Madras High Court
T.R.Loganathan vs The General Manager on 14 June, 2021
W.P.No.3665 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.06.2021
CORAM
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.3665 of 2012
T.R.Loganathan ... Petitioner
-vs-
The General Manager,
Tamil Nadu State Transport Corporation Ltd.,
(Coimbatore Division), Erode Region,
Sennimalai Road,
Erode 638 001. ... Respondent
Writ Petition filed under Article 226 of Constitution of India praying for
the issuance of a Writ of Mandamus, directing the Respondent Management
not to deny work to the Petitioner without following the procedures
established by law and award costs.
For Petitioner : Mr.S.Ayyathurai
For Respondent : Mr.A.Sundaravadhanan
ORDER
Petitioner has come up with this Writ Petition seeking a direction to
the Respondent Corporation not to deny him work without following the
procedures established by law.
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2. According to the Petitioner, on being sponsored by the
Employment Exchange, he joined the services of the Respondent
Corporation in March 2008 as a Reserve Conductor in Coimbatore Region
and thereafter transferred to Erode Region. It is his case that, though, he was
diligently performing the duties of a Conductor, without any rhyme or
reason, he has been put off duty and has been deprived employment. It is
stated by the Petitioner that, he has rendered more than 480 days of
continuous service in less than 24 calender months and is deemed to have
attained permanent status and that, the action of the Respondent Corporation
in depriving him employment without following any procedure, is bad. It is
his contention that, not even a Charge Memo was issued and an enquiry
conducted, in case of any charges.
3. Respondent Corporation has filed counter stating that, the
Petitioner was engaged as a Reserve Conductor in Coimbatore Region and
thereafter transferred to Erode Region. The Petitioner has deliberately not
disclosed any material information about the misappropriation of the amount
of tickets in his duty and the true facts about his disengagement. According
to the Respondent, on 06.10.2010, while the Petitioner was performing the
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W.P.No.3665 of 2012
duties of a Conductor in the bus plying from Erode to Coimbatore, at
Chengapalli Bus Stop, Checking Inspectors found that, the Petitioner issued
ticket to one passenger travelling from Vijayamangalam to Coimbatore for
the value of Rs.23/-, however, the same was not entered in the Invoice and
the vehicle had crossed two bus stops, approximately 10 kms with 23
passengers on board. It is the contention of the Respondent that, if checking
had not been made, the Petitioner would have re-issued the ticket already
given to the passenger.
4. Based on the Report received from the Checking Inspectors,
disciplinary action was contemplated against the Petitioner and he confessed
his misconduct. Based on the proven charges, the Petitioner was disengaged
from service w.e.f. 05.07.2011, in his training period as per the condition laid
down in S.No.7 of the temporary Training Order issued to him.
5. According to the Respondent Corporation, the Petitioner has
not justified his act and has not rendered satisfactory service and that, no
Show Cause Notice is required to be served on a trainee before the
termination of his service, when the Petitioner herein was orally disengaged
from service. The Respondent further contended that, the Petitioner has
raised the dispute after a lapse of two years, and that, the conciliation ended
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in failure. He went on to contend that, the Petitioner has got an alternative
remedy and that, without approaching the Labour Court, he has approached
this Court and that, this Court has no jurisdiction to entertain the Writ
Petition.
6. Heard the learned counsel on either side and perused the
material documents available on record.
7. It is not in dispute that, the Petitioner joined the services of the
Respondent Corporation as a Reserve Conductor initially at Coimbatore
Region and thereafter, transferred to Erode Region. The Petitioner also has
not disputed about the charges made against him. However, admittedly, no
Show Cause Notice was issued to the Petitioner and enquiry conducted. The
only stand taken by the Respondent Corporation is that, the Petitioner was
appointed only as a trainee and hence, he need not be issued with any Charge
Memo moreso, with regard to serious misconduct.
