Madras High Court
Tamil Nadu State Transport ... vs The Joint Commissioner Of Labour ... on 29 June, 2022
W.P.No.39072 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 29.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
W.P.No.39072 of 2005
and W.P.M.P.No.41846 of 2005
Tamil Nadu State Transport Corporation
(Villupuram) Ltd., Vellore Region
Vellore
Rep. by its Managing Director
...Petitioner
Versus
1.The Joint Commissioner of Labour (Conciliation),
Chennai.
2.A.Kumar
...Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for
issuance of a writ of certiorari calling for the records of the first respondent in
Approval Petition No.82/2004 dated 01.09.2004.
For Petitioner : Mr.G.Saravana Kumar
For Respondent – 1 : No Appearance
Respondent – 2 : Mr.V.Porkodi
for Mr.V.Ajay Khose
1/10
https://www.mhc.tn.gov.in/judis
W.P.No.39072 of 2005
ORDER
The relief sought by the petitioner in this writ petition is to call for the
records of the first respondent in Approval Petition No.82 of 2004 dated
01.09.2004.
2. The case of the petitioner is that the second respondent was working as a
conductor in the petitioner corporation. While so, on 25.07.2003, when the second
respondent was on duty in Bus No.TN-23-N-1177 in Route No.464/A, the said bus
was checked by Checking Inspectors at Vettuvanam. During such check, it was
found that a group of six passengers were travelled from Ambur to Vettuvanam,
without tickets. Upon enquiry, those passengers had informed that as soon as they
boarded the bus at Ambur, they gave Rs.50/- to the second respondent and asked
for six tickets to Vettuvanam but the second respondent did not give them tickets.
Further, it was found that the second respondent had issued nine tickets of Rs.6.50/-
each to a group traveling from Ambur Sugar Mills to Vettuvanam and nine tickets
of Rs.8/- each to another group travelling from Ambur to Vettuvanam without
punching the same and without making entry in the invoice. Similarly, the second
https://www.mhc.tn.gov.in/judis
W.P.No.39072 of 2005
respondent had also issued three more tickets of Rs.10/- each without making any
entry in the invoice.
3. Due to the above misconduct of the second respondent, the petitioner
corporation has issued him a Charge Memo dated 31.07.2003, for which, he gave
explanation on 07.08.2003. But the petitioner corporation was not satisfied with
his explanation and therefore, it conducted a domestic enquiry. The second
respondent participated in the said domestic enquiry. In the Enquiry Report, the
Enquiry Officer has held that the charges which were framed against the second
respondent had been proved. On the basis of the findings of Enquiry Officer as
well as the past service records of the second respondent, a Show Cause Notice
dated 29.11.2003 was issued to him. In response to the said Show Cause Notice,
the second respondent gave his explanation on 15.12.2003. Since his explanation
was not satisfactory, he was dismissed from service vide order dated 12.02.2004.
Subsequently, the petitioner corporation has filed an Approval Petition No.82 of
2004 before the first respondent Court, seeking approval for the dismissal of the
second respondent. But the said Approval Petition was rejected by the first
respondent Court vide order dated 01.09.2004. Therefore, left with no other
https://www.mhc.tn.gov.in/judis
W.P.No.39072 of 2005
alternative, the petitioner corporation has filed the present writ petition before this
Court for the relief stated supra.
4. Heard the learned counsel on both sides and perused the materials
available on record.
5. As far as this case is concerned, the allegation against the second
respondent who was working as a conductor in the petitioner corporation is that he
has indulged in misconducts like even after collecting money from the passengers,
not issuing them tickets and also, without making entry in the invoice, issuing non-
punched tickets to the passengers. A domestic enquiry was conducted in this
regard, in which, the charges framed against the second respondent were also
proved, as a result of which, he was dismissed from service on 12.02.2004.
