Madras High Court

The General Manager vs D.Ravichandran on 1 August, 2021

                                                                               Writ Petition No.365 of 2017


                              IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                             DATED : 01.08.2021

                                                       CORAM

                                  THE HON'BLE MR. JUSTICE S.VAIDYANATHAN

                                               W.P. No. 365 of 2017
                                                       and
                                               W.M.P. No.398 of 2017

                    The General Manager
                    Tamil Nadu State Transport Corporation
                    (Villupuram) Limited
                    Vazhuthareddy, Salamedu
                    Villupuram Region
                    Villupuram – 605 602                                                ... Petitioner

                                                          -vs-

                    1.D.Ravichandran
                    2.The Special Deputy Commissioner of Labour,
                      D.M.S.Compound,
                      Chennai – 6.                                              ...    Respondents

                    Prayer:- Writ Petition filed under Article 226 of the Constitution of India
                    praying to issue a Writ of Certiorari, calling for the records of the 2nd
                    respondent made in A.P. No. 256 of 2012 dated 11.01.2016 and to quash the
                    same as illegal and against the provisions of the Industrial Disputes Act, 1947.
                                       For Petitioner      :      Mr.K.J.Sivakumar
                                       For Respondents     :      Mr.K.Arunagiri for R1
                                                                  Mr.L.S.M.Hasan Fizal
                                                                  Government Advocate for R2




                    Page No.1 of 8

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                                                                                Writ Petition No.365 of 2017


                                                        ORDER

Petitioner / Transport Corporation has come up with this Writ Petition

challenging the order dated 11.01.2016 passed by the 2nd Respondent in

Approval Petition No. 256 of 2012.

2. It is seen that, the 2nd Respondent / Authority has rejected the

Approval Petition filed by the Petitioner / Transport Corporation on the ground

that, the domestic enquiry has not been fairly conducted and that, the

punishment imposed on the employee is disproportionate to the charges of

unauthorised absence framed against him.

3. Heard the learned counsel on either side and perused the material

documents available on record.

4. Once the domestic enquiry is vitiated, in the light of the judgments

rendered by the Hon'ble Apex Court in the case of John D' Souza v.

Karnataka State Road Transport Corporation reported in (2019) 18 SCC 47

and in the case of Management, Tamil Nadu State Transport Corporation

https://www.mhc.tn.gov.in/judis Writ Petition No.365 of 2017

(Villupuram) Limited, Kancheepuram Region, Kancheepuram v. M.Chitti

Babu (deceased) and others reported in 2021-I-LLJ-17 (Mad) the matter will

have to be remanded. Even if the matter is remanded and approval is granted

by the Authority on remand, the employee is entitled to raise an Industrial

Dispute and the Labour Court is empowered to take a different view in terms

of Section 11(A) of the Industrial Disputes Act, 1947, taking into account the

past record.

5. The charges in the enquiry were established and only for the purpose

of cross examination, if the matter is going to be remanded and in case the

Labour Court looks into the past records after the charges are established on

enquiry, then the employee will have to face major punishment as the past

records are also bad.

6. A reading of the enquiry proceedings makes it clear that, cross-

examination was not permitted to be done in the enquiry. Hence, the Authority

has come to the conclusion that, there is no legal evidence to establish the

charges against the employee and that, there is victimization.

https://www.mhc.tn.gov.in/judis Writ Petition No.365 of 2017

7. As regards the issue of victimization, it is worth referring to the

decision rendered by the Apex Court in the case of Bharat Iron Works vs.

Bhagubhai Balubhai Patel, reported in (1976) 1 SCC 518, relevant

paragraph of which, reads thus:

“12. Again victimization must be directly connected with the activities of the concerned employee inevitably leading to the penal action without the necessary proof of a valid charge against him. The question to be asked is: Is the reason for the punishment attributable to a gross misconduct about which there is no doubt or to his particular trade union activity which is frowned upon by the employer? To take an example, suppose there is a tense atmosphere prevailing in a Company because of a strike consequent upon raising of certain demands by the Union, each party calling the other highly unreasonable or even provocative, the Tribunal will not readily accept a plea of victimization as answer to a gross misconduct even when an employee, be he an active office-bearer of the Union, commits assault, let us say, upon the Manager, and there is reliable legal evidence to that effect. In such a case the employee, found guilty, cannot be equated with a victim or a scapegoat and the plea of victimization as a defence will fall flat. This is why once, in the opinion of the Tribunal a gross misconduct is established, as required, on legal evidence, either in a fairly conducted domestic enquiy or before the Tribunal on merits, the plea of victimization will not carry the case of the employee any further. A proved misconduct is antithesis of victimization as understood in industrial relations.

This is not to say that, the Tribunal has no jurisdiction to interfere with an order of dismissal on proof of victimization.”

8. As the Transport Corporation is a 'State' within the meaning of Article

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12 of the Constitution of India, in order to give a quietus to the issue and

shorten the life of litigation, the Petitioner / Transport Corporation is

directed to reinstate the 1st Respondent / employee in service as a fresh

entrant and provide him employment to enable him to report for work

from 01.10.2021.

9. In view of the above, the order dated 11.01.2016 passed by the

2nd Respondent / Authority in Approval Petition No. 256 of 2012 is

confirmed and the Writ Petition stands disposed of. No costs.

Consequently, connected W.M.P. No.398 of 2017 is closed.


                                                                                         01.08.2021

                    Index                :     Yes/No
                    Speaking Order       :     Yes/No
                    vji

Note to Registry: Issue copy of this order on or before 22.09.2021

To :

The Special Deputy Commissioner of Labour, D.M.S.Compound, Chennai – 6.

https://www.mhc.tn.gov.in/judis Writ Petition No.365 of 2017

S.VAIDYANATHAN,J.

vji

W.P. No. 365 of 2017 and W.M.P. No.398 of 2017

01.08.2021

https://www.mhc.tn.gov.in/judis Writ Petition No.365 of 2017

W.P.No.365 of 2017

S. VAIDYANATHAN,J

This matter is listed under the caption 'For Being Mentioned' at the

instance of the learned counsel for the Petitioner.

2. It is represented by the learned counsel for the Writ

Petitioner/Workmen that the employee has already filed a memo dated

01.08.2021 before this Court. The Relevant portion of the memo is extracted

below;

3.The Workmen is willing to forego his claim for backwages for the period from the date of termination (i.e.02.07.2012) to upto the date of retirement on or before 01.10.2021. The Management is liable to pay their part of all statutory contributions to enable the Workmen to get continuity of service and all other attendant monetary and service benefits.

4. The Workmen is also entitle to get his pay fixed and paid in his current posting, on par with his co-worker.

5. The Workment is also entitle to get his last drawn wages as per the provisions of Section 17(B) of the Industrial Dispute Act,1947.

https://www.mhc.tn.gov.in/judis Writ Petition No.365 of 2017

S. VAIDYANATHAN,J shk

3. In view of the same, paragraph 8 of the order dated 01.08.2021 is

modified as follows:

“As the Transport Corporation is a 'State' within the meaning of Article 12 of the Constitution of India in order to give a quietus to issue shorten the life of the litigation, the Petitioner/Transport Corporation is directed to reinstate the First Respondent/employee in service with continuity of service and other terminal benefits. The Management and Workmen will have to be paid respective arrears to the provident Fund Department, if any in order to entitle the pension, if the same will be applicable to the First Respondent/Workman”