Madras High Court
The Management Of Metropolitan vs 2 S. Somasundaram on 19 June, 2023
W.A. No.1264 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.06.2023
CORAM:
THE HON'BLE MR. JUSTICE S. VAIDYANATHAN
and
THE HON'BLE MR. JUSTICE K. RAJASEKAR
W.A. No.1264 of 2023 & C.M.P. No.12607 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 S. Somasundaram Respondents
Writ Appeal filed under Clause 15 of the Letters Patent challenging the
order dated 18.02.2022 passed in W.P. No.25243 of 2015.
For appellant Mr. M. Chidambaram
R1 Court
For R2 Mr. S.T. Varadarajulu
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W.A. No.1264 of 2023
JUDGMENT
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.564 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 25.07.2013.
2.2 The dismissal order passed by the first respondent authority was
assailed by the appellant Transport Corporation in W.P. No.25243 of 2015, which
was dismissed by a Single Bench vide order dated 18.02.2022.
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.
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W.A. No.1264 of 2023
3 The case of the appellant Transport Corporation is that the second
respondent workman remained unauthorisedly absent for duty from 27.10.2006,
thereby causing dislocation of bus service; hence, he was issued with a charge
memo dated 15.11.2006 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
06.12.2007 was issued to him to show cause as to why he should not be removed
from service; not satisfied with the said explanation, he was removed from service
on 25.02.2008.
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 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.
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1 1978 3 SCC 1
W.A. No.1264 of 2023
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 three
years, in the light of the judgment of this Court in V. Palani v TNSTC and
another2, in which, one of us (SVNJ) was a member, the order of the authority, as
confirmed by the Single Bench, needs to be confirmed.
6 Heard both sides and perused the materials available on record.
7 As rightly argued by the learned counsel for the second respondent
workman, it is an admitted fact that there was a delay of three 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:
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W.A. No.1264 of 2023
"(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 three years after the date
of the dismissal order.
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
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superannuation in 2017, provided he is given continuity of service and the
W.A. No.1264 of 2023
appellant Transport Corporation pays the employer's contribution towards
Provident Fund. He also filed a memo dated 19.06.2023 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 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.
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.)
19.06.2023
cad
https://www.mhc.tn.gov.in/judis
W.A. No.1264 of 2023
To
1 The Special Deputy Commissioner of Labour
D.M.S. Complex, IV Floor
Teynampet
Chennai 600 006
2 The Management of Metropolitan
Transport Corporation (Chennai) Ltd.
Pallavan Illam
Anna Salai
Chennai 600 002
https://www.mhc.tn.gov.in/judis
W.A. No.1264 of 2023
S. VAIDYANATHAN, J.
and
K. RAJASEKAR, J.
cad
W.A. No.1264 of 2023
19.06.2023
https://www.mhc.tn.gov.in/judis
