Madras High Court
The Management vs V.Raja on 7 March, 2023
W.A.No.1593 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:07.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
W.A.No.1593 of 2022
and
C.M.P.No.10592 of 2022
The Management,
Tamil Nadu State Transport
Corporation (Salem) Limited,
12,Ramakrishna Road, Salem. .. Appellant
-vs-
1.V.Raja
2.The Special Deputy Commissioner of Labour,
DMS Compound, Chennai. .. Respondents
Prayer: Writ Appeal filed under Clause 15 of Letters Patent Act, to set aside the order
dated 21.10.2021 made in W.P.No.7958 of 2019.
For Appellants : Mr.Anand Gopalan
For Respondents : Mr.S.Girija (R1)
***
JUDGMENT
This Writ Appeal has been preferred by the Appellant challenging the order dated
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W.A.No.1593 of 2022
21.10.2021 made in W.P.No.7958 of 2019, in setting aside the order of the Special
Deputy Commissioner of Labour dated 09.07.2013.
2. The factum that the workman has absented himself for a period of 12 days i.e.,
from 26.12.2012 to 07.01.2013 has been established. It is stated that the workman
joined duty on 08.01.2013 and thereafter, charges were framed, pursuant to which
domestic enquiry was conducted, in which the charges framed against the workman
came to be proved. As the Industrial Dispute between the Management and the Union
is pending, the Management has filed an Approval Petition before the 2nd Respondent,
who is an authority under Section 33 (2) (b) of the Industrial Disputes Act, 1947 (in
short 'the Act').
3. The 2nd Respondent has rejected the Approval Petition on the ground that the
employee was suffering from Asthma disease, due to which he could not attend his
work continuously. The said authority, though found that the domestic enquiry was
conducted as per the principles of natural justice, rejected the Approval Petition filed
by the Management vide order dated 28.10.2016, holding that it is a case of
victimization.
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W.A.No.1593 of 2022
4. Being aggrieved over the same, the Appellant-Management filed a Writ
Petition in W.P.No.7958 of 2019 and the learned Single Judge, vide order dated
21.10.2021, also confirmed the order dated 28.10.2016 passed in the Approval Petition,
the relevant portion of which is extracted hereunder:
"5. The 1st respondent herein had reached his age of
superannuation on 31.07.2017. Though this Court finds that there
is no infirmity in the impugned order of rejection of the Approval
Petition, the previous 58 adverse antecedents in his service records
cannot be ignored. In this background, if the back wages during
his non employment period is dispensed with, the ends of justice
would be secured.
6. In the light of above discussion, the impugned order dated
28.10.2016 is sustained. Consequently, the order of dismissal
dated 09.07.2013, dismissing the 1st respondent herein from
service is set aside. Consequently, the 1st respondent herein is
deemed to have been reinstated into service and retired on
31.07.2017 and in view of the same, the 1st respondent herein shall
be entitled for all the retirement benefits including pensionary
benefits, together with continuity of service. However, the 1st
respondent shall not be entitled to the backwages during the period
of non-employmen with the petitioner management from the date of
retirement till superannuation. The petitioner herein shall
endeavour to disburse all the retirement benefits as expeditiously
as possible, at least within a period of eight weeks from the date of
receipt of a copy of this order."
Challenging the same, the present Intra Court Appeal has been filed by the Appellant-
Management.
5. The learned counsel appearing for the Appellant-Management contended that
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W.A.No.1593 of 2022
once the domestic enquiry is vitiated, the authority must give an opportunity to the
employer to establish the charges before him, but the 2nd Respondent, without giving
any opportunity to the Appellant to let in evidence, has dismissed the Approval Petition
and the learned Single Judge, without considering the same, simply affirmed the order
of the 2nd Respondent, which is perverse. Hence, according to the learned counsel, the
order of the learned Single Judge is liable to be set aside.
6. The learned counsel appearing for the 1st Respondent/workman has filed an
Affidavit dated 11.02.2023 of the 1st Respondent, wherein it is stated that the order of
dismissal dated 09.07.2013 may be modified into that of compulsory retirement, so as to
enable the 1st Respondent to get pension and other terminal benefits, from the date of
his appointment till the date of his dismissal.
