Madras High Court
The Management vs The Special Deputy Commissioner ... on 29 July, 2021
W.P. (MD) No. 1959 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.07.2021
CO RAM
THE HONOURABLE MR.JUSTICE P.D.AUDIKESAVALU
W.P. (MD) No. 1959 of 2016
and
W.M.P. (MD) No. 1721 of 2016
The Management,
Tamil Nadu State Transport Corporation (Kumbakonam) Limited,
Pudukkottai Region,
Pudukkottai. ... Petitioner
-vs-
1. The Special Deputy Commissioner of Labour,
Chennai.
T.Kumaresan (Died)
2. K.Sathiya Bama
3. K.Prabaharan
4. K.Dharmaraj
5. K.Meenakshi ... Respondents
PRAYER:- Writ Petition filed under Article 226 of the Constitution of India, to
issue a writ of Certiorari, calling for the records relating to the order passed by the
First Respondent herein dated 14.01.2015 in A.P. No. 127 of 2013 and quash the
same.
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W.P. (MD) No. 1959 of 2016
For Petitioner : Mr. D.Sivaraman
For R1 : Mr. B.Saravanan,
Counsel appearing for the Government
For R2 to R5 : Mr. S.Arunachalam
ORDER
(through video conference)
Heard Mr. D.Sivaraman, Learned Counsel for the Petitioner,
Mr. B.Saravanan, Learned Counsel representing the First Respondent and
Mr. S.Arunachalam, Learned Counsel for the Second to Fifth Respondents and
perused the materials placed on record, apart from the pleadings of the parties.
2. One T.Kumaresan (hereinafter referred to as 'the employee' for clarity and
convenience), who was employed as conductor in the Transport Corporation of the
Petitioner, had been terminated from service by order in Ref. No. TNSTC/PDK/
DS/D1/181 dated 25.03.2013 by the Petitioner on the ground of misappropriation
of funds collected from passengers. Since the conciliation proceedings relating to
industrial dispute between the Petitioner and the Trade Union in which the
employee was a member was then pending before the First Respondent, the
Petitioner had made an application under Section 33(2)(b) of the Industrial
Disputes Act, 1947 (hereinafter referred to as 'the Act' for short) for approval of the
termination. The said T.Kumaresan died on 29.03.2013 during the pendency of the
proceedings before the First Respondent, and the Second to Fifth Respondents,
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W.P. (MD) No. 1959 of 2016
who are his legal heirs, had been substituted as parties in his place. The application
for approval was subsequently rejected by order dated 14.01.2015 in A.P. No. 127
of 2013 passed by the First Respondent. Aggrieved thereby, the Petitioner has filed
this Writ Petition challenging the same.
3. It is evident from the impugned order that the First Respondent has examined
the application for approval made by the Petitioner with reference to the relevant
aspects stipulated in the decision of the Hon'ble Supreme Court of India in Lalla
Ram -vs- D.C.M. Chemical Works Ltd. [(1978) 3 SCC 1], which are as follows:-
(i) whether a proper domestic enquiry in accordance with the relevant
rules/Standing Orders and principles of natural justice has been held;
(ii) whether a prima facie case for dismissal based on legal evidence adduced
before the domestic tribunal is made out;
(iii) whether the employer had come to a bona fide conclusion that the employee
was guilty and the dismissal did not amount to unfair labour practice and was
not intended to victimise the employee;
(iv) whether the employer has paid or offered to pay wages for one month to the
employee; and
(v) whether the employer has simultaneously or within such reasonably short
time as to form part of the same transaction applied to the authority before
which the main industrial dispute is pending for approval of the action taken
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W.P. (MD) No. 1959 of 2016
by him.
4. The First Respondent came to the conclusion that the requirement in item
nos. (iii) and (v) had been satisfied and in respect of the aspects in item nos. (i) and
(ii), it was held that since the passengers in the bus, who had lodged the complaint
against the employee, had not been examined as witness in the domestic enquiry to
prove the charges, the domestic enquiry has not been conducted following the
Rules, Standing Orders and the principles of natural justice, and prima facie case
has not been made out. It was opined that the requirement for item no. (iv) was not
satisfied as there is deficit of one month wages paid to the employee since revised
dearness allowance had not been included in calculating that amount.
