DAILY WAGER-ENQUIRY MUST FOR MISCONDUCT-JUSTICE K.CHANDRU

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 28.06.2010

CORAM

THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.NO.27721 of 2007
in
M.P.NO.1 OF 2007

The Management,
State Express Transport Corporation
(Tamil Nadu) Limited,
Pallavan Salai,
Chennai-600 002. .. Petitioner

Vs.

1.The Presiding Officer,
I Additional Labour Court,
Chennai-104.
2.P.Murugan .. Respondents

This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for all relevant records pertaining to the order passed in I.D.No.586 of 1999 dated 31.7.2006 on the file of the I additional Labour Court, Chennai, the first respondent and to quash the same.

For Petitioner : Mr.L.S.M.Hassan Fizal, GA

For Respondents : Mr.V.Ajoy Khose for R2

- - - -

ORDER

Heard both sides. The writ petition is filed by the Management of the State owned Transport Corporation to challenge an Award passed by the first respondent Labour Court in I.D.No.586 of 1999, dated 31.07.2006. By the impugned Award, the Labour Court had directed reinstatement of the second respondent workman with backwages, continuity of service and other attendant benefits. The second respondent herein had filed a contempt petition No.869 of 2008, which arose out of the interim order passed by this court in the writ petition. Since both sides requested that the main writ petition itself to be taken up for final hearing, the writ petition and the contempt petition were heard together by consent of parties.
2.The writ petition was admitted on 13.12.2007. Pending the writ petition, this court directed the petitioner Corporation to pay Rs.3,300/- being the last drawn salary every month starting from 1st January, 2007 in terms of compliance under Section 17-B of the Industrial Disputes Act. It is against the non compliance of the said order, the contempt petition came to be filed.
3.It is seen from the records that the second respondent was employed as a Driver on casual basis from 3.1.1995. After two years of service when he was driving the bus on 27.6.1997 from Cuddalore to Bangalore, the bus met with an accident. It was a fatal accident, in which the bus had collided with a Tractor. Five persons travelling in the tractor were grievously injured. One of the injured person died in the hospital. The damage caused to the bus was estimated to be Rs.10,000/-. According to them, an Officer of the Corporation visited the place and reported that the incident had taken place only due to rash and negligent driving by the second respondent. In view of the said report, his services were dispensed with by an order, dated 5.7.1997.

4.The second respondent raised a dispute contending that his services cannot be dispensed with without conducting any enquiry. Since no enquiry was held, the order was opposed to principles of natural justice. If it is not based upon any misconduct, then dispensing of service would amount to retrenchment within the meaning of Section 2(oo) of the ID Act. Since condition precedent under Section 25F was violated, he is eligible for reinstatement as a matter of course.
5.The petitioner raised a dispute before the Government Labour Officer. On the strength of the failure report given by the Officer, the workman filed a claim statement before the first respondent Labour Court. The Labour Court registered the dispute as I.D.No.586 of 1999 and ordered notice to the petitioner corporation. The petitioner Corporation filed a counter statement, dated Nil (April, 2000). It was contended that the petitioner was only engaged intermittently on daily wage and due to accident, he was discharged on public interest. Before the Labour Court, on behalf of the Corporation, one Yesuraj, Senior Assistant, was examined as M.W.1 and 10 documents were filed. They were marked as Exs.M.1 to M.10. In the cross examination, M.W.1 stated that he did not know who was the person conducted investigation. The second respondent was removed from service only on the basis of the accident. He admitted that no enquiry was conducted before his discharge and that he was not an eyewitness. Further, he did not know as to who was really responsible for the accident. The labour court on the basis of this evidence came to the conclusion that since no enquiry was conducted, the discharge simpliciter will have to be taken as a retrenchment within the meaning of Section 2(oo) of the Industrial Disputes Act. Further, since the condition precedents under Section 25F was not complied with, the workman was eligible to get the nomral relief.
6.In the present case, if the stand of the petitioner corporation was that they need not conduct any enquiry, then their stand was completely erroneous. If the dismissal of the second respondent was on account of accident, then it is a clear case of dismissal. Admittedly, no enquiry was conducted. Further, when a dispute was raised before the labour court, the petitioner admittedly let in evidence with one of its Officer to narrate the circumstances leading to discharge of the workman. But, they failed to utilise that opportunity to lead evidence on the merits of discharge, which they could have done.
7.The Supreme Court in Firestone tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management reported in 1973 (1) SCC 813 has held that the case of no enquiry and a vitiated enquiry stand on the same footing and the employer is entitled to lead evidence to substantiate the charge for the first time before the Court. The contention of the petitioner was that he was only engaged on daily wages cannot be accepted since the certified standing orders of the corporation do not make any distinction between casual and permanent workman in case of dismissal. In all such cases, if the termination arose out of a misconduct, then it requires an enquiry should be conducted. Since no enquiry was conducted and no legal evidence was let in, the labour court was right in holding that it was a case of termination simpliciter attracting the provisions of Section 25F of the ID Act.
8.Mr.V.Ajoy Khose, learned counsel for the second respondent relied upon a judgment of the Supreme Court in M.C.D. Vs. Praveen Kumar Jain and others reported in 1998 (9) SCC 468, where more or less in an identical situation, the Supreme Court held (in paragraph 4) as follows:
"4.....Unfortunately, for the appellant the impugned order of termination extracted above does not show that it was passed after a departmental enquiry wherein the disciplinary authority was satisfied about the said misconduct. On the contrary, it seeks to terminate the services of Respondent 1 by way of a simple discharge and not by way of any penalty. It is only during the proceedings before the Labour Court that a different stand was taken that it was by way of penalty. This stand was obviously taken by the appellant because the order of simpliciter termination would have remained still born as Section 25-F of the Industrial Disputes Act was admittedly not complied with by the appellant. With this difficulty staring in the face, a stand was taken that it was by way of penalty. If it was by way of penalty then at least a regular departmental enquiry had to be conducted. It was also required to be followed by the enquiry officer's report resulting in adverse finding against Respondent 1 and its acceptance by the disciplinary authority. Nothing of this sort was done. There is neither the enquiry officer's report holding Respondent 1 guilty of charge which in fact was never framed against him nor is there any acceptance of such a finding of the enquiry officer by the disciplinary authority. In fact the disciplinary authority has never held Respondent 1 guilty of any charge of misconduct. It is also interesting to note that while challenging the award of the Labour Court in writ petition the appellant clearly stated in para 3 of the writ petition that since Respondent 1 and Shri Mahender Kumar were merely on casual engagement/muster-roll employees and were not regular employees of the petitioner-Corporation or that of DDA, they were not entitled to a departmental inquiry as is required for the regular employees of the petitioner-Corporation. As such a stand was taken, it is obvious that the termination order based on misconduct is not the result of any departmental enquiry against Respondent 1. Consequently, the impugned order of termination would fail even on that ground. If it is a simpliciter discharge order it is violative of Section 25-F of the Industrial Disputes Act and if it is a penalty order, as contended by the appellant, it would fail on merits as not having followed the procedure of departmental enquiry. In either view of the matter, the impugned order must be held to be rightly set aside by the Labour Court and the said decision was also rightly confirmed by the High Court. "
9.In view of the fact that the petitioner corporation had failed to utilise the opportunity to lead legal evidence before the labour court, the impugned Award did not suffer from any infirmity or illegality. Hence the writ petition will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petition stands closed.









vvk

To

The Presiding Officer,
I Additional Labour Court,
Chennai 104