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2020 Supreme(Mad) 33
IN THE HIGH COURT OF JUDICATURE AT MADRAS
K. RAVICHANDRABAABU, J.
Tamilnadu State Transport Corporation (Villupuram) Ltd., Thiruvannamalai Region, Thiruvannamalai, Rep. by its General Manager - Petitioner
Versus
The Presiding Officer, I Additional Labour Court, Vellore & Another - Respondents
W.P. No. 37956 of 2016 & WMP No. 32551 of 2016
Decided On : 24-01-2020
For the Petitioner:M/s. Rajeni Ramadoss, Advocate
For the Respondents:S.T. Varadarajulu, Advocate
Headnote:
Constitution of India - Article 226 - Industrial Disputes Act, 1947 - Section 11A - Section 33 - Second respondent was appointed as Conductor at the petitioner Corporation - He was found to be chronically remitting cash collection belatedly - Second respondent while discharging his duty as a Conductor, failed to remit amount before hours on same day - He had remitted that cash at next day at his relish - Thus, there was a short misappropriation of collection till - Second respondent did not inform or instruct with regard to delayed payment - In a similar fashion, he had remitted cash collection belatedly on 64 occasions, thereby enjoying short holding of amount for short period - He also stayed on an unauthorized absence on 9 occasions, resulting in a gross negligence of work - Petitioner Management issued a charge memo for charges relating to belated remittance of cash collection - He was also placed under suspension - second respondent submitted a reply - He was restored to service - Being dissatisfied with reply given by second respondent, a domestic enquiry was ordered - Enquiry Officer conducted domestic enquiry in strict adherence of principles of natural justice - Enquiry Officer filed his report, finding that all charges were proved - A second show cause notice was issued on second respondent, seeking for his explanation for provisional conclusion arrived by Management for dismissing him from service - Second respondent sent a reply - However, he was dismissed from service - Since an industrial dispute was pending at that time, before Joint Commissioner of Labour, Conciliation, petitioner Management filed an Approval Petition - Approval Petition was allowed - Second respondent challenged order of dismissal by raising industrial dispute - Though Labour Court was pleased to hold that enquiry was fair and proper that charges were proved and that incidents occurred on 64 occasions stood proved, however was pleased to hold that charges and punishment did not commensurate - Accordingly, Labour Court interfered with punishment by exercising its power - Decision of Labour Court is bad in eye of law - Labour Court has not exercised discretionary jurisdiction judiciously - Hence, present writ petition – Held , Consideration of proportionality of punishment, no doubt, should be based on assessment of gravity of misconduct - Such consideration is required, only when past conduct of delinquent is normal and does not carry any adverse impact - On other hand, if past conduct of delinquent is of such nature showing his attitude and adamancy in continuing and repeating misconduct of one nature or other, whether minor or major, which shocks judicial conscience, in my considered view, theory of proportionality of punishment will have to take back seat, thereby allowing Management to sustain discipline among workers by sending a strong and firm message, like punishment imposed on petitioner - Therefore, interference with such punishment will not be in interest of justice - At this juncture, it is to be emphasized that utmost discipline is to be maintained in work place and therefore, it is duty of Management to ensure maintenance of such discipline at all times - A misconduct committed as first time may be a lapse - If it is repeated second time, it becomes a wrong - Committing same misconduct third time is undoubtedly an offence, more particularly, when workman has chosen to commit such misconduct again and again, even after suffering minor punishments on each occasions - Act of committing repeated offence, though minor in nature, becomes a grave misconduct, certainly warranting major punishment - If one has not corrected himself despite suffering several minor punishments, his continued presence in work place, would certainly shake morale of other employees - Writ petition is allowed
JUDGMENT :
(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of certiorari to call for the records of the first respondent made in I.D.No.172 of 2014 dated 25.05.2015 and to quash the same as illegal.)
The Tamilnadu State Transport Corporation (Villupuram) Limited/Management is the writ petitioner. Challenge made herein is against the award passed by the Labour Court in I.D.No.172 of 2014 dated 25.05.2015. Through the impugned award, the Labour Court set aside the order of termination of the service of the second respondent and directed the Management to reinstate him with continuity of service, however without backwages. The Labour Court also ordered that the second respondent is not entitled to leave salary, bonus and annual increment during the period in which he was not working.
2. The case of the writ petitioner is as follows:
The second respondent was appointed as Conductor at the petitioner Corporation in 1984. He was found to be chronically remitting the cash collection belatedly. On 01.04.2009, the second respondent while discharging his duty as a Conductor, failed to remit the amount before 13.30 hours on the same day. He had remitted that cash at the next day at his relish. Thus, there was a short misappropriation of collection till 02.04.2009. The second respondent did not inform or instruct with regard to the delayed payment. In a similar fashion, he had remitted the cash collection belatedly on 64 occasions, thereby enjoying the short holding of the amount for short period. He also stayed on an unauthorized absence on 9 occasions, resulting in a gross negligence of work. The petitioner Management issued a charge memo dated 26.04.2009 for the charges relating to the belated remittance of cash collection on 01.04.2009. He was also placed under suspension. The second respondent submitted a reply on 24.04.2009. He was restored to service on 05.05.2009. Being dissatisfied with the reply given by the second respondent, a domestic enquiry was ordered. The Enquiry Officer conducted the domestic enquiry in strict adherence of the principles of natural justice. The Enquiry Officer filed his report on 06.01.2010, finding that all the charges were proved. A second show cause notice dated 02.06.2010 was issued on the second respondent, seeking for his explanation for the provisional conclusion arrived by the Management for dismissing him from service. The second respondent sent a reply. However, he was dismissed from service on 20.07.2010. Since an industrial dispute was pending at that time, before the Joint Commissioner of Labour, Conciliation, the petitioner Management filed an Approval Petition under Section 33(2)(b) of the Industrial Disputes Act. The Approval Petition was allowed on 31.10.2010. The second respondent challenged the order of dismissal by raising the industrial dispute in I.D.No.172 of 2014 before the Labour Court. Though the Labour Court was pleased to hold that the enquiry was fair and proper; that the charges were proved and that the incidents occurred on 64 occasions stood proved, however was pleased to hold that the charges and the punishment did not commensurate. Accordingly, the Labour Court interfered with the punishment by exercising its power under Section 11A of the said Industrial Disputes Act. The decision of the Labour Court is bad in the eye of law. The Labour Court has not exercised the discretionary jurisdiction under Section 11A judiciously. Hence, the present writ petition.
3. The second respondent has not filed any counter affidavit.
4. The learned counsel for the petitioner Management submitted that the Labour Court ought not to have interfered with the punishment of dismissal, having found that the second respondent had repeatedly committed similar delinquencies on 64 occasions. She further pointed out that apart from committing similar delinquency on 64 times in the past and suffering minor punishment on all those occasions, the second resp
