Madras High Court
The Management Tamil Nadu State ... vs V.Manickam on 21 June, 2021
W.A.(MD)No.1174 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.1174 of 2021
and
C.M.P.(MD)No.5011 of 2021
1.The Management Tamil Nadu State Transport Corporation
(Madurai Division – II) Limited,
Now bifurcated as Tamil Nadu State Transport Corporation,
Tirunelveli Limited,
Rep by its Managing Director,
23/2, Thoothukudi Road,
Kattabomman Nagar,
Tirunelveli – 627 011.
2.The General Manager (Disciplinary Action),
Tamil Nadu State Transport Corporation Ltd.,
19, Trivandram Road,
Vannarpet Post,
Tirunelveli – 627 003. : Appellants
Vs.
1.V.Manickam
2.The Presiding Officer,
Labour Court, Tirunelveli. : Respondents
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W.A.(MD)No.1174 of 2021
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent,
praying to set aside the common order dated 05.12.2019, in W.P.(MD)No.
23931 of 2016 and allow this Writ Appeal.
For Appellants : Mr.R.Rajamohan
For Respondent No.1 : Mr.T.Aswin Rajasimhan
for Mr.T.Lajapathi Roy
JUDGMENT
***************
[Judgment of the Court was delivered by T.S.SIVAGNANAM, J.]
This Writ Appeal by the Management of the Tamil Nadu State
Transport Corporation, Tirunelveli [formerly Madurai Division – II] is
directed against the order dated 05.12.2019 in W.P.(MD)No.23931 of
2016, filed by the first respondent herein.
2.By the impugned order, the punishment of dismissal from
service imposed on the first respondent workmen was modified into one
of compulsory retirement. The management being aggrieved by such
order is on appeal before us.
3.We have elaborately heard Mr.R.Rajamohan, learned Counsel
appearing for the appellant Transport Corporation and Mr.T.Aswin
Rajasimhan, for Mr.T.Lajapathi Roy, learned Counsel appearing for the
first respondent workman.
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W.A.(MD)No.1174 of 2021
4.The respondent workman was working as a Technical
Assistant in the appellant Corporation and was issued with a charge
memo dated 11.02.2004 for unauthorised absence for a period from
02.02.2004 to 09.02.2004, for about eight [8] days. The charge memo
culminated in an order of dismissal dated 27.04.2005. Since there were
disputes pending between the Management and the employers union, the
Management was required to obtain approval from the competent
authority in terms of Section 33 (2)(b) of the Industrial Disputes Act, 1947
['the Act', for brevity]. Accordingly, Approval Petition was filed by the
Management, which was numbered as Approval Petition No.64 of 2005,
in which, it was held that the findings of the enquiry officer who
conducted domestic enquiry was perverse. However, the competent
authority remanded the matter for leading fresh evidence and ultimately,
the approval was granted. Consequently, the order of dismissal took
effect.
5.The first respondent raised a dispute in I.D.No.69 of 2013 on
the file of the Labour Court, Tirunelveli, questioning the order of
dismissal from service. The Labour Court by an order dated 13.11.2014,
dismissed the Industrial Dispute. Challenging the same, the writ petition
was filed. The learned Single Judge found that the order rejecting the
dispute by the Labour Court and confirming the order of dismissal from
service to be incorrect. But, taking note of the fact that the first
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W.A.(MD)No.1174 of 2021
respondent had been a regular absentee and had suffered 29 earlier
punishments, after having found that the punishment of dismissal from
service was disproportionate, exercised discretion which is available even
to the Labour Court under Section 11(A) of the Act and modified the
punishment to one of compulsory retirement.
6.We find the reasoning given by the learned Single Bench to be
perfectly in order, since the first issue which the Labour Court ought to
have decided was whether the Management can be given a second
chance, by restoring the position prior to the order of dismissal. The
learned Single Bench had rightly taken note of the decision of the Hon'ble
Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas
Bank Ltd., Vs. Shri Ram Gopal Sharma and others reported in AIR
2002 SC 643, as also the decision in the case of Indian Telephone
Industries Limited and another Vs. Prabhakar H.MAnjare and
another reported in AIR 2003 SC 195, which was taken note of in the
case of V.Manickam Vs. The Management, Tamil Nadu State
Transport Corporation (TNSTC), Madurai Division – II Ltd., in W.P.
(MD)No.14049 of 2019 dated 28.10.2011 and modified the order of
punishment.
7.Mr.R.Rajamohan, learned Counsel appearing for the appellant
placed reliance on the decision of the Hon'ble First Bench of this Court in
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W.A.(MD)No.1174 of 2021
the case of M/s.Brakes India Ltd., Vs. Assistant Commissioner of
Labour (Conciliation) II and another reported in 1995 Vol.1 LLJ
Page 1232. It is submitted that the decision relied on by the learned
Writ Court are factually different in as much as in those two decisions,
the second application was filed seeking approval after the first
application was rejected by the competent authority. Whereas, in the
case of M/s. Brakes India Ltd., the Hon'ble First Bench, has held that
when opportunity to lead evidence has not been granted, the authority
would have jurisdiction to issue direction to lead evidence.
8.We have carefully perused the decision in M/s. Brakes India
Ltd., and in paragraph No.18 of the said judgment, we find that in the
said case, in the approval petition, the Management has made a specific
prayer that in the event the authority is inclined to hold that the findings
of the enquiry officer in the domestic enquiry is perverse, they should be
permitted to lead additional evidence. The case on hand is totally
different. In fact, the Joint Commissioner, has taken note of the evidence
which was available before the enquiry officer and has recorded that the
findings of the enquiry officer is perverse, the evidence which was made
on the side of the workman was not taken into consideration and he also
made an observation that he was justified in refusing the order of
dismissal passed by the management against the workman. In spite of
such pointed observations, the Joint Commissioner remanded the matter
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W.A.(MD)No.1174 of 2021
and gave another opportunity to the management. This in our considered
view would be impermissible, because it is not a case where the appellant
management pleaded to lead additional evidence. The finding of
perversity was on account of not taking into record / consideration, the
evidence made by the workmen. Therefore, by virtue of the opportunity
granted to the Joint Commissioner would tantamount to filling up the
gaps and would cause irreparable prejudice to the workman. This aspect
has also been vividly brought out in the case of Jaipur Zila that the
Industrial Disputes Act does not empower the authority to dispose of the
application iunder Section 33(2)(b) of the Industrial Disputes Act and
thereafter, reopen the same, after affording further opportunity to the
employer to conduct an additional enquiry.
9.The facts of the case on hand was also more or less akin to the
facts therein because by virtue of the remand what has been permitted to
be done by the Management is to set up a new case by leading evidence,
when the perversity of the finding of the enquiry officer as recorded by
the Joint Commissioner is on account of non-consideration of the
evidence. Therefore, we are of the clear view that the order and
direction issued by the learned Single Bench does not call for any
interference.
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W.A.(MD)No.1174 of 2021
10.For the above reasons, the Writ Appeal stands dismissed with
a direction to the Transport Corporation to comply with the order made in
the writ petition, within three [3] months from the date of receipt of a
copy of this judgment. However, there shall be no order as to costs.
Consequently, the connected miscellaneous petition is closed.
[T.S.S., J.] & [S.A.I., J.]
21.06.2021
Index : Yes / No
Internet : Yes / No
MR
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized
for 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.
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W.A.(MD)No.1174 of 2021
T.S.SIVAGNANAM, J.
AND
S.ANANTHI, J.
MR
JUDGMENT MADE IN
W.A.(MD)No.1174 of 2021
21.06.2021
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