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Judgment
R. Jayasimha Babu, J.—The petitioners are aggrieved by the order of the Tribunal, which has held that there was no evidence at all on which
to impose the penalty that has been imposed on the second respondent-workman who was charged with having organised an agitation on March
27, 1993 in front of Railway engine attached to the train and prevented its movement when it was at the Thanjavur station, the workman being an
employee of the Railways whose place of work was at Kumbakonam.
In the reply to the show-cause notice that the workman gave before the commencement of the enquiry, he did not assert that he had not gone to
Thanjavur, that he was not present there at that time or that and on account of the agitation, its movement was not delayed. All that he did do in his
reply was to pick holes in the depositions that had earlier been given in a preliminary enquiry, and he rested his case only on the alleged failure on
the part of some of the witnesses to identify him, and claimed that the evidence given by the driver should not be believed.
The driver of the train was examined as a witness at the enquiry, in which, the workman participated fully. The driver in his deposition stated that
the respondent-workman had obstructed the movement of the engine by agitating in front of it. He had also mentioned the names of three other
workmen who were in front of the engine. He also stated that he had given a statement earlier, wherein, he had mentioned the names of the
respondent-workman and others who had obstructed the Train No. 664 passenger. In the cross-examination of the driver by the workman, the
driver stated that he was working in the Railways for the past 30 years, that there were rival unions and clashes between the two unions, and that
he himself was not a witness in any of the cases concerning those unions. When the suggestion was made to him that it was not possible for the two
other persons he had named to have been present in front of the engine, he stated those workmen had indeed arrived at the Thanjavur station by
Train No. 6153 Express, and that he had actually seen them at the Thanjavur station. Significantly there was not even a suggestion made to the
driver who had identified the workmen, and who was in the best position to so identify, as agitators who were in front of the Engine of which he
was the driver, that the workman was not present in Thanjavur Railway Station at that time, or that he had not obstructed the movement of the
engine. There was also no suggestion that the evidence that was given by the driver was false evidence given on account of union rivalry.
The workman did not examine himself at the enquiry. The other witnesses examined at the enquiry did not specifically identify the workman.
They were the guard, the station master and the maintenance staff. However, the Guard confirmed the statements he had given earlier on March
28, 1993 which also formed part of the records. In that preliminary enquiry, he had stated that the respondent-workman had contacted the
Divisional Railway Manager on phone from the Thanjavur Railway Station requesting the release of one Ravichandran whose arrest had led to the
agitation.
It is clear that the workman who claims that he had not taken part in the agitation had rightly and properly identified by the driver who was the
best person to see the people who were blocking the movement of the engine. The enquiry officer was acting well within the scope of his authority
in accepting his evidence and in holding that the second charge against the workman had been proved. The Tribunal unfortunately had misled itself
by holding that the evidence of the driver should not have been believed only on the ground that the driver''s evidence is biased. To reach that
conclusion that his evidence was biased, the Tribunal has assumed that two of the workmen whom he had identified were at Mayavaram. There
was no such finding in the report of the enquiry officer, nor did the driver say so in his evidence. That was only a claim made by the delinquent
workman who did not produce any evidence to substantiate that assertion. The imputation of bias to the driver was wholly unwarranted, and was
not based on any material on record. The credibility or otherwise of the witness was a matter for the enquiry officer who held the domestic enquiry,
and he having rightly regarded the driver as a credible witness, the Tribunal was wholly in error in discarding his evidence, and that too on grounds
which did not find a basis in the record. The driver had specifically denied the suggestion that had been put to him by the workman that two of the
workmen named by him could not have been present. He even gave the train number, and said that they had come by that train, and were in fact
present before the engine of which he was the driver.
