Madras High Court
Tamil Nadu State Transport Corpn vs The Joint Commissioner Of Labour on 30 July, 2021
W.P.No.10248 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.10248 of 2005 and
WMP.No.11584 of 2006
Tamil Nadu State Transport Corpn
(Villupuram Division-I) Ltd.
3/137, Salamedu,
Villupuram 605 602
Rep by Managing Director. ... Petitioner
-vs-
1.The Joint Commissioner of Labour
Conciliation,
D.M.S. Compound
Chennai 600006.
2. G.Shanmugam ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for the
issuance of a Writ of Certiorari, to call for the records and quash the order dated
10/12/04 passed in A.P. 341 of 2003 on the file of the first respondent, Joint
Commissioner of Labour (Conciliation), Chennai.
For Petitioner : Mr.C.S.K.Sathish
For Respondents : R1- Court.
R2-No appearance
*****
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1/7
W.P.No.10248 of 2006
ORDER
The petitioner has come forward with the present writ petition challenging the
order dated 10/12/2004 passed in A.P. 341 of 2003 on the file of the first respondent,
Joint Commissioner of Labour (Conciliation), Chennai, by which the first respondent
rejected to accord approval for the dismissal of Thiru. G.Shanmugham, Helper.
2. The facts in nutshell placed before this Court by the petitioner are as follows:
(i) The second respondent was engaged as a Helper in the Cuddalore Unit I of
the petitioner Corporation. A Charge Memo was issued to the second respondent on
21.07.2001, for his authorised absence from 21.12.2000 to 20.05.2001 thereafter
continuously from 21.05.2001, for which the second respondent submitted his
explanation. Since the explanation was not satisfied enquiry was held, in which the
second respondent had not participated and therefore he was set exparte and the enquiry
officer submitted his report dated 30.04.2003, finding the second respondent guilty of
the charges levelled against him. Thereafter, second show cause notice was issued to
the second respondent, for which the second respondent submitted his explanation.
Since, the same was also not satisfactory, the second respondent was terminated from
service on 20.09.003.
(ii). Challenging the same, the second respondent filed Industrial Dispute before
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W.P.No.10248 of 2006
the Labour Court. Pending disposal of the same, the petitioner filed an application
under Section 33 (2)(b) of the Industrial Disputes Act, 1947 before the first respondent
for approval of the order of dismissal and the same was taken on file in Approval
Petition No.341 of 2003. Despite the fact that the petitioner made a payment of
Rs.5,142/- being one month salary to the second respondent and also other payment of
Rs.283/-, the first respondent vide order dated 10.12.2004 rejected the application for
approval.
2. The learned counsel appearing for the petitioner submitted that the first
respondent had got only limited jurisdiction under Section 33 (2)(b) of the Industrial
Disputes Act, 1947 and the conclusion of the first respondent that no prima facie was
case made out for dismissal is completely without jurisdiction. He further submitted
that despite having found that the enquiry was in accordance with the principles of
natural justice, the first respondent held that the charges levelled against the second
respondent was not proved.
3. Despite the notice being served on the second respondent and his name printed
in the cause list, there is no appearance on behalf of the second respondent.
4. Heard the learned counsel for the petitioner. Perused the materials available on
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W.P.No.10248 of 2006
record.
5. Admittedly, the employer has not paid allowance to the employee and there is
short fall as can be seen in the order of the first respondent, which is extracted
hereunder:
“The next issue to be decided is whether the
Applicant has paid or offered to pay wages for one
month to the Opposite party. In its application for
approval the Applicant states that a sum of Rs.5412/-
was paid to the opposite party at the time of his
dismissal. No proof of such payment was produced
before me. However after this approval application
was taken up for enquiry the Applicant filed the copy of
a letter addressed to the Opposite party and dated
10.06.2004 with which was enclosed a cheque for
Rs.283/- alleged to be the disputed allowance in
monthly salary. Exhibit A12 is the copy of the pay
certificate of the Opposite party. In this the monthly
wages of the Opposite party is indicated to be Rs.5695/-
. In its written arguments the Applicant says that the
opposite party is not eligible to get allowances such as
health allowance, washing allowance and attendant
benefits etc., however the Applicant had paid these
subsequently to avoid disputes. The Applicant had to
establish that the attendance benefits, washing
allowance and the health allowance would not
constitute the components of the wages of the Opposite
party so that they have to be excluded in the quantum of
the amount paid as one month wages at the time the
Opposite party was dismissed from its services. In such
circumstances these will have to be construed to be part
of the component of the wages of the Opposite party.
The Appellant Claims that as it had subsequently paid
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W.P.No.10248 of 2006
the difference it should be deemed to have paid the
exact amount as the one month wages at the time the
Opposite party was dismissed from its services. To this
effect the Opposite party relied on a judgment of the
Honourable High court of Gujarat reported in
Divisional Controller, G.S.R.T.C. Vs Conciliation
Officer and others reported in 2002 (IV) LLJ p-1488.
The Applicant contends that as it had subsequently paid
to the Opposite Party a sum of Rs.283/- being the
disputed allowance in the monthly salary, it had
complied with the mandatory provisions of Section 33
(2)(b) of the Industrial Disputes Act 1947. The
Applicant tacitly concedes that it had paid less than
what it ought to have paid as the one month wages of
the Opposite Party at the time of his dismissal. This
difference is made good after the approval application
was filed. The decision of the Gujarat High Court
reported in 2002 IV LLJ p 1488 relied on by the
Applicant will not be applicable as at the time of filing
the approval application the Applicant had not made
any prayer to this Authority that in case the amount
paid by it as wages for one month is found to be less
than what is legally due it should be permitted to pay
the difference. In view of this I hold that the Applicant
had also not complied with the mandatory provisions of
Section 33 (2)(b) of the Industrial Disputes Act 1947
regarding the payment of one month wages to the
Opposite Party at the time of his dismissal.”
6. In view of the same, this Court is of the view that when there is a short fall and
that it is the allowance or wages in terms of Section 2 (rr) of the Industrial Disputes Act,
the authority was right in rejecting the Approval petition. Hence, this Court is not
inclined to grant relief as sought for in the Writ Petition.
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W.P.No.10248 of 2006
7. In such view of the matter, this Writ Petition is dismissed. No costs.
Consequently, connected Miscellaneous Petition is closed.
30.07.2021
Index: Yes / No
Speaking order /Non speaking order
arr
To
The Joint Commissioner of Labour
Conciliation,
D.M.S. Compound
Chennai 600006.
https://www.mhc.tn.gov.in/judis/
W.P.No.10248 of 2006
S.VAIDYANATHAN, J
arr
W.P.No.10248 of 2006
30.07.2021
https://www.mhc.tn.gov.in/judis/
