Madras High Court
Tamil Nadu State Transport vs The Presiding Officer on 8 February, 2022
W.A.(MD) No.73 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE PARESH UPADHYAY
AND
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
W.A.(MD) No.73 of 2022
and
C.M.P.(MD) No.889 of 2022
1.Tamil Nadu State Transport
Corporation (Madurai) Limited,
represented by its Managing Director,
Bye-Pass Road,
Madurai – 10.
2.The General Manager,
Tamil Nadu State Transport
Corporation (Madurai) Limited,
represented by its Managing Director,
Bye-Pass Road,
Madurai – 10. ... Appellants 1 & 2/Respondents 2 and 3
Vs.
1.The Presiding Officer,
Labour Court,
Madurai. ... 1st Respondent/1st Respondent
2.K.Balasekaran ... 2nd Respondent/Petitioner
Writ Appeal filed under Clause 15 of Letters Patent, against the
order dated 06.09.2021, made in W.P.(MD) No.1195 of 2016.
For Appellants : Mr.J.Senthil Kumaraiah
Standing Counsel
For Respondent No.2 : Mr.A.Rahul
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W.A.(MD) No.73 of 2022
JUDGEMENT
(Delivered by PARESH UPADHYAY,J.)
Challenge in this appeal is made to the order dated 06.09.2021
recorded on W.P(MD) No. 1195 of 2016. This appeal is by the
Management – who were respondents in the writ petition. The original
writ petitioner - the workman is the second respondent in this appeal.
2. Heard Mr.J.Senthil Kumaraiah, learned advocate for the
appellants / Corporation and Mr.A.Rahul, learned advocate for the second
respondent / workman.
3. Learned advocate for the appellant has made serious grievance
that, by the impugned order, the Management is required to make
payment of pension and other retrial dues to the workman even for the
period, during which - not only the workman was not in service, but his
dismissal could also not to be said to be illegal in any manner. It is
submitted that this appeal be entertained.
4. On the other hand, learned advocate for the respondent
workman has submitted that, dismissal of the workman was based on the
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conviction which is set aside by the Competent Court and therefore the
dismissal itself is rendered without any basis. It is submitted that, the
workman should not be put to any disadvantageous position for no wrong
committed by him so far his service is concerned. It is submitted that this
appeal be dismissed.
5. Having heard learned advocates for the respective parties and
having considered the material on record, this Court finds as under:-
6. The workman had initially joined the service of the appellant /
Management (ST Corporation) as a driver on 16.08.1986. He was treated
to be in regular employment with effect from 16.08.1987. The workman
has crossed the age of superannuation on 30.06.2015.
7.1 While the workman was in employment, his neighbour died
homicidal death. It was alleged that the family of the workman was
responsible for the said death. The workman along with his wife and two
sons were named as accused in an offence punishable under Section 302
of Indian Penal Code.
7.2 The Sessions Court Madurai (vide Sessions Case No.314 of
2002) convicted the workman and his wife vide judgment and order
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W.A.(MD) No.73 of 2022
dated 09.06.2004 and were sentenced to undergo Rigorous
Imprisonment for life. Both the sons being juvenile, were granted benefit
under law.
7.3 It is not in dispute that (i) the conviction was challenged by the
workman and his wife by filing Criminal Appeal (MD) No.800 of 2004 (ii)
the sentence was suspended during pendency of the appeal and (iii)
ultimately the conviction was set aside on 30.01.2013 by this Court.
8.1 Based on the conviction dated 09.06.2004, the Management
had dismissed the workman from service on 05.04.2005.
8.2 Certain proceedings had taken place before Labour Court and
this Court questioning the sustainability of the said dismissal, which was
not accepted at the instance of the workman. The dismissal thus stood,
during the pendency of the conviction.
8.3 Once the conviction was set aside by the High Court on
13.01.2013, the very basis for dismissal of the workman did not remain
in force. As the consequences thereof, the workman ought to have been
reinstated in service since he had not attained the age of superannuation
by that time. The inaction of the Management regarding reinstatement
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W.A.(MD) No.73 of 2022
the workman in service, after his acquittal, is not the subject-matter
before us now and therefore the same is not deliberated further.
