Madras High Court
K.Settu vs The Management on 28 November, 2022
W.P.No.6038 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.11.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.6038 of 2019
K.Settu ... Petitioner
Vs.
1.The Management,
Metropolitan Transport
Corporation (Chennai) Ltd,
Pallavan Illam,
Anna Salai,
Chennai – 600 002.
2.The Administrator,
Tamil Nadu State Transport Corporation
Employees Pension Fund Trust,
Pallavan Salai, Chennai – 600 002. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Mandamus, to direct the respondents to pay back
wages from the date of dismissal to the date of retirement and pension from
June 2018 and other terminal benefits to the petitioner.
For Petitioner : Mr.S.T.Varadarajulu
For R1 : Mr.R.Ramanlal
Additional Advocate General
Assisted by Mr.C.Gauthama Raj
For R2 : No Appearance
Page 1 of 15
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W.P.No.6038 of 2019
ORDER
The relief sought for in the present writ petition is to direct the
respondents to pay back wages from the date of dismissal to the date of
retirement and pension from June 2018 and other terminal and pensionary
benefits.
2. The petitioner was appointed as a Conductor in the 1st respondent
Transport Corporation on 04.08.1986. His services were confirmed on
01.12.1987. The petitioner has served about 21 years in the Transport
Corporation. A charge memo dated 13.03.2007 was issued regarding
unauthorised absence of the petitioner from 26.02.2007. After conducting
an enquiry, the petitioner was imposed with the punishment of dismissal
from service on 08.01.2008.
3. The learned counsel for the petitioner mainly contended that the
punishment of dismissal from service was not approved and the respondent /
Transport Corporation had not filed any petition under Section 33 (2)(b) of
the Industrial Disputes Act, 1947 for approval of the punishment. In this
regard, the learned counsel for the petitioner referred a judgment of the
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Constitution Bench of the Hon'ble Supreme Court of India in the case of
Jaipur Zila Shakari Bhoomi Vikas Bank Limited Vs. Ram Gopal Sharma
and Others reported in [2002(1) L.L.N. 639].
4. In the present case, no Approval Petition under Section 33(2)(b) of
the Industrial Dispute Act, 1947 was filed and therefore, the punishment of
dismissal became inoperative and therefore, the petitioner is entitled to be
reinstated in service with back wages and with continuity of service. In this
regard, the petitioner's counsel sent a legal notice on 16.02.2015. Mean
while, the petitioner attained the age of superannuation on 31.05.2018.
Thus, the petitioner has now chosen to file the present writ petition seeking
terminal and pensionary benefits due to him.
5. The learned counsel for the petitioner states that the petitioner
served about 21 years and the Management had not filed any Approval
Petition under the Industrial Disputes Act, 1947 and therefore, the petitioner
is entitled for the terminal and pensionary benefits due to him.
6. The learned Additional Advocate General appearing on behalf of
the 1st respondent objected the said contention raised on behalf of the
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W.P.No.6038 of 2019
petitioner. It is contended that the petitioner was dismissed from service on
08.01.2008 and he filed the present writ petition after a lapse of 11 years
from the date of punishment of dismissal. The petitioner had not approached
the authorities for reporting duty or otherwise. Contrarily, he waited till his
dated of superannuation and in order to get terminal and pensionary
benefits, now he has chosen to file the present writ petition. Thus, the writ
petitioner is to be rejected.
7. The learned Additional Advocate General appearing on behalf of
the 1st respondent reiterated that the petitioner filed an application under
Right To Information Act during the year 2014 itself. A reply was sent to
him in letter dated 08.08.2014, wherein, the Public Information Officer of
the respondent Transport Corporation clearly stated that the punishment of
dismissal from service was sent to the residential address of the writ
petitioner and also communicated to the depot in which the petitioner lastly
served. It is further contended that the petitioner had not filed any appeal
within a period of 60 days as stated in the order of punishment. However, it
is admitted by the respondent Transport Corporation that no Approval
Petition was filed. Though the petitioner secured the said information under
the Right to Information Act in the year 2014, even thereafter, he has not
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W.P.No.6038 of 2019
taken any steps to approach the competent authorities for reporting duty.
Thus, the petitioner had intentionally remained silent for about 11 years and
after reaching the age of superannuation on 31.05.2018, he filed the present
writ petition on 25.02.2019 for a direction to settle the terminal and
pensionary benefits due to him.
