Madras High Court
The Management vs The Special Deputy Commissioner Of ... on 11 September, 2024
Author: B.Pugalendhi
Bench: B.Pugalendhi
W.P(MD)No.18681 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P(MD)No.18681 of 2016
and
WMP(MD) Nos.13509 of 2016 &17280 of 2023
The Management,
Tamil Nadu State Transport Corporation,
(Kumbakonam) Limited,
51/1, Pillai Thanneerpandal,
Thirumayam Road,
Pudukkottai – 622 001. ... Petitioner
Vs
1.The Special Deputy Commissioner of Labour,
Chennai.
2.G.Chinnadurai ...Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution
of India, praying this Court to issue a Writ of Certiorari, calling for
the records relates to the order passed by the 1st respondent herein
dated 12.01.2016 in AP No.211 of 2014 and quash the same.
1/22
https://www.mhc.tn.gov.in/judis
W.P(MD)No.18681 of 2016
For Petitioner : Mr. S.C. Herold Singh
For R1 : Mr.G.V.Vairam Santhosh
Additional Government Pleader
For R2 : Mr.K.Rahul
ORDER
The Management, Tamil Nadu State Transport
Corporation (Kumbakonam) Limited, Pudukkottai has filed this writ
petition as against the order passed by the first respondent/the
Special Deputy Commissioner of Labour, Chennai, on the
application filed by the writ petitioner /Management, under Section
33 (2) (b) of the Industrial Dispute Act, 1947 (hereinafter called
Act). The Management has conducted an enquiry as against the
second respondent for certain charges and also dismissed him from
service. The order of dismissal was referred to the first respondent
for approval, as required under Section 33 (2)(b) of the Act. The first
respondent by his order, dated 12.01.2016 refused to grant approval
in A.P.No.211 of 2014. Challenging the same, the Management has
filed this writ petition in the year 2016.
https://www.mhc.tn.gov.in/judis
2.The learned counsel for the petitioner Management
submits that the second respondent was working as a Conductor in
the petitioner's Transport Corporation and while he was on duty in
the bus bearing Reg.No.TN 01 N 3761 on 29.04.2013, the Checking
Inspector of the petitioner Corporation inspected the bus at about
3.45 p.m and found that a group of two passengers, who have
travelled from Karuppattipatti (Chellampatti) to Pallavarayanpatti,
were in possession of unconnected tickets for a sum of Rs.6/-. On
enquiry, those passengers informed the Checking Inspector that the
second respondent herein, who was the Conductor of the bus has
issued those tickets to four passengers, after collecting Rs.6/- from
them. Thus, the second respondent has misappropriated a sum of
Rs.24/- of Corporation amount, by issuing unconnected tickets for
the concerned trip. Therefore, a charge memo was issued to him on
20.05.2013. He did not offer any explanation to the charge memo.
Therefore, an enquiry officer was appointed and enquiry was
contemplated. The second respondent has appeared for an enquiry
https://www.mhc.tn.gov.in/judis
on 17.10.2013 and also cross examined the Management side
witnesses. The Management has examined a witness/the concerned
Checking Inspector, by name Meenakshi Sundaram and also marked
six documents. On completion of enquiry, the Enquiry officer has
filed a report on 21.10.2013 holding that the charges levelled as
against the second respondent were proved. Based on that, the
second respondent was also called upon to offer his explanation by a
proceedings, dated 24.10.2013. He did not submit any objections
and therefore, a second show cause notice was issued on 07.03.2014
by proposing a punishment of dismissal from service. The second
respondent has replied to the second show cause notice on
27.03.2014. Not satisfying with the same, the Disciplinary Authority
dismissed the second respondent from service, by order dated
27.09.2014. Before taking the decision, the Disciplinary Authority
has taken into consideration of the previous conduct of the second
respondent that he has suffered 45 punishments in his service,
including 6 punishments for similar misconduct of misappropriation.
https://www.mhc.tn.gov.in/judis
3.The learned counsel further submits that the petitioner
Management has filed an application before the first respondent,
under Section 33 (2) (b) of the Act in A.P.No.211 of 2014, sought for
an approval for the order of dismissal of the second respondent.
