Madras High Court

L.Muniyandi vs The Managing Director on 20 October, 2022

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                        BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                            DATED : 20.10.2022

                                                    CORAM

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                          WP(MD)No.721 of 2019
                                                  and
                                          WMP(MD)No.624 of 2019

                     L.Muniyandi                                            ... Petitioner

                                                        vs.
                     1.The Managing Director,
                       Tamil Nadu State and Transport
                          Corporation (Madurai) Limited.,
                       Byepass Road, Madurai.

                     2.The General Manager,
                       Tamil Nadu State and Transport
                          Corporation (Madurai) Limited.,
                       Byepass Road, Dindigul.                            ... Respondents


                     Prayer: Writ Petition filed under Article 226 of the Constitution
                     of India to issue a Writ of Certiorarified Mandamus to call for the
                     records pertaining to the impugned proceedings issued by the
                     second respondent in Ref.CES/E9/1414, dated 05.04.2018
                     ordering for recovery of a sum of Rs.4,50,600/- from the
                     petitioner towards unimplemented punishment of increment cut
                     with cumulative effect imposed by the second respondent and
                     quash the same as illegal and consequently              directing the
                     respondents    to   settle   the   petitioner's   retirement   benefits
                     including gratuity, leave salary, computation amounts, medical


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                     and engineering contribution and other attendant monetary
                     benefits without recovery together with interest at 12% per
                     annum payable to the petitioner with effect from 31.05.2018 and
                     for other reliefs.


                                  For Petitioner         : Mr.J.Lawrance

                                  For Respondents        : Mr.J.Senthil Kumaraiah




                                                         ORDER

The petitioner served the respondent corporation as

Conductor. He joined the service on 15.06.1996 and retired on

31.05.2018. He had suffered punishment of stoppage of

increment on various occasions. By the impugned

communication dated 05.04.2018, the petitioner had been called

upon to remit a sum of Rs.4,50,600/-. The said amount has

been ordered to be recovered towards the unimplemented

punishment of increments. Questioning the same, this writ

petition has been filed.

2.The issue is no longer res integra. The Hon'ble Division

Bench vide Order dated 15.06.2021 in W.A.(MD)No.1270 of 2020

(The State Express Transport Corporation (Tamilnadu) Ltd.,

Chennai and three others V. G.Senthil and one other) had held

as follows:

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“6.Be that as it may, if we examine the condition No.8 of the 12(3) of the Industrial Disputes Act 1947 Settlement, we find that there is no such leverage given to the appellant - Management. The said Clause 8 reads as follows:

“gzpXa;tpd; nghOJ Vw;fdNt toq;fg;gl;l Increment Postponement Nghd;w jz;lidfs; eilKiwg;gLj;jg;gl ,ayhj epiyapy; nghJ gzp tpjpfs; kw;Wk; epiyahiz tpjpfs; mbg;gilapy; Increment njhiff;F <lhd njhif kl;LNk gpbj;jk; nra;ag;gLk;. ,we;j njhopyhsh;fisg; nghWj;jtiuapy; Nkw;nrhd;d gpbj;jk; nra;ag;glkhl;lhJ.”.

7.The above condition states that the increment postponement orders which could not be implemented prior to the superannuation of the employee can be implemented, but only in accordance with the Common Service Rules and the Standing Orders which are applicable to the organisation. This question was considered in the case of J.Arumugam (supra), as first among the several issues and it was held that there is no provision in the Certified Standing Orders enabling the Management to pass orders of recovery as passed in the instant case. In fact, the Court held that the Common Service Rules are not applicable to the workmen and there is no Standing Order framed by the Management and only Certified Standing Orders are in vogue and the Certified Standing Orders do not provide for any such recovery. The operative portion of the

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judgment reads as follows:

"5. Before deciding the merits of the case, firstly, it has to be seen, as to, under which Rule, the workmen of the Management are governed by. It is admitted by the Management that the workmen are governed by Certified Standing Orders, framed for the employees of the Management/Corporation by the Appellate Authority under the Industrial Employment (Standing Orders) Act 1946 (supra), but, contrary to the same, the impugned orders of recovery were passed by the Management, by following the provisions of the Common Service Rules, viz., Rule 4 (1) (e). Pitted with this position, the learned counsel for the Management submitted that the Management has no option, except, to opt for Rule 4 (1)

(e) of the Common Service Rules, for, the workmen suffered punishment of withholding of increment, which could not be given effect to, as the workmen did not have the requisite remaining years of service. That apart, such a remedy is not found in the Certified Standing Orders. This submission is untenable, for the reason that, when the Management has admitted that the workmen are governed by the Rules framed under the Certified Standing Orders, in violation to the same, it cannot follow Rule 4 (1) (e) of the Common Service Rules, by invoking Clause 25 (1) (iv) (b) of the Certified Standing Orders. Therefore, we have no hesitation to hold that the orders passed by the Management, recovering three times the monetary value equivalent to the amount of increment, are without jurisdiction, as

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there is no such provision in the Certified Standing Orders, enabling the Management to pass such orders. Therefore, on that ground, the impugned orders are required to be set aside."

                                       8.Therefore,        the       contention            of     the
                                  appellantManagement        that   Clause       8    of   the   12(3)

Settlement provides for passing such an order in an Organisation, is stated to be rejected. Clause 8 cannot be used as a tool or a source of power to recover money from the workman, especially, when the Settlement only states that it can be done so, if there is a provision under the Common Service Rules or the Standing Orders.

9.Furthermore, the question as to whether the Management would be entitled to implement orders of postponement of increment, which was not implemented during the period when the workman was in service, was also considered in the case of J.Arumugam (supra) and it was held that the same cannot be done and it will be without jurisdiction. The operative portion of the judgment reads as follows:

"37.One more important aspect, which we wish to point out is that, the Management cannot plead ignorance of the fact that, on the date, when punishment was imposed on the workmen, the punishment was not capable of being implemented as workmen did not have the required remaining years of service. If that is so, the Management cannot take shelter under the explanation contained Clause 4 (1) (e)

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to suit its own convenience, and the workmen cannot be put in a disadvantageous position. In such circumstances, the Management cannot rely on the decision of the Hon'ble Supreme Court in Kshetrabasi Mohanti (supra) where, the Hon'ble Supreme Court considered the correctness of the order by substituting the punishment for a candidate, who was still in service. There, it was a case, where, it was not possible for the Corporation to implement the punishment, but, the case on hand, is a case, where, the Corporation was fully aware of remaining years of service in respect of each of the workmen, yet, chose to pass such orders of recovery. Thus, the Management, having failed to convert the punishment of stoppage of increment to that of order of recovery of monetary value, when the workmen were in service, it cannot turn around and say that those orders could be implemented by invoking Clause 25 (iv) (b) of the Certified Standing Orders." ”

I had also followed the said decision in WP(MD)No.16524 of 2022

Respectfully following the ratio laid down by the Hon'ble Division

Bench, the order impugned in this writ petition is quashed. It is

stated that the petitioner's terminal benefits are yet to be settled.

The respondents are directed to settle the petitioner's terminal

benefits with interest at the rate of 6% per annum from the date

of retirement till the date of settlement, within a period of eight

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weeks from the date of receipt of copy of the order.

3.The writ petition is allowed. No costs. Connected

miscellaneous petition is allowed.

20.10.2022