8. An employee, who slept over his right, cannot wake up one fine
morning and claim the benefits after several years. The petitioner was very
much aware that he was not attending duty from the year 2007 onwards, the
order of dismissal was issued in the year 2008. He was very much conscious
that he had not approached the competent authorities for the purpose of
reporting duty. Contrarily, he submitted an application under the Right To
Information Act in the year 2014 and the Public Information Officer of the
respondent Transport Corporation gave a reply in letter dated 08.08.2014,
wherein, he had categorically stated that no Approval Petition under Section
33(2)(b) of the Industrial Disputes Act, 1947 was filed.
9. In such circumstances, at least during the year 2014, the petitioner
ought to have approached the authorities for reporting duty. Even thereafter,
he remained silent and directly he sent a legal notice through his lawyer on
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W.P.No.6038 of 2019
16.02.2015. Even after issuing the lawyer's notice, the petitioner did not
reported for duty. Contrarily, he sent a representation on 15.06.2018 for the
purpose of filing the present writ petition and accordingly, filed the present
writ petition on 25.02.2019. Even after the representation, the petitioner had
not made further attempt to report for duty. The representation itself was
sent after legal notice issued by the counsel in the year 2015 and on
15.06.2018, knowing the fact that the petitioner reached the age of
superannuation on 31.05.2018. Thus, the representation itself was sent by
the petitioner only to get the monetary benefits from the Transport
Corporation.
10. No doubt, an employee is entitled for terminal and pensionary
benefits. However, in the present case, the petitioner was dismissed from
service on 08.01.2008. A dismissed employee is not eligible for the terminal
benefits and the dismissal was not approved by the competent authorities
under Section 33(2)(b) of the Industrial Disputes Act, 1947. Thus, the order
of dismissal became inoperative and therefore, the petitioner ought to have
approached the competent authorities in the year 2008 or within a
reasonable period of time, permitting him for reporting duty. However, the
petitioner had failed in his duty to approach the authorities for reporting
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W.P.No.6038 of 2019
duty. Contrarily, he remained silent for more than 11 years and thereafter,
sent a representation and filed the writ petition for terminal and pensionary
benefits.
11. Thus, the writ petition is liable to be rejected on the ground of
latches.
12. The judgment of the Hon'ble Supreme Court of India in Jaipur
Zila Sahakari Bhoomi Vikas Bank Limited's case (cited supra), the
Hon'ble Supreme Court of India held that in the absence of any approval by
the authority under Section 33(2)(b) of the Industrial Disputes Act, 1947,
the order of dismissal became inoperative. In the present case, the order of
dismissal became inoperative on expiry of the period of limitation
prescribed for filing an Approval Petition under Section 33(2)(b) of the
Industrial Dispute Act, 1947. Thus, on expiry of the period of limitation for
filing Approval Petition under Section 33(2)(b) of the Industrial Dispute
Act, 1947, the petitioner as a workman, has to approach the competent
authority seeking permission to report for duty. However, in the present
case, the petitioner miserably failed to approach the competent authorities
for the purpose of reporting duty, but waited for about 11 years and
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W.P.No.6038 of 2019
submitted a representation after reaching the age of superannuation for the
purpose of pensionary benefits. Such an approach of a workman, at no
circumstances, could be appreciated.
13. The respondent Transport Corporation is a 'State' within the
meaning of Article 12 of the Constitution of India and performing public
duties. Thus, the petitioner being the public servant, is expected to perform
his duties by approaching the authorities during the relevant period of time.
Even after securing information under Right To Information Act in the year
2014, the petitioner did not join duty and thereafter waited for about 5 years
and filed the present writ petition in the year 2019.
14. Thus, the writ petition is hit by the principles of latches.
15.(a) In the case of Chairman / Managing Director, Uttar Pradesh
Power Corporation Limited and Others Vs. Ramgopal reported in [(2020)
SCC Online SC 101], the Three Judges Bench of the Hon'ble Supreme
Court of India held as follows:
“Whilst it is true that limitation does not
strictly apply to proceedings under Articles 32 or
226 of the Constitution of India, nevertheless,
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W.P.No.6038 of 2019
such rights cannot be enforced after an
unreasonable lapse of time. Consideration of
unexplained delays and inordinate laches would
always be relevant in writ actions, and writ courts
naturally ought to be reluctant in exercising their
discretionary jurisdiction to protect those who
have slept over wrongs and allowed illegalities to
fester. Fence-sitters cannot be allowed to barge
into courts and cry for their rights at their
convenience, and vigilant citizens ought not to be
treated alike with mere opportunists. On multiple
occasions, it has been restated that there are
implicit limitations of time within which writ
remedies can be enforced.”
