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2012 DIGILAW 19 (MAD)

Management v. Presiding Officer

2012-01-02

K.CHANDRU

body2012
Judgment :- 1. W.P.No.34863 of 2003is filed by the State owned Transport Corporation, challenging an Award passed by the II Additional Labour Court, Chennai in I.D.No.146 of 1998 dated 01.04.2003. By the impugned Award, the Labour Court directed reinstatement of the workman without backwages but with continuity of service and other attendant benefits. 2. This writ petition was admitted on 01.12.2003. Pending the writ petition, an interim stay was granted. The workman also filed an application for payment of last drawn wages under Section 17-B of the I.D. Act in WPMP No.2734 of 2004. In that application, a direction was issued on 06.03.2004 directing the Management to pay the arrears of last drawn wages within six weeks. Subsequently, on the workman filing a vacate stay application in WVMP No.170 of 2004, it was recorded on 25.06.2004 that the Management had granted reinstatement of the workman without prejudice to their contentions in the writ petition. Hence, the applications for interim stay, vacate stay and payment of last drawn wages were dismissed as in fructuous. 3. Thereafter, the workman filed WPMP.No.17590 of 2006 seeking for payment of basic wages at Rs.7080/- on par with similarly placed workmen. His complaint was though he was restored to service, his pay was fixed in the old scale at Rs.5420/- and not at Rs.7080/-. In that application, this court directed the main writ petition itself to be posted for final hearing during July 2007. 4. It is at this stage the workman filed a cross writ petition after a period of four years in W.P.No.1335 of 2007 challenging that portion of the Award denying him back wages and that writ petition was admitted on 10.01.2007. The workman did not stated as to why he had taken four years to challenge that portion of the Award either immediately after the Award was passed or within a reasonable time after the Management filing a writ petition. However, since both the writ petitions challenged the very same Award, they were tagged together and a common order is passed. 5. For the sake of convenience, the parties are referred to as the Management and the workman as the case may be. 6. It is the case of the workman that he joined the service of the Corporation as Conductor on 27.11.1989. 5. For the sake of convenience, the parties are referred to as the Management and the workman as the case may be. 6. It is the case of the workman that he joined the service of the Corporation as Conductor on 27.11.1989. While so, on 26.01.1994, when he was serving in Route No.57J plying between High Court and Karanodai, when the Checking Inspector checked the bus, he was found having excess cash of Rs.54.95. He was also not wearing public service duty batch. A charge memo dated 05.02.1994 was given to him. Before that he was placed under suspension on 01.02.1994. After receiving the explanation of the workman, the suspension was revoked and he was restored to service. Thereafter, an enquiry was conducted by the Enquiry Officer and a provisional conclusion was reached on 20.08.1994. On the basis of the enquiry report, a second show cause notice was given to the workman and finally by an order dated 16.11.1994, he was dismissed from service. Thereafter, the workman sent a representation to the Managing Director, which was also rejected on 06.02.1995. 7. The Workman for reasons best known raised the Industrial Dispute after a period of two years before the Assistant Commissioner of Labour, Conciliation, Chennai. Since the Conciliation Officer could not bring about mediation, he gave a failure report. It is on the strength of the failure report, the Workman filed claim statement before the Labour Court. The said claim statement was registered as I.D.No.146 of 1998 and notice was issued to the Management. The Management filed a counter statement dated 25.03.1999. 8. Before the Labour Court, the workman examined himself as W.W.1. On the side of the Management, 14 documents were filed and marked as Exs.M1 to M14. The Labour Court framed two issues on the basis of the pleadings submitted by the parties. The two issues were whether the dismissal was illegal and opposed to the principles of natural justice? and if so to what relief the workman was entitled to? 9. On the enquiry conducted against the workman, the Labour Court did not render any specific finding but on the contrary after analysis of the Enquiry Officer's report viz., Ex.M8 dated 18.07.1994, it observed that the Enquiry Officer himself held that 5th charge was not proved. In respect of the other four charges, it found charges 1, 3 and 4 were inter related. In respect of the other four charges, it found charges 1, 3 and 4 were inter related. It also found that the Enquiry Officer's report was perverse. Excepting the Checking Inspector, no other passengers were examined. The workman's explanation was that he kept Rs.55/-for purchase of medicine because his wife informed him that his child was not well in Padianallur and therefore, the money which he was meant for purchase of medicine was kept in the bag. This explanation was also not considered and when he himself gave a defence statement in the enquiry, he was not cross examined by the Management. The Labour Court also found that in the High Court branch only, there was time keeper and the trip sheet contained the signature of the time keeper and there was no addition or deletion in the trip sheet and therefore, the explanation offered by the workman was most acceptable. The Labour Court also held that the finding of guilt that he had kept excess amount by reissuing the old ticket cannot be accepted. It found that the Enquiry Officer's report in this regard is perverse and cannot be acceptable. Since the findings rendered by the Enquiry Officer was perverse and the dismissal was based upon the said report, the