Madras High Court
K.Senthil Raja vs The General Manager on 10 August, 2021
W.A.No.3589/2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.08.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
W.A.No.3589/2019
K.Senthil Raja ... Appellant
-vs-
1. The General Manager,
Tamil Nadu State Transport Corporation
(Salem) Limited,
No.12, Ramakrishna Salai,
Salem-7.
2. The Special Deputy Commissioner of Labour,
D.M.S. Compound, Chennai. ... Respondents
Prayer: Writ appeal filed under Clause 15 of the Letters Patent
against the order of the learned Single Judge made in W.P.No.5725 of
2014 dated 12.09.2018 so far as it relates to the denial of back wages
from the date of dismissal of the appellant, namely, 30.03.2012 till
31.12.2015.
For Appellant : Mr.M.Palani
For 1st respondent : Mr.S.Magesh
for Mr.D.Raghu
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W.A.No.3589/2019
JUDGMENT
(Judgment of the Court was pronounced by T.RAJA.J)
This Writ Appeal has been directed against the order of the
learned Single Judge made in W.P.No.5725 of 2014 dated 12.09.2018
so far as it relates to the denial of back wages from the date of
dismissal of the appellant, namely, 30.03.2012 till 31.12.2015.
2. Learned Counsel appearing for the appellant submitted
that the appellant was employed in the Technical Division of the 1st
respondent Transport Corporation from 07.12.1984. While so, he was
served with a Charge Memo dated 03.09.2011 alleging using of
abusive language against his supervisor. Consequently, a domestic
enquiry was ordered in which the appellant fairly participated and the
Enquiry Officer, on completion of the enquiry, submitted his report
holding that the charges levelled against the appellant stood proved.
Thereafter, he was also furnished with a copy of the enquiry report
asking him to explain as to why he should not be dismissed from
service to which the appellant has also submitted a detailed
explanation stating that the charges levelled against him have not
been properly probed into. Therefore, the findings of the Enquiry
Officer holding him guilty cannot be accepted. However, without
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W.A.No.3589/2019
considering the explanation offered by the appellant, the 1st
respondent Transport Corporation, disproportionate to the proved
charges, dismissed him from service. When the allegation put against
the appellant was only using of abusive language against the
supervisor, awarding the punishment of dismissing from service is
disproportionate, shocking the consciousness of everyone.
3. Learned Counsel for the appellant further submitted that
however, the 1st respondent Management filed an Approval Petition
before the Special Deputy Commissioner of Labour, Chennai, the 2nd
respondent herein seeking approval of the order of dismissal dated
30.03.2012. The 2nd respondent, after going into detail while
examining the petition filed under Section 33 (2) (b) of the Industrial
Disputes Act, 1947 gave a finding that as the appellant was the
President of the Anna Labour Union, the 1st respondent Management
appears to have adopted unfair labour practice by giving a false
allegation. The 2nd respondent also finding that the 1st respondent
Management failed to prove the allegation against the delinquent with
independent witness and acceptable document and as there was a
suspicion in imposing the punishment, finally came to the conclusion
that the action of the 1st respondent management is nothing but an
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W.A.No.3589/2019
unfair labour practice. Therefore, finding that a prima facie case was
not made out by presenting the documents and examining the
independent witnesses, dismissed the application filed under Section
33 (2) (b) of the industrial Disputes Act, 1947 as per the ratio laid
down by the Apex Court in the case of Jaipur Zila Sahakari Bhoomi
Vikas Bank Limited vs Ram Gopal Sharma and others reported in
(2002) 2 SCC 244, that the appellant herein deemed to be in service
for the simple reason that if the order of dismissal dated 30.03.2012
passed by the 1st respondent failed to get the approval of the
competent authority, nothing more is required to be drawn by the
employee as it will have to be deemed that the order of discharge or
dismissal has never been passed. Consequently, the employee is
deemed to have continued in service. This settled legal position has
been overlooked by the learned Single Judge while dismissing the writ
petition filed by the 1st respondent Management seeking cancellation of
the refusal order passed by the 2nd respondent granting approval of the
dismissal order.
