The Management, v. The Presiding Officer,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 23.01.2018

CORAM

THE HONOURABLE Mr.JUSTICE V.PARTHIBAN W.P.No.5758 of 2011 The Management, (formerly Dr.Ambedkar Transport Corporation Ltd.) and now known as Metropolitan Transport Corporation (Chennai) Ltd., Pallavan Salai, Chennai 600 002, Rep by its Managing Director.

... Petitioner Vs 1.The Presiding Officer, II Additional Labour Court, Chennai 600 104.

2.A.R.Nagarajan ... Respondents PRAYER : Petition filed under Article 226 of the Constitution of India, praying to issue a writ of Certiorari, to call for the records concerning with I.D.No.927 of 2001 dated 04.03.2010 on the file of the 1st respondent and quash the same. For Petitioner : Mr.R.Balasubramanian for Mr.T.Chandrasekaran For Respondents : Mr.V.Ajoy Khose for R2

O R D E R

Heard Mr.R.Balasubramanian, learned counsel for the petitioner and Mr.V.Ajoy Khose, learned counsel appearing for the second respondent.

2. The petitioner has approached this Court, seeking the following relief, "To issue a writ of Certiorari, to call for the records concerning with I.D.No.927 of 2001 dated 04.03.2010 on the file of the 1st respondent and quash the same. "

3. The case of the petitioner is as follows:- The second respondent workman was employed as Conductor on 17.01.1981, in the petitioner Corporation. While he was on duty on 05.02.1993, in the route 7H'C' from Parris to Mugapper East, the bus was subjected to inspection by the Checking Inspectors and found that the second respondent employee has re-sold the already sold tickets to three passengers to a value of Rs.0.80 each and received the fare for two luggages from the passenger and issued only one luggage ticket and also found having excess cash of Rs.26.65 from the cash bag. In addition to that, the second respondent employee was also charged for writing the ticket numbers in the invoice which are not legible.

4. Based on the report of the Checking Inspector, the employee was suspended from service on 10.02.1993. Thereafter, a charge memo was issued on 12.02.1993. A domestic enquiry was conducted into the charges and in the conclusion of the enquiry, a report was submitted holding the charges proved against the employee. A report was submitted to that effect on 13.12.1993 to the Management. Thereafter, the second show cause notice was issued on 17.12.1994. An explanation was also submitted by the employee. On 31.03.1995, the petitioner Management dismissed the employee from service. As against the dismissal order, the second respondent employee raised an industrial dispute in I.D.No.927 of 2001, and the same was adjudicated by the first respondent - Labour Court.

5. After adverting to various materials and pleadings placed on record, an award was passed on 04.03.2010, by granting continuity of service with 50% back wages and other attendant benefits without actual reinstatement, since, by then, the employee had attained the age of superannuation. Thereafter, the 50% back wages was deposited in the Court, out of which, 50% had been drawn by the employee during the pendency of the present writ petition.

6. The learned counsel for the petitioner Corporation would submit that the first respondent Labour Court has failed to appreciate that the misconduct committed by the employee was serious in nature and therefore, an imposition of penalty of dismissal from service was warranted. According to him, the Labour Court had intervened with the findings of the domestic enquiry and also with the punishment, on the ground that the passenger in question was not examined. Therefore, the enquiry report cannot be relied upon. He would further submit that in any event, in the facts and circumstances, the award of the

Labour Court by granting continuity of service with 50% back wages is without any justification.

7. On the other hand, learned counsel appearing for the second respondent employee would submit that the Labour Court had taken into consideration all the relevant materials before the impugned award was passed. Unless the findings of the Labour Court, which are found to be legally unacceptable and perverse, the same need not be interfered with by this Court.

8. This Court has considered the above submission of the learned counsel for the second respondent and finds that the same has some force for its acceptance. The findings as rendered by the Labour Court, appear to be well founded and therefore the same does not call for any interference from this Court. It is also to be seen that by the time, the Labour Court rendered its award on 04.03.2010, the workman had already attained the age of superannuation on 31.07.2009. Therefore, the Labour Court has only ordered continuity of service with 50% back wages.

9. At the time of argument, learned counsel appearing for the second respondent fairly conceded that whatever balance amount remaining to the credit of the I.D.No.927 of 2001, the same may be forfeited and he would be satisfied, if the award of the Labour Court is confirmed in respect of continuity of service and other benefits minus back wages.

10. This Court also finds that the said submission is fair and reasonable as already stated that the findings of the Labour Court is on the basis of the relevant materials placed on record and such findings do not call for interference. The Labour Court, however, while considering the facts and circumstances, granted only 50% back wages by partially holding the employee is guilty of the misconduct. That being the case, as suggested by the learned counsel appearing for the second respondent, 50% back wages of the remaining amount lying in the credit of the Industrial Dispute, cannot be given to the employee as the same is therefore, stands forfeited.

11. In the above circumstances, the writ petition is allowed to the extent that the second respondent workman is not entitled to the remaining balance amount lying in the credit of the I.D.No.927 of 2001, but, however, he is entitled to continuity of service and other attendant benefits minus back wages. The award as such, will remain intact to the extent indicated.

12. With the above observation, the writ petition stands allowed. It is always open to the petitioner Management to make appropriate application before the Labour Court concerned, for withdrawal of the remaining amount lying in the deposit. The petitioner Management is also directed to settle all the terminal benefits which are admissible to the second respondent workman, within a period of twelve weeks from the date of receipt of a copy of this order. No costs.

Sd/- Asst.Registrar (CS III ) /true copy/ Sub Asst. Registrar gsk To The Presiding Officer, II Additional Labour Court, Chennai 600 104.

+ 1 cc to Mr.T.Chandrasekaran Advocate,SR.5027 + 1 cc to Mr.V.Ajoy Khose Advocate,SR.5220 W.P.No.5758 of 2011 gp(co) nr 27/02/2018