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 6
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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
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Writ Petition No.365 of 2017
Corporation (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.
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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
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Writ Petition No.365 of 2017
Article 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.
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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
http://www.judis.nic.in