5. Insofar as the question relating to the validity of the domestic enquiry is
concerned, reference must be straightaway made to the decision of the Hon'ble
Supreme Court of India in State of Haryana -vs- Rattan Singh [(1977) 2 SCC
491], where it has been held that it would not be necessary to examine the
passengers of a public transport vehicle relating to an incident for which an
employee is charged for misconduct so long as evidence recorded in the domestic
enquiry independently proves that charge. It is accepted in the impugned order that
one Thinakaran, Checking Inspector, Zonal Office, Pudukkottai was examined as
witness to prove the charge. Though it has been stated that no proof has been
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W.P. (MD) No. 1959 of 2016
shown for having issued any show cause notice to the employee, it is borne out
from the record that the employee had submitted a reply dated 16.03.2011 to such
notice, which has been marked as exhibit in the domestic enquiry, even though it
has been contended by the Second to Fifth Respondent that the employee was
intimidated to admit the guilt. Once the employee had given a letter admitting the
charge, the burden of proof would necessarily fall on him to establish the
circumstances under which it had been submitted to wriggle out of its
consequences. Moreover, this aspect of the matter does not fall within the realm of
the limited scope of enquiry under Section 33(2)(b) of the Act. The Hon'ble
Supreme Court of India in Martin Burn Ltd. -vs- R.N.Bangerjee (AIR 1958 SC
79) has explicated as follows:-
"27. ....A prima facie case does not mean a case proved to the hilt but
a case which can be said to be established if the evidence which is led
in support of the same were believed. While determining whether a
prima facie case had been made out the relevant consideration is
whether on the evidence led it was possible to arrive at the conclusion
in question and not whether that was the only conclusion which could
be arrived at on that evidence. It may be that the Tribunal considering
this question may itself have arrived at a different conclusion. It has,
however, not to substitute its own judgment for the judgment in
question. It has only got to consider whether the view taken is a
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W.P. (MD) No. 1959 of 2016
possible view on the evidence on the record. (See Buckingham &
Carnatic Co., Ltd. [(1952) Labour Appeal Cases 490]"
This would obviously mean that the question relating to adequacy or reliability of
evidence would have to be agitated only in a proceedings challenging the
termination of the employee concerned.
6. It has been held by this Court in Management of Metropolitan Transport
Corporation (Chennai) Ltd. -vs- A.Ramesh Babu (Order dated 03.02.2016 in W.P.
Nos. 33497 to 33505 of 2015) that if the employer has undertaken to pay the
difference in one month wages that may arise in the approval petition under Section
33(2)(b) of the Industrial Disputes Act, 1947, and if there is any calculation mistake
or any other error, it would not vitiate the termination when the employer makes
good the deficit payable. It is informed by Learned Counsel for the Petitioner that
the deficit sum of Rs. 738/- has been sent by the Petitioner to the Second
Respondent through courier and proof for the same has been placed on record.
Having regard to the fact that the Petitioner had made the required undertaking to
pay difference in wages in the approval petition and the shortfall in one month
wages has been now paid, the First Respondent is not justified in denying approval.
7. The result of the foregoing discussion is that the impugned order dated
14.01.2015 in A.P. No. 127 of 2013 passed by the First Respondent insofar as it
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W.P. (MD) No. 1959 of 2016
relates to refusing to grant approval is set aside and shall be treated that the First
Respondent has granted approval under Section 33(2)(b) of the Act for the
termination of the employee. Though obvious, it is made clear that no view has
been expressed by this Court on the correctness or otherwise of the termination of
the employee and in terms of the dictum laid down by the Hon'ble Supreme Court
of India in Rameshwar Manjhi -vs- Management of Sangramgarh Colliery
[(1994) 1 SCC 292], the Second to Fifth Respondents as legal heirs of the deceased
employee are not precluded from working out their remedies to impeach the order
of termination before proper forum in the manner recognized by law (including
resort to complaint under Section 33-A of the Act, if available), and that the period
from the date of termination till the date on which certified copy of this order is
made ready shall be excluded for the purpose of computation of limitation in that
regard.
In the result, the Writ Petition is ordered on the aforesaid terms.
Consequently, the connected Miscellaneous Petition is closed. No costs.
29.07.2021
Ns/vjt
Index: Yes/No
Note: (i) Issue order copy by 20.09.2021.
(ii) In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
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W.P. (MD) No. 1959 of 2016
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate / litigant concerned.
To
1. The Special Deputy Commissioner of Labour,
Chennai.
2. The Managing Director,
Tamil Nadu State Transport Corporation (Kumbakonam) Limited,
Pudukkottai Region,
Pudukkottai.
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W.P. (MD) No. 1959 of 2016
P.D. AUDIKESAVALU, J.
Ns
W.P. (MD) No. 1959 of 2016
29.07.2021
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