8. Admittedly, the Petitioner is a workman within the meaning of
Section 2(s) of the Industrial Disputes Act, 1947. It is not in dispute that, the
Petitioner worked for 943 days in the Respondent Corporation. Whether the
Petitioner is actually a trainee and whether the Respondent Corporation has
extracted work from him ought to have been stated by the Respondent before
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W.P.No.3665 of 2012
the appropriate Labour Court, in case, the dispute has been taken up before
the Labour Court. Also, the Management of the Respondent Corporation has
not conducted any enquiry by issuing a Charge Memo to the Petitioner.
However, in order to wriggle out of the situation, the Respondent
Corporation has taken a plea before the Conciliation Officer that, the
Petitioner has not been disengaged from service.
9. But, in the counter Affidavit, a contradictory stand has been
taken by the Respondent Corporation that, the Petitioner has been
disengaged from service. Had the stand taken by the Respondent
Corporation in the counter Affidavit been taken before the Conciliation
Officer, based on the Report submitted by the Conciliation Officer, the
Petitioner would have approached the Labour Court for necessary relief.
But, the Management cannot blow hot and cold. Since, the Management has
taken a stand that, there was no termination of the Petitioner, even assuming
that, the plea taken in the counter Affidavit is correct, it cannot be accepted,
as the Respondent Corporation cannot take different stand before different
forums and drive the employee from pillar to post. That apart, the Transport
Corporation is a 'State' within the meaning of Article 12 of the Constitution
of India and is amenable to the jurisdiction of the Court. The contention of
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W.P.No.3665 of 2012
the Respondent Corporation that, there is violation of Section 25M and
Section 25N of the Industrial Disputes Act, 1947, is rejected.
10. Dehors alternative remedy, this Court is empowered to take up
the matter and decide the issue in the light of the judgment of this Court
rendered in the case of K.S. Gurumurthy Vs. The Additional
Commissioner for Workmen Compensation reported in (1987) 2 MLJ
335. In that case, jurisdiction arose under the Tamil Nadu Shops and
Establishment Act, 1947 (in short 'Shops Act'). The Authority has held that,
disengagement cannot be tried under Section 41 of the Shops Act, as
Nationalized Banks are exempted from the purview of the Shops Act, 1947.
11. When the said matter came up before the Division Bench in the
case of Indian Bank, represented by its General Manager, Madras vs.
K.S.Gurumoorthy and another reported in 1990 II LLN 355, the Court
posed a question that, even though, Shops Act is not applicable, since Indian
Bank is amenable to the jurisdiction of this Court, this Court is empowered
to set right the error committed and grant relief to the parties concerned, and
accordingly, interfered with the punishment imposed on the workman
therein.
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W.P.No.3665 of 2012
12. Similarly, in the present case on hand, as stated supra, when the
Transport Corporation is a 'State' within the meaning of Article 12 of the
Constitution of India, and taking note of the fact that, no Charge Memo was
issued to the Petitioner and no enquiry was conducted, the Petitioner has to
be reinstated in service, even though the Respondent Corporation has taken a
plea before the Conciliation Officer that, there was no termination.
13. Since the Petitioner herein is willing to give up backwages and
join duty, so also, the Respondent Corporation has not followed the
procedures, this Court is of the view that, the Petitioner shall be reinstated in
service on or before 01.09.2021, with continuity of service, with
continuous and other attendant benefits from 07.03.2008 and that, he
shall be entitled to wages from 01.09.2011 onwards.
14. It is made clear that, the past services of the Petitioner shall be
taken into account for the purpose of grant of terminal benefits and notional
fixation of wages and it is reiterated that, the Petitioner will not be entitled to
any monetary benefits for the past period.
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The Writ Petition is allowed on the above terms. No costs.
Consequently, connected M.P.Nos.1 and 2 of 2012 are closed.
14.06.2021
Index : Yes/No
Speaking Order : Yes/No
(aeb)
To:
The General Manager,
Tamil Nadu State Transport Corporation Ltd.,
(Coimbatore Division), Erode Region,
Sennimalai Road,
Erode 638 001.
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W.P.No.3665 of 2012
S.VAIDYANATHAN, J.
(aeb)
Order in
W.P.No.3665 of 2012
14.06.2021
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