1 W.P.(MD)NO.16524 OF 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.09.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.16524 of 2022
A.Subramanian,
Staff No.91CR2065/8082,
(Senior Conductor-Retd.,) ... Petitioner
Vs.
1. The Government of Tamil Nadu,
Rep. By its Secretary,
Transport Department, Secretariat,
Chennai – 600 009.
2. The Managing Director,
Tamil Nadu State Transport Corporation
(Kumbakonam) Ltd.,
Kumbakonam – 612 001,
Thanjavur District.
3. The General Manager,
Tamil Nadu State Transport Corporation
(Kumbakonam) Ltd.,
Trichy Region, Periyamilaguparai,
Trichy District.
4. The Administrator,
Tamil Nadu State Transport Corporation
Pension Fund Trust,
Thiruvalluvar Illam, Pallavan Salai,
Chennai – 600 002. ... Respondents
Prayer: Writ petition is filed under Article 226 of the
Constitution of India, to issue a Writ of declaration, declaring
https://www.mhc.tn.gov.in/judis
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2 W.P.(MD)NO.16524 OF 2022
the action of 2nd and 3rd respondents which had been recovered
a sum of Rs.1,32,800/- towards non-implementable
punishment of increment cut imposed on the petitioner as
illegal, arbitrary and violative of Article 14 of the Constitution
of India and consequently direct the respondents to refund the
petitioner the recovery amount of Rs. 1,32,800/- with 18%
interest per annum to the petitioner within the stipulated time
that may be fixed by this Court.
For Petitioner : Mr.N.Sudhagar Nagaraj
For R-1 : Mr.R.Suresh Kumar,
Additional Government Pleader.
For R-2 & R-3 : Mr.K.Jagadees Balan
***
ORDER
Heard the learned counsel on either side.
2. The writ petitioner joined the respondent corporation as a conductor in the year 1991. He retired from service on 31.03.2018. He was facing disciplinary proceedings and final order was passed on 08.03.2018. It was directed that a sum of Rs.1,12,800/- should be recovered from the writ https://www.mhc.tn.gov.in/judis 2/11 3 W.P.(MD)NO.16524 OF 2022 petitioner. The contention of the petitioner is that this amount was notionally quantified by taking into account the increments which the petitioner would have otherwise received.
3. According to the writ petitioner, the order stopping the petitioner's annual increment for 166 months was not implementable in view of his retirement on 31.03.2018. Therefore according to the petitioner, the deduction of the said amount from March 2018 salary and the gratuity amount was clearly illegal.
4. The learned Standing counsel appearing for the corporation stated that the deduction was made only by virtue of the consent given by the writ petitioner himself in writing. The petitioner's counsel would rebut the said statement by pointing out that the consent was given under coercive circumstances.
5. I carefully considered the rival contentions and went through the materials on record. https://www.mhc.tn.gov.in/judis 3/11 4 W.P.(MD)NO.16524 OF 2022
6. The issue raised in this writ petition is no longer res integra. The Hon'ble Division Bench vide Order dated 15.06.2021 in W.A.(MD)No.1270 of 2020 (The State Express Transport Corporation (Tamilnadu) Ltd., Chennai and three others V. G.Senthil and one other) had held as follows:-
“6. Be that as it may, if we examine the condition No.8 of the 12(3) of the Industrial Disputes Act 1947 Settlement, we find that there is no such leverage given to the appellant-Management. The said Clause 8 reads as follows:
“ gzpXa;tpd; nghOJ Vw;fdNt toq;fg;gl;l Increment Postponement Nghd;w jz;lidfs; eilKiwg;gLj;jg;gl ,ayhj epiyapy; nghJ gzp tpjpfs; kw;Wk; epiyahiz tpjpfs; mbg;gilapy; Increment njhiff;F <lhd njhif kl;LNk gpbj;jk; nra;ag;gLk;. ,we;j njhopyhsh;fisg;
nghWj;jtiuapy; Nkw;nrhd;d gpbj;jk; nra;ag;glkhl;lhJ. ” https://www.mhc.tn.gov.in/judis 4/11 5 W.P.(MD)NO.16524 OF 2022
7. The above condition states that the increment postponement orders which could not be implemented prior to the superannuation of the employee can be implemented, but only in accordance with the Common Service Rules and the Standing Orders which are applicable to the organisation. This question was considered in the case of J.Arumugam (supra), as first among the several issues and it was held that there is no provision in the Certified Standing Orders enabling the Management to pass orders of recovery as passed in the instant case. In fact, the Court held that the Common Service Rules are not applicable to the workmen and there is no Standing Order framed by the Management and only Certified Standing Orders are in vogue and the Certified Standing Orders do not provide for any such recovery. The operative portion of the judgment reads as follows:
"5. Before deciding the merits of the case, firstly, it has to be seen, as to, under which Rule, the workmen of the Management are governed by. It is admitted by the Management that the workmen https://www.mhc.tn.gov.in/judis 5/11 6 W.P.(MD)NO.16524 OF 2022 are governed by Certified Standing Orders, framed for the employees of the Management/Corporation by the Appellate Authority under the Industrial Employment (Standing Orders) Act 1946 (supra), but, contrary to the same, the impugned orders of recovery were passed by the Management, by following the provisions of the Common Service Rules, viz., Rule 4 (1) (e). Pitted with this position, the learned counsel for the Management submitted that the Management has no option, except, to opt for Rule 4 (1) (e) of the Common Service Rules, for, the workmen suffered punishment of withholding of increment, which could not be given effect to, as the workmen did not have the requisite remaining years of service.
