Madras High Court
G. Selvaraj … vs Management Of Tamil Nadu State ... on 1 August, 2024
Author: P.T. Asha
Bench: P.T. Asha
W.P.No. 29512 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 01.08.2024
THE HONOURABLE Ms. JUSTICE P.T. ASHA
W.P.No.29512 of 2015
M.P.No 1 of 2015
G. Selvaraj …
Petitioner
V.s
1. Union of India,
Rep. by Secretary to Government,
Ministry of Surface Transport (Port wings)
Transport Bhavan,
Parliament Street,
New Delhi-110 001.
2. Union of India,
Rep. by Secretary to Government,
Ministry of Labour,
Shram Shakthi Bhavan,
Rafi Marg, New Delhi-110 001.
3. Chennai Port Trust,
Rep. by The Chairman,
Chennai 1.
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W.P.No. 29512 of 2015
4. Chennai Port Trust Industrial Employees
Cooperative Canteen Ltd.,
Rep. by its President,
Port Trust, Chennai-600 001.
5. The Registrar of Cooperative Societies,
170, E.V.R High Road,
Kilpauk,
Chennai-600 010. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of
India seeking writ of Certiorarified Mandamus to call for the records
pertaining to the order passed by the 4th respondent in Memo-
CHPTIECC/ESTT/84/2015/MEE dated 28.08.2015 and quash the
same and consequently direct the third and fourth respondents herein
to continue to employee the petitioner till he attains the age of 60
years as applicable to employees of third respondent.
For Petitioner : M/S R. Sunil Kumar
For Respondent 1&2 : No Appearance
For Respondent 3 : Mr. S. Haja Mohideen Gisthi
Standing Counsel
For Respondent 4 : Mr. L. P. Shanmugasundaram
For Respondent 5 : Ms. Geetha Thamaraiselvan
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W.P.No. 29512 of 2015
Special Government Pleader
ORDER
Despite the order of the Hon'ble Supreme Court confirming the
judgment and decree of this Court in and by which the canteen
workers of the Chennai Port Trust were directed to be declared as
regular employees of the Chennai Port Trust, the respondents have
superannuated the petitioner at the age of 58 treating him as employee
of the Employees Cooperative Canteen and not as the direct employee
of the Chennai Port Trust.
2. The facts which has culminated in the filing of the above writ
petition are as follows:
(i) The petitioner had joined the services of the fourth
respondent canteen as an attender on 07.07.1976. On 01.03.1980, he
was promoted as junior supervisor and thereafter, as senior supervisor
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on 06.07.1987. On 07.11.2008, he was promoted as the manager and
has been in continuous employment for over 40 years. He was made a
permanent employee of the canteen. The Chennai Port Trust Industrial
Employee's Cooperative Canteen Limited is a recognized canteen of
the Chennai Port Trust and the canteen was being run in terms of the
Factories Act. The canteen was formed as early as in the year 1964.
The cooperative society was started with the permission of the
Chennai Port Trust and the Port Trust had also given its premises rent
free for running the canteen. The Port Trust administration had the
right of appointment and was making payments to the staffs for
running the canteen. All policy matters relating to the canteen were
also decided or approved by the Chennai Port Trust.
(ii) The petitioner would submit that as on the date of filing of
the writ petition, as against the sanctioned cadre strength of 119
employees, only 66 employees were in service and 53 vacancies were
available. In these circumstances, the Industrial Employees Canteen
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Workers Welfare Association had filed a Writ Petition in
W.P.No.6872 of 2001 before this Court seeking a mandamus to direct
the respondents 3 and 4 to treat the members of the writ petitioner-
Association as regular employees of the Chennai Port Trust. By order
dated 24.08.2005, the aforesaid Writ Petition was allowed and the
canteen workers were declared as regular employees of the Chennai
Port Trust. This order was challenged by the Chennai Port Trust in
W.A.No.66 of 2006. The Bench, by its order dated 21.02.2006,
dismissed the writ appeal. The same was taken up on challenge to
the Hon'ble Supreme Court in Civil Appeal No.1381 of 2010 and the
Hon'ble Supreme Court, by order 27.04.2018, dismissed the Civil
Appeal. The Chennai Port Trust had also filed a review petition with
a delay, which was dismissed. Therefore, the order, declaring the
petitioner being a workman of the canteen as direct employees of the
Chennai Port Trust, had become final. Therefore, the petitioner ought
to have retired at the age of 60. However, by the impugned order, the
petitioner was treated as having superannuated on 31.08.2015, which
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was two years before his actual date of retirement. The petitioner had
also submitted a representation on 14.09.2015 requesting the third
respondent to consider the fact that he had suffered an eye ailment as
result of which, he was forced to take treatment and therefore, to
re-consider the order directing the superannuation. Since the same
was not considered, the petitioner is before this Court.