7. Heard both sides. Perused the records.
8. Though the learned Single Judge has affirmed the order of the 2nd Respondent
and granted relief as stated supra, in the case on hand, the question of victimization in
the aforesaid circumstances may not arise at all. The finding of the learned Single
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W.A.No.1593 of 2022
Judge who interfered with the punishment as if it is an Industrial Dispute under Section
10 or 2A of the Industrial Disputes Act, 1947 may not be correct. Though this Court is
empowered to interfere with the punishment, it can exercise the same, provided there is
perversity and the punishment is shockingly disproportionate to the gravity of the
misconduct. As per the judgment of Hon'ble Supreme Court in the case of John
D.Souza Vs. Karnataka State Road Transport Corporation reported in 2019 (18) SCC
47, which was followed by this Court in W.P.No.30541 of 2019 (The
Management,Tamil Nadu State Transport Corporation (Villupuram) Limited Vs.
P.Eppan and another), if the domestic enquiry is not in accordance with the procedure,
the matter needs to be remanded.
9. In the case on hand, the Workman has been punished on 58 occasions. If he is
really suffering from Asthma, he should have gone before the Board and sought
appropriate orders to get alternative employment by invoking Section 47 of the Persons
with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,
1995. The employer ought to have let in evidence to prove his case that proper enquiry
has been conducted. Since the employee has been reinstated and allowed to continue
in service, taking note of the past records of the workman's service, we are of the view
that the dismissal of the Workman from service is shockingly disproportionate as the
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W.A.No.1593 of 2022
scope of authority is very limited as stated supra.
10. At this juncture, it is worth referring to the Division Bench judgments of this
Court, one in the case of Indian Bank (represented by its Assistant General Manager)
Vs. R.S.Thiruvengadam and Another reported in 1990 2 LLJ 26 and other in the case
of Indian Bank (represented by its Assistant General Manager) Vs. K.S.Gurumoorthy
and Another reported in 1990 2 LLN 355, wherein, divesting the duties of the person
employed has been interfered with. These two cases arise out of Tamil Nadu Shops and
Establishments Act, 1947. The Bank therein raised a plea that the authority has no
power to entertain the application, in the light of Section 4 (1)(c) of the Tamil Nadu
Shops and Establishments Act, 1947. Though, the Division Bench of this Court agreed
with the contentions of the Bank, it decided the issue that the bank is amenable to Writ
jurisdiction of this Court and moulded the relief. The same principle applies here also.
In the case on hand, as the Appellant, is a 'State' within the meaning of Article 12 of the
Constitution of India, this Court is empowered to mould the relief.
11. In the light of the aforesaid judgments and in view of the fact that the
employee has rendered 20 years of service, we are of the view that though the workman
absented himself for 12 days, the punishment of dismissal from service is shockingly
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W.A.No.1593 of 2022
disproportionate. If the Writ Appeal is allowed based on the plea raised by the
Management and the matter is remanded, there will be further litigations for over a
decade, as the Order under Section 33 of the I.D.Act is not a bar for the employee to
raise an Industrial Dispute under Section 2A or through the Union under Section 2 (K) .
12. In order to shorten the litigation and to give a quietus to the issue coupled
with the fact that the workman has attained the age of superannuation, on considering
the Affidavit of the workman, the punishment of dismissal from service is converted
into one of compulsory retirement, so that the workman would be entitled to pensionary
and other monetary benefits.
13. Accordingly, the Management shall pass necessary orders by converting the
punishment of removal from service into one of compulsory retirement, on or before
20.04.2023 and extend the pensionary and other monetary benefits to the Workman,
within a period four weeks from the date of receipt of a copy of this order.
14. This Writ Appeal stands disposed of with the aforesaid directions. No costs.
Consequently, connected Miscellaneous Petition is closed.
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W.A.No.1593 of 2022
S. VAIDYANATHAN,J.,
and
R.KALAIMATHI.,J
arr
15. For production of order copy converting the punishment of dismissal from
service into one of compulsory retirement, post on 21.04.2023.
[S.V.N., J.,] [R.K.M., J]
07.03.2023
Index: Yes / No
Internet: Yes / No
arr
To
The Special Deputy Commissioner of Labour,
DMS Compound, Chennai.
W.A.No.1593 of 2022
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W.A.No.1593 of 2022
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