Madras High Court

P.Muthuganesan vs The Managing Director on 10 March, 2023

                                                                           W.P(MD) No.23221 of 2019



                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED: 10.03.2023

                                                      CORAM

                                  THE HONOURABLE MRS.JUSTICE S.SRIMATHY

                                              W.P.(MD)No.23221 of 2019
                    P.Muthuganesan                                   ...    Petitioner

                                                     ..vs..

                    1. The Managing Director,
                       Tamil Nadu State Transport Corporation (Madurai) Ltd.,
                       Bye Pass Road,
                       Madurai -16.

                    2. The General Manager,
                       Tamil Nadu State Transport Corporation (Madurai) Ltd.,
                       Bye Pass Road, Madurai -16.                 ...    Respondents

                    PRAYER: Writ Petition filed under Article 226 of the Constitution of
                    India to issue a Writ of Mandamus, directing the respondents to Refund
                    Rs.26,116/-recovered from the petitioner vide Receipt No.35059
                    dated 18.09.2019 for loss of Ticket Books due to theft, while on duty on
                    03.06.2019 as per the Settlement reached before the Hon'ble Transport
                    Minister on 28.09.1995 and in the light of the Division Bench Judgment of
                    this Court reported in (2008) 1 MLJ 224 and for recrediting 11 days
                    adjusted from the petitioners own leave for the period from 07.09.2019 to
                    17.09.2019 by treating the period as duty as was denied permission to
                    perform duty illegally.


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https://www.mhc.tn.gov.in/judis
                                                                               W.P(MD) No.23221 of 2019



                                  For Petitioner        : M/s. S. Govindan
                                  For Respondent       : Mr. Senthil Kumaraiah,
                                                         Standing Counsel


                                                    ORDER

The Writ Petition is filed to quash the respondents to Refund

Rs.26,116/-recovered from the petitioner, vide Receipt No.35059

dated 18.09.2019 for loss of Ticket Books due to theft, while on duty on

03.06.2019 as per the Settlement reached before the Hon'ble Transport

Minister on 28.09.1995 and in the light of the Division Bench Judgment of

this Court reported in (2008) 1 MLJ 224 and for recrediting 11 days

adjusted from the petitioners own leave for the period from 07.09.2019 to

17.09.2019, as his duty period with pay for all purpose.

2. The petitioner was appointed in the respondent Corporation

on 05.10.1993 as Conductor. On 06.09.2019, while the petitioner was on

duty in the Registration No. TN 58 N 1282 in K2A running between

Tirumangalam-Peraiyur. The petitioner was given Electronic Ticket

Machine to issue tickets to the passengers. The petitioner has issued ticket

books with different denominations apart from ETM machine. In case of

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failure in ETM machine the petitioner was directed to use tickets from the

ticket books.

3. The contention of the petitioner is, while he was duty on

06.09.2019, the passengers got down from the bus and the petitioner left

the bag in the bus and found that the bag in which the ticket books were

stolen. The petitioner immediately informed the police and complaint was

registered in Receipt No.159 of 2019, dated 06.09.2019. Thereafter, the

petitioner informed the Branch office and also produced CSR receipt to the

office of the respondent. On 07.09.2019, the petitioner was declined to

work and in turn orally directed to remit Rs.26,116/- towards the stolen

tickets. Thereafter, the petitioner was continuously denied “work”. The

petitioner submitted a representation, dated 13.09.2019 to allow him to

work. The petitioner raised a industrial dispute before the Labour officer,

Madurai by a petition dated 11.10.2012. After remitting the sum of

Rs.26,116/-, the petitioner was allowed to work from 18.09.2019.

4. The respondents have filed counter stating that it is not the

case of the theft but it is a case of negligence on the part of the petitioner.

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The domestic enquiry was initiated by granting an opportunity to prove the

case and there is no violation of principles of natural justice. Hence, the

case of the petitioner ought to be dismissed.

5. Heard the learned counsel appearing on either side and

perused the materials available on record.