3. Mr.R.Sunilkumar, learned counsel appearing for the
petitioner would draw the attention of the Court to the order passed by
this Court in W.P.No.6872 of 2001 which has been confirmed right up
to the Hon'ble Supreme Court. He would contend that once the
workmen of the canteen have been declared as direct employees of
the Chennai Port Trust, the Rules governing the services of the
Chennai Port Trust employees would apply to the canteen workers as
well. As per the said Rules, the employees of the Chennai Port Trust
has to retire at the age of 60 whereas the petitioner was forced to
superannuate earlier. He would submit that in the impugned order,
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there is a reference to the petitioner having been on long leave from
23.12.2014. However, the respondents have not taken any action on
the said unauthorized leave. Neither was a show cause notice issued
nor an enquiry held. That apart, the petitioner had valid reasons for
taking leave since he had suffered diminution of eye sight and other
neurological problem for which he was under treatment in Port Trust
Hospital for a considerable period of time. He had also taken
treatment at Shankara Nethralaya and Vasan Eye Care, Chennai for
his eye problem. Since the problem had aggravated, he was unable to
move around and his movements had been confined. Therefore, he
was to attend duty from 14.09.2015 after the Doctor had certified him
fit to work. When he had attempted to rejoin the work, he was issued
with the impugned order. In this regard, the learned counsel would
rely upon a judgment of this Court reported in 2007(4) L.L.N.882
[A.Subramani Vs Management of Tamil Nadu State Transport
Corporation (Coimbatore Division-I) Ltd., Udagamandalam and
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another] wherein the Hon'ble Division Bench, taking into account the
Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation)Act, 1955, has held that it is not permissible for
the employer to deny the benefits of Section 47 of the Disabilities Act,
which contains a direction that the employer shall not dispense with or
reduce in rank an employee who acquires disability during his service.
He would also rely upon a judgment of the Hon'ble Supreme Court
reported in (2003) 4 SCC 524[Kunal Singh Vs Union of India and
Another], wherein the aforesaid Disabilities Act was considered and
applying the provisions of the said Act, the order terminating the
services of the appellant therein was disallowed and the respondents
were directed to give relief in terms of Section 47 of the Disabilities
Act. This judgment has been relied upon by the Division Bench in its
judgment reported in 2007(4) L.L.N.882 cited supra.
4. Per contra, Mr.Haja Mohideen Gisthi, learned standing
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counsel appearing for the third respondent / Port Trust would base his
arguments on the fact that the petitioner is guilty of unauthorized
absence. He would rely upon the contentions set out in paragraph 3 of
the counter affidavit wherein the number of days of leave availed by
the petitioner has been set out. He would submit that the impugned
order has been passed on the aforesaid basis and the same cannot be
set aside.
5. Heard the learned counsel on both sides and perused the
materials available on record.
6. It is an admitted fact, even by the respondents that, by orders
of this Court, which has been confirmed right up to the Hon'ble
Supreme Court, the canteen workers had been declared as direct
employees of the Chennai Port Trust and are therefore covered by the
service conditions of the Chennai Port Trust employees. The
distinction is sought to be made that the petitioner has been
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superannuated on account of the fact that he was on unauthorized
leave. However, it is seen that once an action has been initiated
against the petitioner for the alleged unauthorized leave, the
representation made by the petitioner on 14.09.2015 clearly sets out
the reasons for such absence. Be that as it may, the impugned order
has not been passed on the reason of the petitioner being
unauthorizedly absence. On the contrary, the petitioner had
superannuated as per the Cooperative Societies Act. Therefore, the
argument of the learned counsel appearing for the Chennai Port Trust
that the superannuation was only on account of the petitioner's
unauthorized absence cannot be countenanced. In fact, in the
impugned order, the following reason is given:
“It is informed that you are due for
Retirement on Superannuation from the
Canteen's service with effect from 31.08.2015
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A.N as per Co-operative Act.”
The reason for superannuating the petitioner has to necessarily be set
aside, in the light of the order passed in W.P.No.6872 of 2001 dated
24.08.2005. Accordingly, the writ petition is allowed as prayed for.
There shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
01.08.2024
Index: Yes/No
Speaking order/non-speaking order
Neutral Citation: Yes/No
srn
To,
1. The Secretary to Government,
Union of India,
Ministry of Surface Transport (Port wings) Transport
Bhavan,
Parliament Street, New Delhi-110 001.
2. The Secretary to Government,
Union of India,
Ministry of Labour,
Shram Shakthi Bhavan,
Rafi Marg, New Delhi-110 001.
https://www.mhc.tn.gov.in/judis
3. The Chairman,
Chennai Port Trust,
Chennai 1.
4. The President
Chennai Port Trust Industrial Employees
Cooperative Canteen Ltd.,
Port Trust, Chennai-600 001.
P.T.ASHA, J.,
srn
M.P.No 1 of 2015
https://www.mhc.tn.gov.in/judis
01.08.2024
https://www.mhc.tn.gov.in/judis