The other reason given by the Tribunal for setting aside the penalty is that there was discrimination. Discrimination was inferred, from the fact
that though the driver had mentioned the names of three other workmen along with the respondent-workman as having been present in front of the
train, and who had prevented its movement, the other two had not been proceeded against. The Guard of the train, as noticed by us earlier, had
affirmed the statement which he had given at the earlier enquiry in which he had clearly stated that the workman Ekambaram had contacted the
Division Railway Manager on the phone for the release of one Ravichandran who belonged to the workman Ekambaram''s union and whose arrest
had led to the agitation. That evidence which was available in the record considered along with the evidence of the driver was indicative of the fact
that the workman Ekambaram had the role of a leader with regard to that agitation. He apparently being the spokesman or the authorised
representative through whom the higher officials of the Railways were being contacted, and on the basis of whose advice, the continuance or
otherwise of the agitation was being decided.
Learned counsel for the workman submitted before us that the discrimination against the respondent-workman is writ large and, therefore, the
ultimate decision of the Tribunal should be upheld. In support of that submission, he invited our attention to the decision of the Supreme Court in
the case of Sengara Singh and Others Vs. State of Punjab and Others, : That was a case where about 1100 members of the police force had been
dismissed as a sequel to police agitation. Subsequently, most of them were reinstated and prosecution which had been launched against them were
also dropped. It was in that background that the Court directed reinstatement of the appellants before it who had been denied reinstatement
without any tenable reason. The Court there took note of the conduct of the employer in having dropped the prosecution and reinstated most of
the workmen who had been dismissed. The relief which the employer himself had granted to others against whom disciplinary action had been
taken on identical charges was directed to be given to other similarly placed persons.
Counsel also drew our attention to the decision of this Court in the case of India Cements Ltd. v. Labour Court, Coimbatore 1989 (2) LLN
In that case, the employer had after having initiated action against nineteen employees, and dismissed them after enquiry had chosen to abide
by the advice given by the Minister of the State Government to reinstate fourteen of them. The Court found that neither the Minister nor
management had acted in accordance with a settlement that had been reached earlier which only contemplated consultation with the Minister. The
Court found that the misconduct committed by all nineteen was the same. The Court, therefore, directed the employer to give to the other five the
same relief which it had given to the fourteen who had been found guilty of the same misconduct, but were reinstated.
Counsel also placed reliance on the case of Coimbatore and Periyar District Dravida Panchalai Thozilalar Munnetra Sangam Vs. Management
of Pioneer Mills Ltd. and Another, . In that case the workman who had been dismissed had also been charged before the Criminal Court. The
Criminal Court had acquitted him of the charges. Other workmen who had committed similar acts as the dismissed workman and who had also
been found guilty at the enquiry were given lesser punishments. The management had reinstated nine out of the eleven involved in the incident. One
workman had abandoned his claim. The other workman who had not been taken back was held by the Court to be entitled to reinstatement, even
as nine others who had been reinstated by the employer himself.
None of these cases can support the broad claim made by the workman here that he should not be penalised at all merely because the engine
driver who identified him had also mentioned the names of three others. These decisions cannot be understood to have laid down that a person
who is guilty should be allowed to go scot-free merely because some others who were guilty were not proceeded against. It is not the law that if a
binding rule which is to be obeyed on pain of penalty for its breach, when breached by many and some are not brought to book, other violators
should also not be brought to book. Any such view would render every statute impossible of enforcement, as it cannot be said that every offender
under every statute is always brought to book.
If the reasoning suggested for the workman is to be accepted, a policeman who fails to apprehend say four thieves should be for ever
prevented from catching the fifth or any other because he had not apprehended the first four. It cannot be said that if several motorists run through
the red light and some are not stopped, no one else should be stopped on that account. Any such view would make law an object of ridicule
instead of being a binding rule which is to be enforced on pain by imposition of penalty. Similar would the position be with regard to the rules and
regulations governing employees.
The case here is that the workman had committed misconduct. It was not even his assertion in the reply that he gave to the show-cause notice,
that he was not present at the scene where the misconduct was alleged to have taken place. There was not even a suggestion to the man who
identified him, that man being the one who was in the best position to make the identification, that he, the workman, was not present, or that the
evidence given by the driver who identified him was biased by reason of union rivalry. The workman here is clearly trying to wriggle out by finding
holes in the employer''s case. He is entitled to do that if he can succeed in demonstrating that what the employer has done is not in accordance with
law. There is no finding by the Tribunal that the enquiry was not properly conducted. That is also not the case of the workman.