6. The learned counsel for the petitioner relied on Clause 29 of

the Settlement under Section 12(3) entered in the year 1995, wherein it has

been stated “gzp nra;Jnfhz;bUf;fpd;w NghJ fytuk;> tpgj;J>

fsT> nfhs;is Nghd;wit eilngw;W mjd; fhuzkhf NghyP];

epiyaj;jpy; tof;F gjpT nra;ag;gl;bUe;jjjhy; me;j #o;epiyapy;

gazr;rPl;L Gj;jfq;fs; Gj;jfq;fSf;fhd njhif gpbj;jk; nra;ag;gl

khl;lhJ”. It has been specifically stated that in the event of loss of ticket

books is reported by way of complaint to the police and such loss had

occurred due to accident, theft or robbery no recovery should be made

from the concerned conductor.

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7. The petitioner also relied on the Division Bench judgment

rendered by this Court in W.A.No.142 of 2012 dated 16.11.2014 in

K.C.Palanisamy Vs TNSTC (Coimbatore) Limited and the relevant

portion is culled out hereunder:

“As far as the case in hand is concerned also, the appellant has intimated instantaneously about the loss of unused ticket books both to the police station as well as to the respondent Corporation. Hence no negligence can be attributed against the appellant. Therefore the matter in issue is covered by the Division Bench Judgment referred above. The Learned Single Judge has not considered the said aspect.

In the light of the said Division Bench Judgment the order of the Learned Single Judge cannot be sustained.”

8. In another Division Bench Judgment in Rani Mangammal

Transport Corporation Limited Vs M. Palanisamy reported in (2008) 1

MLJ 224, has held as under:

“4.Having heard the learned counsel we find force in submissions of the learned counsel for the respondent.

From the respective submissions made and on a perusal of the affidavits filed on behalf of the respondent as well as the counter affidavit filed by the appellant in the writ petition, we find that the respondent cannot be held to

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have acted in a negligent manner as far as the loss of unused ticket books entrusted with him while he was as- signed the duty on 26.04.1992. According to the respon- dent he reported about the loss of the ticket books through wireless to the higher authorities. There was nothing to suggest that no such message was ever sent by the respondent. In fact, on his way back in the next trip, he was issued with two new ticket books at Ottanchatram Depot. If really there was no intimation, authorities at the Ottanchatram Depot would not have readily come forward to issue the two new ticket books to the respondent. The fact that the respondent made police complaint immediately after the conclusion of duty hours on 26.04.1992, also impresses us to hold that the respondent took all diligent steps to duly inform the appellant about the loss of the tickets. In this context, while we peruse the proceedings referred to by the learned counsel for the appellant namely, the proceedings dated 26.06.1991 and 05.08.1991, we find that the cumulative effect of the proceedings were to ensure that necessary enquiry should be done in case where loss of unused ticket books is reported, either to defraud the appellant Corporation or such reporting discloses that the concerned conductor was diligent in performance of his duty and the loss of ticket books were

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beyond his control and at the instance of some other extraneous circumstances or by other unscrupulous persons. Therefore, if such was the contemplation of the appellant Corporation, in adopting such a course of holding an enquiry, in respect of the loss of unused ticket books is reported, we are of the view that the very purpose would be defeated if the recovery of the value of unused ticket books is automatically made whenever loss is reported. In fact, subsequently in 1995 settlement namely clause 29 of the said settlement makes it clear that in the event of loss of ticket books is reported by way of complaint to the police and such loss had occurred due to accident, theft or robbery, no recovery should be made from the concerned Conductor. The same point of view was very much existing in the earlier proceedings when the appellant Corporation prescribed the procedure of holding an enquiry, wherever loss of ticket books are reported.”

9. In this present case, the petitioner had preferred police

complaint immediately about the loss of tickets due to theft. Therefore, this

Court is convinced that the petitioner preferred an FIR immediately after

the incident and had intimated the loss of tickets in the FIR also.

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Therefore, the petitioner is protected under Clause 29 of the 12(3)

settlement. Therefore, this Court is setting aside the impugned order and

consequently directing the respondents to refund the amount already

deducted. As far as the balance amount is concerned respondents are

directed not to collect since the petitioner is protected under Clause 29.

10. The Court confirms the punishment of stoppage of

increment for three months without cumulative effect, since the petitioner