Madras High Court
U. Mutharasan vs The District Manager on 27 April, 2022
W.A. Nos. 1206 & 1207 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.04.2022
CORAM
THE HONOURABLE MR. JUSTICE S. VAIDYANATHAN
AND
THE HONOURABLE MRS. JUSTICE N. MALA
W.A. Nos.1206 & 1207 of 2022
&
C.M.P. Nos. 7680, 7686, 7678 & 7679 of 2022
U. Mutharasan ..Appellant in W.A.No.1206 of
2022
G. Devidayal Pillai ..Appellant in W.A. No. 1207 of
2022
Vs.
The District Manager,
Tamil Nadu State Marketing Corporation,
Thirubhuvanam,
Nagapattinam District,
Nagapattinam – 612 001. ..Respondent in both Writ
Appeals.
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W.A. Nos. 1206 & 1207 of 2022
Prayer: Writ Appeals under Clause 15 of Letters Patent as against the
order dated 01.04.2022 passed in W.P. Nos. 7780 & 7786 of 2022
respectively.
For Appellant in
both Writ Appeals :: Mr.S. Ayyathurai
For Respondent in
both Writ Appeals ::
Mr.N. Damodaran,
Standing Counsel
JUDGMENT
S. Vaidyanathan,J.
And
N. Mala,J.
The appellants are writ petitioners, who preferred these appeals as
against the order dated 01.04.2022 in W.P. Nos. 7780 & 7786 of 2022
respectively.
2. The appellants/writ petitioners herein were working as
Salesmen and for having committed a misconduct, they were suspended
from service with effect from 04.10.2021. Challenging the suspension order,
W.P. No.24441/2021 was filed and and that is pending before this Court.
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Thereafter, show cause notice was issued to the writ petitioners and the
allegations made therein had been denied and thereafter, enquiry officer was
appointed, who proceeded with the enquiry and concluded the same and
thereafter, dismissal orders dated 24.02.2022 were passed, which were
challenged by the writ petitioners in the aforementioned writ petitions. The
learned Single Judge, after the hearing the submissions on either side,
dismissed the writ petitions with the following directions:
(i) The petitioners are directed to prefer an appeal before
the Appellate Authority within two weeks from the date of
receipt of a copy of this order.
(ii) If any such Appeal is received, the Appellate Authority
is directed to consider the same and pass orders in
accordance with law, as expeditiously as possible, taking into
account the fact that, now the petitioners are being out of
employment.
(iii) If any request is made by the petitioners for payment of
subsistence allowance, the respondent is directed to pay
subsistence allowance, in accordance with Rules, within a
period of six weeks from the date of receipt of request made
by the petitioners.”
Challenging the said order, the writ petitioners are before this Court.
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W.A. Nos. 1206 & 1207 of 2022
3. The contention of the writ appellants was that when Industrial
Employment (Standing Orders) Act, 1946 and Tamil Nadu Payment of
Subsistence Allowance Act, 1981 are made applicable to the respondent
Corporation, the respondent cannot harp upon the so-called Rules, which
are yet to be framed. Even assuming there are such Rules, there is no
semblance of payment of subsistence allowance as per the Rules. The
enquiry conducted was not fair and it was violative of principles of natural
justice and that the same will have to be interfered with by this Court
directing reinstatement of the appellants/petitioners and by paying
backwages.
4. The learned counsel for the respondent Corporation, in reply,
would submit that the dismissal orders were passed on 24.02.2022 for a
grave misconduct committed by the appellants as they were selling liquor
bottles of 750 ml @ Rs.880/- over and above the prescribed rate of Rs.840/-
and committed a serious misconduct. The petitioners were issued with a
show cause notice and after due opportunity, enquiry was conducted
wherein the charges were held proved and dismissal orders were passed.
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According to the learned counsel for the respondent, when there is an appeal
remedy available before the Senior Divisional Manager, without exhausting
the same, the present appeals have been preferred. Hence, on the ground of
availability of alternate remedy, the writ appeals will have to go. Apart from
that, after the orders of the learned Single Judge, the writ petitioners have
not approached the Appellate Authority and the contention of the petitioners
that the entire enquiry proceedings are violative of principles of natural
justice cannot be acceded to. It is for the Appellate Authority to decide
whether the enquiry conducted was in accordance with the Rules or not and
whether the matter has got to go before the Disciplinary Authority once
again and prayed that this Court need not interfere with the order under
challenge.
5. Heard both parties.
6. It is an admitted fact that the appellants/writ petitiones were
employed as Salesmen and on account of misconduct committed, they were
suspended and subsequently, dismissed from service on 24.02.2022. It is no
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W.A. Nos. 1206 & 1207 of 2022
doubt true that they have got a right of appeal as against the dismissal orders
and without exhausting the same, they have approached this Court. Though
normally this Court will not interfere when there is an alternate remedy
available, prima facie, it is an admitted case that subsistence allowance had
not been paid, which is mandatory to be paid once an employee is
suspended and should be continued to be paid at the rate prescribed as per
the provisions of Tamil Nadu Payment of Subsistence Allowance Act, 1981,
till the enquiry is completed and final orders are passed. After the dismissal
orders passed in February, 2022, two months have gone by. If the matter is
sent to the Appellate Authority, he will have to remit the matter to the
Disciplinary Authority, in order to conduct an enquiry afresh after payment
of subsistence allowance. This may take time and unnecessarily,
allowance will have to be paid for future months also. Hence, this Court
exercises its power and sets aside the orders of dismissal dated 24.02.2022
passed against the appellants, permitting the Disciplinary Authority to
proceed with the enquiry afresh after affording reasonable opportunity to the
appellants/writ petitioners and also after payment subsistence allowance as
per the Tamil Nadu Payment of Subsistence Allowance Act, 1981. The
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W.A. Nos. 1206 & 1207 of 2022
learned Single Judge, while holding that the petitioners can approach the
authorities seeking payment of subsistence allowance, has not only
dismissed the writ petitions, but also held that payment has got to be made
as per law and not as per 1981 Act, mentioned supra. Hence, in order to
shorten the life of the litigation, instead of modifying the order and
permitting the writ petitioners to approach the Appellate authority, we direct
the Disciplinary Authority to appoint an Enquiry Officer, who shall conduct
the enquiry on a day to-day basis, without adjourning the matter beyond
three working days at any given point of time and complete the same. Until
such time, from the date of suspension, the appellants/writ petitioners shall
be entitled to payment of subsistence allowance. In case of protraction of
enquiry by the employees, subsistence allowance may be restricted to 50%
as contemplated under the 1981 Act. In case of any adverse decision taken
against the employees/appellants, it is open to them to approach the
Appellate Authority and thereafter, approach the appropriate forum for
relief in case of confirmation of punishment or modification of punishment,
if any.
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W.A. Nos. 1206 & 1207 of 2022
S. VAIDYANATHAN,J.
AND
N. MALA,J.
nv
7. The writ appeals are disposed of accordingly. No costs.
Connected C.M.Ps are closed.
(S.V.N.J.) (N.M.J.)
nv 27.04.2022
To
The District Manager,
Tamil Nadu State Marketing Corporation,
Thirubhuvanam,
Nagapattinam District,
Nagapattinam – 612 001.
W.A. Nos. 1206 & 1207 of 2022
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