PRAYER: Writ Appeals is filed Under Clause 15 of Letter Patent against the order of this Court made in W.P.Nos.13455 of 1999 & 34359 of 2007 dated 21.11.2007.
For Appellant :: Mr.G.Muniratnam For Respondents :: Mr.S.Senthilnathan for R1 R2 Court C O M M O N O R D E R (Order of the Court was delivered by D.MURUGESAN, J.) As these two Writ Appeals arise in respect of the disciplinary proceedings initiated against the first respondent and both the Writ Petitions were disposed of by a common order, they are taken up together for disposal.
2. The first respondent, while he was working as a Conductor in the Pallavan Transport Corporation at the relevant point of time, now known as Metropolitan Transport Corporation, Chennai, was issued with the following charges on 28.06.1994.
1.As per Traffic Return, Rs.4 x 0.80 tickets already sold at stage 9 which were again re-sold at stage No.5 is a misconduct under CSO 25 (Xli-c).
2.On verification, that 5 x 0.70 and 2 x 2.00 altogether seven punched spare tickets were found in the cash bag.
3.Kept shortage of Rs.3.15 in his cash bag at the time of checking.
4.Carelessness and negligence in his duty which is a misconduct under CSO 25(xiv).
He submitted his explanation denying the charges. However, an enquiry was conducted and the charges were found to be proved and later on, he was removed from service. As same disputes were pending Conciliation, the Appellant Transport Corporation filed a petition before the Industrial Tribunal, Chennai for approval under Section 33 (2) (b) of the Industrial Disputes Act. Having regard to the evidence, the Tribunal, prima facie, found that the order of termination was bad and, ultimately refused to grant approval, which made the conductor to prefer a Claim Petition No.88 of 1999 for computation of the monetory benefits. The Transport Corporation questioned the order of the Tribunal rejecting the approval petition in Writ Petition No.13455 of 1999. The Second Additional Labour Court, Chennai, which heard the Claim Petition, by its order dated 22.12.2006, directed the payment of a sum of Rs.2,32,663/- to the conductor. That order was questioned in W.P.No.34359 of 2007. Both the Writ Petitions were dismissed with a direction to the Pallavan Transport Corporation to implement the order in the Claim Petition.
3. Mr.G.Muniratnam, learned counsel appearing for the appellant would submit that inasmuch as the charges have been proved in the enquiry and all the procedures have been followed, the Tribunal was in error in refusing the approval for the order of termination. He would submit that the report prepared by one Paranthaman, the then Inspector who subsequently retired, was marked through his successor Srikumar. In the circumstances, the finding of the Tribunal that the failure on the part of the Transport Corporation to examine the drivers is bad, as it is not necessary that in all cases, the drivers shall be examined and if some evidence is available in the enquiry, that would be sufficient and the Tribunal would not be justified in coming to a different finding and consequently, refuses the approval. In support of the said submission, he relied upon the judgment of the Supreme Court in State of Haryana and another v. Rattan Singh, AIR 1982 SCC 46. He would also rely upon another judgment of the Supreme Court reported in Cholan Roadways Ltd., v. G.Thirugnanasambandam, 2005 (1) LLJ 569. Hence, the learned counsel would submit that the order of the Tribunal in refusing the grant of approval is bad and consequently, it is liable to be set aside. He would further submit that the said facts have not been considered by the learned Single Judge, while dismissing the Writ Petitions.
4. We have heard Mr.S.Senthilnathan, learned counsel for the 1st respondent/Conductor.
5. The Supreme Court in the judgment in State of Haryana and another v. Rattan Singh, AIR 1982 SCC 46 was considering the case, where the Inspector of the Flying Squad prepared the report and was examined and therefore, when some evidence which was relevant to the charge is available, merely because the passengers have not been examined, the order will not become bad. In our case, admittedly, the Inspector of the Flying Squad, who inspected the vehicle and prepared a report, could not be examined, because he had retired from service by that time. That report was only marked through his successor. The circumstances under which the report was prepared could not have been spoken to by the said Srikumar, as he was not in the scene. At best, he could have given statement before the Enquiry Officer only for filing a report which was prepared by his predecessor. In these circumstances, it is the duty of the Transport Corporation to examine the other witnesses, whether they be the passengers or the persons who were there at the time when the report was prepared. Hence, on the facts of this case, the judgment of the Supreme Court is not useful to the Transport Corporation.
6. In the case of Cholan Transport Corporation (Cited supra), the Apex Court was considering the power of the Tribunal to examine the findings of the Enquiry Officer. In that judgment, the report was prepared while the Tribunal was considering the petition under
Section 33(2) (b) of Industrial Disputes Act. It does not sit as a court of appeal to reappreciate the evidence. However, in the same judgment, the Apex Court has found that the Tribunal can examine the findings of the Enquiry Officer, on the evidence adduced in the domestic enquiry to ascertain whether a prima facie case has been made out on the charges levelled or the findings are perverse or not.
7. Applying the above to the facts of this case, we may notice that the Tribunal has not reappreciated the evidence. Only in order to find out whether a prima facie case has been made out or not, the Tribunal has referred that in the absence of the examination of the Inspector of Flying Squad who prepared the report, it would have been better, if the passengers had been examined. Certainly, it is not a case of appreciation of evidence. But considering the evidence to find out whether a prima facie case has been made, in the absence of any supporting evidence, except the report of the Inspector of Flying Squad and the statements obtained from some of the passengers, the Tribunal had correctly rejected the application for approval. Hence, on the facts of this case also, the judgment reported in State of Haryana and another v. Rattan Singh, SCC 46 is of no use to the Appellant Transport Corporation.
8. Having regard to the above findings, we find no reason to interfere with the order passed in the Writ Petitions. Accordingly, in view of the above order of the Tribunal in refusing to grant approval, for the same reasons, we do not find any reason to interfere with the order passed in the Claim Petition, as it has been passed on the basis of the order rejecting the approval. Hence, both the writ appeals fail and accordingly, they are dismissed. However, for compliance of the directions in this Order for payment of back wages, the Appellant Transport Corporation is given time till 16.11.2009. It is made clear that this indulgence is shown because of the earnest efforts taken by the learned counsel for the appellant and this period will not be extended further. Consequently, connected Miscellaneous Petitions are also dismissed. No costs.
ssn/tsi To The Presiding Officer, IInd Additional Labour Court, Chennai