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Judgment
The Honourable Mr. Justice T. Raja, J.—W.P. No. 28553 of 2003 has been filed by the management viz. Tamil Nadu State Transport
Corporation (Salem Division I) Limited praying for issuance of a writ of certiorari to quash the Award of the first Respondent viz. Labour Court,
Salem in I.D. No. 565 of 1998 dated 24.7.2002.
W.P. No. 28071 of 2005 has been filed by the workman R.K. Ramasamy praying for issuance of a writ of certiorarified mandamus to quash the
portion of the award of the second Respondent viz. Labour Court, Salem in I.D. No. 565 of 1998, dated 24.7.2002, depriving the Petitioner''s
backwages, continuity of service and consequential benefits and to direct the first Respondent management to reinstate the Petitioner with
continuity of service, back wages and other consequential benefits.
The award passed by the Labour Court clearly held that four departmental enquiries were held against the workman by the management viz.
Tamil Nadu State Transport Corporation (Salem Division I) but the workman did not participate in two enquiries and in the third enquiry, though
appeared, he failed to effectively participate in the enquiry. On that basis, it has been clearly held that the charge of misconducts found against the
workman have been proved and imposed the punishment against the workman. However, it has been observed by the Labour Court that severe
punishment of dismissal from service is not correct. On that basis, the Labour Court passed an award directing the management to reinstate the
workman as fresh appointee without any back wages and continuity of service and without any attendant benefits.
Aggrieved by the said Award, the management filed writ petition in W.P. No. 28553 of 2003 challenging it on the ground that the Labour Court
has passed the award in clear violation of the power conferred u/s 11-A of the Industrial Disputes Act. The workman also aggrieved with a portion
of the award, filed W.P. No. 28071 of 2005 challenging only that portion of the award refusing to give back wages and continuity of service.
Therefore, with the consent of both parties, both writ petitions are taken up together. For the sake of convenience, the management is referred as
writ Petitioner in W.P. No. 28553 of 2003 and the workman R.K. Ramasamy is referred as ""workman"" hereafter.
Brief facts leading to the filing of these two writ petitions are given as under:The second Respondent workman in W.P. No. 28553 of 2003
joined the management viz. Tamil Nadu State Transport Corporation (Salem Division I) as driver on 12.8.1982. While the workman was driving a
vehicle bearing Registration No. TML 7539 on his trip from Salem to Madurai on 16.6.1989, Checking Inspector checked the vehicle at a place
called Gandhi gram at about pm and found that the second Respondent workman was neither in uniform nor in possession of the driving licence.
Therefore, when the checking inspector questioned the workman viz. Driver the reason for not wearing the uniform and not keeping his driving
licence, the second Respondent alleged to have shouted at him in a bad manner. Hence the Checking Inspector submitted a report. On the basis of
the report, the writ Petitioner in WP. No. 28553 of 2003 viz. Management issued a charge sheet dated 6.7.1989 charging him for his misconduct
under 19(1L) and 19(1B) of the Standing Orders which is extracted as under:
(i) that he was not wearing uniform and not possession of the driving licence at the time of checking on his duty, and that he acted in an
irresponsible manner towards the Corporation Officials when they questioned about the matter. He was also charge sheeted, for his irresponsible
and callous behaviour with the officials during checking and also for bringing bad name to the Corporation among the public.
On receipt of the said charge memo, the second Respondent workman submitted his explanation on 27.7.1989 and finding his explanation not
satisfactory, the Petitioner management ordered domestic enquiry to enquire into the charges. Thereupon, the enquiry was conducted. After receipt
of the notice by the second Respondent for the enquiry to be held on 6.12.1989 and after acknowledging the receipt of the said notice, he failed to
participate in the enquiry and therefore enquiry was proceeded treating him as exparte and finally the Enquiry Officer submitted his report holding
that the second Respondent was guilty of charges. Again the workman gave rise to one more enquiry on 9.7.1989 by committing the same
misconduct while driving a bus on his trip from Salem to Erode. A checking inspector inspected the vehicle at Magudanchavadi and found that the
second Respondent was again driving the vehicle without wearing uniform and also not keeping the driving licence in possession. When the
checking inspector handed over the inspection report to the second Respondent workman, he refused to receive the same. As a result, the
Petitioner Corporation issued charge memo dated 18.7.1989 alleging that the second Respondent workman has committed misconduct under
19(1L) and 19(1B) of the Standing Orders. On receipt of the said charge memo, he also submitted his explanation on 27.7.1989. In the said
explanation, the workman accepted the allegation that he was not able to wear the uniform, since wearing uniform would land any driver in
problem that if for any reason the vehicle meets with an accident, the public and the affected people would manhandle the driver by properly
identifying the driver''s uniform. In respect of the second charge that he failed to keep in possession of the driving licence, again by admitting the
fact that he was not holding the licence at the time of driving the licence, he justified the same stating that he was not keeping the licence in his
pocket in order to avoid misplacement and loss of licence. Since these explanations were not satisfactory, the Disciplinary Authority rejected the
explanation and ordered for domestic enquiry. After several adjournments, the second Respondent -workman failed to appear before the Enquiry
Officer on 7.10.1989. He also failed to participate in the second enquiry which compelled the management to complete the enquiry on his absence.