4. Again learned Counsel for the appellant submitted that
when the appellant received the notice in W.P.No.5725/2014 filed by
the 1st respondent, the appellant moved M.P.No.3/2014 seeking 17(b)
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W.A.No.3589/2019
wages, in view of the rejection of the approval clearly mentioning
therein that the appellant was not employed anywhere else and was
suffering without salary and unable to support his family and found it
very difficult to make both ends to meet and accepting the affidavit
filed by the appellant for payment of 17-b wages, this Court also gave
a direction to the 1st respondent to pay the last drawn wages by order
dated 06.10.2015 and pursuant to the said order, the 1st respondent
paid the last drawn wages w.e.f. 31.12.2015. Therefore, it goes to
show that the appellant was without employment and he was survived
with the help of 17-b wages. Hence, the order passed by the learned
Single Judge refusing to grant back wages for the period he was out of
employment is uncalled for. In any event, when the Constitution
Bench of the Apex Court in Jaipur Zila case cited supra has been
overlooked, the impugned order is liable to be set aside by allowing
the present Writ Appeal, he pleaded.
5. Per contra, learned Counsel for the 1st respondent
submitted that the appellant was found guilty of charges by the
domestic enquiry. The Enquiry Officer, who conducted the enquiry
also has given fair and proper opportunity to the appellant. The 2 nd
respondent herein while seeking approval for the order of dismissal
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W.A.No.3589/2019
from service dated 30.03.2012 also has given a clear finding that the
domestic enquiry against the appellant was fairly and properly
conducted. Instead of the finding given by the 2nd respondent that
there was fair and proper enquiry held and charges levelled against the
appellant, the 2nd respondent ought not to have refused the approval
of the order of dismissal dated 30.03.2012. Therefore, the
Management of Transport Corporation came to this Court by filing
W.P.No.5725/2014. The learned Single Judge considering the case of
both parties approving the punishment meted out to the appellant for
abusing the supervisor in not giving him duty as per the whims and
fancies of the appellant has rightly refused the back wages for the
non-employment period. This is in compliance of the principle that no
work no pay. Admittedly, in the present case, when the appellant was
not employed during the period from the date of dismissal till he
reached the age of superannuation i.e. from 30.03.2012 till
31.07.2018 and more than that he was also paid with 17(b) wages by
this Court, therefore, the Appeal filed before this Court seeking the
back wages for the period of non-employment is unjustified and unfair
and as such, the impugned order deserves to be affirmed by this
Court.
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W.A.No.3589/2019
6. We are unable to agree with the said submissions of the
learned Counsel for the 1st respondent for the simple reason that when
the charge framed against the appellant shows that he abused the
supervisor by using unparliamentary words for which he was imposed
with the major penalty of dismissal from service on 30.03.2012,
however, to get approval of the dismissal order, the 1 st respondent as
per Section 33(2)(b) of the Industrial Disputes Act, 1947 approached
the competent authority. The 2nd respondent rightly going through the
nature of allegation, for which the appellant was charged found that
only minor allegation has been made against him. Inasmuch as he
alleged to have abused the Supervisor for not giving him suitable duty
for which he was departmentally prosecuted. Finally, an order of
dismissal has been imposed against him on 30.03.2012. At this stage,
it has to be borne in mind that the appellant is the leader of the Labour
Union. Therefore, when the 1st respondent Transport Corporation, as
per the finding given by the 2nd respondent, has imposed major
penalty of dismissal from service, taking it as unfair labour practice,
the application for approval of dismissal filed under Section 33 (2)(b)
of the Act was refused. Aggrieved thereby, the 1st respondent came to
this Court with the Writ Petition. The learned Single Judge finding no
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W.A.No.3589/2019
justification whatsoever dismissed the same and while dismissing the
writ petition, the appellant herein has deprived of the back wages for
the period of non-employment. As rightly canvassed by the learned
Counsel for the appellant that when it is the well settled legal position
that once the prayer for granting approval to the order of dismissal is
refused, nothing more is required to be done by the employee as it will
have to be deemed that the order of discharge or dismissal has not
been passed. Consequently, the employee is deemed to have
continued in service entitling him to all the benefits available.
