Madras High Court
The Management vs R.Thanigaivel on 29 July, 2021
W.P.No.13444 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.07.2021
CORAM :
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.13444 of 2021
The Management,
Tamil Nadu State Transport
Corporation (Villupuram) Limited,
represented by its General Manager,
Kancheepuram Region,
Ponneri Karai,
Bengaluru National Highways,
Kancheepuram – 631 552. ... Petitioner
vs.
1. R.Thanigaivel
2. The Special Joint Commissioner of Labour,
DMS Campus, Anna Salai,
Chennai. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a writ of Certiorarified Mandamus, to call for the
records pertaining to the order dated 23.07.2018 passed by the 2nd
Respondent in Approval Petition No.131 of 2014 and quash the same,
consequently direct the 2nd Respondent to approve the order of the Petitioner,
dated 12.05.2014 dismissing the 1st Respondent from service.
For Petitioner : Mr.L.Ramanathan
for Mr.K.J.Sivakumar
For 1st Respondent : Mr.N.Ishak
Page No.1 of 8
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W.P.No.13444 of 2021
ORDER
Petitioner/Transport Corporation has come up with this Writ Petition
challenging the order dated 23.07.2018 passed by the 2nd
Respondent/Authority in Approval Petition No.131 of 2014 and for a
consequential direction to the 2nd Respondent/Authority to approve the order
dated 12.05.2014 passed by the Petitioner, dismissing the 1st
Respondent/employee from service.
2. Heard the learned counsel on either side and perused the
material documents available on record.
3. It is represented by the learned counsel appearing for the 1st
Respondent/employee that, the 1st Respondent/employee joined the services
of the Petitioner/Transport Corporation on 24.04.2008 and he was dismissed
from service on 12.05.2004, after enquiry. He has rendered five years of
qualifying service, excluding one year non-qualifying service. He further
submitted that, during the pendency of this Writ Petition, the 1st
Respondent/employee filed a Petition claiming wages that, he is without
employment.
4. The Labour Court rejected the Approval Petition filed by the
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W.P.No.13444 of 2021
Petitioner/Management in A.P.No.131 of 2014 on the ground that, the
enquiry was not conducted properly and not in accordance with the principles
of natural justice and that, there is victimization.
5. The Apex Court in a decision rendered in John D' Souza vs.
Karnataka State Road Transport Corporation reported in (2019) 18 SCC
47 held that, if the domestic enquiry is not conducted in a fair and proper
manner, it is the mandatory duty on the part of the Authority to give an
opportunity to the Management to establish the charges in the enquiry,
provided there is a plea seeking for an opportunity. However, when there is
no plea by the employer that, in case, the domestic enquiry is not fair and
proper, they must be given an opportunity to let in evidence, in the light of
the Apex Court decision in the case of Shankar Chakravarti vs Britannia
Biscuit Co.Ltd reported in 1979 SCC (3) 371.
6. In the case on hand, the 1st Respondent/employee's past records
are also bad. He caused two fatal accidents apart from the one, for which he
was dismissed from service and in one fatal accident, 64 passengers in the
Bus were injured.
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W.P.No.13444 of 2021
7. In view of the above, this Court opines that, the order passed by
the 2nd Respondent/Authority requires interference in the light of the
principle laid down in John D' Souza's case (supra), as the order of rejection
of the Approval Petition passed by the Authority is not in accordance with
law. Accordingly, this Court interferes with the order dated 23.07.2018
passed by the 2nd Respondent/Authority and sets aside the same.
8. It is open to the 1st Respondent/employee to raise an Industrial
Dispute under Section 2(A) of the Industrial Disputes Act, 1947, as,
remanding the matter to the Authority is not going to help him. In case, after
remand, the Approval Petition is once again rejected by the Authority, then,
the employee has to raise an Industrial Dispute. Instead of doing so, he can
straightaway raise an Industrial Dispute challenging the dismissal order.
9. It is made clear that, when the the 1st Respondent/employee
raises an Industrial Dispute under Section 2-A of the Industrial Disputes Act,
1947, the period during which the matter is pending before the Court will
have to be excluded, including the period of delay on the part of the
Management in filing the Writ Petition.
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W.P.No.13444 of 2021
10. Once the Authority confirms the order passed by the
Management, the order of dismissal of the employee will get merged with the
order of the Authority in the Approval Petition, and the period of limitation
begins from the date of grant of approval and not prior to that date, even
though the dismissal order is held to be valid. Hence, the period of limitation
will run only from the date of the order in the Approval Petition, when the
dismissal order is confirmed by the Tribunal/Authority/Board.
11. Even though Section 17-B of the Industrial Disputes Act, 1947
is not applicable to the order passed by the Authority under Section 33(2)(b)
of the Industrial Disputes Act, 1947, this Court is of the view that, the order
passed by the Authority under Section 33(2)(b) of the Industrial Disputes Act
is more than one of reinstatement. Since the Approval Petition has been
rejected by the Authority, the 1st Respondent/employee is deemed to be in
service, in the light of the judgment rendered by this Court in the case of
Tata Iron and Steel Company Ltd. vs. G.Ramakrishna Ayyar reported in
1950 LLJ 1043. For better appreciation, relevant portion of the said
judgment is extracted hereunder:
“4. It is next contended by Mr.Ramakrishna
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W.P.No.13444 of 2021
Ayyar that, in any event the order of the Commissioner
was bad insofar as it directed a reinstatement in service
of the first respondent. The argument was that, there is
no specific provision in the Act which enabled the
Authority to make an order of reinstatement. He
referred us by way of analogy to the jurisdiction of
Industrial Tribunals to make orders of reinstatement,
but, we think such reference is wholly irrelevant. To a
certain extent we agree with the learned counsel,
namely, that the Authority should not have said that the
employee would be entitled to reinstatement. But this
is only quarrelling with his language. Actually the
legal position is this. The employer passes an order
dispensing with the services of an employee. That
order is carried on appeal to a higher Authority.
That Authority reverses the decision of the
employer and the result is that, the order of the
employer is set aside. It is no longer in existence. It
follows that, the effect of the original order of the
employer also disappears and it is as if the order is
nonest. Though, therefore, it may not be quite
accurate to say that the employee will be entitled to
reinstatement in service, yet the result of the order of
the Appellate Authority is virtually the same.
Probably, the result is that, the appellate order is
even better than an order of reinstatement. It is as
if the employee had never been properly dismissed
from service. In this view, it is not necessary to quash
the order of the appellate authority even in this
respect.”
12. In view of the decision rendered in Tata Iron and Steel
Company's case (supra), as the 1st Respondent/employee is deemed to be in
service on account of rejection of Approval Petition, he is entitled to wages
from the date of rejection of the Approval Petition till the said order is
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W.P.No.13444 of 2021
set aside by this Court, i.e. till today.
The Writ Petition is allowed on the above terms. No costs.
Consequently, connected W.M.P.Nos.14321 and 14322 of 2021 are closed.
29.07.2021
Index : Yes/No
Speaking Order : Yes/No
(aeb)
To:
The Special Joint Commissioner of Labour,
DMS Campus, Anna Salai,
Chennai.
http://www.judis.nic.in
W.P.No.13444 of 2021
S.VAIDYANATHAN,J.
(aeb)
W.P.No.13444 of 2021
29.07.2021
http://www.judis.nic.in
