Madras High CourtM. Subramanian vs The Management on 25 October, 2010Author:K.ChandruBench:K.ChandruBEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 25/10/2010

CORAM
THE HON'BLE MR.JUSTICE K.CHANDRU

W.P.(MD)No.14011 of 2009

M. Subramanian			...		Petitioner

Vs

1.  The Management
    Tamil Nadu Transport Corporation
    Kumbakonam Division II
    Collector's Office Road
    Trichy District 621 001.

2.  The Labour Court
    Trichy District.		...		Respondents

PRAYER

Writ Petition filed underArticle 226of the Constitution of India,
praying for the issuance of Writ of certiorarified mandamus to call for the
records relating to order passed by the second respondent in I.D.O.P.No. 12 of
2001 on the file of the labour Court, Trichy dated 1/2/2005 and quash the same
as illegal and consequentially to direct the respondents to reinstate the
petitioner in service with backwages and all attendant benefits.

!For Petitioner	... Mr.A.V.Rajasekar
^For Respondents... Mr.P.Thilak Kumar.

- - - - -

:ORDERThe petitioner has come forward to file the present  writ petition,
challenging an award passed by the second respondent labour Court, Trichy in
I.D.O.P.No. 12 of 2001 dated 1/2/2005.2.  By the aforesaid award, the petitioner's claim for reinstatement was
negatived by the labour Court. Even though, the award was made as early as
February 2005, the petitioner has chosen to challenge the same after the period
of four and a half years.3.  In the affidavit filed in support of the writ petition, there is no
sufficient explanation for the long delay in moving this Court.  The averments
made in paragraph 8 of the affidavit are not sufficient to explain the delay.
In any event, it is seen from the records that the petitioner, who was working
as a Conductor in the first respondent/Transport Corporation (subsequently
merged with the State own Transport Corporation).  He was dismissed from service
for the acts of misconduct vide order dated 30/5/1992.  Subsequent to the
dismissal, he filed an appeal to the Managing Director, who was also rejected on
15/7/1992.  After 9 years, the petitioner raised the dispute underSection 2 (A)
(2)of the I.D. Act before the Assistant Commissioner of Labour, Trichy.   The
Conciliation Officer  gave a failure report dated 25/1/2001.  On the strength of
the failure report, he filed a claim statement dated 25/1/2001 before the second
respondent labour Court.  The labour Court took up the dispute as I.D.O.P.No.12
of 2001 and issued notice to the first respondent.4.  The first respondent filed a counter statement dated Nil/December,
2001  before the labour Court.  On behalf of the first respondent, sixteen
documents were filed and marked as Exs.M.1 to M.16.5.  The labour Court framed two issues.(i).  The first issue was the charges against the petitioner were proved
and(ii).  the second issued was whether the punishment of dismissal was
grossly disproportionate.6.  Beyond the first charge, the labour Court found that both the charges
were proved against the petitioner.  The passenger of the bus was examined in
the enquiry and it was also found that the petitioner had collected the fare and
the luggage charges were not marked and there were several erases and
corrections in the counter foils and therefore, the Court found that the
passenger has clearly stated that there were three luggages but not one luggage
as alleged  by the petitioner.  It also found that the enquiry Officer's finding
was proper and it was based on legal evidence.  On the proportionality of
punishment, the Court found that the nature of misconduct is such that it is
materially the quantum of money involved but it goes to the root of the
misconduct and therefore, it considered the punishment of dismissal was not
disproportionate.7.  The contention of the petitioner that there was no evidence cannot be
accepted and it is a rare case where the passenger himself was examined who
depose  against the petitioner.  On the disproportionate of the penalty, this
Court is not inclined to consider that the labour Court had failed to discharge
its power underSection 11 Aof the Industrial Disputes Act.8.  Under similar circumstances, the Supreme Court inU.P.SRTC Vs. NANHE
LAL KUSHWAHAreported in (2009) 8 SCC - 772, has held as follows:-"15.  As the respondent was appointed as a conductor, it isnot the amount
which would be very material for the purpose of determining the quantum of
punishment.  He was chaged for commission of similar misconducts on six
occasions; at least misconduct has been found to be proved in respect of two
charges even by the labour Court.  In that view of the matter, we are of the
opinion that the impugned judgment cannot be sustained.  It is set aside
accordingly."9.  In view of the above, the writ petition deserves dismissal and
accordingly, the same is dismissed.  No costs.mvs.