That apart, such a remedy is not found in the Certified Standing Orders. This submission is untenable, for the reason that, when the Management has admitted that the workmen are governed by the Rules framed under the Certified Standing Orders, in violation to the same, it cannot https://www.mhc.tn.gov.in/judis 6/11 7 W.P.(MD)NO.16524 OF 2022 follow Rule 4 (1) (e) of the Common Service Rules, by invoking Clause 25 (1) (iv) (b) of the Certified Standing Orders. Therefore, we have no hesitation to hold that the orders passed by the Management, recovering three times the monetary value equivalent to the amount of increment, are without jurisdiction, as there is no such provision in the Certified Standing Orders, enabling the Management to pass such orders. Therefore, on that ground, the impugned orders are required to be set aside."
8. Therefore, the contention of the appellant- Management that Clause 8 of the 12(3) Settlement provides for passing such an order in an Organisation, is stated to be rejected. Clause 8 cannot be used as a tool or a source of power to recover money from the workman, especially, when the Settlement only states that it can be done so, if there is a provision under the Common Service Rules or the Standing Orders.
9. Furthermore, the question as to whether the Management would be entitled to implement https://www.mhc.tn.gov.in/judis 7/11 8 W.P.(MD)NO.16524 OF 2022 orders of postponement of increment, which was not implemented during the period when the workman was in service, was also considered in the case of J.Arumugam (supra) and it was held that the same cannot be done and it will be without jurisdiction. The operative portion of the judgment reads as follows:
"37. One more important aspect, which we wish to point out is that, the Management cannot plead ignorance of the fact that, on the date, when punishment was imposed on the workmen, the punishment was not capable of being implemented as workmen did not have the required remaining years of service. If that is so, the Management cannot take shelter under the explanation contained Clause 4 (1) (e) to suit its own convenience, and the workmen cannot be put in a disadvantageous position. In such circumstances, the Management cannot rely on the decision of the Hon'ble Supreme Court in Kshetrabasi Mohanti (supra) where, the Hon'ble Supreme Court considered the correctness of the order by https://www.mhc.tn.gov.in/judis 8/11 9 W.P.(MD)NO.16524 OF 2022 substituting the punishment for a candidate, who was still in service. There, it was a case, where, it was not possible for the Corporation to implement the punishment, but, the case on hand, is a case, where, the Corporation was fully aware of remaining years of service in respect of each of the workmen, yet, chose to pass such orders of recovery. Thus, the Management, having failed to convert the punishment of stoppage of increment to that of order of recovery of monetary value, when the workmen were in service, it cannot turn around and say that those orders could be implemented by invoking Clause 25 (iv) (b) of the Certified Standing Orders." ”
7. Respectfully following the aforesaid decision, I have to necessarily hold that the management could not have recovered the unimplemented orders of punishment of postponement of increment. The deduction made from the writ petitioner's salary and gratuity is illegal. Therefore, the respondents are directed to refund the said recovered amount https://www.mhc.tn.gov.in/judis 9/11 10 W.P.(MD)NO.16524 OF 2022 of Rs.1,32,800/- with interest @ 6% p.a. within a period of eight weeks from the date of receipt of a copy of this order.This writ petition stands allowed. No costs.
14.09.2022
Index : Yes / No
Internet : Yes/ No
PMU
To:
1. The Government of Tamil Nadu,
Rep. By its Secretary,
Transport Department, Secretariat, Chennai – 600 009.
2. The Managing Director, Tamil Nadu State Transport Corporation (Kumbakonam) Ltd., Kumbakonam – 612 001, Thanjavur District.
3. The General Manager, Tamil Nadu State Transport Corporation (Kumbakonam) Ltd., Trichy Region, Periyamilaguparai, Trichy District.
4. The Administrator, Tamil Nadu State Transport Corporation Pension Fund Trust, Thiruvalluvar Illam, Pallavan Salai, Chennai – 600 002.
https://www.mhc.tn.gov.in/judis 10/11 11 W.P.(MD)NO.16524 OF 2022 G.R.SWAMINATHAN,J.
PMU W.P.(MD)No.16524 of 2022 14.09.2022 https://www.mhc.tn.gov.in/judis 11/11