Madras High Court
B.Seenivasan vs The General Manager on 19 September, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P(MD)No.7957 of 2023
B.Seenivasan ... Petitioner
Vs.
The General Manager,
Tamil Nadu State Transport Corporation Limited,
(Madurai Division-V),
No.6/377, Madurai Road,
Virudhunagar – 626 001. ... Respondent
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India,
to issue a writ of Certiorarified Mandamus, to call for the records relating to the
impugned order passed by the respondent in Parvai:Tha.A.Po.
Ka/Virudhu/Nirvagam/A1/263/2022 dated 15.11.2022 and quash the same and
further direct the respondent to pass order to release the monetary benefits from
28.01.2003 with continuity of service with back wages.
For Petitioner : Mr.N.Tamilmani
For Respondent : Mr.K.Ramaiah
Standing Counsel
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ORDER
The instant writ petition has been filed by a retired Selection Grade
Conductor of the respondent transport corporation, challenging the order dated
15.11.2022, wherein the petitioner was reinstated in service with continuity of
service. However, the backwages has been rejected.
2.The petitioner herein was issued with a charge memo after conducting
an enquiry. Based upon the enquiry report, a second show cause notice was
issued to the writ petitioner on 19.12.2000. Challenging the said second show
cause notice, the petitioner has filed O.S.No.2 of 2001 before the District
Munsif Court, Virudhunagar, with a prayer to declare that the said show cause
notice is null and void and to restrain the defendant transport corporation from
initiating any further action as against the writ petitioner. The suit was
dismissed by the trial Court on 07.10.2002. Based upon the dismissal of the
suit, the respondent transport corporation has passed an order of termination on
16.10.2002.
3.Aggrieved over the judgment and decree of the trial Court, the
petitioner herein has filed A.S.No.44 of 2002 before the Sub Court,
Virudhunagar. The learned Subordinate Judge was pleased to allow the appeal
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and decreed the suit as prayed for by the judgment and decree dated 28.01.2003.
Challenging the said judgment and decree of the first appellate Court, the
Management had filed S.A.No.1368 of 2003 before this Court. This Court after
considering all the issues, including the maintainability of the suit, had
dismissed the Second Appeal on 08.10.2018. This judgment and decree of the
High Court has attained finality.
4.After a period of 4 years from the date of dismissal of the second
appeal, the present impugned order has been passed by the respondent transport
corporation on 15.11.2022 to the effect that the petitioner shall be deemed to
have reinstated in service on 28.01.2003(the date on which the first appeal was
allowed) with continuity of service but without backwages. The petitioner was
permitted to retire w.e.f.31.05.2014. This order is challenged by the employee
on the ground that he should have been paid the backwages also for the said
period of non-employment.
5.According to the learned Counsel appearing for the writ petitioner, the
petitioner has challenged the second show cause notice by way of filing a civil
suit. Immediately after the suit was dismissed, the authorities have proceeded to
pass on order of termination. However, the second show cause notice was held
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to be null and void by the first appellate Court and it was confirmed by the High
Court. In such circumstances, the termination order becomes invalid and the
petitioner would be entitled to all the monetary benefits for the period of his
non-employment.
6.Per contra, the learned Standing Counsel appearing for the respondent
had contended that the petitioner having been terminated on 16.10.2002, he was
deemed to have been reinstated only on 28.01.2003, the date on which the first
appeal was allowed. The learned Standing Counsel appearing for the respondent
has relied upon the judgment of the Hon'ble Supreme Court in the case of
Pradeep Vs. Manganese Ore(India) Limited and others reported in 2022 (3)
SCC 683 to impress upon the Court that when there is a wrongful termination
and ultimately the Court finds that termination was found to be unjustified, even
in a such case, the payment of backwages is not automatic, but it is the
discretion of the Court.
7.I have carefully considered the submission made on either side and
perused the materials available on record.
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8.A Conductor of the respondent transport corporation has challenged the
second show cause notice, proposing to impose a punishment of termination
from service. Though the suit was dismissed by the trial Court, the same was
allowed as prayed for by the first appellate court and it was confirmed in second
appeal. In such circumstances, it is clear that the second show cause notice
issued by the Management is null and void. When the second show cause notice
is declared to be null and void by the Court, unless the Management issues
another second show cause notice, the question of imposing the punishment of
termination would not arise. In the present case, admittedly, the termination
order has been passed on 16.10.2002, relying upon the dismissal order passed
by the trial Court. It is settled position of law, once the first appellate Court
passes a decree for the first time, it is to be deemed that such a decree has been
passed by the trial Court itself. In such circumstances, the order of termination
is clearly null and void and it cannot have any effect in the eye of law.
9.The first appellate Court had decreed the suit as prayed for on
28.01.2003. Even, thereafter, the petitioner was not reinstated in service.
Therefore, the petitioner would be entitled to backwages atleast from
28.01.2023 onwards. However, that has also been rejected under the order
impugned in the writ petition. Therefore, it is clear that when the second show
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cause notice has been held to be invalid and under the impugned order, the
respondent Management had reinstated the petitioner w.e.f.28.01.2003 itself, the
Management has to pay the salary atleast from 28.01.2003 onwards, if not from
the date of dismissal namely on 16.10.2002.
10.When the respondent Management has chosen to accept the civil
Court decree and has proceeded to notionally reinstate the petitioner w.e.f.
28.01.2003, thereafter, they cannot deny the backwages, especially in the light
of the fact that the second show cause notice issued by the Management has
been held to be null and void.
11.In view of the above said deliberations, the order impugned in the writ
petition with regard to rejection of the backwages is hereby set aside. There
shall be a direction to the respondent transport corporation to pay the
backwages from 28.01.2003 onwards with all consequential monetary benefits
within a period of twelve weeks from the date of receipt of a copy of this order.
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12.With the above said observations, this writ petition stands allowed. No
costs.
19.09.2024
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
RJR
To
The General Manager,
Tamil Nadu State Transport Corporation Limited,
(Madurai Division-V),
No.6/377, Madurai Road,
Virudhunagar - 626 001.
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R.VIJAYAKUMAR, J.
RJR
19.09.2024
https://www.mhc.tn.gov.in/judis
