Madras High Court
The Management Of Metropolitan vs 2 D. Palanivel on 14 July, 2023
W.A. No. 1759 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.07.2023
CORAM:
THE HON'BLE MR. JUSTICE S. VAIDYANATHAN
and
THE HON'BLE MR. JUSTICE K. RAJASEKAR
W.A. No.1759 of 2023
&
C.M.P. No. 15493 of 2023
The Management of Metropolitan
Transport Corporation (Chennai) Ltd.
Pallavan Illam
Anna Salai
Chennai 600 002 ..Appellant
v
1 The Special Deputy Commissioner of Labour
D.M.S. Complex, IV Floor
Teynampet
Chennai 600 006
2 D. Palanivel ..Respondents
Prayer: Writ Appeal filed as against the order dated 18.02.2022 passed
in W.P. No.25240 of 2015.
For appellant :: Mr. M. Chidambaram
R1 :: Court
For R2 :: Mr. S.T. Varadarajulu
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W.A. No. 1759 of 2023
JUDGMENT
(Delivered by S. Vaidyanathan,J.)
For the sake of clarity and to avoid verbosity, the parties will be
adverted to as per their rank in this writ appeal.
2 The minimum facts required for deciding this writ appeal are set
out as under:
2.1 After having dismissed the second respondent workman due to
his unauthorised absence, the appellant Transport Corporation filed a
petition in Approval Petition No.557 of 2011 before the first respondent
authority seeking approval of the said dismissal, as is mandated under
Section 33(2)(b) of the Industrial Disputes Act, 1947. The said approval
petition was dismissed by the first respondent authority vide proceedings
dated 23.07.2013.
2.2 The dismissal order passed by the first respondent authority
was assailed by the appellant Transport Corporation in W.P. No.25240 of
2015, which was dismissed by a Single Bench vide order dated 18.02.2022.
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2.3 Calling into question the legality and validity of the order dated
18.02.2022 passed by the Single Bench, the Transport Corporation has
preferred the instant writ appeal.
3 The case of the appellant Transport Corporation is that the
second respondent workman remained unauthorisedly absent for duty from
22.04.2007, thereby causing dislocation of bus service; hence, he was issued
with a charge memo dated 11.05.2007 and not satisfied with his explanation
for his absence, a domestic enquiry was conducted, in which, charges were
held proved; based on the provisional conclusion with regard to the proved
misconduct, a notice dated 07.11.2007 was issued to him to show cause as
to why he should not be removed from service; the workman neither
submitted his explanation nor approached the Branch Manager, to explain
his absence and he was removed from service on 26.12.2007.
4 According to Mr. M. Chidambaram, learned counsel for the
appellant Transport Corporation, though there was a delay in filing the
approval petition, taking note of the fact that the second respondent
workman had derailed the services of the bus transport on account of his
continuous unauthorised absence, the punishment of dismissal from service
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W.A. No. 1759 of 2023
imposed on him ought to have been upheld by the authority concerned;
however, while deciding the approval petition, the first respondent authority
has not followed the dictum laid down in Lalla Ram v Management of
D.C.M. Chemical Works Ltd. and another1, since, according to the first
respondent authority, the application for approval under Section 33(2)(b),
ibid., was not filed within the time limit.
5 According to Mr. S.T. Varadarajalu, learned counsel for the
second respondent workman, it is incorrect to state that on account of
absence of the second respondent workman, there was dislocation of bus
service and even assuming for the sake of argument that such a stand taken
by the appellant Transport Corporation is correct, the punishment of
dismissal from service imposed on the second respondent workman is
disproportionate to the gravity of the misconduct. He further submitted that
the approval petition having been admittedly filed by the appellant Transport
Corporation with a delay of four years, in the light of the judgment of this
Court in V. Palani v TNSTC and another 2, in which, one of us (SVNJ) was
a member, the order of the authority, as confirmed by the Single Bench,
needs to be confirmed.
https://www.mhc.tn.gov.in/judis 6 Heard both sides and perused the materials available on record.
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W.A. No. 1759 of 2023
7 As rightly argued by the learned counsel for the second
respondent workman, it is an admitted fact that there was a delay of four
years in filing the approval petition. At this juncture, it is worth referring to
the judgment of the Supreme Court in Lalla Ram, supra, wherein, the
conditions to be satisfied while deciding an application for approval under
Section 33(2)(b), ibid., have been set out. Those five conditions 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;
(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."
If any of the conditions set out above is not satisfied, then, the order of the
employer needs to be interfered with. In the instant case, the approval
application has not been filed simultaneously, but, it has been filed four
years after the date of the dismissal order.
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W.A. No. 1759 of 2023
8 On the above score itself, the approval petition is liable to be
rejected, which was rightly done by the authority as confirmed by the Single
Bench. In the light of the judgment in Lalla Ram, supra, followed in
V. Palani, supra, we uphold the order passed by the Single Bench
confirming the order passed by the first respondent authority.
9 However, Mr. S.T. Varadarajulu, learned counsel for the second
respondent workman submitted across the bar that the second respondent
workman is willing to give up 50% of the backwages as he had attained the
age of superannuation in 2019, provided he is given continuity of service
and the appellant Transport Corporation pays the employer's contribution
towards Provident Fund. He also filed a memo dated 14.07.2023 to that
effect.
10 Taking into account the aforesaid memo, the second respondent
workman is deprived of 50% backwages. However, it is made clear that the
entire service put in by him will have to be reckoned for the purpose of
continuity of service and other attendant benefits. Further, the appellant
Transport Corporation shall contribute its share and the share of the second
respondent workman towards Provident Fund, of course, without interest,
within a period of four months from the date of receipt of a copy of this
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judgment, thereby enabling the second respondent workman to get correct
pensionary benefits. It is needless to state that gratuity and pension, if
applicable, shall be extended to the second respondent workman, within a
period of four months.
11. This writ appeal stands disposed of in the above terms. Costs
made easy. Connected C.M.P. is closed.
(S.V.N., J.) (K.R.S., J.)
14.07.2023
cad\nv
To
1 The Special Deputy Commissioner of Labour
D.M.S. Complex, IV Floor
Teynampet
Chennai 600 006
S. VAIDYANATHAN, J.
and
K. RAJASEKAR, J.
cad/nv
2 The Management of Metropolitan
Transport Corporation (Chennai) Ltd.
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W.A. No. 1759 of 2023
Pallavan Illam
Anna Salai
Chennai 600 002
W.A. No.1759 of 2023
14.07.2023
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