Madras High Court
The Management vs The Special Deputy Commissioner ... on 1 August, 2021
W.P.No.22768 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.08.2021
CORAM
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.22768 of 2016
The Management,
Tamil Nadu State Transport
Corporation (Kumbakonam) Limited,
Represented by its Managing Director,
Railway Station New Road,
Kumbakonam – 612 001. .. Petitioner
-vs-
1.The Special Deputy Commissioner of Labour,
DMS Campus, Anna Salai,
Chennai.
2.R.Jameendar .. Respondents
Prayer: Petition filed under Article 226 of Constitution of India to issue
a Writ of Certiorarified Mandamus calling for the records pertaining to
the order dated 09.01.2015 passed by the 1st respondent in Approval
Petition No.493 of 2011 and quash the same, consequently direct the
1st respondent to approve the order of the petitioner dated 15.11.2011
dismissing the 2nd respondent from service.
For Petitioner : Mr.D.Venkatachalam
For Respondent-1 : Mr.M.Hasan Fizal
Government Advocate
For Respondent-2 : Mr.V.Ajay Khose
*****
1/8
https://www.mhc.tn.gov.in/judis
W.P.No.22768 of 2016
ORDER
The writ petition has been filed, challenging the order dated
09.01.2015 passed by the first respondent in Approval Petition No.493
of 2011 and for a consequential direction to the 1st respondent to
approve the order dated 15.11.2011, dismissing the 2nd respondent
from service.
2. The first respondent has rejected the approval petition filed
by the Management under Section 33(2)(b) of the Industrial Disputes
Act, 1947 (in short 'the I.D.Act, 1947') on two grounds:
(1) The domestic enquiry was not conducted following the principles
of natural justice.
(2) There is a short fall with regard to one month wages.
3. According to the learned counsel appearing for the
Workman, when there is no plea taken by the Management in the
counter at the initial stage that they should be given an opportunity to
let in fresh / additional evidence, the Management cannot seek for an
opportunity at the later point of time.
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W.P.No.22768 of 2016
4. Once the domestic enquiry has been held to be not fair and
proper, it is open to the Employer to adduce fresh evidence in the light
of the judgment of the Apex Court in the case of Workmen of Fire
Stone Tyre Rubber Company v. Management, reported in 1973
(1) LLJ 78 (equivalent (1973) 1 SCC 813, provided there is a plea
taken by the Management in the counter affidavit that they must be
given an opportunity to let in evidence. The Apex Court in a recent
judgment in the case of John D' Souza v. Karnataka State Road
Transport Corporation reported in (2019) 18 SCC 47, which has
been followed by this Court in the case of Management, Tamil Nadu
State Transport Corporation (Villupuram) Limited,
Kancheepuram Region, Kancheepuram vs. M.Chitti Babu
(deceased) and others, reported in 2021-I-LLJ-17 (Mad),
reiterated that once the domestic enquiry is vitiated, the employer
must be given an opportunity to establish the charges. In Shankar
Chakravarti vs. Britannia Biscuit Co. Ltd. and others, reported in
(1979) 3 SCC 371, the Apex Court held that there is no need for the
Labour Court or Tribunal to remind the Management as to what they
should do.
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W.P.No.22768 of 2016
5. The Authority concerned has interfered with the
punishment, on yet another ground that there was a shortfall of one
month wage, thereby, rejecting the Approval for improper conduct of
domestic enquiry. According to the Workman, the Management has
paid wages for 26 days and not for 30 days and therefore, there is a
short fall, which has not been counted by the Management to establish
their case. The relevant portion of the order is extracted below:
“4/ bjhHpyhspf;F xU khj rk;gsk; tH';fg;gl;Ls;sjh>
kDjhuh; eph;thfk;. Vjph;kDjhuhpd; ntiy ePf;fj;jpd;
nghJ bjh/j/rl;lk; gphpt[ 33(2)(gp)d; tpsf;fj;jpy; fz;Ls;sthW.
