Madras High Court
The General Manager vs R.Selvaraj on 29 March, 2023
W.A.No. 764 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:29.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
W.A.No.764 of 2023
C.M.P.No.7425 of 2023
The General Manager,
Tamil Nadu State Transport
Corporation (Kovai) Ltd.,
Erode Region, Erode. .. Appellant
-vs-
1. R.Selvaraj
2. The Special Deputy Commissioner of Labour,
DMS Complex, Annasalai,
Chennai- 600 001. .. Respondents
Writ Appeal filed under Clause 15 of Letters Patent Act, to set aside the order
passed by this Court in W.P.No.13402 of 2018 dated 14.02.2020.
For Appellant : Mr.S.Silambanan
AAG-II
Assisted by
Mr.M.Murali Vinodh
For Respondents : Mr.V.Ajay Khose (R1)
R2-Labour Court
***
1/6
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W.A.No. 764 of 2023
JUDGMENT
This Writ Appeal has been preferred by the Appellant to set aside the order dated
14.02.2020 passed by this Court in W.P.No.13402 of 2018, in allowing the Writ
Petition filed by the Respondent.
2. The 1st Respondent/Workman joined the services of the Appellant/Transport
Corporation as a driver on 07.02.1990 and was dismissed from service vide order dated
22.11.2014 on the ground that he was responsible for an accident which occurred on
27.08.2011. As an Industrial Dispute was pending between the Union and the
Transport Corporation and as the 1st Respondent/Workman was an interested person in
the dispute, the Appellant/Employer filed a petition before the 2nd
Respondent/Authority under Section 33 (2)(b) of the Industrial Disputes Act, 1947 (in
short 'the Act') seeking approval of the action in dismissing the Workman and the 2nd
Respondent, vide order dated 09.01.2018, has rejected the Approval petition on the
ground that the enquiry was not conducted in a fair and proper manner.
3. As the Appellant did not reinstate the Workman, the latter filed a Writ Petition
in W.P.No.13402 of 2018 praying to implement the order passed by the 2nd
Respondent. Similarly, the Appellant/Transport Corporation also preferred a Writ
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W.A.No. 764 of 2023
Petition in W.P.No.16901 of 2018, praying to quash the order passed by the 2nd
Respondent dated 09.01.2018, in rejecting the Approval Petition filed by the Appellant.
Both the Writ Petitions were taken up together for hearing and a learned single Judge of
this Court, by a common order dated 14.02.2020, dismissed W.P.No.16901 of 2018
filed by the Transport Corporation and allowed W.P.No.13402 of 2018 filed by the
Workman and the Appellant was directed to implement the order of the 2nd
Respondent within a period of four weeks. Since the above direction was not complied
with even after the expiry of time granted for compliance, the Transport Corporation
has filed this Appeal, against the order dated 14.02.2020 passed in W.P.No.13402 of
2018, which was filed by the Workman, along with a petition to condone the delay of
1079 days in preferring this Appeal.
4. As per the narrations mentioned supra, it is very clear that the order of the
Authority dated 09.01.2018 has become final as no Writ Appeal has been filed against
the very same common order dated 14.02.2020, by which W.P.No.16901 of 2018 was
filed by the Appellant/ Transport Corporation, was dismissed.
5. When this Court wanted to dismiss this Appeal at the stage of condoning the
delay, it was expressed by the learned counsel for the Workman that the Workman has
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W.A.No. 764 of 2023
already attained the age of superannuation on 31.03.2019 and almost 4 years have gone
by and by rejecting the petition, he may have to once again seek the remedy before the
Labour Forum for getting money and in order to put an end to the litigation, he filed a
Memo of the 1st Respondent/Workman dated 24.03.2023 stating that this Writ Appeal
may be disposed of in terms of paragraph 11 of the Memo dated 24.03.2023. For the
sake of convenience, paragraph 11 of the said Memo is extracted hereunder:
"11. The 1st Respondent/Workman has already reached the
age of superannuation on 31.03.2019 itself. Since he has been
facing non-employment for the past 9 years and since he has
already attained the age of superannuation, he wants to settle the
matter amicably with the following terms:
a) The 1st Respondent/Workman agrees to get reinstatement
notionally from the date of his dismissal to the date of his
superannuation.
b) The 1st Respondent/Workman agrees to forego the entire
back wages for the above period after adjustment of both employer
and employee contributions for the entire period of non-
employment to pension trust and PF, Gratuity, Earned Leave/Sick
Leave salary.
c) The 1st Respondent/workman agrees to get pension and
other terminal benefits by treating as if he continued in service
without dismissal up to the date of retirement, based on the wages
payable to him as on the date of his retirement;
d) The 1st Respondent/workman agrees to get PF,
Gratuity,Earned Leave/Sick Leave salary accrued upto the date of
dismissal and other terminal benefits and pension with arrears
from 01.04.2019 within a stipulated time as may be fixed by this
Hon'ble Court.
It is therefore prayed that the above writ appeal may be
disposed of in terms of para No.11 of this memo.
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W.A.No. 764 of 2023
6. A reading of the Memo would make it very clear that the Workman is willing
to give up the entire backwages except for Provident Fund, Gratuity, Earned Leave/Sick
Leave salary accrued up to the date of dismissal and other terminal benefits and pension
with arrears from 01.04.2019.
7. In view of the above, we are of the opinion that as the workman has given up
backwages, it is a bounty to the Corporation. Taking note of the Memo filed by the
Workman and the fact that once the Approval Petition is rejected, the employee is
deemed to be in service as if there is no order of dismissal in the eye of law in the light
of the judgment of the Supreme Court in the case of Jaipur Zila Sahakari Boomi
Vikas vs. Ram Gopal Sharma (2002 (2) SCC 244), and that this Court can direct the
Management to implement the order of the Authority as has been held in the case of
M.D.Tamil Nadu State Transport Corporation Vs. Neethivilangan Kumbakonam
reported in (2001) 9 SCC 99, we direct the employer to pay the employer's and the
employee's Provident Fund contribution due to the employee till the age of his
superannuation to the Employees Provident Fund Trust, as if he was not dismissed from
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W.A.No. 764 of 2023
service, apart from extending Gratuity/Earned Leave/Sick Leave salary accrued upto the
date of dismissal and other terminal benefits and pension with arrears from 01.04.2019.
In case, the Workman is entitled to pension, the same may be computed and paid from
the date of superannuation viz., 31.03.2019. The Workman has rendered 29 years of
service and the arrears of benefits mentioned supra will have to be extended to him on
or before 15.06.2023. The Workman would not be entitled to arrears of backwages
alone. We make it very clear that backwages is completely different from arrears of
terminal benefits payable to the workman concerned.
8. This Writ Appeal is disposed of accordingly. No costs. Consequently,
connected Miscellaneous Petition is closed.
[S.V.N., J.,] [R.K.M., J]
29.03.2023
Index: Yes / No
Internet: Yes / No
arr/aeb
To
The Special Deputy Commissioner of Labour,
DMS Complex, Annasalai,
Chennai- 600 001.
https://www.mhc.tn.gov.in/judis
W.A.No. 764 of 2023
S. VAIDYANATHAN,J.,
and
R.KALAIMATHI.,J
arr
W.A.No.764 of 2023
24.03.2023
https://www.mhc.tn.gov.in/judis
