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Judgment
R. Banumathi, J.—This Writ Appeal arises out of the order of the learned single Judge dated 19.9.2001 made in W.P. No. 16572 of 1996
directing the Appellant/Management to reinstate the 1st Respondent from the date of order in W.P. with continuity of service, but without back
wages.
The brief facts are that the 1st Respondent was a Conductor in the services of the Appellant with effect from 3.3.1976 and on 25.4.1988 when
he was in the route bus proceeding from Ooty to Erode, he issued luggage tickets to a passenger totalling a sum of Rs. 62.50 including his ticket of
Rs. 15.50, however the same was mistakenly written in collection slip as Rs. 54.75ps and remitted with the collection slip on the same night. Only
when the Accounts Section of Head Office checked the remittance along with collection slip, the discrepancy was found and charge memo dated
7.5.1988 was issued to the 1st Respondent. After the 1st Respondent submitted explanation, enquiry was conducted. According to the 1st
Respondent, the basic reports and other documents were not produced and he could not defend himself properly. The 1st Respondent was
terminated from service by dismissal order dated 28.3.1989. Simultaneously, with the order of dismissal, a Petition u/s 33(2)(b) of Industrial
Disputes Act, 1947 seeking the approval of the action was filed in the Industrial Tribunal, Madras. Petition was allowed exparte and after a delay
of 1452 days, the 1st Respondent filed an application for setting aside the exparte order and the same was dismissed on 09.12.1993.
Thereafter he raised an Industrial Dispute before the Government vide his letter dated 28.11.1994. The Conciliation Officer found it not possible
for mediation. Therefore claim was filed on 6.3.1995 and the same was taken on file as I.D. No. 49 of 1995. Labour Court framed two issues
viz., whether there was delay in raising dispute and when he was eligible for the relief claimed in the claim statement and held against the 1st
Respondent by Award dated 7.12.1995. Challenging the said Award, the Writ Petition was filed.
The learned single Judge, after hearing the parties on either side held that the delay in filing the claim petition deserves to be ignored and the
Standing Orders of Pattukottai Alagiri Transport corporation and Pallavan Transport Corporation are also undertakings of the State Government
and in terms of the Standing Orders it was held that deficit cash balance would amount to misconduct only if it exceeds Rs. 20/- in the case of
Pattukottai Alagiri Transport corporation and Rs. 10/- in the case of Palavan Transport Corporation and as such shortfall frequently happens due
to circumstances beyond control of conductors and the contention of 1st Respondent requires to be taken note of in context of fixing quantum of
punishment u/s 11-A. While so observing, the Appellant/Management was directed to reinstate the 1st Respondent from the date of order in Writ
petition with continuity of service, but without back wages.
Learned Counsel appearing for the Appellant contended that the 1st Respondent had collected a sum of Rs. 62/- by issuing ticket for Rs. 62/-
but had subsequently altered the ticket to show the sum as Rs. 54.75. As per the past record of the 1st Respondent, he was warned on 13
occasions and fined on 30 occasions for misconduct of not receiving the fare and not issuing the tickets and he was fined on 135 occasions and
suspended many times for his similar misconduct for different periods. It was further submitted that the Labour Court has rendered categoric
findings after analysing the evidence and found that the punishment of dismissal is proper and while so, the learned single Judge ought not to have
interfered with the punishment of dismissal imposed on the 1st Respondent by placing reliance on Standing Orders of other Corporations viz.,
Pattukottai Azhagiri Transport Corporation Limited and Pallavan Transport Corporation Limited, that too, after long delay.
Admittedly, there was considerable delay in raising Industrial Dispute. Enquiry was held in September 1988. Chief examination of Management
witness was recorded Since, 2nd Respondent had not cross examined the Management witness, evidence on the side of Management was closed
and the matter was adjourned to 31.10.1988 for examination of witnesses on the side of 2nd Respondent. Since the delinquent has not attended
the enquiry on 31.10.1988, the enquiry was ordered to be closed. Enquiry Officer has submitted his report [Ex.M6] on 29.11.1988 holding that
the charges are proved. Accepting his report, second show cause notice [Ex.M7] was sent to the 1st Respondent for which the 1st Respondent
sent his reply [Ex.M8] on 31.01.1089. Not being satisfied with the explanation of 1st Respondent, the Disciplinary Authority imposed punishment
of dismissal from service on 28.03.1989.
As pointed out earlier, Petition [M.P. No. 90/1989] u/s 33C(2)(b) was filed. By the order dated 28.07.1989 [Ex.M10], Labour Court
approved the punishment of dismissal from service. 1st Respondent had taken steps to set aside the delay of 1452 days and the same was
dismissed on 09.12.1993.
By perusal of the Award in I.D. No. 49/1995, it is clear that 1st Respondent has no ""good past record"". Fine was imposed as many as 30
times. 1st Respondent was suspended number of times i.e. one day suspension for sixteen times; two days suspension for four times; three days
suspension for two times and seven days suspension for one time, totally he was suspended for 37 days. Elaborately referring to the past record of
1st Respondent, Labour Court dismissed I.D. No. 49/1995. The learned single Judge did not keep in view the past record of the delinquent [1st
Respondent] and the learned single Judge was not right in interfering with the order of Labour Court dismissing the I.D. No. 49/1995 and ordering
reinstatement.
While considering the proportionality of the quantum of punishment, Courts/Tribunals will have to keep in view the past record and the conduct
of the delinquent. Number of times, 1st Respondent seem to have been fined for giving false account and number of times he was suspended.
Having regard to the past record of 1st Respondent, the order of learned single Judge is liable to be set aside.
In the result, the order of learned single Judge in W.P. No. 16572/1996 dated 19.09.2001 is set aside and this Writ Appeal is allowed.
Consequently, connected MPs. are closed. No costs.