Madras High Court
G. Neelakandan vs 2 The Joint Commissioner Of Labour ... on 26 July, 2023
W.A. No.632 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.07.2023
CORAM:
THE HON'BLE MR. JUSTICE S. VAIDYANATHAN
and
THE HON'BLE MR. JUSTICE K. RAJASEKAR
W.A. No.632 of 2023
G. Neelakandan Appellant
v
1 Tamil Nadu State Transport Corporation Ltd.
(Villupuram) Ltd.
Vellore Region
represented by its General Manager
Vellore
2 The Joint Commissioner of Labour (Conciliation)
DMS Compound
Teynampet
Chennai 600 006 Respondents
Writ Appeal filed under Clause 15 of the Letters Patent challenging the
order dated 08.11.2019 passed in W.P. No.35298 of 2006.
For appellant Mr. R.S. Anandan
For R1 Mr. M. Aswin
For R2 Mrs.V. Yamunadevi
Special Government Pleader
JUDGMENT
(delivered by S.VAIDYANATHAN, J.)
For the sake of clarity and prolixity, the parties will be adverted to as per
their rank in this writ appeal.
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W.A. No.632 of 2023
2 The germane facts necessary for deciding this writ appeal run thus:
2.1 The appellant joined as a Conductor in the first respondent Transport
Corporation on 06.10.1991. Owing to his long absence for various spells, he was
dismissed from service on 31.05.2003 and on the date of his dismissal, he had
completed almost 12 years of service.
2.2 As there was an industrial dispute pending between the Management
and the Union and the appellant was one of the workmen concerned in the
industrial dispute, an approval petition was filed by the first respondent Transport
Corporation in A.P. No.197 of 2003, in which, the second respondent authority,
vide order dated 12.02.2005, holding that Rule 64(2) of the Tamil Nadu Industrial
Disputes Rules, 1958 has not been followed, rejected the approval petition and the
relevant paragraphs from the said order read thus:
“The next issue to be decided is whether the applicant 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. The
application seeking approval of the dismissal of the opposite party
was filed on 08.06.2003. Ex.A.1 indicates that the opposite party was
dismissed on 31.05.2003. Therefore, I reckon 08.06.2003 as the date
on which the application seeking approval was filed before this
authority. The opposite party had been dismissed by an order dated
31.05.2003. The time gap between the date of dismissal of the
opposite party and the filing of the application seeking approval is
only about eight days. The time gap between the two actions is so
short that they could be regarded as forming part of the same
transaction. Therefore, I decide accordingly. However, Rule 64(2) of
the Tamil Nadu Industrial Dispute Rules, 1958, reads as follows:
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W.A. No.632 of 2023
“64(2) An employer seeking the approval of the Conciliation
Officer, Board, Labour Court or Tribunal, as the case may be, of
any action taken by him under clause (a) or clause (b) of sub-section
(2) of section 33, shall present an application in Form “T” in
duplicate to such Conciliation Officer, Board, Labour Court or
Tribunal either personally or by registered post with
acknowledgment due. A copy of it shall also be served
simultaneously either personally or by registered post
acknowledgment due on the workman or workmen concerned and
the fact indicated on the copies of the application presented to the
Conciliation Officer, Board, Labour Court or Tribunal, as the case
may be.”
In its application in Form T prescribed under Rule 64(2) of the
Tamil Nadu Industrial Disputes Rules, 1958, seeking approval of the
dismissal of the opposite party, the applicant had indicated that copies
have been served simultaneously by registered post on the opposite
party as required by sub rule (2) of Rule 64 and the acknowledgment
of the opposite party will be filed as soon as it is received. Exhibit A.5
is described by the applicant as the acknowledgment given by the
opposite party for receiving the dismissal order. It is not described as
acknowledgment given for receiving Form T prescribed under Rule
64(2) of the Tamil Nadu Industrial Disputes Rules, 1958. The
applicant had not produced for my perusal any document indicating
that the Form T had been sent to the opposite party. Therefore, I am
constrained to hold that the applicant had not served on the opposite
party form T as required by Rule 64(2) of the Tamil Nadu Industrial
Disputes Rules, 1958. As this also amounts to a contravention of a
rule framed under a statute, I hold that approval has to be refused on
this ground also.
I reject the application seeking approval for the dismissal of
Thiru. G. Neelakandan, Conductor, Staff No.9834 for the following
reasons:
1 While dismissing the opposite party from its
services, the applicant had not followed the principles of natural
justice.
