
producing the CBI report which I sought to be introduced now
and which were very much available by that time, this Court,
sitting in appeal, cannot come to a different conclusion that the
order of the learned Single Judge needs interference or the
award of the Industrial Tribunal is perverse.
In view of the above, the writ appeal is dismissed.
The connected miscellaneous petitions are also dismissed. No
costs.”
22. In regard to the Charge No.1, though the petitioner has
collected a sum of Rs.270.10/- from 8 adult and 3 children, he did not issue
the tickets and this is only a temporary misconduct. Because, the trip has not
ended. The bus is running from Pondicherry to Chennai and the Checking
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Inspector checked the bus only at Marakanam, which is just 40 Kms from
Pondicherry and 100 Kms from Chennai.
23. Hence, this Court finds that the punishment of dismissal of
service imposed on the petitioner by the first respondent is disproportionate
to the delinquency committed by the petitioner.
24. In view of the above facts and circumstances of the case, this
Court is of the considered view that the punishment ought to be modified and
therefore, the punishment of compulsory retirement would be appropriate in
respect of dismissal of service, since the same is disproportionate to the
delinquency committed by the petitioner. Therefore, the first respondent is
directed to modify the punishment and disburse all available terminal
benefits, other benefits to the petitioner and the said exercise shall be
completed within a period of eight weeks from the date of receipt of a copy
of this order.
25. In the result, this writ petition stands disposed of with the above
direction. No costs.
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01.06.2023
vm
Index : Yes/No
Speaking Order : Yes/No
To:
1.The Managing Director,
Tamil Nadu State Transport Corporation
(Villupuram Div-3),
Kanchipuram.
2.The Presiding Officer,
II Additional Labour Court,
Chennai.
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J.SATHYA NARAYANA PRASAD,J.
vm
W.P.No.25880 of 2011
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01.06.2023
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