N.Pichandi vs Tamil Nadu State Transport
2021 Latest Caselaw 14349 Mad

                                                                                        WP No.25578 of 2008


                                IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 19.07.2021

                                                          CORAM

                                THE HONOURABLE MR. JUSTICE M.GOVINDARAJ

                                                   W.P No.25578 of 2008
                                                   and M.P No.1 of 2008
                      N.Pichandi                                                  ... Petitioner

                                                             Vs.

                      1.Tamil Nadu State Transport
                          Corporation (Villupuram) Ltd.,
                        Rep. by its Managing Director
                        Vazhudhareddy,
                        Villupuram.

                      2.The General Manager
                        Tamil Nadu State Transport
                          Corporation (Villupuram) Ltd.,
                        Vellore Region, Rangapuram,
                        Vellore.                                                  ... Respondents

                      PRAYER: Writ Petition has been filed under Article 226 of the Constitution
                      of India praying to issue a Writ of Certiorarified Mandamus, to call for the
                      records    pertaining   to    the   order    dated   17.09.2008     in     Memo
                      No.161304/Sa6/TNSTC/07 passed by the second respondent, quash the
                      same and consequently direct the respondents to treat the period of
                      suspension of petitioner as duty with pay with all consequential benefits.


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                                                                                        WP No.25578 of 2008




                                          For Petitioner      :   Mr.V.Ajoy Khose

                                          For Respondents : Mr.C.S.K.Sathish
                                                         -----

                                                        ORDER

The present Writ Petition has been filed for the issuance of a

Writ of Certiorarified Mandamus, to call for the records pertaining to the

order dated 17.09.2008 in Memo No.161304/Sa6/TNSTC/07 passed by the

second respondent, quash the same and consequently direct the respondents

to treat the period of suspension of petitioner as duty with pay with all

consequential benefits.

2. The petitioner, while working as a Conductor, was issued

with a charge memo for having misappropriated funds over a period of time

through resale of tickets. This misconduct was found during an Audit

Inspection conducted by the respondent Corporation. After an enquiry, the

petitioner was imposed with a punishment of reduction of basic pay from

Rs.9,775/- to the lowest one of Rs.5,305/- for a period of five years and

thereafter, to restore the basic pay back to Rs.9,775/-, but, the petitioner had

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retired within a period of two years from service. The petitioner has

challenged the impugned order without exhausting the available alternative

remedy of appeal and filed the present Writ Petition.

3. The learned counsel for the respondents have taken a

preliminary objection as to the maintainability of the Writ Petition for it is

filed without exhausting the alternative remedy. In support of his contention,

he relied on a judgment of the Delhi High Court in the case of PTI

Employees Union Vs. Press Trust of India Ltd., (2020 SCC OnLine Del

1216) and another judgment of the Hon'ble Supreme Court in the case of

State of Uttar Pradeshand Another Vs. Uttar Pradesh Rajya Khanij Vikas

Nigam Sangharsh Samiti and Others [ (2008) 12 SCC 675 ].

4. According to the learned counsel for the respondent, only

when there is an exceptional circumstance, the Court can entertain the Writ

Petition without insisting on alternative remedy. Only because the Writ

Petition is admitted, that will not entitle the petitioner to entertain the

petition on merits.

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5. I have heard the submissions made on either side and

perused the materials placed before this Court.

6. At the outset, this Writ Petition has been preferred

challenging the jurisdiction of the respondent in imposing the punishment.

Whenever a Writ Petition is filed challenging an order passed without

jurisdiction or in violation of principles of natural justice or in an exceptional

circumstance, where urgent orders are required and when the alternative

remedy is not an efficacious one, the Writ Petition can be entertained. In the

instant case, the Standing Order of the respondent Corporation enumerates

the following punishments:-

“25. Punishments for Misconduct:

1. The following shall be prescribed as punishment that may be awarded to workman.

i. Censure (Minor) ii. Fine subject to the provisions of Payment of wages Act (Minor) iii. Stoppage of increment : Stoppage of increment or without cumulative effect.

iv. a. Recovery from wages whole or part of any pecuniary

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loss, caused to the Corporation by the negligence or breach of orders of the workers.

b. Recovery from pay to the extent necessary of the monetary value equivalent to the amount of increments ordered to be with held, where such an order cannot be given effect.

c. Recovery from pay to the extent necessary of the monetary value equivalent to the amount of deduction to a lower stage in a time-scale ordered where such an order cannot be given effect to. Explanation : In cases of stoppage of increment with cumulative effect the monetary value equivalent to three times the amount of increment ordered to be withheld may be recovered.

v. Demotion of lower post or lower grades No workman shall be demoted to any post or grade lower than to which he was initially recruited under the Corporation.

vi. Suspension as a specific punishment not exceeding 30 days.

vii. Removal from service or discharge. viii. Dismissal from service.