On completion of the second enquiry, the Enquiry Officer submitted his enquiry report holding the second Respondent guilty of the charges.
Adding further, the Learned Counsel appearing for the management, has submitted that the workman once again committed third misconduct on
16.6.1989 when he was driving the vehicle bearing Registration No. TML 7589 on his trip from Salem to Coimbatore by dashing against one
autorickshaw at about 3 pm at Pallipalayam and he after dashing the vehicle, instead of stopping it, he picked away the vehicle, for which, he was
issued with charge memo under 19(1)(d) and 19 (1)(l) of the Standing Orders of the management Corporation. Again the second Respondent
workman has submitted his explanation dated 27.7.1989, in which, he stated that he compromised with the matter with Auto rickshaw owner,
hence an enquiry was held on 5.12.1989. Though he was present in the enquiry, he refused to participate in the enquiry proceeding and the
Enquiry Officer found him guilty of the charges. Four enquiries were held against him for the four misconduts, for which he was issued with four
charge memos. The Disciplinary Authority, on receipt of four independent enquiry reports from four Enquiry Officers for four different
misconducts, by clubbing all four reports, issued one common second show cause notice to the workman calling him to submit his further
representation. The second Respondent also, on receipt of a second show cause notice, submitted his further representation on 30.1.1990. The
Disciplinary Authority, having seen that the second Respondent has accepted all the charges by giving unjustified explanation, finally passed the
order of dismissal from service on 14.3.1990.
The Learned Counsel for the Petitioner management has further submitted that though the Labour Court held that all the three enquiries were
properly and fairly held, again by taking note of the fact that workman deliberately avoided the enquiry, issued a direction to the management to
reinstate him in service. Aggrieved against the award of the Labour Court, the management Corporation filed W.P. No. 28553 of 2003 and
aggrieved against the portion of the award refusing to grant back wages and continuity of service, the workman preferred W.P. No. 28071 of
2005.
The Learned Counsel for the Petitioner management submitted that when the matter was taken up before the conciliation officer and after the
enquiry report was submitted by the conciliation officer on 22.8.1991, keeping quiet for almost 7 years, with inordinate delay, he raised an
industrial dispute in the year 1998 u/s 2A(ii) of the Industrial Disputes Act. He further submitted that while considering the Industrial dispute, the
Labour Court, accepting the case of the Petitioner Transport Corporation that the second Respondent workman has repeatedly committed
misconducts in driving the Corporation bus without wearing uniform and without keeping the driving licence in his possession, should have passed
the award accepting the punishment imposed against the second Respondent for his admitted misconducts. On the question of punishment, the
Labour Court, in exercise of the power conferred u/s 11-A of the Industrial Disputes Act, has erroneously passed the impugned award directing
the Petitioner Corporation to give the second Respondent workman fresh employment without back wages and continuity of service. It was further
contended that once the Labour Court accepts the case of the Petitioner management that the Petitioner management has fairly and properly
conducted the domestic enquiries on three different dates by appointing four different Enquiry Officers and after finding that the misconducts have
been proved, the finding of the Labour Court that the workman should not have been issued with order of dismissal, as the punishment of dismissal
is totally contrary to the power conferred u/s 11A of the Industrial Disputes Act. On that basis, he prayed for setting aside the award of the Labour
Court.
