Madras High Court

The General Manager vs K.Murugan on 23 August, 2023

                                                                                       W.P.No.22703 of 2017


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 23.08.2023

                                                             CORAM

                          THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                                     W.P.No.22703 of 2017
                                                             and
                                                    W.M.P.No.23799 of 2017

                     The General Manager,
                     Tamil Nadu State Transport Corporation,
                     (Villupuram) Ltd.,
                     Ponneri Karai,
                     Bangalore National Highways,
                     Kancheepuram                                                  ... Petitioner

                                                               Vs.

                     1. K.Murugan,
                        Condutor.

                     2. The Special Deputy Commissioner of
                        Labour,
                        D.M.S.Compound,
                        Chennai.                                                   ... Respondents




                                  Writ Petition is filed under Article 226 of the Constitution of India,

                     to issue a Writ of Certiorari, calling for the records of the 2 nd respondent

                     made in A.P.No.111/2012 dated 06.06.2014 and quash the same as


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                                                                                        W.P.No.22703 of 2017


                     illegal and against the provisions of the Industrial Disputes Act, 1947.



                                                  For Petitioner : Mr.M.Aswin
                                                                   Standing Counsel

                                                  For R1          : Mr.S.T.Varadarajulu

                                                  For R2          : Mrs.Akila Rajendran
                                                                    Government Advocate



                                                              ORDER

This Writ Petition has been filed to call for the records of the 2nd

respondent made in A.P.No.111/2012 dated 06.06.2014 and quash the

same.

2. The brief facts of the case of the petitioner are as follows:

i) The deponent is the General Manager of the petitioner /

Tamilnadu State Transport Corporation, Villupuram. The 1st respondent

was working as a Conductor in the Kalpakkam Depot. A report was

received from the branch manager that the 1st respondent was on an

unauthorized absence from 30.08.2008 till the date of the proceeding. A

charge memo dated 27.09.2008 was issued to the 1 st respondent. The 1st https://www.mhc.tn.gov.in/judis

W.P.No.22703 of 2017

respondent did not submit any reply for the charges framed. Hence, the

petitioner appointed an Enquiry Officer to enquiry into the charges. The

enquiry was conducted on various dates and the Enquiry Officer

concluded that the charges were proved.

ii) The copy of the Enquiry Officer's Report was sent to the 1st

respondent calling for his explanation. The 1st respondent submitted his

reply undated. The explanation submitted by the 1st respondent was not

satisfactory one. Hence, a 2nd Show Cause Notice was issued to the 1st

respondent calling for his explanation for the provisional conclusion of

dismissal. The 1st respondent submitted his reply undated which did not

carry mitigating reasons. Hence, the petitioner management was

constrained to pass an order of dismissal against the 1st respondent vide

its dated 23.02.2012 and simultaneously an Approval was sought as

under Section 33(2)(b) of the Industrial Disputes Act, 1947 before the 2nd

respondent. As there was a pendency of Industrial Dispute before the 1 st

respondent, hitherto, a Cheque dated 27.05.2011 was sent with the

dismissal order for the exact one month wages which is liable to be paid.

iii) The 2nd respondent numbered the Approval Petition as https://www.mhc.tn.gov.in/judis

W.P.No.22703 of 2017

A.P.No.111/2012 and framed the issues based on the Judgment of the

Hon'ble Supreme Court in Lalla Ram Vs DCM Chemicals in AIR 1978

SC 1004 and accordingly, the issues were taken for adjudge based on the

documents adduced by the petitioner management and on production of

necessary documents to show that there was compliance of Section

33(2)(b) of the Industrial Disputes Act. The 2 nd respondent finally

disposed the Approval Petition in A.P.No.111/2012 on 06.06.2014

holding that the prima facie of the case was established for the

commissioning of the above misconduct. The 2nd respondent held that the

payment of the salary was found to be proper. But the filing of the

application was not done simultaneously. The above said decision is

contrary to the nature of appreciation of evidences as per Section 33(2)(b)

of the Industrial Disputes Act and therefore, this Writ Petition has been

filed seeking to quash the order in A.P.No.111/2012.

3. Heard Mr.M.Aswin, learned Standing Counsel for the petitioner

Corporation, Mr.S.T.Varadarajulu, learned counsel for R1 and Mrs.Akila

Rajendran, learned Government Advocate for R2.

4. The 1st respondent herein was dismissed from service through an

order dated 23.02.2012 passed by the petitioner Corporation. The order https://www.mhc.tn.gov.in/judis

W.P.No.22703 of 2017

of dismissal was pursuant to a domestic enquiry conducted, in which the

charges against him were held as proved. The petitioner Corporation had

filed an application on 23.02.2012 under Section 33(2)(b) of the

Industrial Disputes Act, 1947, seeking for approval of the dismissal

order. The said application was numbered as A.P.No.111/2012 and

thereafter, the following issues were framed for consideration.

i) Whether the enquiry was conducted in a fair and proper manner following the principles of natural justice?

ii) Whether the prima facie of the case was made out on necessary evidences?

iii) Whether the conclusion was bonafide and the action of the Management did not tantamount for unlawful labour practice?

iv) Whether one month salary was paid to the labour?

v) Whether the action taken against the 1st respondent was integral and simultaneously proceeded for seeking approval of the dismissal?

5. The Approval Petition came to be disposed on 06.06.2014,

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W.P.No.22703 of 2017

wherein, one of the issues framed was decided against the petitioner.

Therefore, the present Writ Petition has been filed, challenging the said

order dated 06.06.2014.

6. A perusal of the impugned order would reveal that the

application had been rejected only on the ground that, the dismissal order

was passed on 23.02.2012, whereas the application was received by the

2nd respondent on 26.03.2012 and there was an interval of 32 days in

between the two events. Insofar as this issue is concerned, it would

relevant to point out the judgment in Lalla Ram V. Management of

D.C.M. Chemical Works Ltd. And another [1978 3 SCC Pg.1], wherein,

the Hon'ble Apex Court has laid down certain conditions while deciding

an application for approval under Section 33(2)(b) of the Industrial

Disputes Act, 1947, which are extracted hereunder :

i) Whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held;

ii) Whether a prima-facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out;

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W.P.No.22703 of 2017

iii) Whether the employer had come to a bona-fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee;

iv) Whether the employer has paid or offered to pay wages for one month to the employee; and

v) Whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.”

7. As per the order of the Hon'ble Apex Court, if any of the

conditions mentioned above are violated, then the order of the employer

needs to be interfered with. In the instant case, the approval petition has

not been filed on the very same day when the order of dismissal was

passed and it has been filed with a delay of 32 days, which is in violation

of the above provisions. The Hon'ble Division Bench of this Court, in a

similar case in V.Palani V. The Tamil Nadu State Transport

Corporation (Villupuram) Ltd And Another [W.A.No.32 of 2022], had

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W.P.No.22703 of 2017

rejected the claim of the State Transport Corporation, wherein, the

approval application had been filed with a delay of 8 days. In the case on