xU khj mwptpg;g[r; rk;gsk; ntiy ePf;f cj;jut[ld; mDg;gpa
fhnrhiyapy; U:/7.130 kl;Lnk xU khj mwptpg;g[r; rk;gskhf
tH';fpa[s;sJ Ex.P8 Mtzj;jpypUe;J bjhpatUfpwJ/ Mdhy;
vjph;kDjhuh; jug;gpy; jdf;F xUkhj Cjpak; KGikahf
tH';fg;gltpy;iybad thjplg;gl;L mjw;F Mjuthf jkpHf
muR 3?10?2011 ehspl;l murhiz vz;/273. 8?10?2012 ehspl;l
murhiz vz;/365 kw;Wk; 12(3) xg;ge;jk; jhf;fy;
bra;ag;gl;Ls;sJ/ fHf jw;fhypf Xl;Leh;fSf;F Cjpakhf
U:/5.200-? mog;gil rk;gskhft[k;. juCjpakhf 1.700-?k; nrh;j;J
U:/5.200+1.700 = U:/6.900-? j;jpy; vjph;kDjhuh; ntiyePf;fj;jpd;
nghJ mkypy; ,Ue;j mftpiyg;go 58#j;ij fzf;fpl;L tUk;
bjhifahd U:/4.002-? a[k; nrh;j;J tUk; bjhifahd U:/10.902-?
ia xUkhj Cjpakhf vjph;kDjhuUf;F tH';fpapUf;f
ntz;Lbkd;Wk; thjplg;gl;lJ/ mtuJ thjj;ij kDjhuh;
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W.P.No.22768 of 2016
eph;thfk; kWj;J vt;tpj rhd;nwh. rhl;rpankh Kd;dpl;L
epU:gpf;fg;gltpy;iy/ vdnt vjph;kDjhuhpd; thjj;ij Vw;W
bjhHpw;jfuhW rl;lg;gphpt[ 33(2)(gp)d; fPH; vjph;kDjhuUf;F
tH';fg;gl ntz;oa xUkhj rk;gsk; KGikahf
tH';fg;gltpy;iybad Kot[ bra;ag;gLfpwJ/””
6. When there is a shortfall of wages, naturally, the Approval
Petition has got to be rejected, as it is incumbent upon the
Management / Employer to pay full one month wage. It is contended by
the learned counsel for the Management that while in service, the
Workman contested in a Ward Election, which is a misconduct and he
shall not be granted any benefits.
7. In reply, the learned counsel for the Workman contended
that it is true that the Workman was elected in the Ward Election and
there was no remuneration received for the said post. Subsequently, he
resigned from the post and by an order of the Approval Authority, he
has been reinstated in service on 23.01.2020. He further submitted
that he is willing to give up the back wages from the date of dismissal
till the date of reinstatement. However, the said period may be taken
into account for the purpose of continuity of service.
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W.P.No.22768 of 2016
8. The learned counsel appearing for the Management would
submit that if the Workman is willing to give up the back wages, as
contended by the learned counsel for the Workman, the case of
reinstatement granted on 23.01.2020 will not be disturbed, as he has
been reinstated without prejudice to the rights of the parties in the writ
petition.
9. Taking note of the submissions made by both the parties
and that the Approval Authority has rejected the Approval Petition, this
Court passes the following order:
(1) Pursuant to the order of the Authority, the Workman shall be
deemed to be in service from the date of dismissal till the date
of reinstatement and the past services rendered prior to the
dismissal shall be taken into account as a continuous one;
(2) The wages drawn by the Workman, if any, pursuant to the
interim order of the Court shall not be adjusted or recovered;
(3) The Workman is entitled to wages from the date of dismissal till
the date of reinstatement, namely, 23.01.2020, except the
wages paid pursuant to the interim orders of the Court.
10. The order passed by the Authority, setting aside the
dismissal order would mean that an order of dismissal is non-est in the
eye of law. In view of the undertaking given by the Workman, wages
payable to the Workman and other benefits shall be nationally fixed and
the benefits shall be extended to the Workman with effect from the
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W.P.No.22768 of 2016
date of reinstatement, namely, 23.01.2020 within a period of four
months from the date of receipt of a copy of this order. If there is any
punishment during the past period, that has not been disturbed by this
order, unless otherwise the same is questioned and interfered with by
the Court.
11. With the above directions, this Writ Petition is disposed of.
No costs.
01.08.2021
Index : Yes/no
Speaking order : Yes/No
rsi
To:
The Special Deputy Commissioner of Labour,
DMS Campus, Anna Salai,
Chennai.
https://www.mhc.tn.gov.in/judis
W.P.No.22768 of 2016
S.VAIDYANATHAN, J.
rsi
W.P.No.22768 of 2016
01.08.2021
https://www.mhc.tn.gov.in/judis
