Madras High Court
K.Balasekaran vs The Presiding Officer on 6 September, 2021
W.P.(MD)No.1195 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.09.2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD)No.1195 of 2016
K.Balasekaran ... Petitioner
vs.
1.The Presiding Officer,
Labour Court, Madurai.
2.Tamil Nadu State Transport
Corporation (Madurai) Limited,
represented by its Managing Director,
Bye-Pass Road, Madurai-10.
3.The General Manager,
Tamil Nadu State Transport
Corporation (Madurai) Limited,
Bye-Pass Road, Madurai-10. ... Respondents
PRAYER: Writ Petitions filed under Article 226 of the Constitution of India
for issuance of Writ of Certiorari, to call for the records pertaining to the
impugned award passed in I.D.No.11 of 2010, dated 16.08.2012 passed by the
first respondent and consequential impugned order passed by the second
respondent in Ref.No.Sattam/W.P.No.2996/14, Madurai Region-Law
1/10
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W.P.(MD)No.1195 of 2016
Department, dated 18.06.2015 and to quash the same and consequently, to
direct the respondents to reinstate the petitioner in service with continuity of
service and back wages from the date of dismissal to the date of his
superannuation and further to direct the respondents to settle all the terminal
benefits payable to him from 01.07.2015 including monthly pension, gratuity,
provident fund, commuted value of pension, social security scheme amount,
refund towards Institute of Road Transport and other attendant benefits by
taking into account the period of the petitioner's service from 16.08.1986 to
30.06.2015, as “duty”.
For Petitioner : Mr.A.Rahul
For R2 and R3 : Mr.J.Senthil Kumariah
*****
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorari, to quash
the impugned award passed by the first respondent, dated 16.08.2012 and the
consequential order passed by the second respondent, dated 18.06.2015 and to
direct the respondents to reinstate the petitioner into service with continuity of
service and all other monetary and terminal benefits.
2.Heard Mr.A.Rahul, learned Counsel for the petitioner and
Mr.J.Senthil Kumariah, learned Counsel for the respondents 2 and 3.
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W.P.(MD)No.1195 of 2016
3.The petitioner was employed as Driver in the second respondent
Corporation with effect from 16.08.1986. When the petitioner was working as
Senior Driver, he was convicted for the offence punishable under Section 302
r/w Section 34 IPC in S.C.No.314 of 2002 on the file of the Additional
District and Sessions Court, Madurai. Though the petitioner filed an appeal in
Crl.A.(MD)No.800 of 2004 before this Court and the appeal was pending, a
show cause notice was issued by the second respondent to the petitioner
calling explanation from him, as to why the petitioner should not be dismissed
from service based on the order of conviction.
4.Though the petitioner filed a Writ Petition in W.P.(MD)No.1063 of
2004 challenging the show cause notice, the same was dismissed by this
Court, by order, dated 19.01.2005. It is admitted that the appeal filed by the
petitioner in W.A.(MD)No.41 of 2005 was also dismissed by this Court, on
16.02.2005. Thereafter, the petitioner was dismissed from service based on
the order of conviction, on 05.04.2005. The order of dismissal was
challenged by the petitioner in I.D.No.11 of 2010 before the Labour Court,
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W.P.(MD)No.1195 of 2016
Madurai, namely, the first respondent herein, and the first respondent
dismissed the petition filed by the petitioner, by award, dated 16.08.2012.
5.In the meanwhile, this Court allowed the criminal appeal filed by the
petitioner in Crl.A.(MD)No.800 of 2004 and the petitioner was acquitted from
the criminal charges, by judgment, dated 30.01.2013. Based on the judgment
of this Court acquitting the petitioner from the criminal charges, the petitioner
submitted a representation, dated 20.03.2013, before the second respondent.
The petitioner also filed another Writ Petition in W.P.(MD)No.2996 of 2014
challenging the award passed in I.D.No.11 of 2010, dated 16.08.2012. The
said Writ Petition was disposed of with the direction to the General Manager
of Transport Corporation to dispose of the representation of the petitioner,
dated 20.03.2013. The petitioner submitted another representation on
13.03.2015, to the respondents, to consider his representation in the light of
the direction of this Court in W.P.(MD)No.2996 of 2014. However, the
second respondent rejected the petitioner's representation, by the impugned
order, dated 18.06.2015. Challenging the award of the Labour Court,
Madurai, in I.D.No.11 of 2010, dated 16.08.2012 and the order passed by the
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W.P.(MD)No.1195 of 2016
second respondent, dated 18.06.2015, the above Writ Petition is filed.