2. Suspension Pending Enquiry :

a. Where disciplinary proceedings against a workman is contemplated or is pending or where criminal proceedings against him in respect of any offence are in progress and the Management is satisfied that it is necessary or desirable to place the workman under suspension, he may, by order in writing suspend him with effect from such date as may be specified in the order. A statement setting out in detail the reason for such suspension shall be supplied to the workman within a week from the date of suspension.

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b. A workman, who is placed under suspension under clause

(a) shall, during the period of suspension be paid a subsistence allowance as per the Tamil Nadu Payment of Subsistence Allowance Act, 1981.

c. If on the conclusion of the enquiry, or as the case maybe of the criminal proceedings, the workman has been found guilty of the charges framed against him and it is considered after giving the workman concerned a reasonable opportunity of making representation on the penalty proposed that an order of dismissal or suspension or fine or stoppage of annual increment or reduction in rank would meet the ends of justice, the employer shall pass an order accordingly.

i. Provided that when an order of dismissal is passed under this clause, he workman shall be deemed to have been absent from duty during the period of suspension and shall not be entitled to any remuneration for such period and the subsistence allowance already paid to him shall not be recovered.

ii. Provided also that when an order imposing fine or stoppage of annual increment or reduction in rank is passed under this clause, the workman shall be deemed to have been on duty during the period of suspension and shall be entitled to the same wages as he would have received if he had not been placed under suspension, after deducting the subsistence allowance paid to him for such period.

iii. Provided further that when an order of suspension is passed under this clause and the period between the date on which

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the workman was suspended from duty pending enquiry or investigation or trial and the date on which the final orders or suspension was passed exceeds 30 days, the workman shall be deemed to have been suspended only for 30 days for such short period as is speciried in the said final orders of suspension, and for the remaining period he shall be entitled to the same wages as he would have received if he had not been placed under suspension after deducting the subsistence allowance paid to him for such period.

d. If on the conclusion of the enquiry, or as the case may be, of the criminal proceedings, the workman has been found to be not guilty of any of the charges framed against him, he shall be deemed to have been on duty during the period of suspension and shall be entitled to the same wages as he would have received if he had not been placed under suspension after deducting the subsistence allowance paid to him for such period.

e. The payment of subsistence allowance under the Standing Order shall be subject to the workman concerned not taking up any employment during the period of suspension.

The punishment imposed by the respondents in the impugned order does

not find a place in the Standing Order. When the Standing Order does not

specify such a punishment, the respondents are not empowered to impose a

different punishment other than what is specified therein. In that view of the

matter, the punishment imposed by the respondents is without jurisdiction

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and therefore, the Writ Petition is maintainable.

7. Secondly, the disciplinary proceedings were initiated on the

basis of the audit objection after a long period. However, this Court is not

inclined to delve into the merits of the matter. Even though conflicting issues

are raised by both the sides, the allegation made by the Management cannot

be brushed aside at one stroke. However, in order to strike a balance

between the parties, this Court is inclined to modify the punishment

corresponding to the Standing Order. In similar circumstances, this Court in

W.P.No.26392 of 2004, dated 07.02.2012, had modified the punishment

into one of stoppage of increment for a period of one year with cumulative

effect.

8. Considering the charge in hand, I am inclined to modify the

punishment of reduction to the lowest stage for five years into one of

stoppage of increment with cumulative effect for a period of two years.

Since the petitioner has already attained the age of superannuation, the

respondents are directed to recalculate the monetary value of the

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punishment and disburse the balance of terminal benefits to the petitioner

within a period of three (3) months from the date of receipt of a copy of this

order.

The Writ Petition is disposed of with the above directions.

There shall be no order as to costs. Consequently, connected Miscellaneous

Petition is closed.

19.07.2021

asi

To

1.The Managing Director Tamil Nadu State Transport Corporation (Villupuram) Ltd., Vazhudhareddy, Villupuram.

2.The General Manager Tamil Nadu State Transport Corporation (Villupuram) Ltd., Vellore Region, Rangapuram, Vellore.

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M. GOVINDARAJ, J.

asi

W.P No.25578 of 2008 and M.P No.1 of 2008

19.07.2021

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