(b) In the case of P.S. Sadasivaswamy Vs. State of Tamil Nadu,
reported in [(1975) 1 SCC 152], held as follows:
“2. … One cannot sleep over the matter
and come to the Court questioning that
relaxation. In effect he wants to unscramble a
scrambled egg. It is not that there is any period of
limitation for the Courts to exercise their powers
under Article 226 nor is it that there can never be
a case where the Courts cannot interfere in a
matter after the passage of a certain length of
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W.P.No.6038 of 2019
time. But it would be a sound and wise exercise of
discretion for the Courts to refuse to exercise
their extraordinary powers under Article 226 in
the case of persons who do not approach it
expeditiously for relief and who stand by and
allow things to happen and then approach the
Court to put forward stale claims and try to
unsettle settled matters……”
(c) In the case of SS Balu Vs. State of Kerala, reported in [(2009) 2
SCC 479], the Court observed thus:
“17. It is also well-settled principle of law that
“delay defeats equity”. …It is now a trite law that
where the writ petitioner approaches the High
Court after a long delay, reliefs prayed for may be
denied to them on the ground of delay and laches
irrespective of the fact that they are similarly
situated to the other candidates who obtain the
benefit of the judgment.”
(d) In the case of Vijay Kumar Kaul Vs. Union of India, reported in
[(2012) 7 SCC 610], held as follows:
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W.P.No.6038 of 2019
“27. …It becomes an obligation to take into
consideration the balance of justice or injustice in
entertaining the petition or declining it on the
ground of delay and laches. It is a matter of great
significance that at one point of time equity that
existed in favour of one melts into total
insignificance and paves the path of extinction
with the passage of time.”
It is also pertinent to mention that neither has it
been pleaded nor is it apparent from the material
on record that the Respondent was unable to
approach the court-of-law in time on account of
any social or financial disability. Had such been
the case, he ought to have availed free legal aid
and should have ventilated his grievances in a
timely manner.”
16. (a) In the case of State of Uttar Pradesh and Others Vs. Arvind
Kumar Srivastava and Others reported in [(2015) 1 SCC 347], the Hon'ble
Supreme Court of India held as follows:
“(2) However, this principle is subject to well
recognized exceptions in the form of laches and
delays as well as acquiescence. Those persons
who did not challenge the wrongful action in their
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W.P.No.6038 of 2019
cases and acquiesced into the same and woke up
after long delay only because of the reason that
their counterparts who had approached the Court
earlier in time succeeded in their efforts, then
such employees cannot claim that the benefit of
the judgment rendered in the case of similarly
situated persons be extended to them. They would
be treated as fence-sitters and laches and delays,
and/or the acquiescence, would be a valid ground
to dismiss their claim.”
(b) In the case of RushibhaiJagdishbhai Pathak Vs. Bhavnagar
Municipal Corporation reported in [2022 SCC Online SC 641], held as
follows:
“The courts have expressed the view that
the law of limitation rests on the foundations of
greater public interest for three reasons
(a) that long dormant claims have more of cruelty
than justice in them
(b) that a Defendant might have lost the evidence
to disapprove a stale claim
(c) that persons with good causes of action should
pursue them with reasonable diligence
The normal Rule is that when a particular
set of employees is given relief by the court, all
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other identically situated persons need to be
treated alike by extending that benefit. However,
this principle is subject to well-recognised
exceptions in the form of laches and delays as well
as acquiescence.
“Those persons who did not challenge the
wrongful action in their cases and acquiesced into
the same and woke up after long delay only
because of the reason that their counterparts who
had approached the court earlier in time
succeeded in their efforts, then such employees
cannot claim that the benefit of the judgment
rendered in the case of similarly situated persons
be extended to them. They would be treated as
fence-sitters and laches and delays, and/or the
acquiescence, would be a valid ground to dismiss
their claim””
17. Though the order of dismissal was not approved, the petitioner on
account of his own conduct, slept over his rights and thereafter, he cannot
get any relief in the present writ petition after a lapse of several years from
the date of dismissal from service on 08.01.2008.
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W.P.No.6038 of 2019
18. For the reasons stated above, the Writ Petition stands dismissed.
No costs.
28.11.2022
Jeni/Kak
Index : Yes
Speaking order
To
1.The Management,
Metropolitan Transport
Corporation (Chennai) Ltd,
Pallavan Illam,
Anna Salai,
Chennai – 600 002.
2.The Administrator,
Tamil Nadu State Transport Corporation
Employees Pension Fund Trust,
Pallavan Salai, Chennai – 600 002.
https://www.mhc.tn.gov.in/judis
W.P.No.6038 of 2019
S.M.SUBRAMANIAM, J.
Jeni/Kak
W.P.No.6038 of 2019
28.11.2022
https://www.mhc.tn.gov.in/judis