According to the learned counsel, though the first respondent has
found that the enquiry was conducted in a fair and proper manner,
prima facie case was made out by the Management, no unfair labour
practice was adopted by the Management and approval petition was
filed as a part of the disciplinary proceedings, held that one month
wages was not fully paid to the second respondent and rejected the
approval petition filed by the petitioner Management. According to
the learned counsel, this findings of the first respondent is not
correct. The last drawn wages of the second respondent was
Rs.17,520/-, including 100% DA, which was paid to the second
respondent on the date of order of punishment, vide Cheque No.
319853, dated 27.09.2014, drawn on Canara Bank, Pudukkottai and
was also sent to the second respondent along with the dismissal
https://www.mhc.tn.gov.in/judis
order. However, the first respondent has held that Dearness
Allowance was not calculated at the rate of 107% and therefore,
rejected the application filed by the petitioner Management for
approval. The learned counsel further submits that the DA
enhancement from 100% to 107% was announced by the
Government, vide G.O.Ms.No.245, dated 10.10.2014, after the order
of the punishment, dated 27.09.2014, however, the same was
ordered to be implemented w.e.f. 01.07.2014. After clarification, the
Management has calculated the difference amount of Rs.590/- and
paid the same to the second respondent vide Cheque No.956322,
dated 08.06.2015. Therefore, the findings of the first respondent that
the wages as required under Section 33(2) (b) of the Act has not
been paid to the second respondent is not correct. Hence, the order
of the first respondent is liable to be set aside.
4.The learned counsel appearing for the second
respondent submits that it is necessary to decide the interim
application filed by the petitioner in WMP(MD) No.17280 of 2023
https://www.mhc.tn.gov.in/judis
in WP(MD) No.18681 of 2016 at first, before deciding the main writ
petition. which was filed to direct the petitioner Management to pay
the second respondent herein proper current wages.
5.The learned counsel further submits that pending this
writ petition, the second respondent has filed another application in
WMP(MD) No.16208 of 2016 sought for a direction to the
petitioner Management to re-instate the second respondent in service
or to pay the petitioner a last drawn wages at the rate of Rs.17,520/-
per month till the disposal of the main writ petition and that was also
ordered by this Court on 27.03.2019. Challenging the same, the
petitioner Management has preferred a writ appeal in WA(MD) No.
941 of 2019, which was dismissed by this Court on 25.09.2019.
Thereafter, in order to avoid payment under Section 17(b) of the Act,
the petitioner Management has re-instated the second respondent
from the month of March 2021. However, the Management is paying
the wages at the rate of Rs.17,980/- per month at fixed rate,
excluding the other applicable allowances such as Dearness
https://www.mhc.tn.gov.in/judis
Allowance, Grade Pay, City Compensatory Allowance, House Rent
Allowance, Washing Allowance and Medical Allowance. He further
submits that a junior of this petitioner, by name, one Ramaraju, who
joined duty on 15.12.1998 is getting a gross pay of Rs.68,881.75/-
with a basic pay of Rs.46,100/-. Therefore, the second respondent
has moved this application in WMP(MD) No.17280 of 2023, for a
direction, directing the petitioner Management to pay the
current/equal wages at the rate of Rs.68,881.75/- with a basic pay of
Rs.46,100/-, every month, on par with his junior, from March 2021
till the date of disposal of this writ petition. In support of this
application, the learned counsel for the second respondent has relied
on the Judgment of the Division Bench of the Principal Seat of this
Court in W.A.MP.No.6776 of 2003 in WA No.3287 of 2002, dated
13.10.2004. The learned counsel has also relied on the another
Judgment of the Principal Seat of this Court in the case of
K.Karunakaran Vs.Thanthai Periyar Transport Corporation Ltd, in
WMP No.74421 of 2003 in W.P.No.6032 of 1997, dated 19.09.2003.
https://www.mhc.tn.gov.in/judis
6.The learned counsel further submits that the
Management has not proved the case as against the second
respondent, before the enquiry officer. However, the enquiry officer
has submitted his report as proved. The charges framed as against
the second respondent is that he has issued four unconnected tickets
to the passengers and thereby misappropriated a sum of Rs.24/-,
however, those passengers were not examined during the enquiry.
