P.Rathinam v. The Managing Director, State Express Transport Corporation & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.6.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKAR Writ Petition No.24583 of 2004P.Rathinam. ... Petitioner vs.1.The Managing Director, State Express Transport Corporation, (Tamil Nadu Division-I) Limited, Chennai-600 002.2.The General Manager, State Express Transport Corporation, (Tamil Nadu Division-I) Limited, Chennai-600 002. 3.The Branch Manager, State Express Transport Corporation, (Tamil Nadu Division-I) Limited, Marthandam. ... RespondentsWrit Petition is filed under Article 226 of the Constitution ofIndia to issue a Writ of Certiorarified Mandamus to call forrecords relating to the impugned order of the first respondent inKu.No.287/186051/DL2/A.Vi.Po.Ka/02 dated 16.12.2002 and the orders ofthe second respondent in No.78/81240/DL6/A.Vi.Po.Ka/98 dated31.5.1999 and quash the same and direct the respondents to reinstatethe petitioner in service with back wages, continuity of service andother consequential benefits. For Petitioner : Mr.R.MahadevanFor Respondents : Mr.V.R.Kamalanathan.-----O R D E RThis Writ Petition is filed to issue a Writ of CertiorarifiedMandamus calling for records relating to the order of the firstrespondent in Ku.No.287/186051/DL2/A.Vi.Po.Ka/02 dated 16.12.2002 andthe orders of the second respondent in No.78/81240/DL6/A.Vi.Po.Ka/98dated 31.5.1999 and quash the same and direct the respondents to https://hcservices.ecourts.gov.in/hcservices/ reinstate the petitioner in service with back wages, continuity ofservice and other consequential benefits. 2. The brief facts for disposal of the case are as follows:-The writ petitioner was a driver in the respondent transportcorporation. On 8.11.1998 at about 4.30 a.m., while he was drivingthe bus, between Virudhunagar and Sattur, the bus collided with alorry. In that accident, several passengers were injured andhospitalised and some died. Petitioner claims to have sufferedinjuries as well. A case was registered against the petitioner andtried as C.C.No.196 of 1999 on the file of Judicial Magistrate No.1,Virudhunagar under Sections 279, 337, 338, 304A of I.P.C. Accordingto the petitioner on 11.7.2002 by the judgment in C.C.No.196 of 1999,petitioner was acquitted of all charges framed against him.Consequent to the accident which happened on 7.11.1998, it is statedthat the petitioner was placed under suspension on 27.11.1998. On1.12.1998 a show-cause notice was issued. On 16.12.1998, petitionermade a representation. A charge memo dated 6.1.1999 was served onthe petitioner. The charges as stated in the dates of eventssubmitted by the counsel for the petitioner are as follows:-"1) On account of over-speeding, negligence,carelessness in driving the bus, the petitionerhad caused the accident,2) On account of the said accident fourpersons had died and eight persons were injured,3) The petitioner was responsible for thebad name caused to the Corporation on account ofthe accident and for the inconvenience caused tothe passengers,4) The petitioner had violated the trafficrules and motor vehicle rules in causing theaccidentand therefore committed gross misconduct as perthe rules of the Corporation."On 24.2.1999 petitioner submitted his explanation denying thecharges. After enquiry, a report dated 27.3.1999 was furnished tothe petitioner on 5.4.1999. On 7.5.1999, a show-cause notice wasissued to the petitioner stating that the management had accepted thereport of the enquiry officer and therefore, called upon thepetitioner to submit his explanation as to why the petitioner shouldnot be dismissed from service for the above proved charges. On25.5.1999, a detailed explanation was given by the petitioner.However, by order dated 31.5.1999, the disciplinary authority imposed https://hcservices.ecourts.gov.in/hcservices/ a punishment of dismissal of service. A representation dated16.9.2002 was given to the higher authority and it was rejected on16.12.2002. Challenging the order of dismissal and the orderrejecting the representation, present writ petition has been filed.3. A counter has been filed and the specific stand taken by therespondent transport corporation is that the case of the petitionerfalls under the definition of the Industrial Dispute as set out inSection 2A of the Industrial Dispute Act, 1947 and the same reads asfollows:-"2-A. Dismissal, etc., of an individualworkman to be deemed to be an industrialdispute:- Where any employer discharges,dismisses, retrenches or otherwise terminatesthe services of an individual workman, anydispute or difference between that workman andhis employer connected with, or arising out of,such discharge, dismissal, retrenchment ortermination shall be deemed to be an industrialdispute notwithstanding that no other workman norany union or workmen is a party to the dispute."4. The learned counsel for the respondents relied upon thefollowing decisions of the Apex Court:-(i) Divisional Controller, KSRTC (NWKRTC) - v. - A.T.Manereported in (2005)3 Supreme Court Cases 254,(ii) Managing Director – v. - K.Murti reported in 2007(2)SLR 263,(iii) North West Karnataka Road Transport Corporation – v. -H.H.Pujar reported in 2008(3) L.L.N. 651.The petitioner's case fall within the parameters of section 2A of theIndustrial Disputes Act and it is an Industrial Dispute. Thepetitioner has the remedy of approaching the Labour Court to redresshis grievance consequent to the order of dismissal. Withoutexhausting the remedy provided under the statue, petitioner hasrushed to this court invoking the extra ordinary jurisdiction of thiscourt under Article 226 of Constitution of India. On this premisehe prayed for dismissing the writ petition. He pleaded that disputedquestions of fact are sought to be raised which should not beallowed. 5. In the enquiry, several witnesses were examined anddocuments were relied upon by the department. The explanation givenby the petitioner were considered on merits and a final order ofdismissal has been passed based on a detailed enquiry report. The https://hcservices.ecourts.gov.in/hcservices/ provisions of Industrial Disputes Act clearly provide a remedy by wayof raising an Industrial Dispute before the Labour Court. Such aright is granted to the petitioner under the statute. No specificground has been stated by the counsel for the petitioner as to why,the alternate remedy provided under the statute has been bypassed.The remedy under the statute being an effective remedy, thepetitioner has without exhausting such remedy has rushed to thiscourt. On going through the grounds raised in the writ petitionexcept stating that there is a total violation of principles ofnatural justice, all the contentions raised in the writ petition arequestions of fact in dispute and that can be raised before the LabourCourt and agitated on merits. In such circumstances this court isnot inclined to entertain this writ petition challenging the order ofdismissal bypassing the alternate remedy provided under the statute.No relief can be granted to the petitioner at this stage.6. Counsel for the petitioner at this juncture pleaded that heshould be permitted to approach the Labour Court. He pleaded thatthe Labour Court should consider the plea for condonation of delayleniently in view of the pendency of the writ petition. The writpetition has been filed on 27.8.2004 and admitted on 31.8.2004. If aplea is raised with regard to condonation of delay, it is open tothe Labour Court to decide that issue on its own merits in accordancewith law. 7. The writ petition is accordingly disposed of. There willbe no order as to costs. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrartsTo 1.The Managing Director, State Express Transport Corporation, (Tamil Nadu Division-I) Limited, Chennai-600 002.2.The General Manager, State Express Transport Corporation, (Tamil Nadu Division-I) Limited, Chennai-600 002. https://hcservices.ecourts.gov.in/hcservices/

3.The Branch Manager, State Express Transport Corporation, (Tamil Nadu Division-I) Limited, Marthandam.+1 cc to Mr.T.N.Sugesh, Advocate, SR.No.24063+1 cc to Mr.V.R.Kamalanathan, Advocate, SR.No.24134 Order in W.P.No.24583 of 2004GR {CO}TP/10.7.2009.