Labour Court held that the non-employment of the workman was unjustified and he was eligible for reinstatement. But however, it denied back wages though granted service continuity and other attendant benefits. The stand of the Management as reflected in the affidavit was that there was no entry in the Traffic Return regarding his personal money kept in the baggage. The value of the ticket from High Court to Karanodai was Rs.1.40 and since 39 tickets were reissued, the exact excess amount was found to be Rs.54.95 which was also confirmed by the Checking Inspector. There was no necessity to examine any other passengers when he was caught red-handed by the Checking Inspector. It was also stated that as per the practice of the Corporation, if any excess amount was kept, it should be separately entered and due information should be given either to the Time Keeper or to the Traffic Manager. The refusal of the Labour Court in not relying upon the judgment of the Bangalore Metropolitan Corporation, Bangalore v. Channannjachari and another reported in 2000 (1) LLJ 153 was also erroneous. The refusal of the Labour Court in not relying upon the judgment of the Bangalore Metropolitan Corporation, Bangalore v. Channannjachari and another reported in 2000 (1) LLJ 153 was also erroneous. It was held by the Court that a Conductor working in Public Sector Corporation keeps money in public trust and therefore, any misappropriation will go into the root of the matter and he makes himself not liable for restoration to service in such circumstances. 10. In the present case, as rightly held by the Labour Court, Charge No.5 was not proved. Even as per the Enquiry Officer's report Charge Nos.1,3 and 4 are interrelated. In an enquiry, when a charge sheeted employee makes a statement, it has to be taken into account by the Enquiry Officer before he renders a finding. Ignoring the stand of the charge sheeted employee, the findings recorded by the Enquiry Officer is certainly perverse. In the present case, it was the specific stand of the workman that Rs.55/-was kept for the purchase of medicine for his chid. The said stand taken by the workman was not considered by the Enquiry Officer except stating that this fact was not intimated to the Time Keeper. There is no finding that such a stand was either not possible or truthful. It was in that circumstances the Labour Court held that in the absence of any cross examination of the charge sheeted employee, certainly, the Enquiry Officer cannot reject the statement made by the workman. 11. The Labour Court also held when the bus came from Karanodai to High Court, the Time Keeper's signature was obtained in the Traffic return and therefore, it cannot be said that during that trip he would have reissued the ticket notwithstanding that such an entry was already found in the Traffic Retrurn. Therefore, in the absence of any legal evidence, the Labour Court held that the workman was liable for reinstatement. If the contention of the Management that the Labour Court did not place reliance on the judgment cited by them in Bangalore Metropolitan Corporation's case (cited supra) that they have lost confidence in conductor who had misused the public fund is true, then there is no necessity for them to reinstate the workman on their own by an order dated 29.04.2004. Even though it was stated that it is to avoid the payment of last drawn wages without doing any work, the fundamental question is if a man cannot be proceeded even for a day, it is unthinkable that he can be restored to service and therefore, the allegation that they lost confidence in the employment of the workman cannot be accepted. 12. Under the said circumstances, this Court do not think that any case is made out for interfering with the Award. Hence, the writ petition filed by the Management is liable to be rejected. At the same time, the workman's cross writ petition challenging that portion of the Award denying back wages has to be considered independently. As already noted, the workman raised the dispute after a period of three years from the date of his non-employment and he has not given any sufficient explanation. Similarly, when the Management filed a writ petition in the year 2003, as a counter blast he has filed the cross writ petition only after a period of four years that too after he was restored to service. There is no explanation for the delay in filing the cross writ petition. Further, the employment in the Corporation even as per his own admission was only from the year 1989 and at the time of his non-employment, he had put in only 5 years of service. Therefore, it is not in every case that a workman is eligible for either full or portion of the back wages. In the present circumstances, considering the case as set out above including the fact that the workman was immediately restored to service by an order dated 29.04.2004, this Court is not inclined to interfere with the discretion exercised by the Labour Court in denying the back wages. Under the said circumstances, there are no merits in the writ petition filed by the workman. 13. In the result, both the writ petitions will stand dismissed. However, the parties are allowed to bear their own costs. Under the said circumstances, there are no merits in the writ petition filed by the workman. 13. In the result, both the writ petitions will stand dismissed. However, the parties are allowed to bear their own costs. Since the workman made a complaint in WPMP No.17590 of 2006 that he was not given the same scale of pay as applicable to other similarly placed workmen, now that the writ petition filed by the Management has been dismissed and the Award has been confirmed, it is needless to state that the workman is entitled for wages on par with other workmen who are similarly placed and who are also given revision of wages as and when revision of scales took place in the Corporation. Consequently, connected miscellaneous petition is closed.