Therefore, the Management has not established its case that the
second respondent has issued bogus tickets, which are not connected
to the concerned trip. The learned counsel further submits that this is
a specific case of the second respondent that the Checking Inspector
has collected the tickets from the passengers and has taken those
unconnected tickets from his pocket and projected the case as
against the second respondent. When such a specific plea has been
taken by the second respondent, in all fairness, the Management
ought to have examined the passengers and should have established
its case properly. Therefore, the punishment imposed on the
petitioner cannot be sustained on this ground.
https://www.mhc.tn.gov.in/judis
7.In reply, the learned counsel for the petitioner
Management has raised objections that the first respondent has
rendered a finding with regard to this issue that the charges levelled
as against the second respondent have been proved by the
Management, however, refused to grant approval on the sole ground
that the petitioner Management has not paid the one month wages to
the second respondent, as required under Section 33 (2)(b) of the
Act. Therefore, the petitioner cannot raise this plea, without
challenging the findings of the first respondent.
8.The learned counsel for the second respondent has
relied on the Judgment of this Court in W.P.No.5870 of 1979, dated
07.12.1981, wherein, this Court has held as follows:-
''4. On going through the order of the 3rd respondent,
I find that he has not discussed the salient features of
Ex.R.1 the contract entered into between the
petitioner and the Corporation, to find out as to
whether the petitioner can be characterized as 'a
person employed within the meaning of the Act,
https://www.mhc.tn.gov.in/judis
Equally so, the third res- pondent has not discussed
the evidence placed by the parties on this aspect It is
contended on behalf of the petitioner that the
Corporation cannot, in the present writ petition
canvass the findings which have gone against it
before the third respondent, and on that ground,
sustain the order of the third respondent. I am not
able to sustain this approach of the petitioner. The
reasons are as follows:-
The ultimate order passed by the third
respondent has enured to the benefit of the
Corporation. Hence, there is no scope for the
Corporation to approach this Court independently
agitating over this aspect. The Supreme Court in
Nothern Railway Co-operative Credit Society Ltd. v.
Industrial Tribunal Jaipur [1967-II LL.J. 46) was
prepared to apply the principles of rule 22 of Order
XLI of the Code of Civil Procedure in the matter of
an appeal before it against the order of an industrial
tribunal, even though in the rules of the Supreme
Court there was no rule an alogous to rule 22 of
Order XLI of the 10 Code of Civil Procedure and
held that the party is entitled to support the decision
of the tribunal even on grounds which were not
https://www.mhc.tn.gov.in/judis
accepted by the tribunal or on other grounds which
may not have been taken notice of by the tribunal
while they were patent on the face of the record.
Learned judges of the Supreme Court referred to two
Judgments of the same court, one is Ramanbhai
Ashabhai Patel v. Dabhi Ajitkumar Fulsinji (AIR
1965 SC 669) and the other in 20 Powari Tea Estate
v. Barkataki [1965-II L.L.J. 102]. In my view, the
same principles should be invoked in writ
jurisdiction also while canvassing orders passed by
authorities similar to the third respondent. There is
no scope for the party who has ultimately succeeded
before the statutory tribunal and authority to
approach this Court under Article 226 of the
Constitution of India for the only purpose of
canvassing a particular finding which has gone
against him. There is a possibility that a relevant
aspect or material already on record which, if
properly assessed and considered, would have led to
a finding being rendered on that aspect in favour of
the party concerned. It would be equitous for this
court, in the exercise of its jurisdiction under Art.226
of the Constitution of India, to permit such a party to
canvass those aspects and support the ultimate order
https://www.mhc.tn.gov.in/judis
of the tribunal or authority on grounds, which have
been negatived by it.''
