Madras High Court
A.Subramanian vs The Government Of Tamil Nadu on 14 September, 2022
1 W.P.(MD)NO.16524 OF 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.09.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.16524 of 2022
A.Subramanian,
Staff No.91CR2065/8082,
(Senior Conductor-Retd.,) ... Petitioner
Vs.
1. The Government of Tamil Nadu,
Rep. By its Secretary,
Transport Department, Secretariat,
Chennai – 600 009.
2. The Managing Director,
Tamil Nadu State Transport Corporation
(Kumbakonam) Ltd.,
Kumbakonam – 612 001,
Thanjavur District.
3. The General Manager,
Tamil Nadu State Transport Corporation
(Kumbakonam) Ltd.,
Trichy Region, Periyamilaguparai,
Trichy District.
4. The Administrator,
Tamil Nadu State Transport Corporation
Pension Fund Trust,
Thiruvalluvar Illam, Pallavan Salai,
Chennai – 600 002. ... Respondents
Prayer: Writ petition is filed under Article 226 of the
Constitution of India, to issue a Writ of declaration, declaring
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2 W.P.(MD)NO.16524 OF 2022
the action of 2nd and 3rd respondents which had been recovered
a sum of Rs.1,32,800/- towards non-implementable
punishment of increment cut imposed on the petitioner as
illegal, arbitrary and violative of Article 14 of the Constitution
of India and consequently direct the respondents to refund the
petitioner the recovery amount of Rs. 1,32,800/- with 18%
interest per annum to the petitioner within the stipulated time
that may be fixed by this Court.
For Petitioner : Mr.N.Sudhagar Nagaraj
For R-1 : Mr.R.Suresh Kumar,
Additional Government Pleader.
For R-2 & R-3 : Mr.K.Jagadees Balan
***
ORDER
Heard the learned counsel on either side.
2. The writ petitioner joined the respondent
corporation as a conductor in the year 1991. He retired from
service on 31.03.2018. He was facing disciplinary proceedings
and final order was passed on 08.03.2018. It was directed that
a sum of Rs.1,12,800/- should be recovered from the writ
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3 W.P.(MD)NO.16524 OF 2022
petitioner. The contention of the petitioner is that this amount
was notionally quantified by taking into account the
increments which the petitioner would have otherwise
received.
3. According to the writ petitioner, the order stopping
the petitioner's annual increment for 166 months was not
implementable in view of his retirement on 31.03.2018.
Therefore according to the petitioner, the deduction of the
said amount from March 2018 salary and the gratuity amount
was clearly illegal.
4. The learned Standing counsel appearing for the
corporation stated that the deduction was made only by virtue
of the consent given by the writ petitioner himself in writing.
The petitioner's counsel would rebut the said statement by
pointing out that the consent was given under coercive
circumstances.
5. I carefully considered the rival contentions and
went through the materials on record.
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4 W.P.(MD)NO.16524 OF 2022
6. The issue raised in this writ petition 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:-
“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. ”
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5 W.P.(MD)NO.16524 OF 2022
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 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
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6 W.P.(MD)NO.16524 OF 2022
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
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7 W.P.(MD)NO.16524 OF 2022
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 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 appellant-
Management 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
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8 W.P.(MD)NO.16524 OF 2022
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) 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
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9 W.P.(MD)NO.16524 OF 2022
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." ”
7. Respectfully following the aforesaid decision, I
have to necessarily hold that the management could not have
recovered the unimplemented orders of punishment of
postponement of increment. The deduction made from the writ
petitioner's salary and gratuity is illegal. Therefore, the
respondents are directed to refund the said recovered amount
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10 W.P.(MD)NO.16524 OF 2022
of Rs.1,32,800/- with interest @ 6% p.a. within a period of
eight weeks from the date of receipt of a copy of this order.
This writ petition stands allowed. No costs.
14.09.2022
Index : Yes / No
Internet : Yes/ No
PMU
To:
1. The Government of Tamil Nadu,
Rep. By its Secretary,
Transport Department, Secretariat,
Chennai – 600 009.
2. The Managing Director,
Tamil Nadu State Transport Corporation
(Kumbakonam) Ltd.,
Kumbakonam – 612 001,
Thanjavur District.
3. The General Manager,
Tamil Nadu State Transport Corporation
(Kumbakonam) Ltd.,
Trichy Region, Periyamilaguparai,
Trichy District.
4. The Administrator,
Tamil Nadu State Transport Corporation
Pension Fund Trust,
Thiruvalluvar Illam, Pallavan Salai,
Chennai – 600 002.
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11 W.P.(MD)NO.16524 OF 2022
G.R.SWAMINATHAN,J.
PMU
W.P.(MD)No.16524 of 2022
14.09.2022
https://www.mhc.tn.gov.in/judis
