Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the first respondent.
2. This writ petition has been filed challenging the award of the second respondent Labour Court, dated 18.9.2002, made in I.D.No.812 of 1993.
3. It has been stated that the first respondent had been appointed as a Conductor in Thanthai Periyar Transport Corporation, on 24.10.1984. Subsequently, he had been transferred to the petitioner Corporation, on 1.4.1992. While so, on 15.4.1992, after having collected the fare from two passengers, the first respondent had not issued tickets to them. Further, there was a shortage of Rs.60.90 in the cash bag. Hence, a charge memo had been issued to the first respondent, on 24.4.1992. The first respondent had submitted his explanation, on 1.5.1992. Not satisfied with the explanation submitted by the first respondent the petitioner Corporation had ordered an enquiry to be conducted against the first respondent. The enquiry had been conducted against the first respondent, in accordance with the principles of natural justice and the enquiry officer had submitted his report, on 12.8.1992, alleging that the charges levelled against the first respondent had been proved. Thereafter, a second show cause notice had been issued to the first respondent, on 4.2.1993. The first respondent had submitted his explanation, on 17.2.1993. On considering the evidence on record, the first respondent had been dismissed from service, on 17.3.1993. His last drawn salary was Rs.2750/-. The first respondent had challenged the order of dismissal passed against him before the second respondent Labour Court by raising an industrial dispute.
4. In the counter affidavit filed on behalf of the petitioner Corporation it was contended that while the first respondent was on duty, on 15.4.1992, as a conductor in the bus bearing Registration No.TN-31-0028, plying in the route No.79, he had collected the fare from two passengers, but had failed to issue the tickets to them. Thus, he had misappropriated the money belonging to the petitioner Corporation. Further, there was a shortage of Rs.60.90 in the cash bag. Hence, he was suspended from service and a charge memo had been issued to him. The explanation submitted by the first respondent was not satisfactory and therefore, he was dismissed from service, after an enquiry had been conducted against him, in accordance with the principles of natural justice.
5. It has been further stated that without considering the valid contentions raised on behalf of the petitioner Corporation, the second respondent Labour Court, by its award, dated 18.9.2002, made in I.D.No.812 of 1993, had set aside the order of dismissal and directed the petitioner Corporation to reinstate the first respondent in service, with continuity of service, with backwages and other benefits. Aggrieved by the said award of the second respondent Labour Court, dated 18.9.2002, made in I.D.No.812 of 1993, the management of the petitioner Corporation had preferred the present writ petition before this Court, under
Article 226 of the Constitution of India.
6. The award of the second respondent Labour Court, dated 18.9.2002, has been challenged by the petitioner Corporation, raising various grounds. The award of the second respondent Labour Court is contrary to law, weight of evidence and probabilities of the case. The charges levelled against the first respondent were in relation to a grave misconduct and since the said charges had been proved against the first respondent, he had been dismissed from service, on 17.3.1993. The domestic enquiry against the first respondent had been conducted, in accordance with the principles of natural justice. The first respondent had fully participated in the said enquiry and all opportunities had been given to him to defend himself against the charges. On completion of the enquiry, the enquiry officer had submitted his findings holding that the charges were proved. Considering the gravity of the charges and the past records of service, the first respondent had been dismissed from service.
7. It has been stated that the second respondent Labour Court had failed to note that the Checking Inspector had submitted his report, along with the statement of the passengers who had not been issued the tickets by the first respondent after collecting the fare for their travel. Further, the second respondent Labour Court had committed an error in holding that the petitioner Corporation had failed to examine the individuals who had given the statements to the Checking Inspector. Further, the second respondent Labour Court had failed to note that the petitioner Corporation could not produce the invoice and the ticket books since the life time of the said records was only one year. The second respondent Labour Court had also failed to consider the evidence of M.W.1 and Exs.M1 to M.7, according to which there was sufficient proof to confirm the charges levelled against the first respondent. Further, the second respondent Labour Court had also erred in exercising its power, under
Section 11A of the Industrial Disputes Act, 1947.
8. The main contention of the learned counsel appearing on behalf of the petitioner Corporation is that the second respondent Labour Court had erred in holding that the non-examination of the passengers to verify the statements made by them, with regard to the non-issuance of the tickets by the first respondent and the fact that the Checking Inspector had not been examined would go against the petitioner Corporation, in its attempt to prove the charges levelled against the first respondent. The Labour Court had also come to the wrong conclusion that the non-production of the invoice books and the ticket books, by the petitioner Corporation, before the Labour Court, would lead to adverse inference. Therefore, the findings of the second respondent Labour Court that the charges levelled against the first respondent had not been proved is contrary to the evidence on record and the facts and circumstances of the case. Therefore, the award of the second respondent Labour Court, dated 18.9.2002, is liable to be set aside.
9. Per contra the learned counsel appearing on behalf of the first respondent had stated that in spite of an opportunity having been given to the petitioner Corporation, to prove the charges against the first respondent by way of re-enquiry before the second respondent Labour Court, pursuant to the common order, dated 21.6.2002, passed by this Court, in W.P.Nos.4863 and 4864 of 1995 and W.P.No.17439 of 1996, directing the Labour Court to conduct a re-enquiry and to pass final orders thereon, the petitioner Corporation had miserably failed to prove the charges levelled against the first respondent. The second respondent Labour Court has rightly come to the conclusion that the non-examination of the passengers and the Checking Inspector were fatal to the case and thus, the charges levelled by the management of the petitioner Corporation against the first respondent would be unsustainable in the eye of law. The adverse inference drawn by the second respondent Labour Court due to the non production of invoice books and the ticket books is in accordance with law and the rulings of the Apex Court.
10. In view of the submissions made by the learned counsels appearing on behalf of the petitioner Corporation, as well as the first respondent and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason for this Court to interfere with the award of the Labour Court, made in I.D.No.812 of 1993.
11. The non-examination of the passengers, who had made the statements, with regard to the non issuance of the tickets by the first respondent, after having received the fare for the tickets and the failure to examine the checking inspector had caused a serious flaw in the procedures adopted by the petitioner Corporation, in attempting to prove the charges levelled against the first respondent. Even though it has been admitted by the petitioner Corporation that the invoice books and the ticket books should have been available with the petitioner Corporation, its failure to produce the same, at the time of enquiry, before the second respondent Labour Court had compelled the said Court to draw adverse inference against the petitioner Corporation and to arrive at the finding that the charges levelled against the first respondent had not been proved. Therefore, the contentions raised on behalf of the petitioner management cannot be countenanced. In such circumstances, the award of the second respondent Labour Court, made in I.D.No.812 of 1993, stands confirmed. Hence, the writ petition is dismissed. No costs.
Index:Yes/No 20-04-2009 Internet:Yes/No csh To The Presiding Officer, Second Additional Labour Court, Chennai.
M.JAICHANDREN,J.
csh Writ Petition No.1821 of 2004 20-04-2009