Thereafter, the petitioner corporation has filed an Approval Petition under Section
33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'ID Act')
before the first respondent Court, seeking the approval for dismissal of second
respondent.
https://www.mhc.tn.gov.in/judis
W.P.No.39072 of 2005
6. It is pertinent to extract Section 33(2)(b) of the I.D.Act hereunder:
“33. Conditions of service, etc., to remain unchanged under certain
circumstances during pendency of proceedings – (2) During the pendency
of any such proceeding in respect of an industrial dispute, the employer may,
in accordance with the standing orders applicable to a workman concerned
in such dispute [or, where there are no such standing orders, in accordance
with the terms of the contract, whether express or implied, between him and
the workman]
(b) for any misconduct not connected with the dispute, discharge or
punish, whether by dismissal or otherwise, that workman:
Provided that no such workman shall be discharged or dismissed,
unless he has been paid wages for one month and an application has been
made by the employer to the authority before which the proceeding is
pending for approval of the action taken by the employer.”
7. As per the above provision, it is a mandatory condition that while
dismissing a workman from service, his employer should pay his wages for one
month. Before the first respondent Court, a photocopy of the second respondent's
pay slip for the month of February 2004 was marked as Exhibit A4, in which, the
rate of basic pay payable to him is indicated as Rs.4,215/- and the rate of dearness
allowance payable to him is indicated as Rs.1,501.20/- respectively. On the basis of
https://www.mhc.tn.gov.in/judis
W.P.No.39072 of 2005
the said exhibit, the first respondent Court held that at the time of dismissal of
second respondent from service, the dearness allowance payable to him is
Rs.1,501.20/- and the one month's wages payable to him is Rs.6,733.95/- and
thereby, petitioner corporation has violated the aforesaid mandatory condition
which was stipulated under Section 33(2)(b) of the ID Act. Therefore, the first
respondent Court has rightly rejected the Approval Petition of the petitioner
corporation.
8. It is to be noted that when this Court dealt with an identical issue in the
case of The Management, State Express Transport Corporation (Tamil Nadu)
Ltd., vs. The Joint Commissioner of Labour (Conciliation), Chennai and Anr.
reported in 2012 SCC Online Mad 1946, has held as follows:
“10. On the question of payment of wages, subsequent to the
Supreme Court, several High Courts have taken a definite stand on the
question of shortfall in the payment of one month pay. It is necessary to
refer to one or two cases. The High Court of Karnataka vide its judgment in
Karnataka Agro Industries Corporation Ltd., vs. Industrial Tribunal and
another reported in 1984 (64) FJR 179 has held that in the offering of one
month pay even if the increment accrued to the workman was not included,
then it would not amount to the compliance under Section 33(2)(b) of the I.D.
Act.
https://www.mhc.tn.gov.in/judis
W.P.No.39072 of 2005
11. The same view was taken by this Court in Palaniswami vs. Indian
Hume Pipe Co., reported in 1965 (2) LLJ 541 that if the calculation of one
month pay is not in accordance with law, the approval need not be granted
by the authorities.”
9. Similarly, in the case of Tamil Nadu State Transport Corporation
(Villupuram Division – I) Ltd., vs. The Joint Commissioner of Labour
(Conciliation), DMS Compound, Chennai and Anr. reported in (2011) I LLJ 646
Mad, this Court has observed as hereunder:
“11. Thus, applying the two decisions cited by the learned counsel
for the second respondent/workman to the facts of this case and having
regard to the factual finding given by the first respondent, namely less
payment of one month wages to the second respondent, I am of the view that
the findings given by the first respondent refusing to give approval is legally
valid as the conditions stipulated in Section 33(2)(b) are not fulfilled and no
case is made out to interfere with the said findings.”
10. Considering the facts and circumstances of the case and following the
aforesaid decisions of this Court, I am of the view that the relief sought by the
petitioner cannot be granted since the case of the petitioner deserves no merit of
consideration. Therefore, this writ petition is liable to be dismissed.
https://www.mhc.tn.gov.in/judis
W.P.No.39072 of 2005
11. Accordingly, this writ petition is dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
29.06.2022
nst/mrr
Index : Yes / No
Speaking Order (or) Non Speaking Order
https://www.mhc.tn.gov.in/judis
W.P.No.39072 of 2005
To
The Joint Commissioner of Labour (Conciliation),
Chennai.
https://www.mhc.tn.gov.in/judis
W.P.No.39072 of 2005
J.SATHYA NARAYANA PRASAD, J.
nst/mrr
W.P.No.39072 of 2005
29.06.2022
https://www.mhc.tn.gov.in/judis