Opposing the above submission of the Learned Counsel for the Petitioner management, the Learned Counsel appearing for the second
Respondent workman submitted that management has wrongly clubbed four enquiry reports submitted by four enquiry officers and issued one
common show cause notice with regard to four misconducts and after receiving the reply from the second Respondent workman, the Petitioner
Corporation should not have passed the order of dismissal from service by clubbing all four enquiry reports. Therefore the order of dismissal from
service cannot be passed clubbing more enquiry reports. In support of his submission, he has also relied upon a judgment rendered by a learned
single Judge of this Court in the case of M.V. Balu v. The Chairman, Tamil Nadu Housing Board and Anr. reported in 1993 (1) MLJ 552 for a
proposition that the disciplinary authority cannot club two or more enquiry officers'' reports and issue one common second show cause notice
calling upon the Petitioner to submit his explanation, when separate enquiries were held with regard to the misconducts alleged in four charge
memos and impose a major punishment of removal from service. Further, it was contended that the procedure adopted by the Petitioner
management in passing the order of dismissal is clearly illegal and therefore the order of dismissal has been rightly interfered with by the Labour
Court. On that basis, he prayed for dismissing the writ petition in W.P. No. 28553 of 2003 filed by the Petitioner management and also prayed for
allowing the writ petition in W.P. No. 28071 of 2005 filed by the second Respondent workman.
In respect of the delay in approaching the Labour Court, it was mentioned that there is no provision in the Industrial Disputes Act giving any
limitation to raise Industrial dispute, therefore, when the negative report was filed on 22.8.1991 by the Conciliation Officer, the second Respondent
was not able to take any independent decision for about 7 years, however, after 7 years, he raised industrial dispute u/s 2A(ii) of the Industrial
Disputes Act and in any event, he pleaded that the second Respondent need not be paid with back wages for the delay in approaching the Labour
Court. On that basis, it was submitted that the writ petition filed by the second Respondent workman need not be considered by this Court under
Article 226 of the Constitution of India. However, in respect of supporting the Award passed by the Labour Court that has been challenged by the
Petitioner management, it was submitted that since the Labour Court has set aside the order of dismissal on the ground that the punishment of
dismissal is disproportionate to the proved charges, there is no justification for interference with the award passed by the Labour Court, as the
Labour Court has ordered only for fresh appointment and subsequently by accepting fresh appointment, he has been working now. On that basis,
he prayed for dismissal of both the writ petitions.
Heard both sides.
The second Respondent, while serving as a driver in the Petitioner Corporation, was found driving the vehicle, bearing Registration No. TML
7539 on his trip from Salem to Madurai, not only without wearing the uniform but also not keeping his driving licence in his possession. When the
checking inspector checked up the vehicle in a place called Gandhigramam at about 4.15 pm on 29.5.1989 the Driver was not only without
uniform but also found without driving licence, therefore when the checking inspectors enquired the second Respondent, he shouted at the
Checking Inspector. Hence, the Checking Inspector submitted a report stating that the second Respondent was found driving the vehicle without
wearing uniform and without keeping the driving licence in his possession. Further he was issued with a charge memo dated 6.7.1989. The second
Respondent also submitted his explanation on 20.7.1989. In his explanation, he admitted his misconducts that he was neither wearing uniform nor
keeping the driving licence in his possession. The explanation offered by the workman shows that he was unable to wear the uniform during the
peak summer in view of unbearable heat caused by ""Agni Natchatiram"". He has also given one more explanation that in case the vehicle meets with
any accident and if the public coming to see that the person with uniform is the Driver who is responsible for accident, he would be put to wrath of
the public and only to avoid this unwanted angry of the mob, he was deliberately not wearing the uniform and to avoid misplacement and missing of
driving licence, he decided not to carry his driving licence in his pocket. Again when he committed the very same misconduct in not wearing the
uniform and not keeping the Driving licence in his pocket, the Checking Inspector who checked up him for a second time on 9.7.1989, made a
report, therefore he was issued with second show cause notice and on third occasion also, he repeated the same misconduct and on 4th occasion
when he dashed the bus with Auto rickshaw at Pallipalayam at about 3.30 pm, on 16.6.1989 he was issued with fourth charge memo for the
alleged misconducts under 19(1)(d) and 19(1)(l) of the Standing Order. On receipt of the said charge memo, the second Respondent workman
submitted his explanation to the Petitioner management stating that he had compromised the matter with the driver of the Auto rickshaw. However,
for the reason that the second Respondent has not brought to the notice of the Petitioner management about the involvement of the bus in the
accident that took place on 16.6.1989, an enquiry was initiated and finally he was found guilty of the charge memo dated 6.7.1989.
Though the Petitioner management has issued four charge memos dated 6.7.1989, 6.7.1989, 18.7.1989, 27.7.1989 and conducted four
different enquiries, the second Respondent workman did not take part in any of the enquiries. Therefore, all the four different Enquiry Officers
submitted 4 different enquiry reports and held that the second Respondent workman was guilty of all the charges. The Disciplinary Authority, after
receipt of the reports from different enquiry officers, by clubbing the copies of 4 reports, issued a common second show cause notice calling upon
the second Respondent workman to explain as to why the Disciplinary Authority should not take action against him. On receipt of the second
show cause notice, the second Respondent workman also submitted his explanation requesting the Disciplinary Authority not to take any stringent
action against him, but the Disciplinary Authority, having seen that the second Respondent failed to participate in any of the enquiries and also for
the reason that he has admitted all the charges, finally found that the second Respondent workman was deliberately not wearing the uniforms while
driving the Government Bus and not keeping the driving licence in his possession. For these reasons, the Disciplinary Authority passed the order of
removal from service against the workman.
