Madras High Court
S.Balasubramanian vs Tamil Nadu State Transport ... on 28 October, 2021
W.P.(MD)No.2536 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.10.2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD)No.2536 of 2015
S.Balasubramanian ... Petitioner
vs.
Tamil Nadu State Transport Corporation
(Kumbakonam) Limited,
represented by its General Manager,
Pudukkottai Region, Pudukkottai. ...Respondent
PRAYER: Writ Petition filed under Article 266 of the Constitution of
India for issuance of Writ of Certiorari, to call for the records pertaining
to the impugned order passed by the respondent in his office proceedings
in Tha.Aa.Po.Ka/TS/A3/320, dated 07.08.2012, and to quash the same.
For Petitioner :Mr.C.K.Chandrasekar
for Mr.A.Rahul
For Respondent :Mr.D.Sivaraman
*****
1/11
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.2536 of 2015
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorari, to
quash the impugned order passed by the respondent, dated 07.08.2012.
By the impugned order, a punishment was inflicted on the petitioner
postponing his future increment for a period of six months without
cumulative effect.
2.Heard Mr.C.K.Chandrasekar, learned Counsel appearing for the
petitioner and Mr.D.Sivaraman, learned Counsel appearing for the
respondent.
3.The petitioner is working as a Driver in the respondent
Corporation. A charge memo was issued to the petitioner on 31.05.2012.
The charges, as found in the charge memo, are extracted below for
convenience:
“Fw;wr;rhl;Lf;fs;:
1)15.03.2012e; Njjp> nghd;dkuhtjp-jpUg;gj;J}h;
bhpg;gpy; ,af;Ftjw;F bvd;55/0443 NgUe;jpw;F gjpyhf
jd;dpr;irahf Nkyjpfhhpapd; cj;juTf;F khwhf
fhyjhkjkhf bvd;55/vd;0407 NgUe;ij jlj;jpy; vLj;Jr;
nrd;wJ.
2) gzpapy; xOq;fPdkhf ele;Jnfhz;lJ."
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W.P.(MD)No.2536 of 2015
4.The petitioner submitted an explanation to the charge memo
denying the specific charges. According to the petitioner, the bus which
was supposed to be taken by him was not available and that therefore, as
per the order of Assistant Engineer, different bus was taken by the
petitioner. He also submitted that he did not act on his own. However,
the respondent passed the cryptic order, which is impugned in the present
Writ Petition. For convenience, the operative portion of the impugned
order is extracted below:
“ghh;itapy; fz;l Fw;wr;rhl;L Nehl;B];fF ; ePh;
mspj;j Kfhe;jpuk; jpUg;jpfukhfTk;>
xg;Gf;nfhs;sj;jf;fjhfTk; ,y;iy. Nkw;gb
Fw;wr;rhl;LfSf;F ck;kPJ fLikahd xOq;F eltbf;if
vLf;fyhnkdpDk;> ckf;F xU re;jh;g;gk; mspf;Fk;
nghUl;L> Nkw;gb Fw;wr;rhl;LfSf;F Fwpg;gpl;l
jz;lidahf ,k;Kiw> ckJ mLj;jfl;l Cjpa cah;it
jpuz;l gadpy;yhky; (WOCE) 6 (MW) khj fhyj;jpw;F
js;spitj;J ,jd; %yk; cj;jutplg;gLfpwJ."
5.Challenging the order of punishment postponing the increment
of the petitioner for a period of six months without cumulative effect, the
present Writ Petition is filed.
6.The learned Counsel appearing for the petitioner submitted that
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W.P.(MD)No.2536 of 2015
the impugned order is violative of Articles 14 and 21 of Constitution of
India and that the same is liable to be quashed for being violative of
principles of natural justice. The learned Counsel appearing for the
petitioner then submitted that the impugned order came to be passed
without holding an enquiry, even though the petitioner has given a valid
explanation.
7.The learned Counsel appearing for the petitioner relying upon a
few judgments of this Court, submitted that even before imposing a
minor punishment, as in the present case, the respondent ought to have
directed an independent enquiry, as the conclusion should be based on
evidence. He further submitted that the petitioner can maintain the Writ
Petition as the impugned order is in violation of principles of natural
justice.
8.Mr.D.Sivaraman, learned Counsel appearing for the respondent
raised a preliminary objection as to the maintainability of the Writ
Petition. The learned Counsel appearing for the respondent relied upon
a judgment of the Honourable Supreme Court in the case of Transport
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W.P.(MD)No.2536 of 2015
and Dock Workers Union and others vs Mumbai Port Trust and
another reported in (2011) 2 SCC 575.
