The Management vs Unknown
2023 Latest Caselaw 14843 Mad

Citation : 2023 Latest Caselaw 14843 Mad
Judgement Date : 24 November, 2023

Madras High Court

The Management vs Unknown on 24 November, 2023

Author: S. Vaidyanathan

Bench: S. Vaidyanathan

W.A. No.3286 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 24.11.2023

CORAM:

THE HON'BLE MR. JUSTICE S. VAIDYANATHAN
and
THE HON'BLE MR. JUSTICE K. RAJASEKAR

W.A. No.3286 of 2023 & C.M.P. No.26762 of 2023

The Management
Tamil Nadu State Transport Corporation
(Kumbakonam) Ltd.
Periyamilaguparai
Trichy
represented by its Managing Director Appellant
v
1 M. Vasudevan

2 The Special Deputy Commissioner of Labour (Conciliation)
DMS Compound
Chennai Respondents

Writ Appeal filed under Clause 15 of the Letters Patent challenging the

order dated 24.01.2023 passed in W.P. No.34380 of 2014.

For appellant Mr. Murali Vinodh
For R1 Mr. K. Malaikannu
R2 Authority

JUDGMENT

(delivered by S. VAIDYANATHAN, J.)

This writ appeal impugns the order dated 24.01.2023 passed by a Single

Bench in W.P. No.34380 of 2014.

https://www.mhc.tn.gov.in/judis

2 For the sake of clarity, the parties will be adverted to as per their rank

in this writ appeal.

3 The succinct facts giving rise to the present writ appeal could be

stated thus:

3.1 The first respondent workman joined the services of the appellant

Corporation as a Conductor on 02.02.1994. On the ground that he received a sum

of Rs.95/- from a group of 3 ½ passengers during a trip from Karaikkudi to

Devipattinam beforehand, and did not issue tickets to them till Checking Inspector

boarded the bus and thereby, misappropriated the said sum of Rs.95/- belonging to

the appellant Corporation and besides, since there was a shortage of Rs.506/- in

his cash bag at the time of checking, he was issued with a charge memo dated

30.04.2007 and not satisfied with his explanation dated 15.05.2007, a domestic

enquiry was conducted, wherein, the first respondent workman participated with

an observer.

3.2 The Enquiry Officer, vide his report dated 18.11.2008, held that the

charges against the first respondent workman were proved. Pursuant thereto, a

copy of the enquiry report was furnished to the first respondent workman on

26.08.2009 seeking his explanation and not satisfied with his explanation dated

14.09.2009 and also given his past record of service and other extenuating https://www.mhc.tn.gov.in/judis

circumstances, he was dismissed from service by the appellant Corporation on

21.12.2010, paying him one month's wages as per Section 33(2)(b) of the

Industrial Disputes Act, 1947.

3.3 Owing to pendency of an industrial dispute between the Union and

the appellant Corporation, the appellant Corporation filed an approval petition

before the second respondent authority under Section 33(2)(b), ibid., in Approval

Petition No.250 of 2010.

3.4 In the approval petition, the stand of the appellant Corporation was

that the charges proved against the first respondent workman relate to

misappropriation and dishonesty, which cannot be taken lightly and no sympathy

or leniency can be shown to the first respondent workman.

3.5 Per contra, the stand of the first respondent workman in the approval

petition was that out of the two charges framed, the Enquiry Officer has found him

guilty of only the first charge and has ignored the second charge and when no

finding is given in respect of the second charge, the second charge does not survive

at all.

3.6 The second respondent authority, vide order dated 23.04.2013, on the

basis of the judgment of the Supreme Court in Lalla Ram v D.C.M. Chemical

Works [AIR 1978 SC 1004], analysed five principles laid down therein

independently and rejected the approval petition holding that a prima facie case

for dismissal, based on legal evidence adduced before the domestic enquiry, is not https://www.mhc.tn.gov.in/judis

made out, though the findings in respect of other four principles, were in favour of

the appellant Corporation.

3.7 The said order of the second respondent authority was tested before

the Single Bench in W.P. No.34380 of 2014. The Single Bench, by order dated

24.01.2023, concurred with the finding of the second respondent authority that

non-examination of the only person who can bring the truth before the Enquiry

Officer is fatal and upheld the order of the second respondent authority.

3.8 Thereagainst, the Corporation has preferred the instant writ appeal.

4 Heard the learned counsel for the appellant Corporation and the first

respondent workman.

5 On a perusal of the findings of the Enquiry Officer, we are unable to

accept the finding of the second respondent authority that no prima facie case is

made out for dismissal based on legal evidence adduced before the domestic

enquiry. The reason for we observing so is, it is a clear case of receipt of Rs.95/-

from 3 ½ passengers and tickets were attempted to be issued to them only after the

Checking Inspector boarded the bus. Moreover, there is no whisper in the report of

the Enquiry Officer about the shortage of Rs.506/- in the cash bag of the first

respondent workman, which has resulted in the Enquiry Officer holding that

silence amounts to acceptance.

6 Though it has been contended by the first respondent workman that

the second charge pertaining to shortage of Rs.506/- was ignored by the Enquiry https://www.mhc.tn.gov.in/judis

Officer and no finding was given therefor and thus, the second charge does not

survive any longer, the said contention cannot be correct in view of the fact that

there is a specific finding in the report of the Enquiry Officer, the relevant portion

of which is extracted below:

“”nkYk; Fw;wr;rhl;L ,uz;ow;F F/rh/ kWg;ngJk;

                       bjhptpf;fhj             epiyapy;       mth;      Fw;wj;jij          Vw;Wf;
                       bfhs;fpwhh; vd Kot[ bra;fpnwd;/”
                       7          In case, we set aside the order of the second respondent authority and

remand the matter, the appellant Corporation is entitled to lead evidence to

substantiate the case, more so, in the light of the judgment of the Supreme Court in

John D'souza v Karnataka State Road Transport Corporation [(2019) 18

SCC 47] and if the matter is remanded, still, it is open to the first respondent

workman to give up the application under Section 33(2)(b), ibid., without

prejudice to his rights in the industrial dispute.

8 Since there is a categorical finding of the second respondent authority

that the enquiry is not correct, in case, we uphold the said order, the first

respondent workman is entitled to raise an industrial dispute, since, the finding

rendered in a petition filed under Section 33(2)(b), ibid., is not a bar for raising an

industrial dispute under Section 10, ibid., or under Section 2-A, ibid., provided it

is well within the time excluding the period during which the matter was pending

before the authority and the Court.

https://www.mhc.tn.gov.in/judis

9 Since the appellant Corporation is amenable to the writ jurisdiction of

this Court as has been held in Indian Bank v K.S. Gurumoorthy [(1990) 2 LLN

355], in order to shorten the life of the litigation and also considering the fact that

there is no misappropriation, but, only an alleged attempt for misappropriation,

and, at the same time, considering the past record of the first respondent workman

and also his date of retirement being 31.12.2024, we hold that the question of

reinstatement does not arise.

10 However, since the first respondent workman has rendered about 17

years of service between 1994 and 2010, we convert the punishment of dismissal

from service into one of compulsory retirement and hold that he is entitled to

pension with effect from 01.12.2023 based on the last drawn pay, i.e., the pay