2 A prima facie case based on legal evidence had not
been made out in the enquiry.
3 While dismissing the opposite party from its
services, the applicant had not followed the mandatory conditions
of Section 33(2)(b) of the Industrial Disputes Act, 1947, read with
Rule 64(2) of the Tamil Nadu Industrial Disputes Rules, 1958.”
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W.A. No.632 of 2023
2.3 Challenging the aforesaid order of the second respondent authority,
the first respondent Transport Corporation filed a writ petition being
W.P.No.35298 of 2006, which was allowed by a Single Bench vide order dated
08.11.2019, on the ground that second respondent authority cannot decide the
quantum of punishment with reference to the proportionality theory.
2.4 Thereagainst, the workman has preferred this writ appeal.
3 Heard the learned counsel for the parties and perused the materials
available on record.
4 From a perusal of the the records, it is quite manifest that the
appellant workman was not regular in his work. Though we find that this is a fit
case for remand, in order to shorten the life of litigation and since the appellant
had absented himself for more than six years during his service period of 12 years,
he is not a fit person to be continued in service, we posed a question to the
appellant workman and the first respondent Transport Corporation as to whether
the punishment of dismissal from service could be converted into one of
compulsory retirement. At the same time, we are of the view that on technicalities,
some relief has to be granted to the appellant workman as the order of the
authority under Section 33(2)(b) of the Industrial Disputes Act, 1947, is tested
before us.
https://www.mhc.tn.gov.in/judis The learned Standing Counsel for the first respondent Transport
W.A. No.632 of 2023
Corporation produced before us a communication dated 22.07.2023 stating that
the first respondent Transport Corporation is willing to impose the punishment of
compulsory retirement and pay a sum of Rs.2,74,919/- towards full and final
settlement, by taking into account his service of 7 years, 2 months and 20 days as
his pensionable service.
“Anent the 2nd ref. cited, you have requested the Management
to consent to provide compulsory retirement on the date of dismissal
in respect of Thiru. G. Neelakandan., Ex. Cond. Staff No.9834.
In this connection, it is to state that we have given consent for
compulsory retirement on the date of removal (i.e. 31.05.2003)
Tentative Commitment if we give compulsory retirement on the
date of dismissal.
Pensionable service:
7 years, 2 months and 20 days (Pension not eligible)
TERMINAL BENEFITS
Gratuity Rs.20,307/-
Leave liability (excess leave availed) Rs. Nil
I.R.T. Contribution Rs. 2,500/-
P.F. Amount as on 31.03.2022 Rs.2,52,112/-
Total Commitment Rs.2,74,919/-
6 Be it noted, the rationale behind we suggesting the first respondent
Transport Corporation to convert the punishment of dismissal from service into
one of compulsory retirement is to ensure that the appellant workman gets his
terminal benefits. If the order of the second respondent authority is upheld by us,
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W.A. No.632 of 2023
the first respondent Transport Corporation will have to pay not only pensionary
benefits, but also entire backwages as if there was no order of dismissal in the eye
of law. As the first respondent Transport Corporation has agreed for conversion of
punishment of dismissal from service into one of compulsory retirement which will
take effect on the date of the dismissal order, i.e., 31.05.2003, in order to give a
quietus to the matter, the entire period of about 12 years from 06.10.1991, being
the date of his appointment, till 31.05.2003, being the date of his dismissal, is
ordered to be taken as qualifying service for the purpose of pensionary benefits.
Arrears of pension shall be paid within a period of four months from the date of
receipt of a copy of this judgment. The other terminal benefits like Gratuity and
Provident Fund, if any, shall be paid to the appellant workman for the actual
service rendered by him which works out to approximately 8 years and not 12
years.
This writ appeal stands disposed of in the above terms. No costs.
(S.V.N., J.) (K.R.S., J.)
26.07.2023
cad
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W.A. No.632 of 2023
To
1 The General Manager
Tamil Nadu State Transport Corporation Ltd.
(Villupuram) Ltd.
Vellore Region
Vellore
2 The Joint Commissioner of Labour (Conciliation)
DMS Compound
Teynampet
Chennai 600 006
https://www.mhc.tn.gov.in/judis
W.A. No.632 of 2023
S. VAIDYANATHAN, J.
and
K. RAJASEKAR, J.
cad
W.A. No.632 of 2023
26.07.2023
https://www.mhc.tn.gov.in/judis