9.This Court considered the rival submissions made and
also perused the materials placed on record.
10.Admittedly, the second respondent was working as a
conductor under the petitioner Management. While he was on duty
in a trip from Vadakoor to Gandharvakottai, in a bus bearing
Reg.No.TN 01 N 3761 on 29.04.2013, there was checking by the
Checking Inspector at Parukkaviduthi Bridge and during the
inspection, they found that a group of two passengers, who have
travelled from Karuppattipatti (Chellampatti) to Pallavarayanpatti
and another group of two passengers, who travelled from
Karuppattipatti (Chellampatti) to Pallavarayanpatti were issued with
tickets, which were not connected to the concerned trip. Since the
conductor/the second respondent has issued the unconnected tickets,
he was issued with a charge memo on 20.05.2013, for the allegation
https://www.mhc.tn.gov.in/judis
of misappropriation of a sum of Rs.24/- to the Management. The
second respondent did not offer any explanation to the charge
memo. Therefore, an enquiry was ordered and the second respondent
has participated in the enquiry and marked two documents as Exs.B1
and B2. The enquiry officer has submitted his report on 21.10.2013
holding that the charges were proved and enquiry report was also
furnished to the second respondent and he was called upon to submit
his objection, if any, by a proceedings, dated 24.10.2013. The second
respondent did not offer his objections. Therefore, a second show
cause notice was issued to him on 07.03.2014 by proposing a
punishment of dismissal from service. The second respondent has
replied to the second show cause notice on 27.03.2014. Not satisfied
with the reply, the Disciplinary Authority has imposed a punishment
of dismissal from service by order, dated 27.09.2014. It is to be
noted that the decision was taken by the Disciplinary Authority after
considering the previous conduct of the second respondent that he
has suffered 45 punishments in his service, including 6 punishments
for similar misconduct of misappropriation. This dismissal order has
https://www.mhc.tn.gov.in/judis
also been communicated to the second respondent along with a
cheque for a sum of Rs.17,520/-, dated 27.09.2014, the last drawn
wages of the second respondent.
11.The scope of the enquiry by the first respondent
under Section 33(2)(b) of the Act is to ascertain:-
i. Whether the Disciplinary enquiry was conducted in a
proper manner and in accordance with the relevant Act and
Rules?
ii. Whether the Principles of natural justice was followed?
iii. Whether a prima facie case for dismissal based on the legal
evidence adduced during the enquiry is made out?
iv. Whether the employer has appreciated the evidence
properly and the punishment is not amounting to unfair
labour practice or not intending to victimize the employee?
v. Whether the employer has paid or offer to pay the wages of
one month to the employee?
https://www.mhc.tn.gov.in/judis
In this case, the first respondent has framed the following issues
before deciding the A.P.No.211 of 2014:-
i. Whether the domestic enquiry was conducted in accordance
with the standing orders and the principles of natural
justice?
ii. Whether the Management has proved the prima facie case
as per the legal evidence?
iii. Whether the Management has imposed the punishment in
order to victimize the employee?
iv. Whether one month wages was fully paid to the employee?
12.The first respondent has found that the first three
issues are properly complied with by the Management. However, on
the issue No.4, has given a finding that the Management has not paid
the one month wages to the employee, as required under the Act and
rejected the petition for approval.