The Learned Counsel for the workman has not shown to this Court any rules or Regulations prohibiting such clubbing of more enquiry reports to
impose one common order of punishment, therefore the object underlying the Rules of natural justice to secure fair play in action, and to prevent
miscarriage of justice cannot be faulted with. In this context, it is pertinent to refer a judgment of the Karnataka High Court in Nagendra Rao Vs.
Indian Bank,
Para 17. Mr. Rajagopal however urged that clubbing of two enquiry reports for the purpose of a common order of punishment should be deemed
to be prejudicial to the delinquent employee and therefore held illegal. He contended that if the Disciplinary Authority had taken a decision
separately on each one of the reports, the quantum of punishment imposed by him may have been much lighter than what has been imposed by
clubbing the two reports together. I am not impressed by this argument either. Assuming that the Disciplinary Authority would have on the basis of
the first report taken a less serious view of the matter, yet nothing prevented the Disciplinary Authority from taking a more serious view on being
convinced that the employee having already been held guilty of misconduct once was incorrigible in his conduct warranting a heavier dose of
punishment in the second case. That apart, as to what would have been the quantum of punishment imposed by the Disciplinary Authority upon the
Petitioner even if the two enquiries conducted against him had culminated in two different orders of punishment is in the realm of speculation. This
Court cannot base only on a mere possibility of a lesser punishment having been imposed on the Petitioner if the two enquiries were dealt with
separately interfere with the common order of punishment issued by the Disciplinary Authority, particularly when after the common order is
quashed and the matter is remitted back for fresh orders nothing would prevent the Disciplinary Authority from passing the same order of
punishment once again.
The reason given in the above said judgment makes the issue candidly clear that even if the common order of punishment is quashed and the matter
is remanded back for fresh orders, nothing would prevent the Disciplinary Authority from passing the same order of punishment once again for the
simple reason that the Driver-workman repeatedly and deliberately offended the standing orders 19(1)(d) and 19(I)(i) with regard to clubbing of
four enquiry reports for imposing a common order of punishment, hence I do not deem it to be prejudicial to the delinquent workman, the reason
being, if the Disciplinary Authority had taken a decision separately on each one of the reports, the workman would have suffered the same
punishment because his explanation offered for not wearing the driver''s uniform that due to heavy heat caused by ''Agni Natchatram'', he was not
able to wear the uniform was not only unsatisfactory but also ridiculous. Even for not keeping with him in his possession the driving licence, his
explanation that to avoid attack from unruly mob at the time of causing accident, again does deserve more than any minor punishment. Admittedly,
the second Respondent was issued with charge memo dated 6.7.1989 for his misconduct committed on 29.5.1989 for not having worn official
driver''s uniform. Second charge memo was issued on 18.7.1989 for again not wearing his official driver''s uniform while he was on duty on
6.7.1989. On third occasion, while he was driving his vehicle TML 7539 on 9.7.1989, he was again found not wearing official driver''s uniform
and not keeping driver''s licence in his possession, for which, he was issued with third charge memo dated 27.7.1989 for not wearing official
driver''s uniform and not keeping driver''s licence in his possession. Fourthly, while he was driving his bus No. TML 7557 on 16.6.1989 on his trip
from Salem to Coimbatore, at about 3.30 pm, he caused accident by dashing with one Auto-rickshaw at Pallipalayam and for settling the matter
through compromise without bringing to the notice of the higher officers, he was also issued with one another charge memo dated 6.7.1989. It is an
admitted case where the workman repeatedly and deliberately committed 4 separate misconducts one after the other, heedless of the
consequences ever after the issuance of charge memos and after issuing 4 charge memos, therefore, the Disciplinary Authority on finding the
second Respondent''s explanation being not satisfactory, appointed 4 independent enquiry officers. All the 4 enquiry officers, on completion of the
enquiries, submitted four different reports holding the second Respondent guilty of all the charges. Thereafter, by clubbing all the four reports, the
Disciplinary Authority served second show cause notice by furnishing copies of the enquiry reports to the workman with further representation
from the Petitioner as to why the management should not impose punishment for proved misconducts. Again when the delinquent workman did not
complain, the validity of the enquiries held by the management, there is nothing wrong in clubbing all the four enquiry reports for the purpose of
imposing common punishment. Therefore so long as the imposition of common punishment by clubbing four enquiry reports so long as is not
prohibited by any rule or Regulation, I do not find any infirmities in imposing the impugned punishment for all the proved charges. This issue and yet
another point of law that I am dealing with right now below has not been found dealt with in the judgment of M.V.BALU v. THE CHAIRMAN.
