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2013 DIGILAW 2556 (MAD)

G. Vinayagam v. General Manager, Metropolitan Transport Corporation Chennai

2013-07-19

D.HARIPARANTHAMAN

body2013
JUDGMENT :- 1. Since the petitioner in both the Writ Petitions and the cause of action in both the Writ Petitions are one and the same, they are taken together and they are disposed of by means of this Common Order. 2. The petitioner is a Conductor in the respondent Corporation. A charge Memo dated 19.3.2013 was issued making certain allegations. The petitioner made a representation dated 28.3.2013 to furnish him certain documents. While so, without furnishing the documents, a notice dated 21.5.2013 was issued appointing an Enquiry Officer. 3. The Enquiry was posted on 30.5.2013. But the enquiry did not take place on 30.5.2013. It was adjourned to 6.6.2013. 4. On 6.6.2013, the petitioner sought for adjournment as his co-worker was not able to be present. Without adjourning the matter, the enquiry was conducted on the same day. A report dated 11.6.2013 was also submitted by the Enquiry Officer holding that the charges were proved. 5. Thereafter, a Show Cause notice dated 24.6.2013 was issued by the Joint Managing Director of the respondent Transport Corporation enclosing the report of the Enquiry Officer dated 11.6.2013 proposing to impose the punishment of removing the petitioner from service. 6. At this juncture, the petitioner has filed W.P.No.19551 of 2013 directing the respondents to furnish the documents as per the representation of the petitioner dated 28.3.2013 and to permit him to engage his co-worker, namely, Kothandam to assist him in the enquiry and also to treat as duty on the days of participation of enquiry by the co-worker. The petitioner has also sought time to submit his explanation to the charge memo dated 19.3.2013. 7. The petitioner has filed W.P.No.19621 of 2013 questioning the second Show Cause Notice dated 24.6.2013 directing the petitioner to show cause as to why he should not be removed from service. 8. Heard both sides. I have also perused the records. 9. The Enquiry Officer's Report makes it clear that the petitioner sought for adjournment as the co-worker was not able to come on that day. He also requested time and also to treat as duty whenever he attends enquiry. Without giving opportunity to the petitioner, the enquiry was concluded hurriedly on 6.6.2013. 10. The learned Counsel for the petitioner has also brought to my notice the Enquiry Notice dated 21.5.2013 that permits the petitioner to bring the co-worker to defend him in the enquiry. He also requested time and also to treat as duty whenever he attends enquiry. Without giving opportunity to the petitioner, the enquiry was concluded hurriedly on 6.6.2013. 10. The learned Counsel for the petitioner has also brought to my notice the Enquiry Notice dated 21.5.2013 that permits the petitioner to bring the co-worker to defend him in the enquiry. As rightly pointed out by the learned Counsel for the petitioner, para 3 of the Enquiry Notice dated 21.5.2013 permits the petitioner to bring the co-worker. It is also submitted that the same is done in tune with the Certified Standing Orders of the Corporation. 11. But the petitioner was not given opportunity to bring his Co-worker and it was hurriedly concluded. 12. Further, the petitioner was also not furnished the documents when he specifically pleaded for some documents. 13. The learned Counsel for the petitioner has pleaded that the petitioner could be satisfied, if the report dated 6.2.2013 based on which the charge memo was issued is given to him. 14. On the other hand, the learned Counsel for the Corporation has sought to sustain the impugned Show Cause Notice dated 24.6.2013. According to him, he should have brought the co-worker on the appointed date. 15. The enquiry was concluded on the same day i.e. on 6.6.2013. The same is not disputed by the learned Counsel for the respondents. In any event, it is not the case wherein the petitioner has sought for frequent adjournments. The Fifth Schedule of the Industrial Disputes Act makes it clear that the action of an employer can be characterised as unfair labour practice, if an enquiry is conducted in an unduly haste manner and in violation of the principles of natural justice. 16. In this case, the basic document dated 6.2.2012 based on which the charge memo was issued was not furnished, though the same was sought for. Further, he was not given opportunity to bring his co-worker when the enquiry notice itself permitted him to bring the co-worker. 16. In this case, the basic document dated 6.2.2012 based on which the charge memo was issued was not furnished, though the same was sought for. Further, he was not given opportunity to bring his co-worker when the enquiry notice itself permitted him to bring the co-worker. At this juncture, it is also relevant to extract Clause 27(vii) c of the Certified Standing Orders here under which permits the workman to bring co-worker to defend him in the enquiry : "27(vii) c. The witness to prove the acts of omissions and commissions shall be examined in the presence of the workman and the workman shall be given an opportunity to cross-examine the witnesses. A workman shall be entitled to avail the assistance of a co-workman or any official or his union, to defend him in such enquiry." 17. In these circumstances, I am of the view that the 2nd show cause notice dated 24.6.2013 that is impugned in the Writ Petition No.19621 of 2013 is liable to be quashed, since I am of the view that the enquiry was conducted in undue haste. In the aforesaid circumstances, the matter is remanded back to the respondents to conduct a fresh enquiry by giving due opportunity to the petitioner. The petitioner shall be permitted to bring his co-worker and the Co-worker should be given attendance, whenever he attends enquiry. The respondents are also directed to furnish the report dated 6.2.2012 of the Assistant Branch Manager (Transport), Avadi Workshop based on which the charge memo was issued. 18. The W.P.No.19621 of 2013 is allowed in the above terms and also the W.P.No.19551 of 2013 is disposed of directing the respondents to furnish the copies of the basic reports. The petitioner is directed to co-operate in the enquiry and if the petitioner fails to appear or takes unnecessary adjournments, the respondents are at liberty to proceed ex-parte. However, as stated above, the respondents shall give the documents and also permit the petitioner to bring the co-worker and they should also give attendance to the co-worker on the enquiry days. The respondents are directed to complete the enquiry within a period of four months from the date of receipt of a copy of this Order. No costs. Consequently, connected Miscellaneous Petitions are also closed.