9.The learned Counsel for the respondent further relied upon a
judgment of the Honourable Full Bench of this Court in the case of
B.Pichumani and others vs The Management of Shri.Chakra Tires
Limited represented by its Managing Director and others reported in
2004 (3) CTC 1. In the judgment of the Honourable Full Bench of this
Court relied upon by the respondent, the issue was whether there is any
remedy available before the Tribunal under Industrial Disputes Act,
1947, to the appellants and whether Article 226 of the Constitution of
India is the proper remedy to redress the grievance of the appellants. It
is to be noted that the respondents before the Honourable Full Bench of
this Court was a Private Limited Company and what was challenged
before the Writ Court was whether the order of transfer by the respondent
employer involve any public duty and whether disputed questions should
be resolved only before the forum under the Industrial Disputes Act,
1947. After discussion on the issues, the Honourable Full Bench of this
Court has held as follows:
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W.P.(MD)No.2536 of 2015
“14. In view of what is stated supra, we hold that
(i) only such violations under I.D. Act, which involve public
duties, are amenable to Writ jurisdiction under Article 226 of
Constitution of India;
(ii) dismissals, transfers and other matters concerning the service
conditions of employees governed by I.D. Act, have to be
adjudicated only by the forums created under the said statute and
not otherwise;
(iii) it is needless to mention that the disputes relating to matters
not governed by I.D. Act have to be resolved only by common law
Courts;
(iv) the transfers effected in these cases do not involve any public
duties and involve the disputed questions of fact and they should
be resolved only before the forums under the I.D. Act;
(v) the appellants/petitioners-employees shall be entitled to seek
for reference by filing application under Section 10 of the ID Act
within two weeks from the date of receipt of a copy of this order;
(vi) if any industrial disputes are raised, then the concerned
forums, be it Labour Court or Industrial Tribunal, shall dispose
of the same within four months from the date of receipt of the
reference, after affording opportunity to either party;
(vii) without prejudice to the contentions of the appellants/
petitioners-employees, one week time from the date of receipt of a
copy of this order is given to the employees to join at the
transferred places and in respect to such of those dismissed
employees, for non-joining at the transferred places, the delay is
condoned if they join as stipulated above and in that event,
dismissal orders passed against them disappear automatically;
and
(viii) the respondents-managements shall sympathetically
consider the payments of wages/salaries to the
appellants/petitioners-employees so as to maintain the industrial
peace and harmony.”
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W.P.(MD)No.2536 of 2015
10.The Honourable Full Bench of this Court has held that only
such violations under Industrial Disputes Act, 1947, which involve
public duties, are amenable to Writ jurisdiction under Article 226 of
Constitution of India. This Court takes it that the Honourable Full Bench
of this Court only suggests that a Writ Petition is maintainable against a
private employer, if the impugned action involve public duties.
11.In the present case, the Writ Petition is filed against the Public
Transport Corporation, challenging the order of punishment. The
question whether the alternative remedy is effective has to be considered
while deciding the preliminary issue raised by the learned Counsel
appearing for the respondent. First of all, this Court though finds that the
punishment in the present case is minor, the alternative remedy is not
effective and efficacious in the sense that the petitioner cannot go straight
and file a petition invoking the Section 2(k) of Industrial Disputes Act,
1947. In this case, it is not in dispute that the dispute falls under Section
2(k) of Industrial Disputes Act, 1947.
12.This Court is not convinced that the alternative remedy
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W.P.(MD)No.2536 of 2015
available is effective. The Writ Petition was filed in 2016 and the same is
pending for more than five years. It may not be appropriate for this
Court to now direct the petitioner to approach the Tribunal under the
Industrial Disputes Act, 1947, raising a dispute under Section 2(k) of
Industrial Dispute Act, 1947. Secondly, the impugned order in the present
case is also in violation of principles of natural justice inasmuch as no
reason is assigned. Hence, alternative remedy is not an absolute bar to
maintain Writ.
13.The Honourable Supreme Court has repeatedly held how
reasons in support of quasi judicial authorities are essential before
passing a quasi-judicial order. In this case, the petitioner has given an
explanation, which, if accepted would discharge him from the charge.
When the petitioner denies the charge and gives a valid explanation, the
respondent should assign reasons why the explanation cannot be
accepted.
14.In view of the consistent view taken by the Honourable
Supreme Court in various judgments, this Court has no hesitation to hold
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W.P.(MD)No.2536 of 2015
that the impugned order is in violation of principles of natural justice. It
is true that the Writ Petition is not maintainable, when there is an
effective alternative remedy. However, if the impugned order is in
violation of principles of natural justice or the order is passed by a person
without jurisdiction, a Writ will lie, despite an effective alternative
remedy.
15.Therefore, the respondent, who is duty bound to give reasons,
failed to consider the explanation offered by the petitioner. The
impugned order is not only cryptic but also contains no reason to justify
the conclusion. This kind of order in my view, is opposed to the
principles of natural justice and hence, the Writ Petition is maintainable
having regard to the admitted facts. The impugned order is, therefore,
liable to be quashed.
16.Accordingly, the impugned order, dated 07.08.2012, passed by
the respondent is quashed and the Writ Petition is allowed. No costs.
Since the impugned order is quashed on the ground of violation of
principles of natural justice, it is open to the respondent to continue the
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W.P.(MD)No.2536 of 2015
disciplinary proceedings and pass appropriate orders in accordance with
law.
Index :Yes / No 28.10.2021
Internet :Yes
tmg/cmr
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.2536 of 2015
S.S.SUNDAR, J.
tmg/cmr
Order made in
W.P.(MD)No.2536 of 2015
28.10.2021
https://www.mhc.tn.gov.in/judis/