Besides, the ratio laid down by the Hon''ble Apex Court in The Paper Products Ltd. Vs. Commissioner of Central Excise, holds that any
delinquent has got right to complain any violations that takes place only during the first stage commencing from issuance of charge memo till the
submission of further representation by the delinquent.
From the stage of issuance of charge memo till the submission of further representation to the second show cause notice, he has got a right to
command the enquiry officers and Disciplinary Authority to follow meticulously the procedure and the underlying rules of natural justice to secure
fair play in action, but after that stage, it is for the Disciplinary Authority to decide what should be the quantum of punishment and also the quantity
of the punishment. Again whether it is concurrent or cumulative, minor or major is fully within the domain of the Disciplinary Authority. The first
state consists of the period from the stage of issuance of charge memo till the disciplinary authority arises at its conclusion on the basis of the
evidence, the enquiry officer''s reports and the delinquent employee''s reply to it. The second stage begins when the disciplinary authority decides
to impose penalty on the basis of its conclusion. Therefore the delinquent workman has no right to call the Disciplinary Authority to impose one or
more punishment.
That apart, the principle behind wearing uniforms is to have equality among particular community because the uniform represents a democratic
ideal of equality. Uniform identifies a police man, a lawyer, a Doctor, a pilot, a military man, a driver as a member of their respective communities.
A doctor with uniform in a hospital, a police officer at any place and so on and so forth can be immediately recognised. Wearing a uniform by a
worker/professional is a constant reminder to his commitment to the ideals and the purposes, attachment to the work, loyalty to the institution and
helpfulness to others. For these reasons, importance of wearing uniform is always emphasised. If this basic rule is flouted by anyone, surely there
can be no place for such person to continue in service without uniform. Therefore, I have no hesitation to affirm the order of punishment of
dismissal awarded by the Disciplinary Authority by reversing the Award of the Labour Court.
Further, it is also relevant to note yet another aspect that though the second Respondent workman has raised an industrial dispute before the
conciliation officer, after the conciliation officer filed his failure report on 22.8.1991, for the reasons best known to him, the second Respondent did
not come forward to challenge the order of dismissal dated 4.3.1990 for about 7 years by raising industrial dispute before the Labour Court. No
minimum explanation has been given by the workman for his inordinate delay in approaching the Labour Court. Though the learned Labour Court
in its award has accepted the case of the Petitioner Corporation holding that all the 4 enquiries held by the Petitioner Corporation against the
second Respondent workman were fair and proper,and after holding that the second Respondent did not even participate in any of the enquiries,
the Labour Court further agreeing with the Petitioner Corporation that the second Respondent has repeatedly and deliberately offended the
standing orders 19(1)(d) and 19(1)(I) by failing to wear the uniform meant for driver at the time of driving the Bus, the Labour Court once again,
having accepted that the second Respondent should be imposed with the punishment, yet in exercise of the power conferred u/s 11-A of the
Industrial Disputes Act, should not have given direction for giving fresh appointment to the workman without any back wages. Therefore, in my
considered view, once the Labour Court accepted the charge of the Petitioner Corporation as proved in the Domestic enquiry that the second
Respondent workman has committed the misconducts and that the second Respondent has also admitted his guilt that he failed to wear uniform
repeatedly whenever the Checking inspector checked up the vehicles on 16.6.1989 and 9.7.1989 and that the explanation given by the workman
was not satisfactory, the Labour Court after all these, should not have shown any indulgence to the second Respondent workman.
Therefore, in my considered opinion, the award passed by the Labour Court giving direction to the Petitioner Corporation to reinstate the
workman in exercise of the power u/s 11A of the Industrial Disputes Act, is beyond the scope of Section 11A and thus I hold that the learned
Labour Court committed a serious mistake by entertaining the industrial dispute after an inordinate delay of 7 years from the date of failure report,
for which the second Respondent workman has no explanation whatsoever.
For the reasons mentioned above, the writ petition filed by the Petitioner Transport Corporation in W.P. No. 28553 of 2003 is allowed and
the writ petition filed by the workman in W.P. No. 28071 of 2005 is dismissed. No costs.