https://www.mhc.tn.gov.in/judis
13.The only issue, which needs to be decided in this writ
petition is that whether the findings of the first respondent that the
last drawn wages for one month payable to the second respondent as
per the provision under Section 33(2)(b) of the Act has been paid to
him or not. The first respondent found that the last drawn wages was
paid, however not at the rate of enhanced DA 107%. It is an
admitted case that the last drawn wages of the second respondent on
the date of punishment was Rs.17,520/-, which includes 100% DA
and the same was applicable to the second respondent at that
relevant point of time. The said amount was paid to the second
respondent vide Cheque No.319853, dated 27.09.2014 at the time of
sending the dismissal order itself. The second respondent claims that
the enhanced DA of 107%, as per G.O.No.245, dated 10.10.2014,
with retrospective effect from 01.07.2014 has not been paid to the
second respondent. It is reported that the differential amount due to
the enhanced DA for a sum of Rs.590/- was also paid to the second
respondent, vide Cheque No.956322, dated 08.06.2015 and
https://www.mhc.tn.gov.in/judis
therefore, the findings of the first respondent is not correct, which
needs to be interfered with.
14. Another contention raised by the learned counsel for
the second respondent is that the enquiry has not been conducted in
a proper manner. The ratio, which needs to be appreciated in a
domestic enquiry is ''preponderance of probability''. During the
enquiry proceedings, the second respondent was allowed to cross
examine the witness/the Checking Inspector, Meenakshi Sundaram.
The statements of the passengers and the unconnected tickets, which
were recovered have been marked as documents during the enquiry.
The second respondent has not disputed the statements of the
passengers. It is not possible for the Management to trace out all the
passengers and subject them for examination. Though the second
respondent has claimed that in order to victimize him, this
punishment has been imposed on him, he has not raised any grounds
to produce any witness either the Management or the Checking
Inspector is having any motive as against him.
https://www.mhc.tn.gov.in/judis
15.Insofar as the claim of the second respondent for the
current wages is concerned, this Court has noted down that the
application filed by the second respondent in WMP(MD) No.16208
of 2016 to re-instate him in service or to pay the last drawn wages
till the disposal of the main writ petition was ordered by this Court
on 27.03.2019, as against which, writ appeal preferred by the
petitioner Management in WA(MD) No.941 of 2019 was dismissed
by this Court on 25.09.2019. It appears that in order to avoid
payment under Section 17(b) of the Act, the petitioner Management
has re-instated the second respondent in service from the month of
March 2021. However, the payment of wages has not been made as
that of his junior. Therefore, he has moved this application seeking
current/equal wages at the rate of Rs.68,881.75/- with a basic pay of
Rs.46,100/-, every month, on par with his junior, from March 2021
till the date of disposal of this writ petition.
https://www.mhc.tn.gov.in/judis
16.This Court is of the view that in order to avoid
payment under Section 17(b) of the Act, the petitioner Management
has inducted the petitioner in the month of March -2021 in service,
however, failed to pay the wages as per norms.
17.In view of the foregoing observations and
discussions, this Court has come to the conclusion that the enquiry
conducted in this case is as per the standing orders and by providing
sufficient opportunity to the second respondent; the Principles of
natural justice was followed. Therefore, this Court is of the view
that there is no error in the findings of the enquiry officer and
therefore, the order passed by the first respondent in A.P.No.211 of
2014 is liable to be set aside.
18.Accordingly, this writ petition is allowed and the
order impugned in this writ petition is hereby set aside and the order
of punishment imposed by the Disciplinary Authority on the second
respondent is confirmed. WMP(MD) No.17280 of 2023 in WP(MD)
https://www.mhc.tn.gov.in/judis
No.18681 of 2016 is allowed. The petitioner Management is
directed to pay proper wages as applicable/payable to the second
respondent from the date of his reinstatement in service, i.e from
March 2021 to till date, within a period of six weeks from the date of
receipt of a copy of this order. No Costs. Consequently, connected
Miscellaneous Petition in WMP(MD) Nos.13509 of 2016 is closed.
11.09.2024
NCC:Yes/No
Index:Yes
vrn
To
The Special Deputy Commissioner of Labour,
Chennai.
https://www.mhc.tn.gov.in/judis
B.PUGALENDHI, J.
vrn
Order made in
W.P(MD)No.18681 of 2016 and
WMP(MD) Nos.13509 of 2016 &17280 of 2023
11.09.2024
https://www.mhc.tn.gov.in/judis
