@JUDGMENTTAG-ORDER
Honourable Mr. Justice K. Chandru
1. The writ petition is filed by the petitioner challenging an Award passed by the first respondent Principal Labour Court, Chennai in I.D.No.430 of
2001 dated 20.04.2006. By the impugned Award, the Labour Court refused to grant any relief to the workman and dismissed the Industrial
Dispute. The writ petition was admitted on 13.04.2007. On notice from this Court, the second respondent has filed a counter affidavit dated
18.11.2009. The learned counsel for the workman also filed an additional typed set containing documents relating to enquiry proceedings which
were made available before the Labour Court.
2. Heard the arguments of Mr. Venkatachalapathy, learned Senior Counsel appearing for Mr. T. Sathiyamoorthy, counsel for the petitioner and
Mr. S.S. Swaminthan, learned counsel for the second respondent Transport Corporation.
3. The facts leading to the termination of the petitioner are as follows:-
The workman was employed as a Driver in the second respondent Corporation since 24.05.1981. He was given a charge memo on 18.08.1998
alleging that on 03.08.1998, while he operating Route No.T55A, he was found under the influence of alcohol and therefore, the vehicle could not
be operated which brought loss to the Corporation. It was the case of the workman that on 03.08.1998, he was operating the first shift and
without any break, he was told to operate the second shift also. Due to over work and stress, he developed body pain and hence, he consulted
Dr. Mohamed Ghouse and on his advice, he took a mild sedative which was alcohol based medicine. Due to drowsiness caused by the medicine,
he was forced to take rest. The security guard was summoned by the Branch Manager and directed to wake up the petitioner. On waking up, the
petitioner was feeling dizzy and answered the questions put to him in a feeble voice. This conduct was misunderstood by the security personnel as
the petitioner was under the influence of alcohol. The petitioner was not sent to any medical test by any competent Medical Officer.
4. On the basis of the report given by the Controller as well as the security guard, the petitioner was placed under suspension on 14.08.1998.
Subsequently, a charge memo was issued on 18.08.1998. The petitioner gave a reply to the charge memo on 14.09.1998. Thereafter, the
suspension order passed was revoked and he was restored to duty. The petitioner was proceeded with an enquiry and the Enquiry Officer gave
his findings on 07.02.2000. Based upon the enquiry report, a provisional show cause notice dated 21.02.2000 was given to him. Notwithstanding
his reply dated 14.03.2001, he was dismissed from service on 16.11.2001.
5. The petitioner raised an industrial dispute u/s 2-A(2) of the Industrial Disputes Act, 1947. The Conciliation Officer as he could not bring about
any medication gave his failure report. On the strength of the failure report, the petitioner filed a claim statement before the first respondent Labour
Court dated Nil (May 2001). The said dispute was registered as I.D.No.430 of 2001. Notice was ordered to the second respondent. The second
respondent filed a counter statement dated Nil (2001).
6. Before the Labour Court, the workman examined himself as W.W.1 and no documents were filed. On the side of the Management, one K.
Elangovan was examined as M.W.1. On their side, enquiry proceedings were filed and marked as Exs.M1 to M12.
7. On an analysis of materials, the Labour Court held that the enquiry was not vitiated. Even the ground that he was not given the enquiry report
before the show cause notice was rejected by the Labour Court based upon Ex.M12. On the question of findings of the Enquiry Officer, the
Labour Court went at a tangent by holding that the workman was not forced to work for the second shift but his consent was obtained. The issue
is not whether he was forced to work or not. On account of the continuation of the second shift with or without consent, the workman became
tired which necessitated him to consult the Doctor for getting medicine. The stand of the workman before the domestic enquiry as well as before
the Labour Court was misunderstood by the Labour Court, thereby leading the Labour Court to hold that the workman himself was not in a
position to work and became drowsy and also there was a smell of alcohol from him. But the complaint report of the security guard (Ex.M2) and
the report of the Controller (EX.M1) was not marked through proper witness for which Labour Court lost over the fact. Non-examination of those
witnesses will not vitiate the enquiry as there was an admission by the workman that he was smelling of alcohol and felt drowsy.
8. It must be noted that an admission can be taken into account only to the extent of admission. Whereas in the present case, the charge against the
workman was while he was on duty on 03.08.1998, he was found in a drunken state. Therefore, there must be evidence to show that the person
has actually consumed alcohol and that in such inebriated condition, left him not to perform duty thereby leading loss to the Corporation. Even
before the enquiry, it is only the Branch Manager who was examined on the side of the Corporation and his statement was merely a hearsay
namely that the Conductor reported that the petitioner might have been under the influence of alcohol and thereafter, the Branch Manager made the
Controller and the security guard to enquire into the same and they also confirmed that he was smelling alcohol. It is not clear as to how this can be
said to be any legal evidence against the petitioner to hold the charges levelled against him were proved.
9. In this context, the learned Senior Counsel for the petitioner produced a judgment of the Supreme Court reported in Hardwari Lal Vs. State of
U.P. and Others, the Supreme Court observed as follows:-
3. Before us the sole ground urged is as to the non-observance of the principles of natural justice in not examining the complainant, Shri Virender
Singh, and the witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-
examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint
made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had
accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the
appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be
material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the
appellant.
4. However, Shri Goel, the learned Additional Advocate General, State of Uttar Pradesh has submitted that there was other material which was
sufficient to come to the conclusion one way or the other and he has taken us through the same. But while appreciating the evidence on record the
impact of the testimony of the complainant cannot be visualised. Similarly, the evidence of Jagdish Ram would also bear upon the state of
inebriation, if any, of the appellant.
5. In the circumstances, we are satisfied that there was no proper enquiry held by the authorities and on this short ground we quash the order of
dismissal passed against the appellant by setting aside the order made by the High Court affirming the order of the Tribunal and direct that the
appellant be reinstated in service. Considering the fact of a long lapse of time before the date of dismissal and reinstatement, and no blame can be
put only on the door of the respondents, we think it appropriate to award 50 per cent of the back wages being payable to the appellant. We thus
allow the appeal filed by the appellant. However, there shall be no order as to costs.
10. Apart from the non-examination of the crucial witnesses, a further fact that mere observation of a person that he was under the influence of
alcohol cannot be said to be proved especially when the workman had produced a medical certificate from his Doctor and that on his advice taken
medicine which has alcoholic content. This is not a case where on the consumption of alcohol the petitioner was driving a bus there by risking the
travelling public to a grave situation. On the other hand, the fact that he continued in the second shift and developed body pain which necessitated
medical advice followed by consumption of medicine was not controverted by the second respondent.
11. Therefore, this is not a fit case where any legal evidence is found against the petitioner for holding him guilty of the charges levelled against him.
Hence, the impugned Award in I.D.No.430 of 2001 is liable to be set aside. On the basis of available materials, it will be futile to remit the matter
for fresh consideration. It is suffice to hold that even the cumulative effect of the evidence does not show that there was any prima facie case
against the petitioner and that in such an event, the question of any consideration of past record will not arise. Accordingly, the writ petition stands
allowed. The impugned Award in I.D.No.430 of 2001 stands set aside. The petitioner is entitled for reinstatement, continuity of service, but
however, the backwages is restricted to 50%. Parties are allowed to bear their own costs.