6.The learned Counsel for the petitioner narrating the dates and events
submitted that the order of dismissal based on conviction for the offence
under Section 302 IPC cannot be stand, once the conviction is set aside by this
Court in the appeal filed by the petitioner in Crl.A.(MD)No.800 of 2004, by
judgment, dated 30.01.2013. The learned Counsel for the petitioner also
submitted that the petitioner was honourably acquitted from the charges and
that therefore, the order of dismissal based on conviction is liable to be set
aside.
7.The learned Counsel for the respondents 2 and 3 submitted that the
petitioner was dismissed by an order, dated 05.04.2005 and that the petitioner
filed a Writ Petition originally in 2004 and in 2014. In view of the long delay,
it is contended by the respondents 2 and 3 that the Writ Petition is liable to be
dismissed on the ground of delay and laches. The learned Counsel further
submitted that Tamil Nadu Sate Transport Corporation Employees' Pension
Fund Trust was created and that as per the pension rules, the Administrator of
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W.P.(MD)No.1195 of 2016
Tamil Nadu Sate Transport Corporation Employees Pension Fund Trust, is the
competent authority to sanction pension or to take a decision with regard to
entitlement of the petitioner to get pension, as per the Rules. It is further
contended that without impleading the Administrator in the present case, the
petitioner cannot maintain a Writ Petition, where there is a prayer for
disbursement of pension.
8.This Court is unable to agree with the contentions of the learned
Counsel for the respondents 2 and 3. The petitioner was dismissed from
service based on the judgment in S.C.No.314 of 2002 convicting the petitioner
for the offence under Section 302 IPC. The petitioner preferred an appeal
before this Court and the petitioner was acquitted from the charges by this
Court in Crl.A.(MD)No.800 of 2004, by judgment, dated 30.01.2013. The
petitioner promptly submitted a representation on 20.03.2013, pursuant to the
acquittal praying for reinstatement. Though the earlier Writ Petition
challenging the award of Labour Court was disposed of with a direction to the
petitioner to submit a fresh representation before the third respondent herein,
the petitioner's representation cannot be ignored, especially having regard to
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W.P.(MD)No.1195 of 2016
the order passed by this Court in W.P.(MD)No.2996 of 2014, dated
17.02.2015.
9.The impugned order passed by the second respondent indicates that
the representation of the petitioner was rejected only because the petition filed
by the petitioner in I.D.No.11 of 2010 was dismissed. Having regard to the
sequence of events, the petitioner is right in challenging the award of Labour
Court as well as the impugned order passed by the second respondent. Since
the Criminal Appeal filed by the petitioner was allowed only on 30.01.2013,
the petitioner is entitled to pursue his remedy only after the order of
conviction was set aside by this Court. When the petitioner was not
terminated based on any misconduct, while he was in service, or any other
report holding the petitioner guilty of any misconduct or offence, the
respondent 2 and 3 have no defence to sustain the order of dismissal. The
contention raised by the respondents 2 and 3 that the Writ Petition is liable to
be dismissed for not impleading the Administrator is devoid of any merits.
The petitioner's entitlement to receive pension benefits is not an issue.
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W.P.(MD)No.1195 of 2016
10.Hence, this Court is inclined to allow this Writ Petition. However,
the petitioner was not in service from the date of dismissal, ie., on 05.04.2005.
It is admitted that the petitioner attained the age of superannuation on
30.06.2015. Since the respondents are not at fault and the order of dismissal
for the reasons stated therein is also valid, this Court is of the view that the
petitioner is not entitled to claim back wages from the date of dismissal till he
attained the age of superannuation. However, the petitioner is entitled to
calculate the period for other benefits, like, monthly pension, gratuity,
provident fund, commuted value of pension, social security scheme amount,
refund towards Institute of Road Transport, etc.
11.Therefore, the Writ Petition is allowed and the impugned order
passed by the first respondent in I.D.No.10 of 2011, dated 16.08.2012 and the
order of the second respondent, dated 18.06.2015, are quashed. The petitioner
is not entitled to back wages. However, the petitioner is entitled to calculate
the period between the date of dismissal and the date of superannuation, ie.,
05.04.2005 and 30.06.2015, for the purpose of calculating the terminal
benefits payable to the petitioner, like, monthly pension, gratuity, provident
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W.P.(MD)No.1195 of 2016
fund, commuted value of pension, social security scheme amount, refund
towards Institute of Road Transport. The respondents 2 and 3 are directed to
settle the terminal benefits to the petitioner within a period of twelve weeks
from the date of receipt of a copy of this order. No costs.
06.09.2021
Index : Yes / No
Internet : Yes
cmr
To
The Presiding Officer,
Labour Court, Madurai.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.1195 of 2016
S.S.SUNDAR, J.
cmr
W.P.(MD)No.1195 of 2016
06.09.2021
https://www.mhc.tn.gov.in/judis/