8.4 The workman crossed the age of superannuation on
30.06.2015. Management did not pay anything towards his terminal
dues, like gratuity, pension etc. Therefore the workman approached this
Court.
9.1 The said petition is allowed by holding that the workman is
entitled to his retirement dues including for the period he was not in
employment (in the circumstances noted above), however learned Single
Judge also held that the workman shall not be entitled to claim arrears
towards back wages for the period during which he was not in
employment. The denial of back wages is not the subject-matter of this
appeal. This appeal is by the Management contending that the workman
can not be paid his pension and other retirement benefits for the period
during which he was not in employment.
9.2 We find that, since termination was solely based on the
conviction and once the said basis goes off, the dismissal order does not
remain in force. The workman therefore would be entitled to all
consequential benefits.
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W.A.(MD) No.73 of 2022
9.3 Learned Single Judge has attempted to balance the equities,
denying back wages to the workman, not only for the period during
which the stigma of conviction was in force but also beyond that till his
date of retirement. Though the denial of back wages is not the subject-
matter of this appeal, we make it clear that we are not inclined to
interfere in the exercise of power by learned Single Judge which is
against the workman, since it is to balance equities between the parties.
So far the payment of consequential retirement benefits is concerned, we
find that the workman is entitled to all retirement benefits and we do not
find any error in the order passed by learned Single Judge. This appeal
therefore needs to be dismissed.
10. It is noted that it is not even the case of the appellant that the
workman was not entitled to anything, under any other head after his
retirement. Still nothing is paid to him. Though more than six years have
passed, at least that amount, which according to the Management was
payable to the workman ought to have been paid. The same is also not
paid. Under these circumstances, while dismissing this appeal, we direct
that the amount payable to the workman shall be paid by the
Management expeditiously. The amount which according to Management
was payable, even without this litigation, be paid immediately. The
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W.A.(MD) No.73 of 2022
amount, which is payable pursuant to the order of learned Single Judge
which we are confirming by this order, also needs to be paid, soon
thereafter. It is made clear that, confirmation of the order of learned
Single Judge in no uncertain terms means that the entire period of
service of the workman from 16.08.1987 to 30.06.2015 shall be treated
as pensionable service.
11. So far calculation of pension / pensionable service etc., is
concerned, both the learned counsel have relied on decision of the
Division Bench of this Court [Principal Bench] dated 03.02.2022 recorded
on W.A.No.2302 of 2021. While calculating pensionable service of the
workman, the said decision shall also be kept in view by the appellant /
Management. It is noted that the proposition of law enunciated therein
was laid down after hearing Tamil Nadu State Transport Corporation
Employees Pension Fund Trust and therefore the same shall also be kept
in view by the Management. On one hand there is no fault on the part of
the workman, however we also note that in the peculiar facts of this
case, the Management also can not be blamed for its action at the
relevant time. Therefore, so far the contribution of pension fund is
concerned, the amount which the workman was otherwise required to
contribute, shall be deducted from his arrears. We make it clear that
while giving this direction, the order of the Division Bench in W.A.No.
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2302 of 2021 is not diluted in any manner, however keeping in view the
peculiar facts of this case, where the workman was convicted by the
Competent Court under Section 302 IPC which is set aside by the
Competent Court subsequently, we have made these observations.
12. This appeal is dismissed with the above observations /
directions. Consequently, connected miscellaneous petition is closed.
13. List on 08.03.2022 for reporting compliance.
[P.U.,J] [K.R.,J.]
08.02.2022
Index :Yes
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Note :
In view of the present lock down owing to
COVID-19 pandemic, a web copy of this order
(PDF format) may be utilized for official
purposes, ensuring that the copy of the order that
is presented is the correct copy, shall be the
responsibility of the advocate / litigant concerned.
To
The Presiding Officer,
Labour Court,
Madurai.
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W.A.(MD) No.73 of 2022
PARESH UPADHYAY, J.
and
KRISHNAN RAMASAMY, J.
pkn
W.A.(MD) No.73 of 2022
08.02.2022
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