The enquiry was held in accordance with law. The enquiry officer was entitled to form his opinion as to the credibility or otherwise of the
witnesses, and also decide as to whether the charge was, or was not proved. So long as there is some evidence before the enquiry officer it is for
the enquiry officer to decide as to whether the deposition of the witness is to be believed or is not to be believed. The enquiry officer of course
does not have the right to act perversely. But the fact that his report is brought before the Court or Tribunal subsequently does not enable the
Court or Tribunal to function as a Court of Appeal. The discretion as long as it is properly exercised is that of the enquiry officer, and that
discretion cannot be taken away by merely characterising the evidence considered and accepted by him as no evidence.
We may in this context refer to the case of Kuldeep Singh Vs. The Commissioner of Police and Others, : wherein, the Court observed that:
While the finding of guilt recorded at a domestic enquiry would not normally be interfered with in proceedings under Articles 226 and 32 of the
Constitution, the Court can interfere with the conclusions reached therein, if there was no evidence to support the findings, or the findings recorded
were such as could not have been reached by an ordinary prudent man, or the findings were perverse......... None of the factors referred to in that
judgment which would enable the Court or the Tribunal to interfere with the finding recorded by the enquiry officer are present in this case.
The acceptance of the driver''s evidence by the enquiry officer can by no means be characterised as perverse. Evidence was given by a person
who was admittedly the driver of the engine attached to the train whose movement had been blocked, and who was in the best position to observe
and see the persons who were on the tract in front of his engine, and who had unhesitatingly identified the workman. There was not even a
suggestion as already observed that he was not saying the truth, or that there was any other motive which would make him utter falsehood. He was
a driver who had worked in Railways for 30 years. There is no reason at all as to why his evidence should not be accepted. It was rightly accepted
by the enquiry officer. The evidence of the driver considered along with the statement of the guard at the preliminary enquiry, which he had
affirmed at the domestic enquiry clearly show that the findings recorded by the enquiry officer was a finding which was warranted by the evidence
on record.
The conduct of the workman in not coming before the enquiry officer even to deny his presence at the enquiry, and the nature of the questions
put in cross-examination of the driver clearly show that he was very much present. This is in addition to the fact that the driver had identified him.
He had certainly a role which was larger than that of others who may merely have stood in front of the train as is evident from what the guard had
stated, and to which we have already adverted.
The penalty imposed on the workman who had been found guilty of misconduct at an enquiry which had properly been held in accordance
with law was one which was required to be upheld instead of being interfered with as has been done by the Tribunal. We fail to see how any
question of discrimination can arise here. The relief granted by the Supreme Court in the case of Sengara Singh (supra), was only with regard to
the special facts of that case, and that decision does not provide an umbrella under which the guilty can escape punishment. The observation of the
Apex Court in the case of M/s. Faridabad Ct. Scan center Vs. D.G. Health Services and others, : are apposite in this context:
We fail to see how Article 14 can be attracted in cases where wrong orders are issued in favour of others. Wrong orders cannot be perpetuated
with the help of Article 14, on the basis that such wrong orders were earlier passed in favour of some other persons and therefore there will be
discrimination against others if correct orders are passed against them.
In the case of G.S. Sodhi v. Lt. Col. S. Duggal AIR 1991 SC 1671 the Court rejected the argument that lesser punishment should be awarded to
the petitioner who had been found guilty by the Court-Martial as other officials found guilty for similar offence had been awarded lesser
punishment. The Court held that it was for the Court-Martial to decide the nature of the sentence that should be awarded in the circumstances of
the case.
It was not merely the right of the employer, but the duty of the employer to punish persons who commit misconduct, especially the Railway
employees who themselves prevent the movement of the train thereby causing enormous inconvenience to the public who are entitled to look to the
Railways to provide an efficient and timely service. The public cannot be held to ransom by the Railway employees who on account of their own
quarrels with the rival unions, or the management choose to stop the movement of trains.
The impugned order of the Tribunal cannot be sustained, and the same is set aside. The application filed by the workman before the Tribunal
shall stand dismissed.