7. In this regard, it is relevant to reproduce the relevant
paragraph of the judgment in the case of Jaipur Zila Sahakari
Bhoomi Vikas Bank Limited vs Ram Gopal Sharma and others
reported in (2002) 2 SCC 244 here under:
''14. Where an application is made under Section
33(2)(b) proviso, the authority before which the
proceeding is pending for approval of the action taken by
the employer, has to examine whether the order of
dismissal or discharge is bona fide; whether it was by way
of victimization or unfair labour practice; whether the
conditions contained in the proviso were complied with or
not etc. If the authority refuses to grant approval
obviously it follows that the employee continues to be in
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service as if the order of discharge or dismissal never had
been passed. The order of dismissal or discharge passed
invoking Section 33(2)(b) dismissing or discharging an
employee brings an end of relationship of the employer
and employee from the date of his dismissal or discharge
but that order remains incomplete and remains inchoate as
it is subject to approval of the authority under the said
provision. In other words, this relationship comes to an
end de jure only when the authority grants approval. If
approval is not given, nothing more is required to be done
by the employee, as it will have to be deemed that the
order of discharge or dismissal had never been passed.
Consequence of it is that the employee is deemed to have
continued in service entitling him to all the benefits
available. This being the position, there is no need of a
separate or specific order for his reinstatement.''
8. Secondly, the learned Counsel for the appellant has
demonstrated before us that the appellant remained all along without
any employment and not gainfully employed in anywhere else and
after the filing of the W.P.No.5725/2014 by the 1st respondent before
this Court, challenging the order passed by the 2nd respondent refusing
to grant prior approval for dismissal, M.P.No.3/2014 was filed in
W.P.No.5725/2014 by the appellant herein seeking 17-b charges for
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W.A.No.3589/2019
payment of last drawn wages in view of rejection of approval. The
said application was also accompanied with an affidavit and in para 9
therein, the appellant had made it clear that he was not employed
anywhere else and has been suffering without salary and he was
unable to support his family, accepting the said affidavit filed, by an
order dated 06.10.2015 the 1st respondent was directed to pay 17-b
wages and accordingly, the appellant was getting the 17-b wages till
he reached the age of superannuation. Therefore, when it is the
settled legal position that once the prayer for granting approval to the
order of dismissal is refused, nothing more is required to be done by
the employee as it will have to be deemed that the order of discharge
or dismissal has not been passed and the employee is deemed to have
continued in service entitling him to all the benefits available, the
impugned order depriving him of back wages is without any
justification. Therefore the same is liable to be set aside.
9. In the result, the order of the learned Single Judge made
in W.P.No.5725 of 2014 dated 12.09.2018 so far as it relates to the
denial of back wages from the date of dismissal of the appellant,
namely, 30.03.2012 till 31.12.2015 is set aside and the 1st respondent
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is directed to pay the back wages for the said period, within a period of
four weeks from the date of receipt of a copy of this Order. No costs.
(T.R.J.,) (V.S.G.J.,)
10.08.2021
tsi
To
1. The General Manager,
Tamil Nadu State Transport Corporation
(Salem) Limited,
No.12, Ramakrishna Salai,
Salem-7.
2. The Special Deputy Commissioner of Labour,
D.M.S. Compound, Chennai.
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W.A.No.3589/2019
T.RAJA, J.
and
V.SIVAGNANAM, J.
tsi
W.A.No.3589/2019
10.08.2021
https://www.mhc.tn.gov.in/judis/
