The Management of Metropolitan Transport Corporation (Chennai) Division-I Ltd. v. G. Bhaskar Raj

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 16.09.2009CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE M.JAICHANDRENW.A.No.1317 & 1318 of 2009 &M.P.Nos.1 and 2 of 2009 (in both W.As.)The Management of Metropolitan Transport Corporation (Chennai) Division-I Ltd.,(Formerly known as Pallavan Transport Corporation Ltd.,)Represented by its Managing Director, Pallavan Salai, Chennai-600 002... Appellant in both W.As./Petitioner -Vs-1.G. Bhaskar Raj... 1st Respondent in both WAs/1st Respondent The Presiding Officer, Industrial Tribunal of Tamil Nadu, Chennai... 2nd Respondents in W.A. No.1317/09/2nd Respondent The Presiding Officer, IInd Additional Labour Court, Chennai. .. 2nd Respondents in W.A No.1318/09/2nd RespondentPRAYER: Writ Appeals is filed Under Clause 15 of Letter Patentagainst the order of this Court made in W.P.Nos.13455 of 1999 &34359 of 2007 dated 21.11.2007. Petitions presented under Article 226of the Constitution of India to issue writ of Certiorari calling for the records of the 2nd Respondent in (i)A.P.121/94 dated 30.09.07 and(ii) C.P.No.88/99 dated 22.11.06 respectively and quash the same. For Appellant:: Mr.G.MuniratnamFor Respondents::Mr.S.Senthilnathan for R1R2 – CourtC O M M O N

O R D E R(Order of the Court was delivered by D.MURUGESAN, J.)As these two Writ Appeals arise in respect of the disciplinary proceedings initiated against the first respondent and both the Writ https://hcservices.ecourts.gov.in/hcservices/ Petitions were disposed of by a common order, they are taken up together for disposal.

The first respondent, while he was working as a Conductorin the Pallavan Transport Corporation at the relevant point of time, now known as Metropolitan Transport Corporation, Chennai, was issued with the following charges on 28.06.1994.1.As per Traffic Return, Rs.4 x 0.80 tickets already sold at stage 9 which were again re-sold at stage No.5 is a misconduct under CSO 25 (Xli-c).2.On verification, that 5 x 0.70 and 2 x 2.00 altogether seven punched spare tickets were found in the cash bag.

Kept shortage of Rs.3.15 in his cash bag at the time of checking.

Carelessness and negligence in his duty which is amisconduct under CSO 25(xiv).He submitted his explanation denying the charges. However, an enquiry was conducted and the charges were found to be proved and later on, he was removed from service. As same disputes were pendingConciliation, the Appellant Transport Corporation filed a petition before the Industrial Tribunal, Chennai for approval under Section33 (2) (b) of the Industrial Disputes Act. Having regard to the evidence, the Tribunal, prima facie, found that the order of termination was bad and, ultimately refused to grant approval, which made the conductor to prefer a Claim Petition No.88 of 1999 for computation of the monetory benefits. The Transport Corporationquestioned the order of the Tribunal rejecting the approval petitionin Writ Petition No.13455 of 1999. The Second Additional LabourCourt, Chennai, which heard the Claim Petition, by its order dated22.12.2006, directed the payment of a sum of Rs.2,32,663/- to the conductor.

The Supreme Court in the judgment in State of Haryana and another v. Rattan Singh, AIR 1982 SCC 46 was considering the case, where the Inspector of the Flying Squad prepared the report and was examined and therefore, when some evidence which was relevant to the charge is available, merely because the passengers have not been examined, the order will not become bad. In our case, admittedly, the Inspector of the Flying Squad, who inspected the vehicle and prepareda report, could not be examined, because he had retired from service by that time. That report was only marked through his successor. Thecircumstances under which the report was prepared could not have been spoken to by the said Srikumar, as he was not in the scene. At best, he could have given statement before the Enquiry Officer only for filing a report which was prepared by his predecessor. In these circumstances, it is the duty of the Transport Corporation to examine the other witnesses, whether they be the passengers or the persons who were there at the time when the report was prepared. Hence, on the facts of this case, the judgment of the Supreme Court is not useful to the Transport Corporation.

In the case of Cholan Transport Corporation (Cited supra),the Apex Court was considering the power of the Tribunal to examine the findings of the Enquiry Officer. In that judgment, the report was prepared while the Tribunal was considering the petition under Section 33(2) (b) of Industrial Disputes Act. It does not sit as acourt of appeal to reappreciate the evidence. However, in the same judgment, the Apex Court has found that the Tribunal can examine the findings of the Enquiry Officer, on the evidence adduced in the domestic enquiry to ascertain whether a prima facie case has been made out on the charges levelled or the findings are perverse or not.

Applying the above to the facts of this case, we may notice that the Tribunal has not reappreciated the evidence. Only in order to find out whether a prima facie case has been made out or not, the Tribunal has referred that in the absence of the examination of the Inspector of Flying Squad who prepared the report, it would have been better, if the passengers had been examined. Certainly, it is not acase of appreciation of evidence. But considering the evidence to find out whether a prima facie case has been made, in the absence of any supporting evidence, except the report of the Inspector of FlyingSquad and the statements obtained from some of the passengers, the Tribunal had correctly rejected the application for approval. Hence, on the facts of this case also, the judgment reported in State of Haryana and another v. Rattan Singh, SCC 46 is of no use to the https://hcservices.ecourts.gov.in/hcservices/ Appellant Transport Corporation.

Having regard to the above findings, we find no reason to interfere with the order passed in the Writ Petitions. Accordingly, in view of the above order of the Tribunal in refusing to grant approval, for the same reasons, we do not find any reason to interfere with the order passed in the Claim Petition, as it has been passed on the basis of the order rejecting the approval. Hence, both the writ appeals fail and accordingly, they are dismissed. However, for compliance of the directions in this Order for payment of back wages, the Appellant Transport Corporation is given time till16.11.2009. It is made clear that this indulgence is shown because of the earnest efforts taken by the learned counsel for the appellant and this period will not be extended further. Consequently, connected Miscellaneous Petitions are also dismissed. No costs. Sd/- Asst. Registrar/true copy/ Sub Asst. Registrarssn/tsi To 1. The Presiding Officer, IInd Additional Labour Court, Chennai. 2. The Presiding Officer, Industrial Tribunal, Chennai.+1 cc to Mr.G.Muniratnam, Advocate, SR.No.47663+1 cc to Mr.S.Senthilnathan, Advocate, SR.No.47887W.A.No.1317 of 2009and W.A.No.1318 of 2009NG {CO}TP/27.10.2009.