The Management v. R.Manimaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN W.P.NO.15796 OF 2019 AND WMP NO.15618 OF 2019 The Management, Metropolitan Transport Corporation (Chennai) Ltd., Pallavan Illam, Anna Salai, Chennai-600 002.
...Petitioner
-vsR.Manimaran, Rep. by the General Secretary, State Transport Employees Union73/MDS (C.I.T.U) No.2, Pallavan Salai, Kalairanga Valagam, Chennai- 600 002.
...Respondent
Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari to call for records pertaining to the order passed in I.D.No.69 of 2018 dated 30.11.2018 on the file of I Additional Labour Court, Chennai.
For Petitioner : Mr.M.Chidambaram For Respondent :
Mr.S.T.Varadarajulu
O R D E R
This Writ Petition has been filed challenging the order passed in I.D.No.69 of 2018 dated 30.11.2018 on the file of I Additional Labour Court, Chennai, reducing the punishment of postponement of annual increment from two years to one year with cumulate effect.
2. The case of the Petitioner/Management is that a Workman, belonging to the Union / Respondent herein was a Driver under the Management and he was operating the bus in route No.27H. On 13.02.2014, at 5.50 hours, without seeing the side and
without giving proper traffic signal, the respondent drove the bus in a rash and negligent manner, due to which the rider of the two wheeler dashed the bus, as a result of which, the rider of the motor cycle sustained head and shoulder injuries. Therefore, a charge memo was issued against the respondent, for which the respondent had given the explanation and not being satisfied with the same, domestic enquiry was conducted and based on which the petitioner passed an order dated 10.04.2014, postponing the increments of two years with cumulative effect. It is the further case of the Petitioner-Management that challenging the order 23.03.2016, Union raised the Industrial Dispute, before the Labour Court on behalf of the respondent/workman and the Labour Court vide order dated 30.11.
2018, reduced the punishment of postponement of annual increment from two years to one year with cumulate effect and the said order is under challenge in the present petition. 2.1. It is represented by the Management that the victim person, in order to claim compensation had filed the MACTOP.No.1293 of 2015, before the Motor Accident Claims Tribunal, in which the Tribunal directed the PetitionerCorporation to pay a sum of Rs.3,00,000/- with 7.5% interest per annum.
3. The contention of the Respondent-Union is that the Labour Court on finding that as there is contributory negligence on the part of the rider of the motor cycle, the punishment of postponement of two increments with cumulative effect imposed by the Petitioner is on the higher side, has rightly modified the same to that of postponement of annual increment for one year with cumulative effect and therefore the same does not warrant interference.
4. Heard the learned counsel on either side and perused the material documents available on record.
5. It is seen that the charges in the departmental enquiry were duly established, pursuant to which, the Management imposed the punishment of stoppage of increment for two years with cumulative effect. Admittedly, the Workman had caused the accident resulting in grievous injuries to the rider of the motor cycle. Only in an Industrial Dispute raised under Section 2(A) of the Industrial Disputes Act, 1947 by an individual or Union, it is at the wisdom of the Labour Court to impose a fresh punishment, after analyzing the documents and evidence on record, as it has got ample powers under Section 11(A) of the I.D.Act, 1947 to do so, not in a dispute raised Under Section 2 (k) of the Industrial Dispute Act, 1947 with regard to other punishment, not falling under Section 2(A) of the Industrial Dispute Act, 1947.
6. In the present case on hand, even though the Workman is said to have been acquitted in the criminal case, in the departmental enquiry, charges have been duly proved and the punishment of postponement of two years increment with cumulative effect has been imposed. Once the charges in the domestic enquiry have been proved, the Tribunal or Labour Court has no power to modify punishment imposed by the Employer. When the Labour Court has no power to impose a different punishment by invoking Section 11A of the Industrial Dispute Act, 1947, for modify the punishment of the present nature and the charges in the departmental enquiry were held to be intact, there is perversity in the order of the Labour Court. The Labour Court ought not to have modified the punishment of postponing the increments of two years with cumulative effect imposed by the Management and hence, the order passed by the Labour Court is liable to be set aside.
7. In the result, this Writ Petition is allowed and the order passed by the Labour Court dated 04.10.2018 is hereby set aside. The Management is entitled to redo the entire exercise and recover the amount paid in excess, if any made, pursuant to the modification of the award.Till the amount paid in excess is recovered, the employee need not be paid gratuity, as the employee is empower to recover the amount from gratuity in view of the decision of the Honourable Supreme Court in the case of Steel Authority of India Ltd., Vs. Raghbendra Singh and others reported in 2020 SCC OnLine SCC 063. Though the Apex Court appears to have rendered the decision on a different context, the principle laid down is that the recovery is permissible from gratuity when the amount is due to the employer by the employee. No costs. Consequently, connected Miscellaneous Petition is closed.
Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar arr To The I Additional Labour Court, Chennai.
+1cc to Mr.S.T.Varadarajulu, Advocate, S.R.No.29808 +1cc to Mr.M.Chidambaram, Advocate, S.R.No.29792 W.P.No.15796 of 2019 SSV(CO) RVM(23/11/2021)